2008 BCSC 129 Taner v. Great Canadian Gaming Corporation

Before: The Honourable Mr. Justice Bracken

Reasons for Judgment

Counsel for the Plaintiff:	G. N. Harney
Counsel for the Defendant:	S. A. Dawson and D. R. Bloor
Dates and Place of Trial/Hearing:	June 19 - 21, 2007
	Vancouver, B.C.

[1] The plaintiff Marla Taner was employed by the defendant Great Canadian Gaming Corporation from August 22, 2005 to February 15, 2006. She was 36 years of age when her employment ended. She brings this application for judgment for damages for wrongful dismissal pursuant to R. 18A of the Rules of Court.

[2] The issues for determination are 1) whether the plaintiff was constructively dismissed on February 15, 2006; 2) was it reasonable for the plaintiff to reject the defendant's offer of continued employment and its subsequent offer of a consultancy position; 3) if the plaintiff acted reasonably in rejecting the offers of employment or consultancy and is entitled to notice, what period of notice is appropriate; and 4) did the plaintiff otherwise fail to mitigate her damages by making an inadequate search for alternate employment?

[3] The plaintiff's claim includes a claim for damages for lost income and benefits, a claim for a bonus that she says would have been paid during any notice period, and lost profits from the exercise of stock options that were re-issued at a lower exercise price during the notice period that she says she would have been entitled to receive.

Background Facts

[4] The plaintiff was hired in the position of vice president, marketing for Great Canadian Gaming Corporation. Her salary was to be paid at $130,000 Canadian per annum and she was to be entitled to an array of benefits for B.C. medical, extended health, vision and dental care, 15 days of vacation time, and a monthly car allowance of $700 per month. In addition, there was a discretionary bonus program of up to 15% of her salary, a share purchase program, and a stock option plan.

[5] The plaintiff's employment history is that of a marketing executive, largely in the area of sports and entertainment. She holds a bachelor's degree in communication from Simon Fraser University and she initially worked in her own business providing marketing services to the Greater Vancouver Zoo and for professional basketball and hockey teams in Vancouver and providing event management and marketing services for other sporting events.

[6] She began working for the Vancouver Grizzlies basketball team in 1999 as the director of marketing and communications. However, at the end of the 1999‑2000 basketball season, the Grizzlies were moved to Memphis, Tennessee in the United States. She was offered a promotion and a salary increase if she agreed to relocate to Memphis to continue her employment with the new management of the Grizzlies. She did so and was employed in apparently secure employment with the Memphis Grizzlies for the next four years. It is clear from the materials that she was considered a valued employee and in May of 2004, she was promoted to the vice president of marketing and communications.

[7] Sometime in early 2005, the plaintiff began looking at her options and in particular, options that would allow her to return to the Pacific Northwest area of the United States or to the Greater Vancouver area of British Columbia. To that end, in February 2005, she made application for positions with the Seattle Sonics and Portland Trailblazers basketball teams. Over the next month or two, she also spoke to others that she knew in the industry about potential opportunities. She acknowledges that she may have told a representative of the executive search firm of Ray & Berndston, Tanton Mitchell (”RBTM"), that she was interested in possible opportunities for employment.

[8] Sometime in early May, a representative of RBTM contacted the plaintiff about an opportunity as vice president of marketing with the defendant. The plaintiff applied for the position and on July 11, 2005, the position was offered to her. The plaintiff reviewed the terms that were offered by the defendant and indicated to Ms. Jellinck of RBTM that she was not happy with the terms that were offered and requested the terms be improved. To this end, she sought a higher salary and a guaranteed bonus that would be paid on a non-discretionary basis as part of her annual compensation. The defendant declined to improve the offer that was made.

[9] She ultimately accepted the position on the terms that were initially offered and resigned from her position with the Memphis Grizzlies. Prior to accepting her resignation, the Memphis Grizzlies discussed a possible increase in salary in an effort to retain her employment services. She advised the Memphis Grizzlies that the issue was "not about money", but rather that she was interested in relocating back to Canada.

[10] The terms of the offer are set out in a letter that may be found attached to the plaintiff's Affidavit #1 as Appendix K.

