2008 BCCA 33 Johnson v. Global Television Network Inc. (CH Vancouver Island)

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*Johnson v. Global Television Network Inc. (CH Vancouver Island),*
	2008 BCCA 33

Date: 20080124

Docket: CA035255

Between:

Stuart Johnson

Respondent

(Plaintiff)

And

Global Television Network Inc.,

a wholly owned subsidiary of

CanWest Global Communications Corp.,

doing business as CH Vancouver Island

Appellant

(Defendant)

Before:	The Honourable Chief Justice Finch
	The Honourable Mr. Justice Chiasson
	The Honourable Mr. Justice Tysoe

N.T. Mitha and A. Kundi	Counsel for the Appellant
E.L. Montague	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
December 14, 2007
Place and Date of Judgment:	Vancouver, British Columbia
January 24, 2008

Written Reasons by:

The Honourable Mr. Justice Tysoe

Concurred in by:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Chiasson

Reasons for Judgment of the Honourable Mr. Justice Tysoe:

Introduction

[1] At issue in this appeal is whether the respondent, Stuart Johnson, was required to retire from his employment with the appellant, Global Television Network Inc. ("Global"), on the first day of the month following his 65th birthday. In the event that Mr. Johnson was not required to retire on that day, there is an issue of whether pension benefits received by Mr. Johnson after his 65th birthday should have been deducted from the award of damages for wrongful dismissal made in his favour.

[2] In her reasons for judgment, 2007 BCSC 981, 60 C.C.E.L. (3d) 241, the trial judge concluded that Mr. Johnson had been constructively dismissed by Global. In determining the reasonable period of notice that Global should have given Mr. Johnson in terminating his employment, the trial judge concluded that mandatory retirement was not a term of the employment contract between Mr. Johnson and Global. She awarded damages based on a period of notice that extended beyond the first day of the month following Mr. Johnson's 65th birthday. In assessing the damages, the judge did not deduct the pension benefits paid to Mr. Johnson during the notice period after his 65th birthday.

Background

[3] Mr. Johnson worked for television stations operated by Global and its predecessor for 39 years, commencing in 1965. He began in a unionized position and worked his way up to the position of manager of on-air operations for BCTV and CHEK TV. He was working as the manager of on-air operations out of the Victoria station (then known as CH Vancouver Island) when his employment with Global came to an end. The trial judge found him to be a skilled, conscientious and dedicated employee.

[4] When Mr. Johnson commenced his employment, Global's predecessor offered a voluntary pension plan to its employees with a minimum of two years' service. Mr. Johnson did not join the pension plan when he first became eligible in 1967.

[5] In 1969, Global's predecessor obtained a new staff retirement plan, being Schedule A to a Deed of Trust entered into with National Trust Company, Limited (the "Staff Retirement Plan" or the "Plan"). Membership in the Plan was voluntary, and contributions to the Plan were made by both the employee and the employer. Mr. Johnson decided to join the Plan in 1974 and signed a "required deduction card" by which he agreed to participate in the Plan and authorized deduction of his contributions from his earnings. Mr. Johnson was never given a copy of the Plan, nor did he ever request a copy of it.

[6] Section 6 of the Staff Retirement Plan deals with the topic of retirement. It read, at the time Mr. Johnson joined the Plan, as follows:

6. (a) The normal retirement date for each member shall be the first day of the month coincident with or immediately following his sixty-fifth birthday, if male, and her sixtieth birthday, if female.

(b) A member may, with the consent of the Company, retire before his normal retirement date. The early retirement date of the member shall be the first day of any month agreed to by the Company.

(c) A member may, with the consent of the Company granted on a year to year basis, remain in the service of the Company beyond his normal retirement date. The deferred retirement date of the member shall be the first day of the month immediately following the month he ceases to be an employee provided that such date shall not be later than the member's 71st birthday.

During the course of Mr. Johnson's membership in the Plan, there were some non-material revisions to section 6 (e.g., to remove the distinction between males and females in paragraph 6(a)).

