2004 BCSC 1360 Alibhai v. Royal Bank and Munsie

Before: The Honourable Madam Justice Allan

Reasons for Judgment

Counsel for the Plaintiff:	barbara findlay, Q.C.
Counsel for Defendants:	Gavin Marshall, Q.C.
Date and place of Summary Trial:	October 4,5, & 6, 2004
	Vancouver, B.C.

[1] Ms. Alibhai, the plaintiff, seeks damages for wrongful dismissal, tortious interference with contractual relations and willful infliction of mental suffering. She has withdrawn a claim for damages for interference with economic interests by unlawful means. She seeks to have the outstanding issues resolved by way of a summary trial pursuant to Rule 18A.

Background

[2] The following facts are not disputed:

· Ms. Alibhai was an employee of the defendant Royal Bank of Canada (the “Bank”) for more than 17 years. When she was terminated, she was an Assistant Team Leader in the Customer Service Group (“CSG”), which is one of three departments of the Operations Service Centre (“OSC”). The purpose of the OSC is to centralize many of the standard retail banking functions previously performed in the branches and make them more efficient.

· Ms. Alibhai’s job was to supervise seven or eight employees in two work groups, the “green team” and the “red team”. Her annual salary, from April 2000, was $33,500. Employees are ranked in eight compensation bands or “CBs” from 02 to 72. The plaintiff was ranked a “CB22” on the Bank’s job classification scale.

· Commencing in August or September 2000, Ms. Alibhai reported to the co-Managers of the CSG, Anna Ripoli and the defendant Kathie Munsie. In January 2001, Ms. Ripoli became ill and took a leave of absence and Ms. Munsie, whose position was a CB42, supervised the CSG employees. Ms. Munsie reported to Dan Richardson, the Manager of the OSC.

· By letter dated February 23, 2001, Ms. Munsie, advised Ms. Alibhai that her position would be eliminated effective July 29, 2001, due to an ongoing centralization of the Bank’s operations and a downsizing of the CSG. Ms. Munsie further advised that the Bank would assist her in finding a comparable position with the Bank. However, she added: “If these efforts have not been successful by June 1^st we will discuss further options which could result in termination of employment based on redundancy.”

· The plaintiff actively participated in the Bank’s “Job Line” relocation program. Her participation was extended from 90 days to the end of July 2001 in order to maximize her opportunity to find a position. During that time, she received coaching and “job shadowing” opportunities to update her branch experience. On July 31, 2001, Ms. Alibhai accepted a lump sum severance package amount of $23,130 (the equivalent of about eight months’ salary). The Bank also paid for courses that she took at Capilano College to augment her workplace skills. She received her full salary and benefits until October 31, 2001 to allow her pension to vest and then received her severance package.

[3] Ms. Alibhai asserts that the defendants did not decide to eliminate her position objectively; instead, they had “improper regard to her ethnicity and/or race and her manner of speaking”. Ms. Alibhai, who was born in East Africa, is of Indian descent. She deposes that English is her second language, that she speaks with an accent, and that her skin is dark. She further alleges that Ms. Munsie deliberately and arbitrarily reduced her scores on an annual performance review to make it appear that she was less qualified and capable than she was.

[4] Ms. Alibhai also asserts that, although she worked hard within the Bank to identify and apply for jobs at the same compensation level as her previous job, Ms. Munsie interfered with her job search by improperly describing her to prospective managers as unsuitable for work as a supervisor.

[5] Ms. Alibhai complains that although her teams did well and she was very well-liked and respected by the people on her teams, she was treated poorly by her supervisors and co-workers. She says that she was the only person of colour among the assistant team leaders, team leaders, and management of the CSG. In her affidavit, she makes the following complaints:

· She was never part of the informal networks at the CSG and she was not invited to go shopping or for coffee with the others.

· People said hurtful things to her. As an example, she recalled that on one occasion, after a meeting, Ms. Ripoli embarrassed her in front of other staff by asking in a condescending way, “Malek, did you understand what was said?” The plaintiff says “the words themselves could have been benign but they were said in a way which made me know that she was making the remark pointedly because I was ‘different’, a foreigner.”

· After she volunteered to organize the staff Christmas lunch, Ms. Munsie re-assigned that task at the next staff meeting as if she wasn’t there or couldn’t be trusted to undertake the job.

