2005 BCSC 117 Smith v. Aker Kvaerner Canada Inc. and Kvaerner Power Inc.

Before: The Honourable Mr. Justice Burnyeat

Reasons for Judgment
(From Chambers)

Counsel for the Plaintiff	G.R. Anctil
Counsel for the Defendants	M.J. O’Brien
Date and Place of Hearing:	January 17, 2005
	Vancouver, B.C.

[1] Applying pursuant to Rule 18A of the Rules of Court, the Plaintiff seeks judgment and costs against the Defendants arising out of the June 30, 2004 termination of his employment. The Plaintiff alleges that the Defendants did not provide him with reasonable notice of termination when they provided him with eleven weeks pay in lieu of notice. The Defendants defend on the basis that they provided the Plaintiff reasonable notice and that, in any event, the Plaintiff has failed to take all reasonable steps to mitigate his damages.

BACKGROUND

[2] Prior to receiving a Bachelor of Engineering (Mechanical) Degree from Lakehead University in 1981, Mr. Smith was a member of the International Brotherhood of Boilermakers, and worked for approximately 12 years as a journeyman boilermaker in new construction, retrofit, and repair projects.

[3] Mr. Smith commenced working for the Defendants on May 1, 1993 when he was hired as a senior service engineer reporting administratively to the Regional Manager in Vancouver but taking instructions from the North American Service Manager in Charlotte, North Carolina. As his position required significant travel into the United States, Mr. Smith applied for and obtained a “non-resident, multiple entry work visa” from U.S. Immigration in 1994.

[4] Mr. Smith states that his position as Senior Service Engineer required extensive engineering and technical skills, specifically, troubleshooting and overseeing the repair of large recovery and power boilers at various pulp and paper mills in Western Canada and the Pacific Northwest of the United States of America. He held the Senior Service Engineer position for 4 years.

[5] Mr. Smith was then promoted to Service Project Manager for the same territory in 1997 with his responsibilities expanded to include the sale of service-type retrofit work to pulp and paper customers in addition to his previous responsibilities. Mr. Smith states that, in order to sell as well as manage retrofit work, he was required to have extensive knowledge of engineering design, company products, project and proposal development, construction methodology as well as negotiations and sales skills. Mr. Smith worked in this position for approximately 18 months.

[6] Since 1999, Mr. Smith has held the position of Regional Manager Sales and Service. Mr. Smith states that this position required him to be in charge of all sales and service work in the proposal or project stage in Western Canada and the Northwestern part of the United States. He states: “This was the most senior position ... in Western North America and encompassed all of the engineering, trade skills, sales and negotiating skills I had acquired in my 30 years in this business.”

[7] The beginning salary of Mr. Smith in 1993 was $65,000. At the time of the termination of his employment, the base salary of Mr. Smith was $132,592.90. His additional benefits included a car allowance of $6,300.00 per year and medical and dental benefits.

[8] Mr. Smith states he helped the Defendants in 2002 to hire Mr. Horcoff as a Service Engineer to assist with North American service work in a job similar to his first position with the Defendants. Mr. Horcoff was required to undertake a great deal of long-term travel. Mr. Smith states that Mr. Horcoff threatened to quit after he had been with the firm approximately two years unless he was given a fulltime, Vancouver-based position without long-term travel. Mr. Smith states that the only such position with the Defendants was his own position. Mr. Smith stated he believed that: “The writing was on the wall” and that Mr. Horcoff would eventually take over his job and: “... sooner or later I would be forced out”.

[9] In this regard, Mr. Smith states:

Despite the financial impact, I thought I would be better served by working 6 months per year than by losing my position entirely. In proposing to work 6 months per year I thought I was doing everyone a favour by looking for a way to satisfy both Mr. Horcoff’s needs and my need to work for a few more years.

[10] Mr. Smith also states:

At the same time, Aker Kvaerner Power Division in North America began to lose progressively more and more money and it became increasing [sic] clear that the Vancouver Power Division could only support either me, or the younger engineer, who was paid less than me. In June, 2004, I was presented with two early retirement options: that I could work 6 months on and 6 months off at half my yearly pay or that I leave my job with a severance package. I consulted a financial advisor who advised me that I could not afford early retirement at this stage and needed to continue working full time for another 3½ years until I was 60. I turned down both of the options that had been offered to me.

[11] I find that what Mr. Smith states in his affidavit about the “two early retirement options” presented to him does not accurately or fully set out the discussions which took place between the parties in 2003 and 2004.