[7] Although Mr. Johnson was never provided with a copy of the Staff Retirement Plan, he did receive a brochure entitled "BCTV and You". As to the timing of his receipt of the brochure, Mr. Johnson testified that "it could have been late 1970s, early 1980s", but it is apparent on the face of the brochure that it was created no earlier than November 1987 and perhaps as late as 1992. It is possible that Mr. Johnson had also received an earlier version of the brochure.

[8] After summarizing the history of BCTV, the brochure set out information relevant to employees. It contained a summary of employee benefits, including life insurance, accident insurance, disability income protection and extended health care. The brochure also contained a section about the Staff Retirement Plan (which was referred to in the brochure as the "BCTV Pension Plan"). It stated that the brochure was intended only to give a brief description of the Plan and that if there was any conflict between the official Plan Text and the description, the Plan Text would apply. It contained the following excerpts:

When do you retire?

Your normal retirement date is the first day of the month coincident with or immediately following your sixty-fifth birthday. However, there is a provision for earlier or later retirement under special circumstances with the consent of the Company.

* * *

Can you retire early?

You may elect to retire early on the first day of any month provided you have then reached age 55 and commence receiving the reduced pension which has vested in you.…

Can you postpone your retirement?

You may, with the consent of the Company, retire later than your normal retirement date. In this case, you will receive at your retirement the amount of pension which you have earned to the postponed retirement date. However, under current Revenue Canada rules your pension must commence no later than age 71.

[9] An employee booklet was also distributed by Global to its employees in 2002. The purpose of the booklet was to explain the Staff Retirement Plan. It contained the following sections:

Normal Retirement

The normal retirement date is the first day of the month after you reach age 65.

Postponed Retirement

If you postpone your retirement beyond age 65 at your retirement you will receive the amount of pension that you have earned to the postponed retirement date. However, under current Income Tax rules your pension must start no later than age 69.

The booklet also contained a section describing early retirement. It stated that an employee could retire after reaching age 55 and take a reduced pension, which was described in general terms.

[10] Global also sent annual statements of pensions to its employees who belonged to the Staff Retirement Plan. The statements contained information according to the Plan's records, including "your normal retirement date" which, in the case of Mr. Johnson, was stated to be "1 August 2005", and including the amount of annual pension which would be payable at age 65 (the form of the statement was changed in 1990 to show the amount of annual pension payable at "your normal retirement date").

[11] In addition to the events leading to the termination of Mr. Johnson's employment with Global, some events of relevance occurred during the latter part of the 1990s. In 1997, Global's predecessor decided to make some downsizing changes in its organization and advised Mr. Johnson that he was being laid off. A "buyout package" was finalized between the parties in November 1997, and it was anticipated that Mr. Johnson would be departing in the spring of 1998.

[12] Before Mr. Johnson departed, however, the unionized employees of Global's predecessor went on strike in June 1998. Mr. Johnson continued working, and BCTV and CHEK TV were able to stay on air during the five-week strike. After the strike was over, Mr. Johnson received a letter from the President of Global's predecessor thanking him for his "unwavering dedication and for being at the helm when BCTV really needed you." In addition, the Vice-President of Engineering testified that, on instructions from his superior, he told Mr. Johnson that "the lay-off notice had been lifted and it looks like you are going to be able to stick with us as long as you want". Mr. Johnson testified that he was told by the Vice-President of Engineering that he "had a job as long as [he] wanted."

[13] Mr. Johnson did continue working until 2004. At that time, Global decided to transfer the master control functions from Victoria to Global Calgary. On August 23, 2004, the General Manager of the Victoria station met with Mr. Johnson and wrote him a memorandum advising that Global no longer required the position of Manager Operations after November 27, 2004, when the transfer of the master control functions was expected to occur. The memorandum stated that the records indicated that Mr. Johnson would reach age 65 on July 7, 2005, with the result that his normal retirement date was August 1, 2005. It went on to advise Mr. Johnson that his services would not be required after the transfer of the master control functions and that he would remain on the payroll until July 31, 2005.

[14] After discussing the situation with other employees affected by the transfer and learning that most of them were receiving close to two years' notice or severance, Mr. Johnson wrote to the General Manager on August 31, 2004. He stated that "the proposal falls short of what would be reasonable in my circumstances" and that "[a]lthough perhaps it was assumed that I would want to retire at 65, it has never to my knowledge been a mandatory requirement to do so, and unless I'm mistaken, this has never been part of my employment contract."