[11] She commenced her employment on August 22, 2005 and there is no suggestion that there was any difficulty in the way she performed her duties and it is clear from all of the evidence that the defendant was satisfied with the work that she did.

[12] In early 2006, senior executives of the defendant realized that the financial circumstances of the defendant were much diminished and decided that steps had to be taken to reduce costs. The result was a reorganization of the management of the company, which in turn, led to the elimination of the plaintiff's position with the defendant.

[13] The defendant wrote to the plaintiff on February 15, 2006 outlining two options. That letter may be found as Appendix P to Affidavit #1 of the plaintiff. The first option was an offer of alternative employment. The letter stated that the defendant recognized that the plaintiff had been a valued contributor to the marketing efforts of the company and that the defendant wished to retain her expertise. The defendant offered the plaintiff a position that was described as the director of marketing, racing operations effective February 15, 2006. The defendant offered to maintain the level of remuneration of the plaintiff at $130,000 per annum until December 31, 2006. As of January 1, 2007, the defendant stated that the salary of the new position was to be reduced to a level that it considered appropriate for the new position of $75,000 per annum. The benefits were to remain unchanged, although obviously any bonus paid as a percentage of salary would be much reduced. The salary that was assigned to the new position after January 1, 2007 results in a salary reduction of about 42% from that of the position that the plaintiff was hired to perform.

[14] The second alternative that was proposed was the termination of the plaintiff's employment effective February 15, 2006.

[15] The plaintiff was not happy with the reduced responsibility of the new position and while the salary that she would earn was to be maintained at $130,000 to the end of the 2006 calendar year should she choose to stay on, after the end of the year the compensation package was to be much reduced. After some discussion, she proposed an alternative to the two that were offered by the defendant. She indicated that she was prepared to stay on as a consultant to the company to the end of December 2006 on terms that she described in some detail and at a consulting fee of $10,000 per month plus GST, plus certain commissions. In addition, she would receive a lump sum payment of approximately 6 months' salary in the amount of $64,000.

[16] The defendant rejected that proposal, but made a counter-proposal. In the counter-proposal, the defendant eliminated any lump sum payment but indicated that they would retain the plaintiff as a consultant to December 31, 2006 and would pay an all-inclusive sum of $11,000 per month during that period of time. The restriction was that the plaintiff would perform duties as dictated by the defendant rather than define the nature of the consultant’s role herself. The plaintiff rejected that offer.

Constructive Dismissal

[17] The first issue for resolution is whether or not the plaintiff was constructively dismissed as at February 15, 2006. As was stated in Farquhar v. Butler Bros. Supplies Ltd. (1988), 23 B.C.L.R. (2d) 89 (C.A.), at page 92:

A constructive dismissal occurs when the employer commits either a present breach or an anticipatory breach of a fundamental term of a contract of employment, thereby giving the employee a right, but not an obligation, to treat the employment contract as being at an end.

[18] It is clear from the evidence in this case that the defendant made a unilateral change to the plaintiff's contract by eliminating her position as vice president of marketing for the defendant's operations and immediately reassigning her to a position with lesser responsibility. The position was one that carried a much lower rate of pay after the expiration of the notice period. The reduction in pay for the position clearly indicates its lesser responsibility and status in the hierarchy of the defendant. The defendant acknowledged that it was a position of lesser responsibility and that it was not a senior management position, whereas the initial position accepted by the plaintiff was a part of senior management.

[19] In all of the circumstances, I have no difficulty finding that the plaintiff was constructively dismissed on February 15, 2006 given that the new position was of lesser responsibility, had a smaller budget to manage, fewer subordinates to supervise and was not a part of senior management. These changes constituted a demotion and I therefore find that there was a constructive dismissal of the plaintiff as at February 15, 2006.

Offer of Re-employment

[20] The defendant takes the position that the plaintiff did not act reasonably in failing to accept the defendant's offer of re-employment or its offer of consultancy at essentially the same pay and benefits until December 31, 2006, but in a lesser position. The defendant says that it valued the plaintiff's contribution as an employee and it wanted to retain her services. It says that restructuring of the company and the executive positions was a fiscal necessity and had nothing to do with the quality of the plaintiff's work. It appears from the evidence that the relationship between the plaintiff and the defendant management, in particular those with whom the plaintiff worked directly, was a positive and cordial working relationship. The plaintiff was to continue to report to the same individual and there was some considerable flexibility in the position as well as room for creativity on the part of the plaintiff. The plaintiff admitted that she would have had a hand in defining the role and that her relationship with her immediate supervisor, Ms. Bugden, was a good one.