[12] David H. King is the General Manager of the Services Group of the Defendant, Kvaerner Power Inc. Mr. Smith reports to Mr. King who is based in Charlotte, North Carolina. Mr. King states:

In the last three years of Mr. Smith’s employment, he approached me on approximately six to nine occasions informing me that he was dissatisfied with his position and asking if something else could be found for him. I looked into different areas where there would be a position for Mr. Smith, however they would all be in Charlotte. I had several discussions with Mr. Smith about these other positions with Kvaerner Power but he did not want to leave Vancouver. Unfortunately, there was nothing other than his present position in Vancouver for him. In or about the Fall of 2003, Mr. Smith approached me and suggested that I lay him off and provide him with a severance package. This was not an option I was prepared to consider and I informed him that it was his decision whether or not to stay with Kvaerner Power.

[13] Mr. Smith denies that he made such an approach or that such a conversation took place in the Fall of 2003. In a November 24, 2003 e-mail to Mr. King, Mr. Smith confirmed a conversation he had with Mr. Horcoff. The e-mail transmission to Mr. King stated:

Rod [Horcoff] was in this morning and updated me on some of the conversations he has had with you regarding his future and the options you have presented him. I can fully appreciate that you would very much like to keep Rod and are looking for ways to make this happen. Perhaps there are a few options that you haven’t thought of that could involve me doing something else and Rod taking my place in Vancouver. I’m willing to explore a few ideas with you on a purely informal, non-confrontational basis if you are. If you are willing, let’s set up a time when you and I can talk.

[14] Mr. King states that Mr. Smith then brought up the proposal which would see him moving from fulltime to part-time status with the idea that he would work approximately six months of each year. On January 29, 2004, Mr. Smith sent an e-mail to Mr. King in this regard:

Further to our discussion this morning and a few weeks ago I would like to further investigate the possibility of moving from full time to half time status with Kvaerner. Ideally I would like to work between the months of June through November but this time period could be modified somewhat based on work demands and requirements. I see many advantages to Kvaerner in entering into this agreement with me:

· I would be able to mentor my replacement in Vancouver and ease the transition to new area management.

· I would be available for all types of work during this time period throughout North America (USA and Canada) to work on project management, site management, project development, proposal development and summer replacement in Charlotte as I have a multiple entry, multi-year USA work permit pending and experience in all these work activities.

· I would continue to work for Kvaerner on an exclusive basis.

There are various scenarios for proceeding with this arrangement but the easiest would be for me to continue as a full Kvaerner employee working ½ time (6 months/year) drawing ½ my present salary with a full benefit package on a year round basis. I’d like to discuss this further with you at your convenience.

[15] Mr. King states that he considered the proposal of Mr. Smith to work six months on and six months off and “...evaluated the business impact of his proposal and considered whether it would be feasible for Kvaerner Power to have someone working in such an arrangement.”

[16] On March 2, 2004, Mr. Smith e-mailed Mr. King advising that he had spoken to the Human Resource Manager at Aker Kvaerner Canada Inc. about whether his benefits could be continued through the insurance carrier for a full year even if he was only working six months and advising that this was acceptable to the insurance carrier but that his Long Term Disability and Accidental Death and Dismemberment Policies could not be continued on that basis but that he was not concerned about this as he did not require this type of coverage. Mr. Smith concluded his e-mail by stating: “I am hoping we can move ahead fairly quickly on an agreement to change my work status”.

[17] On March 2, 2004, Mr. King replied to Mr. Smith by an e-mail transmission:

Dave, benefits are only one of the factors being considered in your request for a 6 month on, 6 month off requested. I’m weighing the business impact as well as other issues. I’ll let you know when I get my arms around things.

[18] On May 11, 2004 Messrs. Smith and King met in Charlotte. Mr. King states that he told Mr. Smith:

I told him that we had a position for him as a Site Manager. The position would require him to be on site for large projects such as the installation of a new boiler or a large rebuild or retrofit of a boiler to manage the project. It would involve some travel but he had informed us in his email of January 29, 2004 that he would be available for travel because of his pending multiple entry, multi-year USA work permit. We were unable to guarantee him a solid six months off as the position would require him to be on call to go when a new boiler installation was scheduled. However, there would be time off between these projects and he would have notice of when he would be needed to work. We determined that there was no position available at Kvaerner Power where he would be able to work for a solid six months on and six months off.