[15] The General Manager replied with a letter dated September 3, 2004, stating that if Mr. Johnson decided to decline the offer in the memorandum of August 23, he assumed that Mr. Johnson would wish to continue working until August 1, 2005, and he would be kept busy on a variety of projects for the Victoria station and Global BC. During the fall of 2004, correspondence was exchanged between the parties and between their lawyers with respect to the issue of whether there was a mandatory retirement age of 65 and the details of projects on which Mr. Johnson would be expected to work after the transfer of the master control functions to Calgary.

[16] At the beginning of December 2004, Mr. Johnson's lawyer inquired of Global's lawyer whether, if Mr. Johnson opted to accept the proposed reassignment of work, it would be for an indefinite term or only until age 65. Global's lawyer replied that it was premature at that time for Global to consider whether special circumstances existed and that, if Mr. Johnson still wanted to work when he reached the age of 65, Global would consider whether special circumstances existed at the time of his normal retirement date.

[17] On December 8, 2004, Mr. Johnson's lawyer responded with a letter stating that the proposed reassignment of Mr. Johnson to a different role constituted a fundamental breach of his employment contract and that Mr. Johnson elected to treat the unilateral change to his employment as a constructive dismissal. Mr. Johnson did not work for Global after the date on which this letter was written.

Decision of the Trial Judge

[18] After setting out the relevant facts, the trial judge reviewed the decisions in Brown v. Coles (1986), 5 B.C.L.R. (2d) 143 (C.A.); Starcevich v. Woodward's Limited (1991), 58 B.C.L.R. (2d) 254, 37 C.C.E.L. 46 (S.C.); Ellison v. Burnaby Hospital Society (1992), 42 C.C.E.L. 239 (B.C.S.C.); and McLaren v. Pacific Coast Savings Credit Union, 2000 BCSC 186, 49 C.C.E.L. (2d) 145, aff'd 2001 BCCA 388, 89 B.C.L.R. (3d) 14. She also reviewed several decisions relied upon by counsel for Global and found them all to be distinguishable from the case at bar. She then reasoned as follows:

[83] … In my view, the McLaren decisions lead to the conclusion that any terms of an employment contract must be clearly and unequivocally communicated, understood and accepted by both parties. This requirement is confirmed by both Starcevich, supra, and Brown, supra. Furthermore, an employer must turn its mind to any exceptions that may be made with respect to a company retirement policy and communicate to an employee its intention to either exercise or refuse to exercise any discretion afforded.

[84] No documentary evidence exists stating that retirement at the age of 65 is mandatory in this case. It was never an express term of any employment contract between the parties. There was no written employment contract between these parties. And given the evidence with regard to company documents that referred to early and/or postponed retirement, it cannot be said that mandatory retirement was an implied term in the employment contract between these parties.

[19] The trial judge went on to hold that (i) Mr. Johnson had been constructively dismissed, (ii) the appropriate period of notice of termination of his employment was 24 months, (iii) Mr. Johnson did not fail to mitigate his damages and (iv) Mr. Johnson was not entitled to aggravated damages. These holdings are not challenged in this appeal. Finally, the trial judge held that the pension benefits received by Mr. Johnson during the 24 month notice period were not deductible from the award of damages for wrongful dismissal.

[20] The trial judge awarded damages to Mr. Johnson in the amount of $202,331.60, together with pre-judgment interest in the sum of $9,574.18, for a total of $211,905.78. The damages represented Mr. Johnson's base salary for 24 months (as augmented by normal salary increases) and bonuses and a car allowance that would have been paid during the 24 month period if he had continued working for Global.