[21] While the plaintiff rejected the offer of re-employment, she did make a counter-proposal to act as a consultant. In the defendant's counter-proposal, the terms of the consultancy were very similar in terms of the pay that was offered in the defendant’s initial offer of re-employment but excluded the various benefits. Where the plaintiff and defendant parted company was that the defendant declined to allow the plaintiff the flexibility and control over the scope and nature of the work that she was to perform, and the defendant declined to pay any lump sum in addition to the consultancy contract. In the end, nothing came of the discussions and the parties ended their relationship.

[22] The plaintiff says that she believed that accepting either position of lower responsibility on the terms offered by the defendant would damage her reputation in the industry in which she worked and leave her in a diminished or less advantaged position in her search for a new job. She wanted to maintain her status as a senior marketing manager and felt that by accepting a lower position she would impair her chances of finding comparable employment. As it turned out she was not able to find a new position at all and in the result, she had very little income since the date of termination. In October of 2006, she essentially gave up her job search and turned her efforts to commencing her own business known as Marla Taner and Company.

[23] The defendant says that the plaintiff's decision to reject the offer of re‑employment or the consultancy proposal was an unreasonable one and argues that as a result she should not be entitled to recover any damages.

Plaintiff's Duty to Mitigate

[24] The obligation of an employee who has been dismissed from her job to mitigate her loss has been described as follows:

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 was seeking work elsewhere. [Farquhar, above, at p. 93]

[25] This principle was repeated in the case of Evans v. Teamsters Local Union No. 31, 2006 YKCA 14 (leave to appeal to the Supreme Court of Canada granted March 2007), where the court at paragraph 49 quoted the following portion of Mifsud v. MacMillan Bathurst Inc. (1989), 70 O.R. (2d) 701 (Ont. C.A.), leave to appeal to S.C.C. refused:

The fact that the transfer to a new position may constitute in law a constructive dismissal does not eliminate the obligation of the employee to look at the new position offered and evaluate it as a means of mitigating damages. In all cases, comparison should be made to the contractual entitlement of the employer to give reasonable notice and leave the employee in his current position while a search is made for alternative employment. Where the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious (as in this case) it is reasonable to expect the employee to accept the position offered in mitigation of damages during a reasonable notice period, or until he finds acceptable employment elsewhere. [emphasis in Evans]

[26] The defendant argues that the plaintiff should have accepted the position offered given that the pay and benefits were equal and that there was a good working relationship between the plaintiff, the defendant and the plaintiff's immediate supervisor. The defendant says that the working conditions were not substantially different, nor were they demeaning, and the personal relationships were respectful.

[27] The facts in Farquhar were that due to the poor financial position of the company the employer unilaterally changed the terms of employment by reducing the plaintiff's salary by 30% and eliminating some of the benefits. Continued employment was offered at a reduced salary, but the plaintiff chose to leave the company rather than stay on. As it turned out, the financial difficulty was temporary and a short time later, the salaries of those employees who chose to remain at work with the employer were returned to previous levels. The court held that the plaintiff was entitled to leave as the salary was a fundamental term of the contract and could not be changed except by mutual agreement. The plaintiff in that case received 9 months' salary as damages.

[28] In Evans the plaintiff was a union business agent in Whitehorse, Yukon and he had been employed in that position for 23 years. Five months after his dismissal, following the breakdown of negotiations of a severance package, he was offered continued employment of 24 months at the same pay and in the same job. After some discussion, he chose not to accept that proposal and his employment was terminated.

[29] The evidence established that there was no comparable employment available in Whitehorse and the plaintiff was fully aware of that. The trial court found for the plaintiff, but the Court of Appeal held that the plaintiff had failed to mitigate damages by returning to work at the same job at the same salary and benefits in the same location as he had been employed for the previous 23 years. The Court noted that the plaintiff had no job prospects outside of the union and that he knew that a return to his previous employer was the only way he could mitigate his damages. At paragraph 54, Thackray, J.A. stated:

... On an objective test a reasonable person would view this as a bona fide employment opportunity. It was not for a different job; it was for the exact job that Mr. Evans had been doing and which he described as "the best job in the world." This fulfilled the 24 month notice period that Mr. Evans wanted.