· She volunteered to take an unpopular shift, which was to be rotated, but then Ms. Munsie decided there would be no rotation.

· She developed and suggested an idea for tracking productivity of her team’s members. Ms. Munsie ignored her idea but then praised another team leader who later came up with a similar idea.

· Ms. Alibhai had never been advised of any deficiencies in her work. However, in 2000, Ms. Munsie arbitrarily reduced her Annual Evaluation Score by 15 points and increased another team leader’s score by 15 points. Although Ms. Munsie had the authority to make those changes, “she had absolutely no basis for making the alteration.”

· When Ms. Munsie told her that she would be laid off, she asked Ms. Munsie, “Why are you doing this?” Ms. Alibhai deposes that Ms. Munsie made the following reply:

She said, in a sarcastic tone of voice, “It is your language”. I was stunned. No one at the OSC had ever complained to me about my language at work (though sometimes people have thought my speaking manner was abrupt). By her tone, and by my experience with other Caucasian people in Canada who make comments about my “language”, I understood her remark to be a remark directed at my race, or the fact that she sees me as “different”.

· Ms. Alibhai deposes that she was “deeply shocked and humiliated” and “completely distraught” as a result. She wept uncontrollably and had difficulty eating and sleeping for some weeks. She saw a counselor who told her she did not need a counselor, that she needed a lawyer because she had been discriminated against.

· Ms. Alibhai says that Ms. Munsie offered her a job as an investigator at the CB12 level but she declined it as she considered it to be a demotion that would have been humiliating to accept.

· The plaintiff says she was further humiliated and shocked when Ms. Munsie advised the CSG staff that she had “volunteered” to step down as Team Leader. She was “extremely humiliated” when Ms. Munsie asked her to move out of her office during the Job Line process because she did not understand that to be the usual practice.

· Ms. Alibhai says that Dan Richardson, the Manager at the OSC, offered her a job at the CB12 level and told her that if she did not want it she could resign after the 90 day period. She says that he was not interested in listening to her.

· In early March, Ms. Alibhai started work at the Audit Centre on the understanding that she would be assisting a CB22 with a special project. After 4 weeks, she discovered that she was working on a project for a CB12 and telephoned the employee help line. She was told that she should cease work because if she worked there for more than 90 days, she would be deemed to have accepted the job at a CB12 level.

· Ms. Alibhai says that although Ms. Munsie would not let her apply for a CB22, she applied for jobs at that level. Four managers interviewed her for a CB22 or CB32 position. She deposes that she was assured of each job until the managers spoke to Ms. Munsie. She confronted Ms. Munsie who told her that she did not have good “people skills” and angrily said she would not support her for anything over a CB12 position.

· In April 2001, Ms. Munsie placed someone else from the CSG into place as a team leader without posting the job on the Bank’s Job Line, contrary to Bank policy.

[6] Not surprisingly, the Bank’s employees refute the plaintiff’s allegations. Ms. Munsie deposes that she told the plaintiff she would support her efforts to seek an alternate position within the Bank, including a CB22 role, at the same salary level, but not in a “people leader” or supervisory position. Ms. Munsie says she honestly believed that Ms. Alibhai lacked the necessary skills to be an effective supervisor. She considered the plaintiff to be the weakest of the team leaders. She denies using the phrase “it is your language” and says that if she used the word “language” at all, she used it in the context of a discussion about Ms. Alibhai’s management style and her manner of dealing with other employees, and not her speech in English. Ms. Munsie deposes that the plaintiff’s accent was never a consideration, although her “tone” was. Finally, Ms. Munsie says that only one prospective employer contacted her during the plaintiff’s Job Line search and that she emphasized the positive aspects of Ms. Alibhai’s skill set to that employer.

[7] It is the defendants’ position that, when contacted for a reference, Ms. Munsie was positive and professional about Ms. Alibi’s skills and said she would recommend her for any position up to a CB22 position, but not a position involving “people leader” functions.

[8] Ms. Munsie deposes that she was critical of the plaintiff’s skills as a manager, but not of her race or the quality of her accent.

[9] Ms. Ripoli, who is now the Operations Risk Advisor for the OSC, deposes that in the fall of 1999 and winter of 2000, she formed the opinion that the plaintiff was not developing successfully as an Assistant Team Leader. Ms. Ripoli agrees that she had asked Ms. Alibhai if she “understood” something that had been conveyed in a meeting. She deposes that the discussion took place after the meeting and referred to a previous meeting the two women had had concerning a management skill called “Listening Understanding and Responding” that the Bank seeks to cultivate in supervisory staff to focus on effective communication.