[21] Although the trial judge found Mr. Johnson to have been constructively dismissed as of December 8, 2004, it could be argued that his employment was terminated when the General Manager of the Victoria station sent the memorandum dated August 23, 2004 advising him that his services were no longer required after the master control functions were transferred to Global Calgary. The ensuing discussions and correspondence could be viewed as failed negotiations after Mr. Johnson indicated that he did not want to stop working, as opposed to a withdrawal of Global's notice of termination. This difference has an impact on when a period of reasonable notice would begin to run. This point does not appear to have been raised at trial and was not argued on appeal; indeed, Global conceded at the hearing of the appeal that Mr. Johnson was constructively dismissed as of December 8, 2004. I will proceed on the basis of Global's concession.

Discussion

[22] It is well settled that, in the absence of an express agreement between an employer and an employee, the law implies a term in their employment contract that the employer will not terminate the contract unless either (i) there is just cause to terminate the employee's employment or (ii) the employer gives reasonable notice of the termination to the employee. For a discussion of implied terms in employment contracts generally, see the reasons of McLachlin J. (as she then was) in Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, 91 D.L.R. (4th) 491.

[23] If the employer terminates the employment contract without just cause and without giving reasonable notice of termination, the employee is considered to have been wrongfully dismissed and is entitled to damages equal to the employee's salary and benefits that would have accrued during the period of notice that should have been given by the employer. In the event that there is a term of the employment contract requiring the employee to retire at a certain date, the reasonable period of notice will not extend past the date for retirement because the employee will not have had the contractual right to continue to be employed by the employer beyond that date.

[24] The principal issue in this appeal is whether there was a term of the employment contract between Global and Mr. Johnson requiring him to retire on the first day of the month following his 65th birthday. It was not a term of the contract when Mr. Johnson began his employment with Global's predecessor, and the question becomes whether it became a term of the contract during the course of his employment.

[25] The decisions relied upon by the trial judge, Brown v. Coles, Starcevich v. Woodward's Limited, Ellison v. Burnaby Hospital Society and McLaren v. Pacific Coast Savings Credit Union, were all cases where it was held that a policy introduced by the employer during the course of the employee's employment had not become a term of their employment contract.

[26] In Brown, a new retirement policy was imposed by the employer shortly before the employee reached the retirement age under the policy. This Court held that the new policy did not take effect because the employer had not given reasonable notice of the policy to the employee. The employer was found to have wrongfully dismissed the employee when it required her to retire upon reaching the retirement age under the policy.

[27] In Starcevich, the employer had implemented a severance policy during the employee's period of employment. Prowse J. (as she then was) held that in order for the severance policy to become a term of the employment contract, the employer had the onus of demonstrating that the policy was accepted by both parties as a term of the employment contract. The employer did not discharge the onus in that case, and the employer was ordered to pay damages based on a reasonable period of notice of termination.

[28] In Ellison, the employer had introduced a benefits policy 21 years after the employee had commenced employment with the employer. The policy contained provisions relating to termination and severance. Prowse J. referred to her earlier decision in Starcevich and found that the benefits policy had not become a term of the employment contract. She held that while there is no question that such a policy could form part of the employment contract if it was clear that the employer and employee intended it, there was no indication in that case that the employer had been relying on the policy as forming part of the employment contract.

[29] Like Brown and the present case, the McLaren case involved a retirement policy which was created by the employer after the employee had commenced employment with the employer. The policy provided that normal retirement age was 65, but exceptions could be made with the approval of the chief executive officer. The employee learned of the policy when he read about it in an employee manual. The employee was the manager of one of the employer's branches, and he told his superior approximately seven months before turning 65 that he wished to continue as a branch manager for 14 months after he reached 65. Approximately one month later, the employee was told that he could not continue as a branch manager beyond his 65th birthday, but he could continue as an account manager. The employee was not interested in this position because it represented a significant demotion. The employee sued for wrongful dismissal when he was required to retire at the age of 65.

[30] Maczko J. held that the retirement policy did not form part of the employment contract because it was not effectively communicated to the employee and he had never conveyed his acceptance that the policy applied to him. Maczko J. also held that the employee was not given clear and unequivocal notice of dismissal until he was told six months prior to his 65th birthday that he could not continue as a branch manager beyond his 65th birthday.

