2012 NBCA 46, 2012 NBCA 46

COURT OF APPEAL OF NEW BRUNSWICK 143-11-CA AMEC AMERICAS LIMITED, dba: AMECEARTH & ENVIRONMENTAL, a body corporate APPELLANT AMEC AMÉRIQUES LIMITÉE, f.a.s. AMECEARTH & ENVIRONMENTAL, corps constitué APPELANTE - and - - et - LEE MacWILLIAMS RESPONDENT LEE MacWILLIAMS INTIMÉ AMEC Americas Limited v. MacWilliams, 2012NBCA 46 AMEC Amériques Limitée c.

MacWilliams, 2012NBCA 46 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge en chef Drapeau L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’sBench: October 3, 2011 Appel d’une décision de la Cour du Banc de la Reine: Le 3 octobre 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 272 Décision frappée d’appel : 2011 NBQB 272 , 2011 NBBR 272 Preliminary or incidental proceedings: Court of Appeal: [2010] N.B.J.

No. 340 Procédures préliminaires ou accessoires : Cour d’appel : [2010] A.N.-B. no 340 Appeal heard: March 13, 2012 Appel entendu : Le 13 mars 2012 Judgment rendered: May 17, 2012 Jugement rendu : Le 17 mai 2012

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Quigg L’honorable juge Green Counsel at hearing: For the appellant: E. Thomas Christie, Q.C. For the respondent: Daniel P.L. Leger Avocats à l’audience : Pour l’appelante : E. Thomas Christie, c.r. Pour l’intimé : Daniel P.L.

Leger THE COURT The appeal is allowed, but solely for the purpose of assessing the respondent’s damages for wrongful dismissal, adding interest thereon and making an adjustment to the award of costs at trial. Additionally, the respondent is awarded costs on appeal of $5,000. LA COUR Accueille l’appel en partie, mais à seule fin d’évaluer les dommages-intérêts de l’intimé pour congédiement injustifié, d’y ajouter des intérêts et d’apporter un rajustement aux dépens accordés au procès. De plus, l’intimé obtient des dépens afférents à l’appel de 5 000 $. The judgment of the Court was delivered by DRAPEAU C.J.N.B. I.

Introduction [ 1 ] Experience teaches us there is a great deal of wisdom in the old adage “Justice delayed is justice denied”. Over time, rules of procedure have been crafted to speed up access to justice. One of those is Rule 22 of the Rules of Court (“Summary Judgment”), which provides a vehicle for early determination of liability. Another is Rule 47.03(3), which allows the court to direct an advance payment of special damages where liability has been established. Admittedly, the test for

summary judgment is stringent. Yet, one discerns a greater awareness by the litigation bar of the benefits accruing from a skillful use of Rule 22 and a growing judicial openness toward

summary judgment and advance payments of special damages in favour of deserving claimants. These are indisputably welcome developments in the pursuit of timely access to justice. [ 2 ] The procedural, strategic and substantive issues raised by the present appeal are of broad significance, resonating beyond the particular dismissal-related dispute between the appellant employer and its former employee, the respondent Lee MacWilliams. Those issues include: (1) the availability of

summary judgment where the defendant employer pleads, as a full answer to the action in damages for wrongful dismissal, that the employee unreasonably refused a settlement offer in the run-up to the initiation of legal proceedings; (2) the sufficiency of admissions in pleadings as a basis for the determination of reasonable notice of termination. The

appellant contends the dismissed employee must testify at trial in order to succeed; (3) the adequacy, for purposes of assessing damages, of admissions and/or evidence establishing the employment benefits the dismissed employee would have received during the reasonable notice period set by the court. The appellant submits such a record falls short of the mark unless supplemented by proof of the employment benefits the dismissed employee actually received, if any, during that timeframe; (4) the admissibility at the trial on damages of affidavit evidence received on the dismissed employee’s successful motion for

summary judgment confirming the employer’s liability; (5) the standard of appellate review applicable to a determination of reasonable notice of termination; and (6) the authority of a trial judge to conclude proceedings with a direction that the parties work out among themselves the quantum of damages in lieu of the reasonable notice he or she has set.

In my respectful judgment, the present appeal, if successful, would have the Court rewind the clock back to a time in the long ago where, outside the most exceptional cases, judgment followed a full blown trial at which debates stood to be settled solely on the basis of viva voce and documentary evidence. [ 3 ] When all is said and done, and notwithstanding the forceful arguments of counsel for the appellant, I find

summary judgment establishing liability for wrongful dismissal was rightly granted and that the trial judge did not commit reversible error, at the follow-up hearing on damages, in setting at 20 months the notice of dismissal required under the contract of employment between the parties. In my view, the trial judge’s lone error was to leave up to the parties the determination of Mr.

MacWilliams’ damages. [ 4 ] In the result, I would allow the appeal, but solely for the purposes of varying the judgment entered in the court below by: (1) making provision for damages in lieu of notice, with interest thereon; and (2) adjusting the costs awarded at trial to reflect the “amount involved” and the appellant’s cooperation in simplifying the issues and shortening the proceedings with early admissions of otherwise provable facts. II. The Context A.

The story told by the admitted facts [ 5 ] The following factual allegations, which appear in the Statement of Claim, are admitted in the Statement of Defence. [ 6 ] The appellant, AMEC Americas Limited, doing business as AMEC Earth & Environmental (“AMEC”) is in the business of engineering and project management. Its head office is in Oakville, Ontario. [ 7 ] At the time the underlying action was initiated on May 11, 2010, Mr. MacWilliams resided in Fredericton, New Brunswick, where AMEC has a branch office. [ 8 ] Mr. MacWilliams commenced full-time employment with AMEC in 1991.

He was hired for an indefinite term. At all material times, Mr. MacWilliams’ contract of employment featured implied terms obligating AMEC to: (1) deal with him in good faith; (2) pay him outstanding debts for services rendered; (3) pay employer contributions to Employment Insurance (“EI”) and the Canada Pension Plan (“CPP”); and (4) in the event of dismissal without cause, provide reasonable notice of termination or payment in lieu thereof. [ 9 ] Mr. MacWilliams performed his employment duties under the contract in good faith. [ 10 ] As of February 14, 2010, Mr.

MacWilliams’ contractual benefits included: (1) a base salary of $94,286.40 annually; (2) 7% of his base salary as employer contribution to a Registered Retirement Savings Plan (an annual value of $6,600.05); (3) annual bonuses, tied to AMEC’s financial performance, of approximately $1,500 for 2007 and 2008; (4) bonus for referral of individuals to AMEC’s employment (as of April 15, 2010, AMEC was obligated to pay Mr. MacWilliams $2,500 as a referral bonus with respect to its hiring of Dr. David Rae); (5) full health and dental insurance benefits; and

(6) Employment Insurance and Canada Pension Plan contributions. [ 11 ] On February 15, 2010, AMEC dismissed Mr. MacWilliams from his employment as Head of Client Services at its Fredericton office. He was 42 years old.