[30] The Court found that Mr. Evans failed to act reasonably with respect to the job offer that had been made to him by the union and held that he should have returned to employment for the union when the offer of re-employment was made and dismissed his claim for damages.

[31] In this case, while the salary that was to be paid to the plaintiff was the same during the notice period, the job she was to do was significantly different. So different in fact, that the defendant assigned a much lower salary to the position than for the position in which she was initially hired. While the job entailed similar functions, the scope and responsibility of the job was much reduced from her former position. I find that the plaintiff’s concern about the effect on her professional reputation of accepting either re-employment offer was reasonable.

[32] The plaintiff had strong references from her prior employer and from the defendant, and she was young, only 36 years old. She believed that she could find alternate employment with a similar salary and benefits in the field in which she had experience. In that conclusion, it turned out that she was wrong, but clearly she was in a very different position than the plaintiff in Evans, who was well aware that there was no reasonable alternative available for his skills in Whitehorse.

[33] Even though there were limited opportunities in marketing of sports and entertainment businesses in the Vancouver area, those opportunities were much better than the opportunities available to the plaintiff in Evans. Also, I find that the plaintiff's experience was not completely restricted to that field and that it was not unreasonable for her to make the decisions that she did. I therefore find that it was not unreasonable for her to reject the proposal of re-employment or the consultancy proposal that was made by the defendant.

Notice Period

[34] Having found that the plaintiff acted reasonably in deciding to reject the defendant's offers of re-employment, the next step is to determine the appropriate notice period.

[35] The plaintiff was working in an apparently secure job in Memphis at a comparable salary and benefits to those she was offered by the defendant. While it is clear that she wanted to move back to the Vancouver area, or to the Pacific Northwest of the United States, she clearly was not prepared to do so without first receiving an offer of comparable employment. It was pointed out by the defendant that her position in Memphis was one that was an "at will" position, where she could be dismissed at the will of the employer. However, there is no indication that her employer was in any way dissatisfied with her work or that she faced any uncertainty in her employment. She had received consistent raises over the time that she had been working for the Memphis Grizzlies, and increases in responsibility. In addition, it is clear that they wished to retain her when she advised them of her intention to leave their employment. The fact that she was technically in an "at will" position does not impact on the determination of the correct notice period in this case.

[36] One of the issues raised by the plaintiff was an allegation that she was induced by the defendant to leave her employment in Memphis. It is clear from her actions in exploring other alternatives that she had already begun some sort of a job search, looking for an opportunity away from Memphis. The search firm approached her only because of what it had heard through its sources, perhaps one of its employees, that the plaintiff was interested in a new opportunity. Once the RBTM representative contacted her and advised her of the position available with the defendant, she applied soon after and was subsequently offered the job.

[37] While the plaintiff argues that she was recruited by the defendant, and induced to leave a secure well-paying job to take up the position, the defendant says that she was already searching for opportunities and that she was not induced to leave her employment.

[38] It seems to me that the truth lies somewhere in-between. I am satisfied that RBTM would not have contacted her if she had not let it be known in the industry that she was interested in a move. I am also satisfied that she would not have accepted the position except on the expectation that the job would be a permanent and long-lasting one that provided her with comparable remuneration to what she received in Memphis.

[39] Once she commenced her employment in August of 2005, she was technically on probation for a period of 6 months and she was clearly a short term employee. However, it must be remembered that she had moved from a very secure job in the United States to take up the position. The defendant did not rely on her probationary status given that there was no issue as to her suitability for the position.

[40] While the plaintiff was a short term employee when her employment was terminated, it seems to me that when an individual leaves secure employment to take up an offer of employment some distance away, if that employment is terminated a short time later, the court should recognize that a longer period of notice or compensation in lieu of notice is appropriate. The leading case in this province on the calculation of an appropriate notice period is the decision of Ansari v. British Columbia Hydro & Power Authority (1986), 2 B.C.L.R. (2d) 33 (C.A.), where McEachern, C.J.S.C. (as he then was) stated at page 43:

At the end of the day the question really comes down to what is objectively reasonable in the variable circumstances of each case, but I repeat that the most important factors are the responsibility of the employment function, age, length of service and the availability of equivalent alternative employment, but not necessarily in that order.