[31] In upholding the decision of Maczko J., this Court made the following comments which were relied upon by the trial judge in this case:

[8] … Although I accept that the respondent, in a general way, was aware of company policy that most people in the company would retire at age 65, I believe that it was open to the trial judge to find on the evidence that there was an element of ambiguity in the stated policy. I say that because the retirement policy was not couched in absolute terms - it would be possible according to the circular for an individual to continue on with his or her employment "with the approval of the Chief Executive Officer". It was only in the latter part of March of 1997 that the respondent was unequivocally informed by senior management that he would not be permitted to continue his then employment beyond the date of his 65th birthday.

[9] It appears to me that the trial judge was entitled to conclude that it had not been clearly brought home to the respondent prior to March 1997 that he would definitely be required to retire on the occasion of his 65th birthday in October 1997. It has been held that a notice of termination must be clear and unambiguous to be effective - see Reynolds v. First City Trust Co. (1989), 27 C.C.E.L. 194 (B.C.S.C.). In this case there had been no clear notice given to the respondent prior to March 1997 that he would on turning 65 be required to retire and thus dismissed from further employment. Since this was only six months prior to his 65th birthday, the trial judge found there had been [sic] not been sufficient notice of dismissal given by the employer in this case. As a consequence he held that damages in lieu of notice would be payable upon the usual contract of employment principles.

[32] It is important to bear in mind the context in which these comments were made. Maczko J. had found that the retirement policy was not a term of the employment contract, and his finding was not disturbed by this Court. It also had to be determined when the employee had been given notice of termination of his employment. In accordance with the common law that has developed in connection with the implied term of the employment contract requiring reasonable notice of termination, the employer was required to give clear and unambiguous notice of termination. Although the employee was aware in a general way that most employees would be required to retire at age 65, there was a possibility that employees could work beyond the age of 65 with the approval of the chief executive officer. Hence, the employee was not given clear and unambiguous notice of his termination on his 65th birthday until he was told six months prior to his 65th birthday that he could not continue as branch manager beyond his 65th birthday. Six months notice of termination was not sufficient notice.

[33] In the present case, the trial judge correctly stated in paragraph 83 of her reasons for judgment that any terms of an employment contract must be accepted by both parties. However, the trial judge failed to review the evidence to determine whether the retirement policy was accepted by both parties. Rather, she simply concluded at paragraph 84 that the retirement policy was not an express term because there was no written employment contract between the parties. What the trial judge overlooked was that there need not be a written employment contact and a term can be an express term of the employment contract if it was accepted by both parties.

[34] In this case, the retirement provision was part of the Staff Retirement Plan, and Mr. Johnson voluntarily joined the Plan. He received consideration in the form of contributions made to his pension plan by Global and its predecessor for approximately 30 years. Mr. Johnson was not given a copy of the Plan, but, by the early 1990s and perhaps earlier, he did receive a brochure describing the retirement provision. He continued his employment with Global and its predecessor for many years with the knowledge that the retirement provision applied to him. It is a reasonable inference from this evidence that Mr. Johnson accepted the retirement provision, but it is unnecessary to draw an inference in view of his testimony.

[35] Mr. Johnson gave the following testimony about the Staff Retirement Plan during his cross-examination:

Q You acknowledge, Mr. Johnson, that the company pension plan was a benefit provided to you as an employee of the company?

A Yes.

Q You acknowledge, Mr. Johnson, that the terms and conditions applicable to the pension plan applied to you as part of your contract of employment?

A Yes.

* * *

Q … And I take it by joining the pension plan, you accepted those terms and conditions applying to you, did you not?

A Yes, whatever was in the plan.

Q All right. And that by applying to you, you accepted that they were part of your contract of employment?

A Yes.

[36] Mr. Johnson gave the following testimony when being questioned during cross-examination about the brochure entitled "BCTV and You" that he acknowledged had been provided to him:

Q I take you to "When Do You Retire?" Do you see that heading?

A Yes.

Q And it says:

Normal retirement date is 1st day of month coincident with or immediately following your 65 birthday.

Do you see that?

A Yes.

Q And do you agree that that was part of the terms and conditions of the pension plan which applied to you?

A Yes.

Q And that it was part of your contract of employment?

A Yes.

Q And that there may be a provision for earlier or later under special circumstances with the consent of the company? That as well?