[ 12 ] AMEC’s termination letter did not allege just cause. In fact, there was no just cause for Mr. MacWilliams’ dismissal. [ 13 ] AMEC paid 4 weeks’ salary pursuant to the Employment Standards Act , S.N.B. 1982, c. E-7.2. It also offered to settle Mr. MacWilliams’ potential claim by paying his salary “for a maximum” of 12 months. The offer was subject to the following condition: AMEC would only pay 50% of full salary if and when Mr. MacWilliams entered “into any employment commitment”, regardless of its actual terms and conditions. [ 14 ] Mr.

MacWilliams did not accept this offer to settle. [ 15 ] Between February 15, 2010 and April 1, 2010, AMEC continued Mr. MacWilliams’ base salary, as well as RRSP contributions and health and dental coverage. [ 16 ] On April 1, 2010, AMEC made a second settlement offer. It would continue paying Mr. MacWilliams’ salary for 16 months subject to the following condition: the payout would be reduced to 30% should he secure an “employment commitment”, regardless of its actual terms and conditions. I note parenthetically the record shows AMEC’s offers of settlement required Mr.

MacWilliams execute a full and final release in its favour. [ 17 ] Mr. MacWilliams rejected this offer of settlement. [ 18 ] AMEC continued Mr. MacWilliams’ base salary, RRSP contributions and health and dental coverage until May 6, 2010. [ 19 ] On May 6, 2010, AMEC renewed the settlement offer described in paragraph 16. It informed Mr. MacWilliams that, unless he accepted this offer, his employment benefits would cease the next day. [ 20 ] Mr. MacWilliams rejected this final offer of settlement and, as promised, AMEC terminated his employment benefits on May 7, 2010. B.

Allegations and claims in the Statement of Claim that were not admitted in the Statement of Defence [ 21 ] In the Statement of Claim, Mr. MacWilliams states AMEC’s settlement offers did not “satisfy its obligations to provide payment of wages in lieu of a reasonable notice period”. He adds they did not even “acknowledge AMEC’s debt to him with respect to the lost annual bonus earned in 2009 and the referral bonus”. Mr. MacWilliams goes on to itemize his losses during the applicable notice period: (1) wages;

(2) RRSP contributions; (3) compensation bonus;

(4) EI and CPP contributions; and (5) health and dental insurance coverage. He also asserts AMEC owes him a compensation bonus for 2009 and the referral bonus mentioned above. [ 22 ] In the prayer for relief, Mr.

MacWilliams claims “(1) lost wages for a reasonable notice period; (2) lost RRSP contributions for a reasonable notice period; (3) lost compensation bonus for 2009; (4) lost compensation bonus for a reasonable notice period; (5) lost referral bonus; (6) lost EI and CPP contributions for a reasonable notice period; (7) the replacement value of health and dental insurance for a reasonable notice period; (8) pre-judgment interest of 7%; (9) costs and disbursements inclusive of HST; and (10) such further and other relief as this Honourable Court deems just”. C.

The defence raised in the Statement of Defence [ 23 ] The only properly pleaded “defence” is that Mr. MacWilliams’ claim is “wholly without merit” because he rejected AMEC’s offers of settlement. While it is true AMEC also alleges Mr. MacWilliams failed to mitigate his loss “by any other means”, this plea is meaningless, there being no “concise statement of the material facts on which [AMEC] relies for [its] defence” (see Rule 27.06(1)).

[ 24 ] Importantly, AMEC does not allege there was just cause for dismissal. Nor does it allege any conduct that might disentitle Mr. MacWilliams to the benefit of the term of his contract of employment obligating AMEC to provide reasonable notice of dismissal or damages in lieu thereof. [ 25 ] The parts of the Statement of Defence germane to the immediate discussion read as follows: […] the Defendant states that it at all times attempted to respect its obligations toward the Plaintiff and to do so in part by continuing to pay the Plaintiff.

This was during a period of time during which the Plaintiff was making certain demands in attempted resolution of the matter which the Defendant found unsatisfactory. […] the Defendant states that, having continued to pay salary and benefits for a period of approximately four months following the termination of the Plaintiff, the Defendant ceased such payments upon repeated refusals by the Plaintiff to resolve the matter. The Defendant states and the fact is the Plaintiff, by rejecting all reasonable attempts to settle, has completely failed to mitigate his loss and thereby his claim is wholly without merit.

Moreover, the Plaintiff has failed to mitigate his loss by any other means. The Defendant says that it has acted in good faith in its dealings with the Plaintiff in relation to the termination of his employment and in particular in relation to the two (2) global settlement offers as referred to in the Plaintiff’s Claim (hereinafter collectively referred to as the “Global Settlement Offers”) which were made by the Defendant to the Plaintiff with a view to a comprehensive structured global settlement of all outstanding issues to the mutual benefit of the parties.

The Defendant says that both of these Global Settlement Offers (and in particular the 2 nd Global Settlement Offer) provide as good or better terms and conditions than the relief which a court would likely award to the Plaintiff in a wrongful dismissal action. The Defendant under no circumstances is accepting that the Plaintiff was at any time legally entitled to a reasonable notice period of sixteen months. D. The

summary judgment proceedings [ 26 ] By his Notice of Motion, Mr. MacWilliams requested

summary judgment “in respect of the allegation of wrongful dismissal put forth in paragraph 20 of his Notice of Action with Statement of Claim Attached”. In the referenced paragraph, Mr. MacWilliams alleged “his termination was without cause”. [ 27 ] In the affidavit filed in support of the motion, Mr. MacWilliams confirmed the facts admitted through the Statement of Defence and added the following: I am a Professional Engineer. […] As of May 28, 2010, I have not received any further remuneration from the Defendant. […] Since my dismissal I sold my home in Fredericton and moved to Riverview.

Since my dismissal I have continued to incur my normal living expenses, including a mortgage, vehicle expenses, food and clothing costs, heating and lighting costs and costs associated with my 3 year old son. Precisely one week prior to my termination I financed the purchase of a new automobile and have this obligation, which I would not have undertaken if I had known about my termination. Further, as I have not secured a family doctor in Moncton, I have had to travel to Fredericton to medical appointments and have incurred expenses. Specifically, my son has required care to his ears and has had to have surgery.

Prior to my dismissal, I paid for my expenses and family obligations with funds derived from my income from my employment with the Defendant. I have actively been searching for re-employment but have been unsuccessful in obtaining re-employment or in obtaining any employment income. In order to pay my expenses and family obligations I am in significant need of income. I have not earned any income since my dismissal. [ 28 ] In response, AMEC filed an affidavit by its Vice-President, David Parkinson, which reads as follows: The Defendant is a world leading environmental and engineering consulting organization.