[19] At that meeting, Mr. King states that he also gave Mr. Smith a “... severance option of a payment based on two weeks for every year worked for him to consider as he had requested many before to be laid off”. Regarding the options that were made available to Mr. Smith, Mr. King states:

Mr. Smith did not like the Site Manager proposal I made. He wanted to work in his current position for six months and then be off for six months. I explained that this was not possible business-wise to have such an interruption in this position. I told him that he could have some time to review the options and come to a decision.

[20] Regarding the May 11, 2004 meeting, Mr. Smith states:

... during our meeting on May 11, 2004 Mr. King did not have a specific project for me to work on as a Project Manager. He indicated that he thought Kvaerner could find something for me once Kvaerner had a large project, or alternatively that I would be required to work a series of small, short term contracts. It appeared to me that at this time no specific assignment had been identified for me.

It was my understanding that any Project Manager assignment I would receive would require extensive travel, and that I would have to be “on site” and be away from my home and family while working. Also, it was clear that I would not be working 6 full months on and 6 full month [sic] off. Under Kvaerner’s proposal I could never be assured that I would have any specific period of time off and would essentially be required to be on call all year round, so that Kvaerner could send me to a construction site on an as needed basis.

[21] Mr. Smith states that two days after the May 11, 2004 meeting, he called Mr. King and advised him that he was not interested in the “on-call” “... Project Manager Proposal, and I indicated to Mr. King that I would like to continue to work full-time.” Mr. Smith also states:

In that telephone conversation I advised Mr. King that I was not going to accept the severance offer of 2 weeks per year. He did not at this time advise me that a termination letter would be provided. The first knowledge I had of a termination letter was when the termination letter was given to me ... on June 22, 2004. I had an idea I might be terminated because we had not reached an agreement on my future with Kvaerner, but I was never advised that my employment was terminated until Ms. Brotherston came into my office and told me so on June 22, 2004.

[22] Mr. King states that, at the end of May, 2004, Mr. Smith called him to advise that he was not interested in the Site Manager position. As a result of receiving that advice, Mr. Smith was provided with a June 22, 2004 letter terminating his employment:

We confirm the discussion of today’s date and our advice to you that your employment with Kvaerner Power Inc. will terminate effective June 30, 2004. Effective today, you are required to return all company equipment and you are not to report to work, or to the Kvaerner offices. You will receive your regular salary and benefits through June 30, 2004 as well as payment for any vacation accrued and untaken as of June 30, 2004.

In lieu of further notice, Kvaerner will provide you with a payment, less the required statutory deductions, equal to your regular salary for an 11-week period. Coverage on BC Medical, Extended Health, Dental, Short and Long Term Disability and Life Insurance plans will cease effective your last day of active employment of June 30, 2004. You may transfer your Life insurance coverage to personal coverage and, if you elect to do so, you must arrange for the conversion within 31 days of June 30, 2004. Please contact Shawna Brotherston if you wish to exercise your right of conversion. A reference will be provided to you upon request.

In consideration of you providing Kvaerner, its affiliates, their directors, officers and employees, with a Release of all claims, Kvaerner will provide you with a further payment equal to your salary for an 11 week period, less the required statutory deductions. Payment of the additional 11 weeks of pay in lieu of notice will be conditional upon you signing and returning the attached Release of all claims.

SEARCH OF EMPLOYMENT BY MR. SMITH

[23] After taking his regular summer vacation of four weeks as well as additional time off, Mr. Smith started to call competitors to discuss employment prospects and send out résumés and covering letters starting in the week of September 13, 2004.

[24] Mr. Smith states that, after his employment was terminated, he began a job search for a “similar level position both within and outside the pulp and paper industry”. He states that his contacts advised him that the competitors of the Defendants: “... in my working region were cutting back staff due to lack of work and the possibility of my working for them was remote.” He also outlines the state of the pulp and paper industry in Western Canada and the Northwest part of the United States of America, as well as the status of the three competitors of the Defendants. In this regard, he concludes:

Finding an equal job in the pulp and paper industry will be very difficult, if not impossible, unless the pulp and paper industry in Western North America becomes more competitive with China, Indonesia, South America and Europe. It is my belief that I may have to take a lesser position, at less pay, outside of the pulp and paper industry. This will again be difficult as my training and expertise are very specialized and limited to boiler related service and construction. I expect that it will be difficult for me to transfer outside of the pulp and paper industry, especially since I am 57 years old.

DISCUSSION AND CASE AUTHORITIES – WHAT IS THE APPROPRIATE NOTICE PERIOD?