[10] Mr. Richardson says that they had a lengthy discussion in which he told Ms. Alibhai that he and Ms. Munsie would support her in a CB12 or CB22 non-people leader role at her current salary. Instead, Ms. Alibhai applied for several CB22 people leader positions through the Bank’s Job Line service.

[11] Mr. Sadhra, a member of the Bank’s Human Resources Advisory Group, provided the plaintiff with job research assistance. He arranged “a job shadow” experience at a local branch to update her experience with the type of work done in the branches. He extended her working notice until the end of July 2001 to give her more time to look for work on the Job Line.

[12] Ms. Rodrigues, Mr. Shwartz, Ms. Ho, and Mr. Austin separately interviewed the plaintiff for four positions posted on the Job Line. Each of them has deposed that they did not consider her an optimal candidate for the position in question. Only Mr. Austin recalled contacting Ms. Munsie and he stated that Ms. Munsie had only positive things to say about the plaintiff.

[13] The defendants say that prior to her termination, Ms. Alibhai never raised any of the issues of which she now complains.

The impugned evidence

[14] Ms. findlay, counsel for Ms. Alibhai, seeks to strike large portions of the defendants’ affidavits on the basis the proposed evidence is inadmissible as hearsay, opinion evidence, or argument. That application was initially brought before Madam Justice Boyd. Boyd J. dismissed the plaintiff’s motion on the basis that to strike out or limit the use of the impugned evidence would unduly tie the hands of the trial judge.

[15] It is important to keep in mind that not every out-of-court statement is hearsay. If the statement is tendered for the truth of its contents, it is hearsay. However, the fact that a statement was made may have probative value apart from its truth. For example, the fact of making the statement may be relevant in considering the mental state or subsequent conduct of the witness or another person in whose presence the statement was made.

[16] In this case, the defendants deny the plaintiff’s assertion that they acted in bad faith or out of racial motives. Hence, much of the impugned evidence addresses the issue of whether or not the defendants acted in good faith when they terminated Ms. Alibhai and dealt with her in her efforts to find alternative employment with the Bank.

[17] The plaintiff’s objections to the defendants’ affidavits comprise some nine pages. I do not propose to deal with them separately. I find most, but not all, of the objections to be without merit. With respect to internal discussions between the Bank’s employees concerning Ms. Alibhai’s performance and potential for future employment, many of the impugned statements go to the deponent’s state of mind. For example, Mr. Sadhra deposes that Ms. Munsie and Mr. Richardson told him that Ms. Alibhai did not have the skills and attributes to be a “people manager” at the CB22 level, but had other skills that would make her valuable in other positions at the Bank. Clearly, that information was relevant to establishing the state of mind of Mr. Sadhra who was charged with the duty of counselling Ms. Alibhai and helping her re-deploy within the Bank.

[18] In some instances, statements are admissible for more than one purpose. Mr. Richardson deposes that “After 2000, the Scorecard system was abandoned because the managers in the service centres (including myself) felt that, even with the 15% discretion, the system did not accurately capture employee performance.” That statement is admissible as evidence of the truth of what he believed and as to his state of mind with respect to how he believed other managers viewed the system.

[19] The “opinion” evidence is also admissible as going to the deponent’s state of mind and what actions he or she took as a result. For example, Ms. Munsie deposes that “Malek was perceived by others as being stubborn and opinionated and she got people’s back up a bit. She knew this. She and I discussed how she came across to others. She felt comfortable approaching me regarding this topic, because we had a good working relationship.”

[20] There are, however, certain statements that are inadmissible as hearsay or double hearsay. For example, Ms. Munsie deposes that: “Before Malek left the CSG to do her job shadow at the ORS, she had a discussion with Dan Richardson about the decision that had been made concerning her position, and the conclusion we had arrived at concerning her leadership skills.” Another example of clearly inadmissible evidence is Ms. Munsie’s statement that “I believe that Wendy Youzwyshyn, the Vice-President of the Royal Bank, asked Mr. Sadhra to participate, when she received a letter from Malek with allegations that Dan Richardson and I had the ulterior (racist) motives in eliminating her position, and expressing the views we did about Malek’s leadership skills.“

Is this matter suitable for disposition by summary trial?