We offer services in a wide range of disciplines including environmental engineering and service, geothermal engineering, water resources, materials testing, engineering and project management. Mr. MacWilliams was an employee of the Defendant. He was terminated from his position on February 15, 2010. At that time we were prepared to pay him four weeks pay (1 month) plus continue his salary for an additional twelve (12) months for a total of thirteen (13) months.

In addition, we were prepared to provide to the Plaintiff fifty percent (50%) of any remaining salary income that would have been paid during the salary continuance period once he obtained alternate employment. This is set out in the letter of termination attached to Mr. MacWilliams’ affidavit at Appendix ‘A’. The purpose behind our proposal was to assist Mr. MacWilliams in his transition to another employment opportunity elsewhere. As an employer, we take seriously our obligations to former employees and wanted to ensure the Plaintiff had continued income during this period of transition.

As Vice President of AMEC, I am familiar with the strength of the job market in the Plaintiff’s area of work. With that knowledge we were hopeful that Mr. MacWilliams would have tapped into the market opportunities to secure alternate employment within the time provided in the salary continuance and have the additional benefit of the percentage payout of any salary continuance not required. In addition, Mr. MacWilliams is well known in the engineering community, and by way of example, has recently completed a term as President of the New Brunswick

chapter of the Association of Canadian Engineering Companies and also President of the New Brunswick Environment Industry Association. While we were prepared to provide this continued salary to Mr. MacWilliams we expected that we could do so with the protection of a release provided to us by Mr. MacWilliams giving us certainty of knowing that he was satisfied that his legal rights had been addressed. Mr. MacWilliams did not agree with the proposal for severance we had put forward. However, we continued to pay him in hopes that

somehow his expectation of his entitlement and AMEC’s expectation could be resolved. While AMEC has made clear from the beginning that it would openly standby its proposals to the Plaintiff the Plaintiff has not seen fit to do the same. Despite our confidence in the first offer, our counsel was instructed to modify the length of notice period to a total of 16 months plus a payout of 30% of any unused salary. The revised proposal would have given Mr. MacWilliams a continued salary (he was unable to find suitable employment) from February 15, 2010 to June 15, 2011. Mr. MacWilliams rejected this salary continuance.

Given that Mr. MacWilliams was not satisfied with the proposals put to him, and given that a considerable amount of time had passed since his termination and given that we were not getting any information from Mr. MacWilliams concerning his attempts to find alternate employment given the job market as we knew it, we decided that we could no longer pay Mr. MacWilliams without some certainty as to how we could reach an accommodation on his desires and AMEC’s desire to treat him fairly and responsibly. In all respects we have attempted to deal with Mr.

MacWilliams in good faith and been rejected at every attempt (as is his right). His rejection of our efforts resulted in this lawsuit. His Statement of Claim indicated a claim for an annual bonus (which is wholly discretionary) and a referral bonus. Despite being sued by Mr. MacWilliams we agreed to pay him such bonuses and did so shortly after he commenced the Action.

By offering to pay him for a period up to 16 months and with a percentage payout should he secure other employment and by continuing to pay him until he commenced legal action we are of the belief that we more than met any obligation of reasonable notice and indicates a failure by him to mitigate his loss. By opposing the present Motion, we are asking for the opportunity for a Court at trial to determine whether or not our proposal was reasonable given all the circumstances. [ 29 ] The motion judge rejected AMEC’s contention that Mr.

MacWilliams’ refusal to accept its offers of settlement gave rise to a triable defence to the action as a whole and she granted

summary judgment “to the issue of whether [Mr. MacWilliams] was dismissed from his employment without notice”. AMEC’s application for leave to appeal that decision was dismissed ( AMEC Americas Ltd. (c.o.b. AMEC Earth & Environmental Ltd.) v. MacWilliams , [2010] N.B.J. No. 340 (C.A.) (QL) ). It now appeals as of right. E. The order for an advance payment of special damages under Rule 47.03(3) [ 30 ] Rule 47.03(3) provides that, where liability is established, the court may direct an advance payment of special damages be made. In Morrow v.

Aviva Canada Inc. , 2004 NBCA 100 , 279 N.B.R. (2d) 77, the Court held Rule 47.03(3) is not limited to actions for damages arising out of motor vehicle accidents. Its scope of application extends to all actions where liability is established before damages are assessed. The Court went on declare that damages in lieu of reasonable notice, at least those sustained prior to trial, are indeed special damages within the meaning of Rule 47.03(3). [ 31 ] In the Notice of Motion, Mr.

MacWilliams sought an order directing AMEC to make an advance payment of special damages “from May 28, 2010 through February 15, 2011 in accordance with paragraphs 24(i), (ii), and (vi) of the Claim”. Recall that, in those paragraphs, Mr. MacWilliams claimed “lost wages for a reasonable notice period”, “lost RRSP contributions for a reasonable notice period” and “lost EI and CPP contributions for a reasonable notice period”. [ 32 ] AMEC’s liability having been established by way of

summary judgment, the motion judge determined the motion for an advance payment of special damages, an option clearly open to her under Rule 47.03(3). After hearing the parties, she directed AMEC to forthwith pay the sum of $34,254.40. F. The trial on damages

[33] At the trial on damages, Mr. MacWilliams chose not to testify, opting to rely exclusively upon the admissionsin the record. For its part, AMEC tendered the letters containing its offers to settle Mr. MacWilliams’ claim, but declined to call anywitnesses or to read into the record any portion of Mr. MacWilliams’ discovery testimony. [34] In her reasons for decision, which are reported at 2011 NBQB 272, 378 N.B.R. (2d) 315, the trial judge madethe following observations regarding the issues of reasonable notice of dismissal and damages in lieu thereof: In Bardal v.

Globe & Mail Ltd. (1960), (ON SC), 24 D.L.R. (2d) 140, the test for determining a reasonable noticeperiod was formulated: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice mustbe decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant,the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of theservant.

Through the admissions contained in the pleadings and the affidavits filed in the Motion for

Summary Judgment, the Court has thefollowing information: MacWilliams is an engineer who worked for AMEC since 1991. He was dismissed without notice on February 24, 2010. He worked forthe company between 18 and 19 years. He was 42 at the time of his dismissal. From these figures one can assume that he has spent most,if not all, of his professional career with AMEC. Although AMEC says that he has failed to mitigate his loss, it did not call any evidence to demonstrate this. The onus is on AMEC toplead and prove that MacWilliams could have, with reasonable effort, mitigated his loss. It has failed to do so.

I therefore find that MacWilliams is entitled to 20 months notice. AMEC will pay to MacWilliams all amounts to which he would havebeen entitled during that period. MacWilliams will provide AMEC with affidavit evidence sworn by him as to all amounts he has earnedduring the 20 month period. AMEC is entitled to deduct those amounts from its payment to him. In addition, AMEC will pay $5,500.00 in costs (Scale 3 on an amount between $60,000 – $70,000) plus disbursements. [paras. 17-22] III. The Grounds of Appeal [35] AMEC appeals the

summary judgment on liability, arguing the motion judge erred in law: (1) in resting herdecision on a basis other than what was relied upon in the Notice of Motion; (2) in relating the judgment to “the issue of whether or not[Mr.