[25] In determining the question of reasonable notice, factors such as the character of the employment, the length of service the employee, the employee’s age, the availability of similar employment are factors which must be considered: Bardal v. Globe & Mail Ltd., (1960), 24 D.L.R. (2d) 140 (Ont. H.C.) cited in Ansari v. British Columbia Hydro and Power Authority (1986), 2 B.C.L.R. (2d) 33 (B.C.S.C.). In Ansari, McEachern C.J.S.C., as he then was, stated:

Further, it does not appear useful to attempt nice distinctions between the comparative employment functions of these employees. Thus, in my view, it is not necessary minutely to investigate the degree or level of specialization of these Plaintiffs. It is enough to observe that they are all highly skilled graduate engineers whom B.C. Hydro was satisfied to employ in responsible positions. Those factors alone are sufficient to entitle these employees to a longer notice period than in many other cases. Also, I do not consider it useful to make distinctions between these professional employees who did or did not supervise other employees. Such a concept is pervasive in some disciplines, but it is not a particularly relevant consideration when employees are professionally skilled and are employed because of such skill. (at p. 39)

[26] In submitting that the suitable notice period should be 16 months, Mr. Smith relies on the following decisions:

(a) Halenar v. B.C. Hydro and Power Authority, [1986] B.C.J. (Q.L.) No. 2781 (B.C.S.C.) (a 56 year-old Project Engineer with 14 years service: 20-month notice period);

(b) Dunlop v. B.C. Hydro and Power Authority (1988) 32 B.C.L.R. (2d) 334 (B.C.C.A.) (a 61 year-old Engineer Forester with 10 years of service: 20-month notice period);

(c) Stauder v. B.C. Hydro and Power Authority [1986] B.C.J. (Q.L.) No. 1740 (a 41 year-old Geothermal Engineer with 11 years service: 18 month notice period);

(d) Edge v. Kilborn Engineering (B.C.) Ltd. [1987] B.C.J. (Q.L.) No. 922 (B.C.S.C.) (a 55 year-old Estimator without engineering qualifications but with 12 years of service: 15-month notice period);

(e) Porter v. Shell Canada Inc., (1995) 11 C.C.E.L. (2d) 56 (B.C.S.C.) (an Electrical Technician with 14 years service: 15-month notice period);

(f) Cheng v. B.C. Hydro and Power Authority [1985] B.C.J. (Q.L.) No. 630 (B.C.S.C.) (a 38 year-old Civil Structural Engineer with 10 years service: 14-month notice period);

(g) Tzvetvcoff v. Deleuw Cahter Canada Ltd. (1984), 60 B.C.L.R. 1 (B.C.S.C.) (a 51 year-old Civil Engineer with 12 years service: 12-month notice period);

(h) Dutt v. B.C. Hydro and Power Authority (1986), 22 B.C.L.R. (2d) 292 (B.C.S.C.) (a 47 year-old Coal Geologist with 6 years service: 12-month notice period); and

(i) Winterburn v. Domtar Inc. (2002) 20 C.C.E.L. (3d) 283 (B.C.S.C.) (a 37 year-old Chemical Engineer with 2 years service: 10-month notice period).

[27] In submitting that the appropriate notice period should be in the range of 6 to 7 months, the Defendants rely on the following decisions:

(a) Horn v. Ikon Office Solutions Inc., (2002), 9 B.C.L.R. (4th) 169 (B.C.S.C.) (a 58 year-old Branch Manger of a small branch of the Defendant office supply company with 15 years service: 12-month notice period);

(b) Durand v. Quaker Oats Co. Canada Ltd. (1988), 20 C.C.E.L. 223, rev’d 45 B.C.L.R. (2d) 354 (B.C.C.A.) (a Regional Sales Manager with 18 years service: 12-month notice period);

(c) Johnston v. Ecolab Ltd., (1994) 6 C.C.E.L. (2d) 293 (B.C.S.C.) (a 63 year-old Territory Sales Manager of a janitorial supply company with 17 years of service: 12-month notice period); and

(d) Bergmann v. CPT Canada Power Technology Ltd. (1997), 31 C.C.E.L. (2d) 97 (Alta. Q.B.) (a 40 year-old Regional Sales Manager of an automotive products and air-cool products company having 17 years of service: 10-month notice period).