[21] Rule 18A(11) provides that judgment may be granted generally or on an issue unless the Court is unable to find the necessary facts to decide the issues of fact or law or it would be unjust to decide the issues summarily. There are additional factors to consider in this case. Even if the plaintiff were successful, the amount involved is not large. The fact that the parties have already spent one day in chambers on the plaintiff’s motion to strike out portions of the defendants’ affidavits, and three days on the plaintiff’s application for summary trial, makes it probable that, if this matter were sent to the conventional trial list, the litigation costs would be exorbitant in relation to any possible award.

[22] My initial reaction was that this matter was not suitable for summary disposition because the necessary facts could not be found. There are numerous disputes with respect to what the Bank’s representatives are alleged to have said to Ms. Alibhai and their motives, or lack of motives, behind their statements and actions. However, Mr. Marshall submits that, even if the plaintiff’s version of events is accepted, she cannot succeed. There is no dispute that the Bank terminated her employment without cause; the only issue in that regard is the appropriate length of notice. Mr. Marshall argues that the plaintiff’s evidence cannot support her tortious claims.

[23] There is no doubt that, in some circumstances, the Court can decide issues on a summary trial where the facts are contested. In Haight-Smith v. Neden (2002), 211 D.L.R. (4^th) 370, 2002 BCCA 132, the Court of Appeal upheld the decision of the trial judge who had dismissed the plaintiff’s claims for defamation, negligence, and malice on a summary trial. The trial judge found that any potentially defamatory statements made by respondents who were not covered by a collective agreement were protected by qualified privilege. The Court of Appeal held, at para. 58, that “The trial judge found, on the evidence before him, that there was no malice on the part of the three respondents. His finding is not only reasonable, it is the only possible finding he could make on the evidence.”

[24] I conclude that this case is suitable for resolution under Rule 18A. In my opinion, even if all of the conflicts in evidence were resolved in the plaintiff’s favour, her causes of action on the tortious claims cannot succeed. Accordingly, I conclude this case is suitable for resolution under Rule 18A.

The plaintiff’s claim for intentional interference with contractual relations

[25] Ms. findlay submits that Ms. Munsie wrongfully interfered with the plaintiff’s contractual rights to participate in the Job Line program of the Bank. She argues that Ms. Munsie wrongfully and discriminatorily gave prospective employers misinformation based on stereotypes about Ms. Alibhai’s ability to perform supervision duties. The plaintiff pleads that, as a result, it was impossible for her to take advantage of the contractual term that permitted her to take up a position equivalent to the one she was leaving upon demonstrating her competence to perform the duties. Alternatively, it was impossible for her to fulfill her duty to mitigate her damages after the Bank breached her contract of employment.

[26] In argument, Ms. findlay conceded that the Bank’s practices regarding the deployment of redundant employees did not constitute contractual terms of the plaintiff’s employment. Instead, she submitted, the Bank’s Job Line policy created a “reasonable expectation” on Ms. Alibhai’s part that she would obtain another suitable job with the Bank. In my opinion, it is important to keep in mind that the Job Line program provided an opportunity for, and not a promise of, alternate employment.

[27] The defendants say that Ms. Munsie acted at all times within the scope of her authority, in good faith, and honestly expressed her views with respect to Ms. Alibhai’s abilities as a “people leader”. She considered it her duty to the Bank to give an honest assessment of those under her supervision. The defendants assert that Ms. Munsie is entitled to the protection of the rule in Said v. Butt, [1920] 3 K.B. 497: an action for inducing breach of contract cannot be maintained against an employee acting bona fide within the scope of his or her authority. That employee is the agent or alter ego of the employer. (cf. also Digital.Doc Services (Canada) Inc. v. Future Shop Ltd., [1997] B.C.J. No. 1689 (S.C.)). In response, the plaintiff says that Ms. Munsie lost that protection because her discrimination and prejudice, which could not be in the best interests of her employer, took her outside the scope of her authority.

[28] In my opinion, Ms. Munsie’s assertion to potential employers that Ms. Alibhai was unsuited for work as a supervisor is insufficient to ground a claim of intentionally interfering with contractual relations. First, Ms. Alibhai had received notice of termination; there was no contractual term guaranteeing her any other job. Second, Ms. Munsie’s honest opinion, right or wrong, was that Ms. Alibhai was not a “people leader”. That is clear from her statements to the plaintiff and other employees of the Bank, as well as any potential employers. She had a duty to provide an honest assessment of those under her supervision. She recommended Ms. Alibhai for both CB12 and CB22 non-people leader positions.