MacWilliams] was dismissed from his employment without notice”; (3) “in finding that the Statement of Defence did not disclose adefence on the merits, and/or in concluding that the defence was ‘only [a] defence as to the amount claimed’ (R. 22.01(b))”; and infailing “to provide discernible/sufficient reasons for the findings under review”. [36] AMEC also appeals the decision at the trial on damages, contending the judge erred in law: (1) in failing todismiss the action in its entirety because of “[Mr.

MacWilliams’] refusal to adduce evidence and prove at trial any damages or loss”; (2)“in relying on affidavits from the

summary judgment motion and the pleadings as the evidentiary basis for her decision”; (3) “indirecting that post-trial affidavit evidence [by Mr. MacWilliams] be utilized to establish the alleged and unproven loss claimed at trial”;(4) “in concluding [AMEC] ‘… breached the employment contract by dismissing MacWilliams without notice’”; (5) “in failing to applydiscernible analysis to the […] refusal to accept [its] ‘with prejudice’ proposal to keep [Mr. MacWilliams] on its payroll for up to 16months (along with other terms) representing a reasonable opportunity for [mitigation of the] alleged loss”. IV. Analysis and Decision

[37] I begin by addressing an issue raised by the Court motu proprio, and it is whether the trial judge fell into errorby bringing into the mix the test formulated in Bardal v. Globe & Mail Ltd., (ON SC), [1960] O.J. No. 149 (H.C.J.)(QL). The specific concern lies with the reference to “character of employment” as a factor of influence in determining the notice oftermination to which Mr. MacWilliams was entitled under his contract of employment with AMEC. In Bramble et al. v. Medis Healthand Pharmaceutical Services Inc. (1999), (NB CA), 214 N.B.R. (2d) 111, [1999] N.B.J.

No. 307 (C.A.) (QL), theCourt held that where, as is the case here, the relevance of character of employment in the pursuit of suitable substitute employment isnot established by evidence, judicial notice cannot be taken of that fact and, accordingly, it must not weigh in the balance. The Court’sreasons for so holding bear repeating in their entirety: The relevance of any factor is a function of the objectives that the law seeks to attain through notice of termination of employment.

Theprimary objective of notice is to provide the terminated employee with a reasonable opportunity to seek alternate suitable employment.See Duplessis v. Irving Pulp & Paper Limited, J.D. Irving Limited and Irving (1983), (NB CA), 47 N.B.R. (2d) 11(C.A.), at p. 25, para. 25. Its secondary objectives include the protection of the reliance and expectation interests of terminatedemployees, at least in cases where inducements have been offered by the employer, and the satisfaction of certain moral claims by anemployee. See Wallace v. United Grain Growers Ltd., supra, at pp. 738-740 and Bishop v.

Carleton Co-operative Ltd., supra, pp. 217-218, para. 10. As a rule, a potential factor remains dormant, no matter what the concerned area of the law might be, until such time as the proven factsmake it relevant. This truism applies with equal force in the field of employment law; a potential factor becomes relevant in thedetermination of what constitutes reasonable notice only once its application by the trier of fact is justified by the proven facts. That isnot to say that supporting testimonial or documentary evidence will always be required.

Frequently, the relevance of a potential factorwill be indisputable and, as a result, it will be accepted by the trier of fact, without the need for specific evidence on the issue. It iscommonplace that judicial notice may be taken of notorious and undisputed facts, or of facts the accuracy of which can be demonstratedby resort to readily accessible sources of indisputable reliability. See Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1S.C.R. 497; 236 N.R. 1; [1999] S.C.J. No. 12 (QL), para. 77 and R. v.

Paul (T.P.) (1998), (NB CA), 196 N.B.R. (2d) 292; 501 A.P.R. 292 (C.A.), at pp. 308-10, para. 18, leave to appeal denied [1998] S.C.C.A. No. 298;235 N.R. 392; 204 N.B.R. (2d) 400; 520 A.P.R. 400 (S.C.C.). It is the evidence and, where appropriate, judicial notice that provides the factual underpinning that triggers the application of anotherwise dormant factor. Without such an underpinning, the potential or dormant factor lacks any juristic basis for its application in agiven case. It is in light of this elementary principle that the oft-quoted statement by McRuer, C.J.H.C. in Bardal v.

The Globe & MailLtd., supra, must be understood. While the Supreme Court has noted that, in determining what constitutes reasonable notice oftermination, the courts have generally applied the principles enunciated in Bardal, it has yet to enjoin courts to mechanically apply, in allcases, each and every factor enumerated in that case, including character of employment, without regard to the facts proven by theevidence or established through judicial notice.

As noted above, the four factors that were expressly mentioned in Bardal are character of employment, the employee's age and length ofservice as well as availability of similar employment. Availability of similar employment is, on its face, germane to the attainment of notice's primary objective and, as such, theappropriateness of its consideration by the court in fixing notice is beyond debate.

As for length of service, its relevance to the objectives of notice is two-fold: first, where the service to the employer has been long, thenotice set by the court will give legal expression to the employee's moral claim to a longer notice period; and, second, the court will takejudicial notice of the difficulties encountered by long-term employees in finding alternate suitable employment. Bastarache J.A., as hethen was, alludes to some of these difficulties in Bishop v. Carleton Co-operative Ltd., supra, at pp. 217-218, para. 10.

As well, the connection between the terminated employee's age and the attainment of notice's primary objective is indisputable.Iacobucci J., writing for a unanimous Supreme Court, in Law v. Canada, supra, at pp. 71-72 [N.R.], para. 101, acknowledges thatjudicial notice provides the juristic basis for the role played by that factor in determining what constitutes reasonable notice: “... It seems to me that the increasing difficulty with which one can find and maintain employment as one grows older is a matter ofwhich a court may appropriately take judicial notice.

Indeed, this Court has often recognized age as a factor in the context of labour forceattachment and detachment. For example, writing for the majority in McKinney, [ (SCC), [1990] 3 S.C.R. 229] supra, LaForest J. stated as follows, at p. 299:

‘Barring specific skills, it is generally known that persons over 45 have more difficulty finding work than others. They do not have theflexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the moremodern skills.’ Similar thoughts were expressed in Machtinger v.

HOJ Industries Ltd., (SCC), [1992] 1 S.C.R. 986, at pp. 998-99, perIacobucci J., and at pp. 1008-09, per McLachlin J., regarding the relevance of increase[d] age to a determination of what constitutesreasonable notice of employment termination. ...” Likewise, until very recently, character of employment weighed in the balance on the theory, frequently unstated, that judicial notice wasto be taken of the fact that senior employees required more time to find suitable alternate employment.