[28] The Defendants seek to distinguish the cases involving British Columbia Hydro and Power Authority on the basis that the employment of hundreds of engineers was terminated at about the same time so that the availability of similar employment was almost non-existent. While that is the case, I am satisfied that similar circumstances exist for engineers who presently work in or who deal with the pulp and paper industry. While the laying off of hundreds of engineers by B.C. Hydro in the 1980’s may well have produced a “glut” of engineers on the job market so as to make it very difficult for engineers to find employment, I am satisfied that the termination of the employment of a highly specialized engineer working in an industry that is contracting will produce a similar effect. In particular, I find that there are likely to be very few equivalent jobs in the pulp and paper industry.

[29] I am also satisfied that the decisions relied upon by the Defendants do not provide much assistance in determining the appropriate notice period as each of those four plaintiffs were involved in the sales of products that did not require any particular technical or engineering skill and had general sales experience more portable than the experience of Mr. Smith.

[30] Taking into account the age of Mr. Smith (57), the character of his employment, the length of service with the Defendants (11 years), the availability of equivalent employment, I am satisfied that the appropriate notice period that should have been provided by the Defendants was 13 months.

HAS MR. SMITH MITIGATED HIS DAMAGES?

[31] In seeking and accepting alternative employment, the plaintiff has a duty to act reasonably and to take such steps as a reasonable person in the plaintiff’s position would take in his own interest to maintain his income and his position in his industry, trade or profession. The duty involves a constant and assiduous application for alternative employment, an exploration of what is available through all means: Forshaw v. Aluminex Extrusions Ltd. (1989) 39 B.C.L.R. (2d) 140 (B.C.C.A.) and Leawood v. Thunderbird Home Centres (unreported) April 3, 1995 decision of Koenigsberg J. (Supreme Court of British Columbia action no. C941213 – Vancouver Registry).

[32] The burden of proving that Mr. Smith has failed to mitigate his losses rests with the Defendants: Red Deer College v. Michaels (1975), 57 D.L.R. (3d) 386 (S.C.C.). There is a heavy onus to demonstrate a failure to mitigate. In this regard, Edwards J. in Petersen v. Labatt Breweries of British Columbia (1996) 25 C.C.E.L. (2d) 241 (B.C.S.C.) stated:

The onus on a defendant alleging a plaintiff has failed to mitigate in an action of this kind is "by no means a light one". See: Michaels v. Red Deer College (1976), 57 D.L.R. (3d) 386. The defendant must show not only that the plaintiff failed to take steps to mitigate but also that had the plaintiff taken those steps he could likely have found equivalent employment. See: Jorgenson v. Jack Cewe Ltd., (1978), 93 D.L.R. (3d) 464, [1979] 1 A.C.W.S. 138 and Munana v. MacMillan Bloedel Ltd., [1977] 2 A.C.W.S. 364. (at para. 10)

[33] Regarding the two-part test as outlined in Petersen, see also: (a) Maguire v. Sutton (1998) 34 C.C.E.L. (2d) 67 (B.C.S.C.); (b) Ducsharm v. Quintette Operating Corp. [1998] B.C.J. (Q.L.) No. 2999 (B.C.S.C.); and (c) Fisher v. Seton Lake Indian Band (1994) 8 C.C.E.L. (2d) 101 (B.C.S.C.).

[34] The Defendants submit that Mr. Smith should not have taken his summer vacation as well as an additional 4 or 5 weeks before starting to look for new employment and that, as a result, the notice period available to the Plaintiff should be reduced by two months.

[35] I reject that submission. First, there is no evidence the Plaintiff missed any employment opportunities as a result of this extended holiday. Second, I am satisfied that it is not necessarily a failure to mitigate where a finding could be made that a plaintiff has not immediately commenced a job search. I am satisfied that any employee should be given a reasonable period of time to get over the shock of having their employment terminated, to organize their thoughts as to how best to go about obtaining new employment, and to undertake the necessary research and preparation of résumés so that they are in a position to compete for available positions.

[36] I cannot make the finding that Mr. Smith did not make reasonable efforts to mitigate his damages. Even if I could find that he failed to mitigate his damages, there can be no reduction in the award of damages where the Defendants have not proven that the Plaintiff would otherwise have found appropriate work: Maguire, supra, at paras. 76-7; and Fisher, supra, at para. 22.

[37] In Maguire, the plaintiff delayed starting a job search for three months, took an additional one-month holiday during her job search, and limited her search to employers within a short commuting distance from her home. While there was a finding that the plaintiff had not conducted a diligent search, there was also a finding that the defendant had not led any evidence that the plaintiff would have found a job had she been more diligent. In Ducsharm, the plaintiff waited three months to start looking for work. Despite this delay, there was no finding that the defendant had discharged the burden of proving that the plaintiff would have otherwise found work. As was the case in Maguire and Fisher, supra, I do not conclude that the Defendants have met the onus of showing that Mr. Smith would have found appropriate work if he had immediately started his efforts to find equivalent employment.