[41] That decision was based on Bardal v. Globe & Mail Ltd., (1960), 24 D.L.R. (2d) 140 (Ont. H.C.). In applying those principles to the facts of this case, it is clear that the plaintiff had a high level of responsibility in both position and job function. She was a member of the senior management although at the low end of senior management. She was vice president of marketing and was responsible for a large budget and several staff. Her age at the time of dismissal was 36 and she had been engaged in marketing activity since 1999. Her length of service was not long, a period of approximately 6 months, and the availability of any equivalent employment was somewhat limited due to the small number of sports events and professional sports organizations in the Greater Vancouver area.

[42] There is no set formula to calculate an appropriate notice period, but in considering all of the factors of this case, I find that given the plaintiff's level of responsibility, experience and the fact that she gave up stable, secure employment to relocate to Vancouver to take up her position, I find that the appropriate notice period is a period of 10 months from the date of termination of February 15, 2006. Given that her salary was $130,000 per year or $10,833 per month, I find that the appropriate compensation on account of salary in lieu of notice is $108,333.

Issue of Bonus

[43] I turn now to the issue of non-salary benefits. As a starting point, I note that the plaintiff is entitled to what she would have received or earned had she remained in the employ of the defendant during the notice period: Martell v. Ewos Canada Ltd., 2005 BCCA 554, at paragraph 27.

[44] In addition to the claim of damages for lost income, the plaintiff claims entitlement to a bonus she says would have been paid to her during the notice period. The defendant says that the bonus was a discretionary part of her compensation package and that the defendant paid no bonuses to anyone during the notice period. This evidence comes from the affidavit of the defendant’s representative Ms. Shane Thornton and is corroborated by the disclosure statements that were filed by the defendant which can be found at Volume 1, Tab 5, Appendix H, page 297 of the materials. It is clear from the original offer of employment made to the plaintiff that the bonus was a discretionary portion of her overall compensation package to be paid at the discretion of the defendant’s senior management.

[45] It is also clear that she was aware of the discretionary nature of the bonus as in the negotiations leading up to the plaintiff’s decision to accept employment with the defendant, she tried to re-negotiate the initial terms of the offer so that a fixed or non-discretionary bonus was assured to be paid to her in addition to her salary each year. That proposal was not accepted by the defendant.

[46] I conclude on the evidence that the bonus was a discretionary one and that due to the financial position of the defendant, no bonuses were paid to any member of the executive in the year 2006. I therefore find that the plaintiff would not have received a bonus had she remained in the employment of the defendant during the notice period. Therefore, this portion of the plaintiff's claim is dismissed.

Stock Options

[47] The defendant had a stock option plan for its employees that was included as part of the plaintiff's compensation package. She was allotted 10,000 shares at a price of $17.37 per share on September 1, 2005, shortly after she commenced employment. The plan allowed 8.33% of the allotment to be redeemed commencing September 1, 2005 and then quarterly in every year commencing January 1, 2006. She did not exercise those options because the share price in the market was below the option price of $17.37. Had the price been advantageous to the plaintiff, she would have been able to exercise her option to acquire 8.33% or 833 shares on the issue of the options at September 1, 2005; and then on each of January 1, 2006; April 1, 2006; July 1, 2006; and October 1, 2006.

[48] She says that a number of executives had new options issued at a more advantageous price of $11.89 per share in 2006 and that they were allotted in greater numbers than she had originally been given. She says that had she stayed on as an employee of the defendant in her previous position during the notice period, she would have been included in the group of executives and would have received, at the price of $11.89, at least the same amount of shares as she had originally been allotted.