The data referred to byMacPherson J. in Cronk and by Griffith Roberts in Character of Employment and Wrongful Dismissal Notice: Cronk v. CanadianGeneral Insurance Co., supra, have placed in serious doubt the factual assumption upon which this approach rests. The proposition thatjunior employees have an easier time finding suitable alternate employment is no longer, if it ever was, a matter of common knowledge.Indeed, it is an empirically challenged proposition that cannot be confirmed by resort to sources of indisputable accuracy.

Bearing in mind that reasonableness of notice is a conclusion that is largely fact-driven, I find it impossible to accept as a matter of lawthat character of employment simpliciter is relevant in all cases, no matter what the factual record might be. Judicial notice cannot betaken of its relevance in all cases. Absent evidence showing that the character of the terminated employee's job has some relevance to thepursuit of one or more of the objectives of notice, it is irrelevant.

I am reinforced in this view not only by the realization that the traditional approach mirrors antiquated social values but, as well, by theconviction that there is no compelling policy objective or stare decisis basis warranting its retention. It is now widely accepted that employment is an essential component of a person's self-worth. See Reference Re Public ServiceEmployee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1; 38 D.L.R. (4th) 161, at p. 368,Machtinger v. HOJ Industries Ltd., supra, and Wallace v. United Grain Growers Ltd., supra, at para. 93.

By treating junior employeesunfavourably solely on the basis of the status of their employment, the traditional approach undermines, without any justification, theirself-worth. As a result, courts have been justifiably uncomfortable with a continued adherence to the traditional view. This discomfortmay go a long way in explaining why courts, despite the lip service paid to character of employment as a factor, have tended, of late, toaward notice periods to junior employees that approximate those historically reserved for senior employees.

Nor, in my view, is there any sound policy reason for the preservation of the traditional approach. In particular, I am satisfied that thereis no sound basis for the suggestion that the marginally higher termination costs that will result from longer notice periods for junior employees will have adverse repercussions on our economy. See the discussion in G. England et al., Employment Law in Canada (3rd Ed.), supra, at 14.1-14.7. Typically, the notice periods set by the courts of this province for senior employees have been somewhat lowerthan those set by courts in other jurisdictions.

The reported cases where a senior employee has been found to be entitled to more than 20months' notice are few and far between in this province. The record in this jurisdiction stands in sharp contrast to the situation elsewhere,particularly in Ontario, where damage awards to senior employees commonly reflect notice periods exceeding 20 months' notice.

As aresult, I do not accept that it would be reasonable or appropriate to eliminate the inequality in notice periods between senior and junioremployees by lowering the notice periods to which the former are entitled down to the level traditionally reserved for the latter. Finally, I am satisfied that stare decisis does not compel retention of the traditional approach. First, as noted earlier, there is no longerany juristic basis for the application, as a matter of law, of character of employment simpliciter as a determining factor. Second, theethics of its application is very much questionable.

Third, neither the Supreme Court nor this Court has had occasion to squarely addressthe question so that neither has, to this date, explicitly ruled that junior employees are, by the mere fact of the status of their employmentin the employer's hierarchy, entitled to less notice than senior employees. In

summary, judicial notice cannot be taken of the impact of the character of the terminated employee's job on his or her quest forsuitable alternate employment. Moreover, the traditional approach, to the extent that it includes a consideration of character ofemployment simpliciter, is antithetical to the law's ultimate goal, namely egalitarian justice, and its application is not compelled by anyauthority binding on this Court. In my view, it behoves this Court to discard character of employment simpliciter as a relevant factor.[paras. 57-70] [38] To be clear, I do not read Honda Canada v.

Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, as overruling Brambleet al. v. Medis Health and Pharmaceutical Services Inc. on this point and am pleased to note the Ontario Court of Appeal takes a positionthat is virtually, if not exactly, on all fours. Thus, in Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469, [2011] O.J.

No. 2900 (QL), MacPherson J.A., writing for a unanimous panel, stated: With regard to the appropriate weight to be given to the character of employment, I am also mindful of McRuer C.J.H.C.'s statement inBardal at p. 145, that "[t]here can be no catalogue laid down as to what is reasonable notice in particular classes of cases." Bastarache J.,writing for the majority of the Supreme Court in Honda Canada Inc. v.

Keays, 2008 SCC 39 , [2008] 2 S.C.R. 362, cited thisstatement with approval at para. 31 and went on to caution that "[n]o one Bardal factor should be given disproportionate weight." Crown Metal would emphasize the importance of the character of the [respondent]'s employment to minimize the reasonable notice towhich he is entitled. I do not agree with that approach. Indeed, there is recent jurisprudence suggesting that, if anything, it is today afactor of declining relative importance: see Medis Health and Pharmaceutical Services Inc. v.

Bramble (1999), (NBCA), 175 D.L.R. (4th) 385 (N.B.C.A.) ("Bramble") and Vibert v. Paulin (2008), 2008 NBCA 23 , 291 D.L.R. (4th) 302(N.B.C.A.). This is particularly so if an employer attempts to use character of employment to say that low level unskilled employees deserve lessnotice because they have an easier time finding alternative employment. The empirical validity of that proposition cannot simply betaken for granted, particularly in today's world.

In Bramble, Drapeau J.A. put it this way, at para. 64: The proposition that junior employees have an easier time finding suitable alternate employment is no longer, if it ever was, a matter ofcommon knowledge.

Indeed, it is an empirically challenged proposition that cannot be confirmed by resort to sources of indisputableaccuracy. [paras. 26-28] [39] That said, and despite the reference to character of employment in the excerpt from Bardal that wound its wayinto the trial judge’s reasons, it is plain from the debates in first instance that she did not attribute any weight to that factor in setting thenotice period at 20 months: THE COURT: Okay. Just – I am not in the nitpicking business.

I want you to tell me what the plaintiff’s position is with respectto what is the reasonable notice and tell me the reasons why that should be the decision of the Court. MR. LEGER: Okay. No. Thank you. I appreciate the guidance. The plaintiff is seeking a reasonable notice period in excess of19 months. That is the – that is the position based on applying the test in Bardal. THE COURT: Okay. And I will remind you – again, I might be getting the two briefs mixed up, but Bardal has been changed inNew Brunswick a little bit.

As you know, historically there were four sort of little thingies that Bardal said you should take intoconsideration. And one of them was the character of the plaintiff’s position. MR. LEGER: Yes. THE COURT: And historically again, the better the position, the longer the notice period. That’s basically what courts did withthat. MR. LEGER: Sure. THE COURT: The Court of Appeal of New Brunswick – what case is it, I’ve forgotten – MR. LEGER: I believe it’s – MR. CHRISTIE: Medis.