A Yes.

Q And you agree that that description under "When You Retire", both sentences, applied to you?

A Yes.

Q And you considered them as part of your contract of employment?

A Yes.

Q So you knew from this, I put it to you, Mr. Johnson, that you knew your retirement would be the 1st day of the month coincident with immediately following your 65 birthday unless there was a special circumstance and the company gave its consent?

A Yes.

* * *

Q And you accepted that being part of your contract of employment?

A Yes.

Q So I put it to you, Mr. Johnson, that certainly after reviewing [the brochure], you knew that you were to retire at 65 with those - - unless those exceptions were there?

A Yes.

* * *

Q So from these documents, coupled with the pamphlet and you reviewed, I take it you knew that your expected date of retirement was age 65?

A I knew the normal date was, yes.

Q And when you say "normal", you mean exception to the normal being special circumstances with the consent of the company?

A Yes.

Q And if you didn't have the consent of the company, you knew that you would be required to retire at age 65?

A That's what the plan says, yes.

Q But not only does the plan say that, Mr. Johnson, I'm putting to you that you knew that that's what would be required of you if there was no consent of the company to go beyond age 65?

A Right.

[37] What is clear from this testimony is that Mr. Johnson accepted that the retirement provision of the Staff Retirement Plan was a term of his employment contract and that he understood what was meant by it. It is my opinion that, in view of this testimony, the trial judge made a palpable and overriding error in concluding that the retirement provision was not a term of Mr. Johnson's employment contract and that Global was not entitled to require him to retire on the first day of the month following his 65th birthday.

[38] Counsel for Mr. Johnson points to the fact that section 6 of the Staff Retirement Plan makes no mention of the requirement for special circumstances referred to in the brochure. In my view, nothing turns on this point. Global's predecessor simply elaborated in the brochure that its consent to an employee working past age 65 would only be considered in special circumstances.

[39] Counsel for Mr. Johnson also points to the fact that the employee booklet distributed in 2002 did not mention that the consent of Global was required for an employee to postpone their retirement beyond age 65. But there was no misunderstanding on the part of Mr. Johnson. He knew that the consent of Global was required if he was to continue working past age 65.

[40] Counsel for Global cites three decisions of arbitrators where the use of the term "normal retirement date" in collective agreements has been interpreted to connote mandatory retirement (namely, Lehigh Northwest Cement Ltd. v. Boilermakers' Lodge D-277 (Soh Grievance) (2005), 142 L.A.C. (4th) 108; Re University of Manitoba and Association of Employees Supporting Education Services (1980), 27 L.A.C. (2d) 129; and Independent Electricity System Operator v. Society of Energy Professionals (Islam Grievance), [2005] O.L.A.A. No. 152 (QL)). I find it unnecessary to rely on those decisions. Whether or not it is referred to as mandatory retirement, Mr. Johnson clearly understood what was meant by the retirement provision of the Plan.

[41] The law requires an employer to give the employee reasonable notice of the termination of their employment contract. This is a term of the employment contract implied by the law in the absence of an express provision in the contract dealing with its termination. The situation is different when the employment contract does contain an express term. One type of such an express term is a provision requiring the employee to retire at a specified age unless the employer consents to the continuation of the employment beyond that age. In the absence of the parties agreeing that the employer will give the employee advance notice as to whether or not it will give its consent, there is no obligation on the employer to do so. It is certainly open to the employee to make an inquiry before reaching the specified retirement age, and the employer may, but is not required to, make its decision in advance of the retirement date.

[42] Although Mr. Johnson accepted that he was required to retire at 65 unless Global consented to his continuing employment, he testified that he felt that he had Global's consent because he had been told in 1998 that he had a job as long as he wanted it. I gather that it was not argued by counsel at trial that Global had given its consent under the retirement provision. The trial judge reviewed the evidence about the relevant events in 1998, but she did not make a finding of fact in this regard.

[43] There is no real conflict on the evidence in connection with the words spoken to Mr. Johnson after the strike ended in the summer of 1998. Mr. Johnson testified that he was told that he had a job as long as he wanted it. Global's Vice-President of Engineering testified that he said that it looked like Mr. Johnson was going to be able to stick with the company as long as he wanted.