[29] Further, I agree with Mr. Marshall that even if Ms. Munsie had been critical of Ms. Alibhai, the provision of a candid reference would give rise to a qualified privilege, unless the plaintiff could establish malice. Qualified privilege arises when a person has an interest or duty – legal, social or moral – to make a statement to a person who has a corresponding duty to receive it. Ms. Munsie’s remarks were relevant to the discussion of Ms. Alibhai’s suitability for certain positions and the plaintiff simply cannot establish any malice that would defeat the resulting privilege.

[30] Ms. findlay submits that intention is irrelevant in human rights law and it is proof of the effect which grounds a discrimination complaint. However, human rights law occupies a distinct field that does not, in my view, overlap with the jurisprudence relating to intentional torts. Ms. findlay further asserts that, with the advent of the Charter, the law should be considered from the perspective of people who have been marginalized in Canadian society. That assertion cannot, however, reverse the onus that remains on the plaintiff to prove intention on the part of someone who is alleged to have willfully interfered with contractual relations or inflicted mental harm. Intent is the essence of those torts and not effect.

The plaintiff’s claim for damages for willful infliction of mental suffering

[31] In the particulars of her claim, the plaintiff makes the following allegations:

· Between December 2000 and October 2001, Ms. Munsie actively and willfully inflicted mental suffering on her by:

· Casting aspersions upon, and permitting other staff – Ms. Ripoli and Ms. McKay - to cast aspersions on, her abilities in the English language; and

· Casting aspersions upon, and permitting other staff – Ms. Ripoli and Ms. McKay - to cast aspersions on, her managerial abilities, causing emotional and physical distress that Ms. Munsie knew or should have known would be caused to the plaintiff.

· The Bank - Mr. Richardson, Ms. Youzwyshyn, Mr. Loveck, and Mr. Sadhra -acquiesced in the mistreatment of the plaintiff by Ms. Munsie.

· The plaintiff’s emotional distress included humiliation, anxiety, anger, and fear. Her physical distress included sleep-loss, inability to concentrate, increased heart rate, and shortness of breath.

[32] The allegations in those particulars are not well supported in the affidavit evidence of her complaints, which I have summarized above in para. 5.

[33] To recover damages for intentional infliction of mental suffering, the defendant’s conduct must be both “flagrant and extreme” and calculated to produce the resulting harm: Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200, 4 C.C.E.L. 170 (S.C.). In that case, the employer had knowingly or recklessly made a false allegation of theft and purported to terminate the employee for cause. A third element of the tort is the requirement of a “visible and provable illness”: McPhillips v. BC Ferry Corp. (1995), 15 C.C.E.L. (2d) 189, [1995] B.C.J. No. 2261 (S.C.). None of these three elements have been proved in this case.

[34] Unfortunately, Ms. Alibhai genuinely believes that Ms. Munsie and other employees discriminated against her on the basis of stereotypes or prejudice regarding her race and ethnicity. In a multicultural society such as Greater Vancouver today, virtually every institution, including schools, hospitals, banks, etc., hires a contingent of employees who represent a rich diversity of cultural, racial, and ethnic origins. There is little, if any, evidence to support the plaintiff’s allegations that the Bank’s employees discriminated against her based on her race or ethnic background. In the result, I can find no evidence that would support any of the tortious claims brought by the plaintiff.

“Wallace” damages

[35] In Wallace v. United Grain Growers, [1997] 3 S.C.R. 701, 152 D.L.R. (4^th) 1, the Supreme Court of Canada held that bad faith conduct or unfair dealing by an employer in relation to a discharge of an employee could constitute grounds to extend an otherwise appropriate notice period in a wrongful dismissal case. Accordingly, it is no longer necessary for a plaintiff to prove an independently actionable tort in order to receive compensation for intangible injuries such as humiliation, embarrassment, and damage to the employee’s self-worth and self-esteem.

[36] Ms. findlay says that Ms. Munsie’s statements to prospective employers that she is not a good manager have prevented her from finding work at a similar level and salary. This fact aggravates the physical and emotional damages suffered by Ms. Alibhai.

