[1] Ms. Panton's wrongful dismissal action was dismissed following trial on the grounds that her employment was terminated for cause on March 1, 1996. The Court of Appeal allowed her appeal but declined to assess damages and said the following in that regard:

[2] Except as relevant to the assessment of damages, I do not propose to recite the facts. They are adequately described in my reasons (August 26, 1998, Vancouver) and the reasons of the majority and minority in the Court of Appeal, 2000 B.C.C.A. 621.

[3] Ms. Panton claims damages computed by reference to a notice period of 12 months increased by a further 6 months to compensate for improper treatment alleged to have been received from her employer in the course of dismissal. Her annual income at the time of dismissal was $47,000.

[4] Ms. Panton also claims damages for the willful infliction of mental distress including non-pecuniary damages of $20,000, aggravated damages of $5,000, and loss of sick pay for the period from December 5, 1995 through February 29, 1996.

[5] The employer says Ms. Panton should be awarded damages for wrongful dismissal assessed by reference to a notice period of 4 to 7 months with some reduction as a consequence of her failure to mitigate.

[6] The claims that damages should be assessed for the tort of infliction of mental distress, or in respect of sick pay payable in the course of employment, cannot succeed.

[7] The statement of claim asserted that the conduct of the employer during the time leading up to the dismissal and surrounding the dismissal itself was in breach of the duty of good faith and the duty of care owed to Ms. Panton. The statement of claim included a claim for general and special damages in respect of those breaches as well as general, special and aggravated damages for mental distress and personal injury.

[8] The action was dismissed at trial. The notice of appeal stated that on appeal Ms. Panton would seek an order setting aside the dismissal and substituting therefor judgment in her favour and damages for wrongful dismissal.

[9] There was no appeal from the dismissal of any action in tort that may have been defined by the statement of claim. There was no finding by the Court of Appeal that Ms. Panton had proved a tort. There was no direction to this court to assess damages in tort.

[10] There was no claim in the statement of claim that the defendant breached any obligation to pay sick pay. If there was such a claim, there was no appeal from the dismissal of it. There was no finding by the Court of Appeal that the employer breached any contractual obligation to pay sick pay in the course of employment.

[11] The only direction from the Court of Appeal to this court is to assess damages for wrongful dismissal, that being a breach of contract that occurred upon the defendant's failure to provide appropriate notice.

[12] Except to the extent an extension of the notice period resulting from employer misconduct in the course of dismissal may compensate for mental distress in relation to the wrongful dismissal, Ms. Panton is not entitled to damages for the willful infliction of mental distress.

[13] Because Ms. Panton did not establish, whether in this court or the Court of Appeal, any breach of a contractual obligation to pay sick pay, she is not now entitled to claim sick pay for the period from December 5, 1995 to February 29, 1996.

[14] What then is the appropriate notice period and should the period be extended because of the defendant's conduct at the time of dismissal?

[15] Ms. Panton was 40 years old at the date of termination and earned $47,000 annually. She was a subscriber to the documents that resulted in the defendant's incorporation in 1987. She became an employee and director at the time of incorporation. She ceased to be a director in 1989 when a policy change prohibited employees from serving as directors. Ms. Panton's employment was terminated on March 1, 1996, approximately nine years from the commencement of her association with the defendant.

[16] During the greater portion of her employment, Ms. Panton was one of seven employees who comprised the "core staff" consisting of two counsellors, two nurses, a business administrator, a clinical administrator and a communications manager. None of the individuals was senior to others in management. Day to day management decisions affecting the clinic were made by the core staff in committee. Ms. Panton was the clinical administrator and as such, responsible for admission, the billing of patients, security of the clinic, and the compilation of statistical and incident reports.

[17] Ms. Panton graduated from high school in 1973. She did not pursue post-secondary education. From 1978 to early 1989, before joining the defendant organization as a full-time employee, she worked as a medical office assistant.

[18] Having regard for Ms. Panton's age at the time of dismissal, her level of education and work experience, the length of her employment, the nature of her responsibilities, the fact that she was not responsible for the supervision, hiring or termination of other employees, and the fact that she was not authorized to make material decisions with respect to the operation of the clinic without the agreement of core staff, I am satisfied, having regard for the authorities cited by counsel, that the appropriate notice period is eight months.