DID MR. SMITH HAVE PART-TIME WORK AVAILABLE WITH THE DEFENDANTS?

[38] The Defendants rely upon the “offer” made in May, 2004 that Mr. Smith serve as a Site Manager and submit that he should have taken that position to mitigate his damages or that he should have enquired about whether that position was still available after his employment was terminated. The Defendants submit that these steps should have been taken by Mr. Smith and the failure to do so was a failure to take reasonable steps to mitigate his damages. I can not accede to either submission.

[39] Counsel for Mr. Smith submits that the requirement to mitigate damages by taking alternate employment offered by the same employer only applies to cases where there has been a constructive dismissal. Counsel also submits that Mr. Smith could not have mitigated his damages after dismissal by working for the Defendants because the Defendants did not offer him any position after his dismissal.

[40] In Farquhar v. Butler Brothers Supplies Ltd. (1988), 23 B.C.L.R. (2d) 89 (B.C.C.A.), Lambert J.A. on behalf of the Court stated:

An employee who is dismissed without cause or notice, like anyone else who is wronged, is obliged to mitigate his damages to the extent and in the way that is reasonable in the circumstances. The most common way is to seek other employment. If the employer orders the dismissal, then there is normally no question of the employee mitigating his loss by continuing to work for the employer. But if the dismissal is a constructive one, that is, by the employer breaking or repudiating a fundamental term of the contract of employment and the employee accepting the breach or repudiation as putting an end to the contract, then a question may arise about whether the employee should remain in the work force of the employer, on new terms and under a new arrangement, while he is seeking work elsewhere. (at p. 93)

[41] I am satisfied that it was not reasonable for Mr. Smith to be required to mitigate his loss by continuing to work for the Defendants. First, this is not a case of constructive dismissal and, accordingly, the concept of an employee mitigating his or her loss by continuing to work for the employer does not arise. Second, no such position was open. After the position of Site Manager was offered, that offer was rejected by Mr. Smith. A rejection of the offer by Mr. Smith is acknowledged by the Defendants. In those circumstances any offer was no longer open for acceptance by Mr. Smith. Third, it was made clear to Mr. Smith that he was required to return all company equipment and was to absent himself from any of the offices of the Defendants. In those circumstances, Mr. Smith was entitled to conclude that his ability to remain in the workforce of the Defendants on new terms and under a new arrangement was not available while he sought work elsewhere. Fourth, even if I could conclude that it was an obligation on Mr. Smith to mitigate his damages by raising with the Defendants the possibility whether he could remain with them in the capacity that was offered to him in May, 2004, there is nothing before me which would allow me to conclude that such a position remained available with the Defendants.

[42] Accordingly, even if I could conclude that Mr. Smith was not acting reasonably and had not taken such steps as a reasonable person in his position would take in his own interest to maintain his income and his position in his industry, trade or profession by requesting the advice of the Defendants whether the position of Site Manager was still available, there is nothing in evidence which would allow me to conclude that, if Mr. Smith had enquired with the Defendants in that regard, he would have found that the position suggested by the Defendants in May, 2004 was still available.

DECISION

[43] Mr. Smith will be entitled to judgment equal to 13 months salary based on his base annual salary of $132,592.90. Any sums already paid to Mr. Smith will be subtracted from the amount of the Judgment. Mr. Smith will also be entitled to judgment in the amount of $96.00 per month for 13 months relating to the M.S.P. premiums that should have been paid by the Defendants during the notice period as well as $525.00 per month for 13 months relating to the car allowance which should have been paid by the Defendants during the notice period. As well, Mr. Smith will be entitled to judgment in the amount of $418.78 representing the cost of the dental services incurred, which should have been paid by the Defendants.

[44] Mr. Smith will be entitled to pre-judgment interest at the rates established by the Registrar from time to time on the sums found to be due and owing.

[45] I am advised by the parties that an offer has been made pursuant to Rule 37 of the Rules of Court and, accordingly, the parties will be at liberty to speak to the question of the costs payable if they wish. Otherwise, costs will be available to Mr. Smith on a Party and Party (Scale 3) basis.

“G.D. Burnyeat, J.”
The Honourable Mr. Justice G.D. Burnyeat

Citation:	*Smith v. Aker Kvaerner Canada Inc. and Kvaerner Power Inc.,*
	2005 BCSC 117