[49] The defendant denies any general plan to exchange or re-issue stock options. Ms. Shane Thornton in her Affidavit #2 sworn June 18, 2007 says that there was no re-allotment, but that the issue of options to each of a small number of senior executives was part of their individual contracts of compensation. The defendant says that all of these were at the discretion of the board of directors. The defendant says that a small number of executives turned in their options in early April of 2006 and were subsequently issued new options in July of 2006. The defendant says that some of the executives, but not all, received new share options at the price of $11.89 per share. Ms. Thornton's Affidavit #2 can be found in Volume 1, at Tab 5, Appendix G, and in that affidavit she indicates that four senior executives of the defendant, the chief financial officer, the chief administrative officer, the vice president of gaming and the vice president of operations and financial development were included in this category.

[50] I cannot find on the evidence presented anything to support the proposal that the plaintiff would have been included in that group of very senior executives of the defendant or that the grant of options to those individuals was part of a general program available generally to senior management of the defendant. On the evidence I cannot find that she would have received any new options at a more favourable option price. I therefore dismiss this portion of the plaintiff's claim.

Benefits

[51] The plaintiff was entitled to a benefit package including paid vacation time, pension, and medical/dental. The parties appear to agree that the value of those benefits was $730.31 per month. Based on the allowed notice period of 10 months, the value of those benefits would amount to $7,303.10.

[52] However, the defendant says that no damages under this head should be allowed given that there is no evidence that the plaintiff either purchased replacement benefits or incurred any loss with respect to this category of her claim. The defendant says that if the plaintiff fails to show that she has actually paid out money or lost money, or has otherwise suffered a loss because of the absence of the benefits, her claim cannot succeed.

[53] The defendant relies on Sorel v. Tomenson Saunders Whitehead Ltd. (1985), 15 B.C.L.R. (2d) 38 (C.A.). In that decision, the Court of Appeal applied the principle established in Wilks v. Moore Dry Kiln Co. of Canada Ltd. (1981), 32 B.C.L.R. 149 at 152 (S.C.), where McLachlin, J. (as she then was) stated:

... The question is not what the defendant has gained by the dismissal, but what the plaintiff has lost. This loss must be established on the evidence. If the plaintiff fails to show that he has paid out or lost money or has otherwise suffered by reason of the absence of fringe benefits, his claim cannot succeed.

[54] That principle appears to be still good law in the Province of British Columbia and as there is no evidence to support any payment for replacement benefits or losses arising from the absence of the benefits claimed in this category, I therefore dismiss this portion of the plaintiff's claim. The plaintiff has not provided any evidence of loss respecting any vacation time or pay over the notice period and absent such evidence she is not entitled to compensation for lost vacation pay over that time: Scott v. Lillooet School District No. 29 (1991), 60 B.C.L.R. (2d) 273 (C.A.)

Car Allowance

[55] As part of her compensation package, the plaintiff was given a car allowance of $700 per month for the use of her own car during employment. She says that she never used her car in the course of her employment and that the car allowance was part of her general compensation rather than reimbursement for out-of-pocket money she spent as a result of her use of her vehicle for company purposes. She claimed the car allowance as a benefit on her income tax return and says that she is entitled to $700 per month during the notice period. In my view, she is entitled to succeed on this claim. There is no suggestion that this was intended to be a benefit that depended upon her use of her vehicle. She is entitled to the amount of $7,000 on this head of damages.

Mitigation Generally

[56] After February 15, 2006, the plaintiff made some efforts to obtain other employment by contacting Ms. Jellinck at RBTM and made other efforts to try to find employment. While these efforts were not extensive and they did not include any search for employment outside of the Vancouver area, I find that in the circumstances, the efforts were reasonable given the nature of the market that the plaintiff had been engaged in. Over her years of employment the plaintiff’s experience in marketing had become quite specialized and restricted to the sports and entertainment industry. Her search of the job market following the termination of her employment was initially confined to that market. Eventually she explored other areas of opportunity and finally in October 2006 she commenced her own business.

[57] The defendant argued that the plaintiff's efforts to find new employment were minimal and did not amount to appropriate mitigation of her damages. On this point, the defendant relies on the decision of Woolard v. Unum Life Insurance Co. of Canada (2002), 4 B.C.L.R. (4th) 333 (S.C.). In that decision, Burnyeat, J. stated at paragraph 143:

In seeking and accepting alternative employment, Ms. Woolard has a duty to act reasonably -- to take such steps as a reasonable person in her position would take in her own interest to maintain her income and her position in her industry, trade or profession. The duty involves a constant and assiduous application for alternative employment and an exploration of what is available through all means: Leawood v. Thunderbird Home Centres (unreported) April 3, 1995, C941213 -- Vancouver Registry (B.C.S.C.).