[44] In effect, Mr. Johnson alleges that the remark of Global's Vice-President of Engineering entitled him to a fixed term of employment for life if he wished. However, employment for life requires explicit, unequivocal articulation, as explained by Abella J.A. (as she then was) in Foreman v. 818329 Ontario Ltd. (2003), 229 D.L.R. (4th) 385, 175 O.A.C. 234, leave to appeal to S.C.C. refused, [2004] 1 S.C.R. ix. In Foreman, an employment contract which provided that the employer "shall not dismiss" the employee was found by the majority of the Ontario Court of Appeal to be a contract for an indefinite term, not a contract for life.

[45] Similarly, in Singh v. British Columbia Hydro and Power Authority, 2001 BCCA 695, 95 B.C.L.R. (3d) 238, leave to appeal to S.C.C. refused, [2002] 2 S.C.R. ix, this Court held that memoranda to employees about job security did not create a contract of lifetime employment. The Court found that a reasonable person would not infer that the memoranda constituted an offer of lifetime employment.

[46] The remark in question was made to Mr. Johnson in the context of his lay-off notice being rescinded. Neither the topic of retirement nor the age of 65 was mentioned at the time. In the circumstances, the most a reasonable person would infer from the comment was that Mr. Johnson would not be laid off in the future. In my view, a reasonable person would not infer that Global's predecessor was giving consent under the Plan's retirement provision for Mr. Johnson to continue working past the age of 65.

[47] Although Mr. Johnson took the position during his testimony that Global had given its consent, he did not react that way after he was told in 2004 that Global no longer required his position. In his letter dated August 31, 2004, Mr. Johnson did refer to the fact that he was told he had a job as long as he wanted it in view of his contribution during the 1998 strike, but he was making reference to this remark in order to support his argument that he should be given the same 24 month severance package as was contained in the 1997 buyout option. After Global's lawyer advised of its position that it was a term of Mr. Johnson's employment contract that he was required to retire at age 65 and that there had been no consent from Global to postpone his retirement beyond August 1, 2005, Mr. Johnson's lawyer did not respond by taking the position that Global's predecessor had already given the required consent.

[48] Similarly, Mr. Johnson's lawyer made the inquiry in early December 2004 whether the proposed reassignment of work would be for an indefinite period or only until age 65. Global's lawyer responded that it was premature for Global to consider whether special circumstances existed. Mr. Johnson's lawyer did not reply to the effect that consent had already been given for Mr. Johnson to work beyond the age of 65.

[49] This suggests that not even Mr. Johnson initially regarded the statement made to him in 1998 as constituting consent to him working past his normal retirement age. He only began taking that position at some point after he elected to treat Global's actions as amounting to his constructive dismissal.

Conclusion

[50] It is my conclusion that the retirement provision of the Staff Retirement Plan was a term of Mr. Johnson's employment contract and that consent was not given by Global or its predecessor to allow Mr. Johnson to work past his normal retirement date of August 1, 2005. When Global constructively dismissed Mr. Johnson on December 8, 2004, the damages to which Mr. Johnson was entitled were limited to his salary and benefits up to August 1, 2005. As Mr. Johnson did not receive any pension payments prior to August 1, 2005, it is unnecessary to consider the issue of whether pension payments should be deducted in assessing damages.

[51] I would allow the appeal by setting aside the $211,905.78 judgment granted to Mr. Johnson by the trial judge and substituting a judgment in an amount equal to the salary and benefits which Mr. Johnson would have been entitled to receive had his employment with Global continued until August 1, 2005, plus pre-judgment interest. The Court was advised by counsel for Global at the hearing of this appeal that after the trial judge issued her reasons for judgment, Global paid the judgment for the period from December 8, 2004 to August 1, 2005. In the event that counsel are unable to agree on the amount of the substituted judgment, I would give liberty to either party to apply for a determination of the amount.

“The Honourable Mr. Justice Tysoe”

I agree:

“The Honourable Chief Justice Finch”

I agree:

“The Honourable Mr. Justice Chiasson”