MR. LEGER: Bramble Medis . MR. CHRISTIE: Bramble Medis . THE COURT: Yeah. Okay. The Chief Justice has said in that case that he does not agree that the fact that the plaintiff holds a more important position should necessarily result in a higher notice period. And I have at least one case – well first of all, I have no discretion whatsoever with respect to that. That is the law in New Brunswick. The Chief Justice has said it is and it is, whether I agree with him or not. However, I do agree with him.

And so you might have been adding – been arguing a couple of years ago that because your client is an engineer and held a management position that that should lead to – that should in itself lead to a higher notice period than I might give to a janitor. MR. LEGER: Yes, perhaps, and I’m well familiar with the – with the Chief Justice’s comments on this. I’ve had occasion to actually discourse on this in a case before the Court of Appeal following Honda [Keays] which the Supreme Court noted New Brunswick had in effect limited this concept of the nature of the position being of import.

Now what – what that case does not stand for is that it is – it cannot be considered. It says it not ought to be considered in every case – and – THE COURT: Well, it’s – as I understand what the Chief Justice is saying is that it is not automatic, it’s not – MR. LEGER: Exactly. THE COURT: It’s not in itself a reason for distinguishing between a janitor and an engineer. […] MR. LEGER: […] Taking into consideration, and I do understand the Court’s concerns about the Chief Justice’s comments from Bramble – THE COURT: Well, I’m not concerned with it, but – MR. LEGER: There’s no automatic bump. THE COURT: No. MR.

LEGER: We understand that. THE COURT: That’s right. And there’s no question that historically that’s what it amounted to. MR. LEGER: Yes. THE COURT: It was an automatic bump. If you were looking at a janitor with everything else the same and comparing that person to an engineer, the engineer would get more notice.

MR. LEGER: Yes. And – THE COURT: And that’s no longer true. (Emphasis added.) [ 40 ] One can only conclude the trial judge’s understanding of the law was impeccable at the time those observations were made, and nothing in the record suggests her thinking on point had drifted away from correctness by the time she rendered her decision. Nothing further need be said on the topic, and I now turn to the issues arising from AMEC’s Notice of Appeal and submission. A. The availability of

summary judgment where the defendant employer pleads, as a full answer to the claim, that the plaintiff failed to mitigate his loss by refusing settlement offers in the run-up to the initiation of proceedings [ 41 ] In Covered Bridge Golf and Country Club v.

Schurman , 2009 NBCA 1 , 340 N.B.R. (2d) 168, the Court described as follows the juridical basis for the action in damages for wrongful dismissal where, as here, the employment contract is one of indefinite duration and does not dispense with the need for reasonable notice of dismissal: It is settled law that, absent an express or implied binding agreement to the contrary, an employment contract of indefinite duration obligates the employer, who dismisses an employee without cause, to give reasonable notice of termination.

Some jurists have suggested that an employee's entitlement to such reasonable notice is rooted exclusively in public policy considerations. Others have sourced the entitlement in an implied term of the employment contract (see the thorough canvassing of differing views on point in Stacey Reginald Ball, Canadian Employment Law , vol. 1, chapters 1-20 (Aurora, Ont.: Canada Law Book, 1992) at 9-3ff). The debate is surely now settled, as a result of the Supreme Court of Canada's decision in Honda Canada Inc. v. Keays .

In that case, the majority adopts the proposition that a wrongful dismissal action "is based on an implied obligation in the employment contract to give reasonable notice of an intention to terminate the relationship in the absence of just cause" (para. 50). It goes on to add that "if an employer fails to provide reasonable notice of termination, the employee can bring an action for breach of the implied term". [para. 23] [ 42 ] Under Rule 22,

summary judgment may be granted where there is no merit to the defence. In this particular case, the issue was whether there was any merit to the defence raised by AMEC, which was that Mr. MacWilliams’ refusal to accept its offers of settlement foreclosed success on his part. I entirely agree with the motion judge’s conclusion that AMEC’s Statement of Defence does not articulate a legally recognized basis for its denial of liability. After all, evidence of a non-privileged offer of settlement is almost invariably adduced to substantiate the offeror’s liability . Unlike the situation in Evans v.

Teamsters Local Union No. 31, 2008 SCC 20 , [2008] 1 S.C.R. 661, AMEC’s offer required Mr. MacWilliams to execute a full and final release of any claim he might have had. Moreover, the conditions attached to each offer of settlement were fertile ground for further disputes and litigation. Finally, and as the 20 months’ notice set by the trial judge demonstrates, AMEC’s offers did not measure up to Mr. MacWilliams’ legal entitlement. [ 43 ] Moreover, in rendering

summary judgment “to the issue of whether or not [Mr. MacWilliams] was dismissed from his employment without notice”, the trial judge was responding to the request in the Notice of Motion. In seeking

summary judgment reflecting the fact of his dismissal without cause, Mr. MacWilliams was effectively pursuing a quantification of the notice he had been entitled to receive. Although the motion judge was not prepared to set that period by way of

summary judgment, she rejected the only properly pleaded “defence”, namely that Mr. MacWilliams’ refusal to accept AMEC’s settlement offers foreclosed success in his action for damages in lieu of notice. As a result of the

summary judgment confirming dismissal without notice, AMEC’s liability was established, leaving undetermined two closely related issues: (1) the reasonable notice period; and (2) the quantum of damages in lieu thereof. B. The sufficiency of admissions in pleadings for the judicial determination of reasonable notice [ 44 ] AMEC contends a dismissed employee must testify at trial in order to succeed in establishing reasonable notice. I disagree. [ 45 ] AMEC admitted in its Statement of Defence that Mr. MacWilliams had been dismissed without cause. It also admitted it was an implied term of Mr.

MacWilliams’ employment contract that, in those circumstances, he would be given reasonable notice of termination or payment in lieu of reasonable notice.

Summary judgment established Mr. MacWilliams had been dismissed without notice.

[46] It is hornbook law that any fact admitted in a pleading is conclusively established as against the author unlessthe Court permits that admission’s withdrawal or amendment. Factual matters that have been admitted in a pleading are settled as amatter of law and cannot be contradicted by evidence except, as mentioned, where there is a judicially-sanctioned retraction oramendment. In other words, evidence to support an admitted fact is superfluous (see Garry D. Watson and Lynne Jeffrey, Holmstead andWatson: Ontario Civil Procedure, looseleaf, vol. 3 (Toronto: Carswell, 1993)

chapter 25, para. 25§13[1] at pages 25-37). See, as well,Ford Motor Co. of Canada v. Ontario Municipal Employees Retirement Board, (ON CA), [1997] O.J. No. 4298(C.A.) (QL) and Kavanagh v. Newfoundland (Minister of Education), 2000 NFCA 2, [2000] N.J. No. 3 (QL), per Green J.A., as he thenwas. That understanding of the law is reflected in Rule 23.01(1)(c), which allows judgment before trial on the basis of admissions in thepleadings.