[58] In this case, the plaintiff's evidence is that she did make efforts through a contact with RBTM to seek other employment and that she did make inquiries in the industry in an effort to locate employment. While it is clear that she did not seek employment outside of Greater Vancouver, including in the United States of America where she had previously been employed, I cannot find that that was an unreasonable decision for her to take in all of the circumstances. Her decision to leave her employment in Memphis was partly for the reason that she wished to relocate to Canada or to the Pacific Northwest of the United States and it does not make sense to impose a requirement that she move once again when that employment was eliminated. Although there are limited opportunities in the sports and entertainment industry in the Lower Mainland of British Columbia, there are many other marketing opportunities that she could reasonably have expected to explore if her initial search for an appropriate job was unsuccessful. In this case the plaintiff opted to start her own business after failing to find suitable replacement employment by October 2006. I find that in all of the circumstances of this case that the steps she took in an attempt to mitigate her damages were reasonable.

[59] The defendant also says that the plaintiff declined to explore an opportunity that had been referred to her by RBTM. That position was referred to in the affidavit of Caroline Jellinck sworn May 4, 2007, found at Volume 2, Tab 8, of the materials. She attached an exchange of emails with the plaintiff as Appendix B. In that exchange the plaintiff indicated that she was not interested in pursuing that opportunity. Ms. Jellinck advised the plaintiff of the opportunity in these terms:

Marla -- please find attached the information we discussed regarding chrisco. This could be a great opportunity to build a team and really grow a business. Let me know what you think -- it's a bit off the wall but ...

[60] The plaintiff replied by thanking Ms. Jellinck for thinking of her with respect to the position, but did not consider that it was appropriate for her and said that she did not wish to be considered. She felt that the opportunity was not in line with what she had been doing or what she wanted to do in the future. She said that she wanted to find a service or product that she could really believe in. I do not find that it was unreasonable for her to turn down this opportunity. There is insufficient information available to show whether or not it was an opportunity of comparable nature or that she would have had any opportunity to be selected for it.

[61] The plaintiff has earned some income during the notice period through short term contracts and her limited success indicates that she has made efforts to find alternate employment or income. In all of the circumstances I find that the plaintiff has satisfied the duty to mitigate her loss.

Summary

[62] In summary, I find that the plaintiff was constructively dismissed on February 15, 2006; that it was not unreasonable for the plaintiff to reject the defendant's offer of re-employment or consultancy; that the appropriate period of notice is 10 months; and that her claim for damages for lost opportunities to earn a bonus or profit from stock options are both dismissed as is her claim for benefits. She is entitled to her car allowance.

Damages

[63] Lost income - $108,333

Car Allowance - $ 7,000

Total - $115,333

[64] The defendant says that it is entitled to a credit of the following amounts:

• statutory severance payments made to the plaintiff in the amount of $2,500;

• ex gratia payment for wages between February 16 and 22, 2005 in the amount of $2,708.25, being one week of pay at the monthly rate of $10,833;

• compensation received by the plaintiff for work she had performed for Publicis Vancouver from April 19, 2006 to May 17, 2006 in the amount of $2,500;

• compensation received by the plaintiff for work she performed for the Vancouver Aquarium from August 18, 2006 to October 13, 2006 in the amount of $6,800.

[65] I am prepared to allow a set-off of these items as monies that were paid to the plaintiff by the defendant or were earned by her during the notice period. I do not allow a credit for any other amounts as it has not been established on the evidence that they were earned during the 10-month notice period. The total amounts to $14,508.25 and that amount should be deducted from the award, leaving $100,824.75 as the total amount payable by the defendant to the plaintiff.

[66] The parties suggested that they may wish to make submissions with respect to costs. Absent any order or agreement to the contrary, the plaintiff is entitled to her costs, subject to any submissions that the parties wish to make on that issue.

"J. K. Bracken, J."

The Honourable Mr. Justice Bracken

Citation:	*Taner v. Great Canadian Gaming Corporation,*
	2008 BCSC 129