[19] There is no reason to increase the notice period because precisely comparable employment was not available. There was evidence that there were no other abortion clinics at which Ms. Panton could seek comparable employment. However, on the evidence that was adduced I conclude that the skills Ms. Panton acquired at the clinic were transferable to employment in a comparable administrative capacity in some other field.

[20] The question that remains is whether the notice period should be lengthened because of the defendant's conduct surrounding the dismissal: Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701. In that regard the following facts are relevant.

[21] By the spring of 1995, tensions and disagreements had developed among clinic staff that affected their working relationship. Opposition to the defendant and its activities as well as community opposition to abortion clinics generally was a contributing factor as were strained relations among staff members and between the defendant's board of directors and its staff. The accumulation of events took their toll on Ms. Panton and caused her to consult with a clinical psychologist in the spring of 1995. She took a medical leave of absence commencing in August 1995.

[22] In my reasons for judgment, paras. 18 through 58, I recounted the events, incidents and conduct that resulted in Ms. Panton's termination. In summary, as the board acted in an attempt to resolve matters of internal conflict and reorganize, Ms. Panton raised objections and expressed reluctance to become involved in the process. She took inappropriate actions in relation to various matters of concern to the Society. In the same period, the defendant's president made unjustified allegations in relation to some of Ms. Panton's conduct. Ms. Panton responded with correspondence in which she disputed the board's right to address complaints about her performance, criticized the leadership of the president and her actions as they pertained to Ms. Panton, confirmed her disagreement with board decisions, and generally expressed outspoken criticism of the manner in which the board made its decisions. I summarized the situation at para. 64 of my reasons as follows:

[23] Based on the evidence and the sequence of events I recounted in my reasons, I find as a fact that no one acted on behalf of the defendant in bad faith or maliciously towards Ms. Panton at any time from May of 1995 through to February 1996. The fact that incorrect allegations were made by the president directed at Ms. Panton resulted from the lack of information and the lack of full inquiry on the president's part. While the allegations were inaccurate and should not have been made, I find they did not result from bad faith or malice on the part of the president as regards Ms. Panton.

[24] I described the termination at paras. 57 and 58 of my reasons as follows:

[25] To the extent it is not clearly indicated in those paragraphs I find as a fact, on all of the evidence adduced, that neither the board nor the president decided to terminate Ms. Panton at any time prior to February 28, 1996. I find the manner of dismissal on February 28, 1996 was not harsh, vindictive, or malicious. The defendant and those acting on its behalf did not make untruthful, misleading or insensitive comments about or to Ms. Panton in the course of making the decision to terminate her or in communicating the decision to her. The board's good faith is evidenced by its offer to pay severance even though it had concluded that the cumulative effect of Ms. Panton's conduct was to provide cause for dismissal.

[26] I conclude that the defendant's conduct surrounding this dismissal is not that which the Supreme Court of Canada in Wallace said should result in an extension of the notice period.

[27] The defendant claims that the award of damages should be reduced because of Ms. Panton's failure to mitigate her loss.

[28] On the advice of employment authorities, Ms. Panton pursued additional training in the period following termination in order to improve her employment opportunities. Given the advice she had received and the nature of her work over a period of almost eight years, it was reasonable for Ms. Panton to use the notice period to pursue the training she did.

[29] On the evidence adduced by the defendant who bears the onus to prove a failure to mitigate, I find Ms. Panton acted reasonably throughout the notice period during a considerable portion of which she was on long-term disability and no reduction in the award of damages would be appropriate because of a failure to mitigate.

[30] I assess damages for wrongful dismissal in the amount of $17,083 representing eight months' salary less disability income of $14,250 received in the notice period which the parties agree should be deducted from the award. Ms. Panton is entitled to pre-judgment interest from March 1, 1996 to August 26, 1998 and post-judgment interest thereafter. She is entitled to the costs of the hearing with respect to the assessment of damages at Scale 3.

"I.H. Pitfield, J."
The Honourable Mr. Justice I.H. Pitfield