It would be illogical for that option to be unavailable after trial. [47] In light of the admissions particularized above, I unhesitatingly reject AMEC’s contention that Mr.MacWilliams could not succeed without testifying at the trial on damages. To so hold hardly works an injustice against AMEC. After all,it examined Mr. MacWilliams pursuant to Rule 32 (“Examination for Discovery”) and his answers could have been used by AMEC attrial (see Rule 32.11). Furthermore, AMEC could have called Mr.

MacWilliams as a witness at trial and cross-examined him inaccordance with Rule 55.05 (“Calling Adverse Party as a Witness”). C. The adequacy, for assessment of damages purposes, of admissions and/or evidence establishing the pecuniary benefits thedismissed employee would have received during the reasonable notice period [48] AMEC says admissions and/or evidence establishing lost employment benefits are meaningless, unlesssupplemented by proof of the pecuniary benefits the dismissed employee actually received during the reasonable notice period.

Idisagree. [49] As a general rule, it is sufficient for the wrongfully dismissed employee to establish, whether by evidence,admissions or both, the value of the employment benefits he or she would have received, but for dismissal, during the reasonable noticeperiod. If the defendant employer claims any actual or deemed deduction, it bears the burden of demonstrating its entitlement. [50] AMEC admitted in its Statement of Defence that Mr.

MacWilliams was entitled to the following benefits whileemployed: (1) a base salary of $94,286.40 annually; (2) 7% of his base salary as employer contribution to a Registered RetirementSavings Plan (an annual value of $6,600.05); (3) annual bonuses tied to AMEC’s financial performance of approximately $1,500 for2007 and 2008; (4) bonus for referral of individuals to AMEC’s employment (as of April 15, 2010, AMEC was obligated to pay Mr.MacWilliams $2,500 as a referral bonus with respect to its hiring of Dr.

David Rae); (5) full health and dental insurance benefits; and (6)Employment Insurance and Canada Pension Plan contributions. AMEC did not plead facts substantiating its allegation that Mr.MacWilliams failed to mitigate his loss by “any other means”. In particular, it did not plead that he had secured other employment or thathe failed to diligently pursue suitable alternate employment. [51] This state of affairs sufficed for the assessment of Mr. MacWilliams’ damages.

If AMEC considered it wasentitled to deductions from the value of the admitted employment benefits, including income from other employment in the post-dismissal period, it bore the burden of establishing any such deductions. It failed to discharge that burden. I can only assume the recordreveals the deductions to which AMEC is entitled. If it were otherwise, AMEC would surely have led evidence on point. D.

The admissibility at the trial on damages of affidavit evidence received on the dismissed employee’s successful motion forsummary judgment with respect to liability [52] That issue need not be resolved to dispose of the present appeal. The only fact referenced by the trial judge thatis not admitted in the Statement of Defence is Mr. MacWilliams’ status as a professional engineer. That acknowledged, AMEC seems tohave forgotten the following assertions in its pre-trial brief: “The plaintiff was an engineer.

At the time of his dismissal, 80% of his jobduties related to business development and 20% related to engineering”. Were I required to settle the issue, I would be inclined to acceptthat these assertions constitute admissions upon which the trial judge was entitled to act. However, as I read her reasons for decision, Mr.MacWilliams’ professional status, although noted, did not influence the assessment of reasonable notice. Accordingly, assumingarguendo the trial judge was not entitled to draw information from the affidavits received by her on the motion for

summary judgment,or from the admissions in AMEC’s pre-trial brief, any error on point is of no moment. E. The standard of appellate review applicable to a determination of reasonable notice

[53] In Covered Bridge Golf and Country Club. v. Schurman, the Court emphasized “that each case requires anindividualized assessment of reasonable notice” (para. 28). The Court went on to add the following regarding the purpose of reasonablenotice, the meaning of “reasonableness” in this context and the nature of the decision-making involved: […] That said, reasonableness in this context must reflect the perspective of both the employer and the employee, and each claim standsto be examined on its own merits without rigid constraints (see Bramble et al. v.

Medis Health and Pharmaceutical Services Inc. (1999), (NB CA), 214 N.B.R. (2d) 111 (C.A.), [1999] N.B.J. No. 307 (QL)). Needless to say, the assessing court does not siton appeal or conduct a review of the employer's decision regarding its implied notice obligations under the employment contract. Thus,the court owes no deference to the employer's decision on point. Indeed, as the Court emphasized in Walsh et al. v. UPM-KymmeneMiramichi Inc. (2003), 257 N.B.R. (2d) 331, [2003] N.B.J.

No. 166 (QL), 2003 NBCA 32, at para. 17, "only the court's informed andprincipled opinion counts in the adjudicative process that determines what constitutes reasonable notice in any given case". It has been observed, quite rightly in my view, that "[d]etermining the reasonable period is an art, not a science" (see Ellen E. Mole,Wrongful Dismissal Practice Manual, 2nd ed. vol. 1, loose-leaf (Scarborough, Ont.: Butterworths, 2005) at para. 7.16). The sameobservation has been made in other areas of the law, most notably in connection with the quantification of sentence.

However, that stateof affairs hardly forecloses meaningful appellate scrutiny. Indeed, the notice assessment process is far from arbitrary, calling, as it does,for the principled exercise of judgment, one that reflects a consideration of all pertinent circumstances. Chief among those are the lengthof service and the age of the employee as well as the availability of suitable alternative employment, having regard to the employee'sexperience, training and qualifications. In Bramble v.

Medis Health and Pharmaceutical, at para. 72, the Court made the followingobservations on point: While the process of determining what constitutes reasonable notice necessarily requires an exercise of judgment, it is hardly anuntrammelled one. In this regard, it is common ground that trial courts should, whenever the circumstances allow, determine whatconstitutes reasonable notice in any given case, at least partly, by reference to prior comparable decisions, particularly of this court.

Theprocess of identification of comparable cases requires that prior rulings be dissected and analyzed with care, bearing in mind that each isa product of its peculiar underlying factual subtleties and the larger context in which they were rendered. Once comparable cases havebeen found, a range of notice periods should emerge and provide guidance. By definition, prior rulings are dated.

It is therefore essentialthat the results obtained in the comparable cases used to define an appropriate range be adjusted to take into account the current context.[paras. 28-29] [54] The Court also underscored the deference owed to the trial judge’s assessment of reasonable notice: In Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943, [2001] S.C.J.

No. 56 (QL), 2001 SCC 58, Justice Binnie, whodelivered the judgment of the Court, defined the standard of appellate review applicable to an assessment of damages at paragraph 80: It is common ground that the Court of Appeal was not entitled to substitute its own view of a proper award unless it could be shown thatthe trial judge had made an error of principle of law, or misapprehended the evidence (Lang v. Pollard, (SCC), [1957]S.C.R. 858, at p. 862), or it could be shown there was no evidence on which the trial judge could have reached his or her conclusion(Woelk v.