[37] Ms. findlay suggests that, if no award is made for the tort claims, the appropriate notice period for the plaintiff should be extended by three months for Wallace damages. She cites Cassady v. Wyeth-Ayerst Canada Inc. (1998), 163 D.L.R. (4^th) 1, 54 B.C.L.R. (3d) 68 (C.A.) and Deildal v. Tod Mountain Development Ltd. (1997), 33 B.C.L.R. (3d) 25, 28 C.C.E.L. (2d) 1 (C.A.) in support of the proposition that damages for wrongful dismissal may be increased despite the lack of an independent cause of action upon which to found separate damages.

[38] In this case, I do not agree that the defendants engaged in any bad faith conduct or unfair dealing that would justify extending the length of notice to which Ms. Alibhai was entitled. To some degree, any employee whose job is terminated may feel humiliated, embarrassed, and bruised. While I do not doubt that Ms. Alibhai experienced those emotions, I cannot find that they were the result of any bad faith or unfair dealings by the Bank or Ms. Munsie, as is required under Wallace, supra.

When the plaintiff was terminated

[39] Ms. findlay submits that the relevant notice period commenced on July 31, 2001. Paragraph 4 of the amended statement of claim alleges that the Bank terminated the plaintiff’s employment without cause “on or about October 2001.” However, paragraph 6 states that “the Defendant Bank terminated gave [sic] the plaintiff 90 days’ notice of termination of her employment on or about February 23, 2001.”

[40] On February 23, 2001, Ms. Munsie wrote to Ms. Alibhai, advising her as follows:

Due to the recent restructuring of the Customer Service Group, we will be eliminating your position effective June 29, 2001.

We appreciate the dedication and contribution you have provided to us. Over the next three months we will assist you in your search to find a comparable position within the organization and we encourage you to take an active role in this process. If these efforts have not been successful by June 1^st we will discuss further options which could result in termination of employment based on redundancy.

….

[41] Ms. findlay submits that the letter was not notice of her termination. It was notice of elimination of her position and gave notice that if she did not find another job with the Bank, she may be laid off for redundancy. I agree that the wording of the letter is ambiguous. However, I find that she was constructively dismissed as of March 1, 2001 when there was a fundamental alteration in the terms and conditions of her employment. Both her claim for damages and her duty to mitigate arose on that date. In Ager v. Motorola Canada Ltd., [1989] B.C.J. No. 641 (S.C.), the terms of the plaintiff’s employment were altered on July 7, 1987 and he ceased working two months later. Madam Justice Prowse held at p. 13 that he was dismissed as of the earlier date when he had the right to accept the repudiation of his contract.

[42] Accordingly, the appropriate period of notice runs from March 1, 2001, when her position was eliminated and the plaintiff was constructively dismissed.

The appropriate notice

[43] The plaintiff was not dismissed for cause. As a result of a business decision by the Bank, she was laid off in a downsizing of her department. She received her full salary for eight months and then accepted a severance package, representing a further eight months’ pay. Ms. findlay says the severance package was insufficient given Ms. Alibhai’s’ age, the character of her employment, her training and experience, her reasonable expectations based on the Bank’s representations, and her difficulties in finding alternative employment.

[44] When she received the February 23, 2001 letter, Ms. Alibhai had been employed by the Bank for 17 years and 2 months. She had attained a CB22 level on a compensation scale that spanned CB02 to CB72 bands. She is presently 58 years old and has been able to find employment that she considers suitable.

[45] Ms. findlay submits that the appropriate notice is 20 months from July 31, 2001 and an extra three months – either one and a half months for tortious interference with contractual relations and one and a half months for willful infliction of mental suffering or, alternatively, three months’ damages pursuant to the principles in Wallace, supra.

[46] Both counsel relied on numerous cases to support their submissions as to the appropriate length of notice. Clearly, each case must be determined on its own unique facts having regard to the employee’s age, salary, length of service, the nature of her position, and any other factors peculiar to the particular situation. In all the circumstances, I find that the notice period, equivalent to 16 months, was appropriate.

[47] Accordingly, it is not necessary to deal with the defendants’ assertions that the plaintiff failed to mitigate her damages or that her claim is barred by the doctrine of accord and satisfaction.

“M.J. Allan, J.”
The Honourable Madam Justice M.J. Allan