Halvorson, (SCC), [1980] 2 S.C.R. 430, at p. 435), or the trial judge failed to consider relevant factors in theassessment of damages, or considered irrelevant factors, or otherwise, in the result, made "a palpably incorrect" or "wholly erroneous"assessment of the damages (Andrews v. Grand & Toy Alberta Ltd., (SCC), [1978] 2 S.C.R. 229, at p. 235; LaurentideMotels Ltd. v. Beauport (City), (SCC), [1989] 1 S.C.R. 705, at p. 810; Widrig v. Strazer, (SCC), [1964]S.C.R. 376, at pp. 388-89; Woelk, supra, at pp. 435-37; Waddams, supra, at para. 13.420; and H.D. Pitch and R.M.

Snyder, Damages forBreach of Contract (2nd ed. 1989), at 15§5). Where one or more of these conditions are met, however, the appellate court is obliged tointerfere. In Walsh v. UPM-Kymmene Miramichi Inc., at para. 21, the Court concluded the Naylor standard of appellate review applied to the trialjudge's assessment of reasonable notice because of the latter's centrality in the determination of the aggrieved employee's damages. InPaulin v. Vibert (2008), 328 N.B.R. (2d) 270, [2008] N.B.J.

No. 77 (QL), 2008 NBCA 23, Larlee, J.A., writing for the Court, followedsuit in drawing a parallel between appellate review of an assessment of damages and appellate review of an assessment of notice in a casesuch as the present one. Thus, absent a significant error of law (e.g. a failure to abide by legislative dictates), a significant principle-related mistake (e.g. a failureto follow settled common law rules) or a palpable and overriding error in the assessment of the evidence, the trial judge's assessment ofreasonable notice must stand unless it is "palpably incorrect" or "wholly erroneous".

However, where, as here, one or more of thoseflaws are established, it is incumbent upon the appeal court to perform or direct the assessment called for by the evidence, the law andthe governing principles. [paras. 30-32]

[55] In UPM-Kymmene Miramichi Inc. v. Walsh and DeWolfe, 2003 NBCA 32, 257 N.B.R. (2d) 331, the Courtupheld an award of damages based on 28 months’ notice. I pause to caution it is unlikely such a lengthy period would have been allowedto stand were it not for the standard of review, which the Court described in the following terms: In any wrongful dismissal action, the trial judge's determination of reasonable notice dictates, in large measure, what the aggrievedemployee's damages will be. It is therefore appropriate to apply the standard of review articulated in Naylor in cases such as the present.

While this Court observed in Bramble v. Medis Health and Pharmaceutical, at p. 156, that 24 months is "a period commonly referred asthe upper limit in more recent cases", it refrained from imposing any such cap. There is no absolute maximum period of reasonablenotice. Each case stands to be examined on its own merits without rigid constraints; reasonableness, which must reflect the perspectiveof both the employer and the employee, sets the parameters of notice quantification. See Dey v. Valley Forest Products Ltd. (1995), (NB CA), 162 N.B.R. (2d) 207 (C.A.).

It follows that the trial judge did not commit any error of law in awarding more than24 months' notice. The appellant's fallback contention is that the 28 months' notice accepted in first instance is inordinately long. The appellant urges thisCourt to intervene and to give its imprimatur to 24 months' notice. Needless to say, even though the reasonableness of any notice of termination is a question of mixed law and fact, it remains one that islargely fact-driven. As a consequence, a high level of deference is owed to the trial judge's view of the matter. See Dick v.

CanadianPacific Ltd. (2000), 2000 NBCA 10 , 230 N.B.R. (2d) 39 (C.A.), at para. 51. [paras. 21-24] See, as well, Vibert v. Paulin, 2008 NBCA 23, 328 N.B.R. (2d) 270, paras. 12-17, per Larlee J.A. for the Court. [56] In his pre-trial brief, Mr. MacWilliams submitted “that a notice period in excess of 19 months is appropriate”.In support of that proposition, he referenced: UPM-Kymmene Miramichi Inc. v. Walsh and DeWolfe where, as mentioned, our Courtupheld a finding setting reasonable notice at 28 months; Antworth v.

Fabricville, 2009 NBQB 54, 341 N.B.R. (2d) 257, where the noticeperiod was set at 22 months; Cronk v. Canadian General Insurance Co., (ON CA), [1995] O.J. No. 2751 (C.A.) (QL),where the notice period was set at 20 months; and Di Tomaso v. Crown Metal Packaging Canada LP, where the notice period wasquantified at 22 months. [57] In its pre-trial brief, AMEC advised Mr. MacWilliams and the trial judge it would “not quarrel with the rangeof 14-18 months” that, it claimed, Mr. MacWilliams had suggested was reasonable at the hearing on the motion for

summary judgment. [58] The sufficiency of reasons for decision must be assessed in the context fleshed out by the pleadings, thesubmissions, the admissions and the evidence. Quality of judgment writing is not measured by the number of words employed. Somewriters have the uncanny ability to express thoughts concisely while others, unfortunately, are less gifted and tend to fall prey toprolixity. [59] In my respectful judgment, the trial judge’s reasons for decision are a model of clarity and succinctness. Shecut to the chase by noting: AMEC was in the business of engineering and project management; Mr.

MacWilliams was 42 years of age atthe time of his dismissal; and he had been in AMEC’s employ for nearly 19 years, basically all of his working life. While the trial judgedid not advert to the following additional circumstance, it seems to me indisputable that the task of finding suitable substituteemployment (with benefits comparable to those listed above) would have been quite daunting in the aftermath of Mr. MacWilliams’dismissal in the winter of 2010.

Indeed, it is not difficult to imagine there would have been relatively few openings in the Frederictonarea for employment of comparable quality in the business of engineering and project management. In my view, a downward adjustmentof the 20 months’ notice is precluded by that factual matrix, viewed through the prism provided by the highly deferential standard ofreview described in Covered Bridge Golf and Country Club. v. Schurman and UPM-Kymmene Miramichi Inc. v. Walsh and DeWolfe. F.

The authority of a trial judge to conclude proceedings with a direction that the parties work out among themselves thequantum of damages in lieu of the reasonable notice he or she has set

[ 60 ] Needless to say, in theory, the direction at issue might well have operated to AMEC’s advantage. However, when pressed on the point at the very outset of the hearing, AMEC confirmed its intention to pursue this ground of appeal in the hope, one assumes, of securing an outright dismissal of the action. [ 61 ] The trial judge appears to have been under the impression that both sides preferred to reserve unto themselves the quantification of damages. Unfortunately, the record does not support the view that AMEC agreed with this, admittedly commonsensical, approach.

Absent consent of both parties, the trial judge was not at liberty to conclude proceedings without assessing Mr. MacWilliams’ damages. [ 62 ] Under Rule 62.21(1), the Court of Appeal “may draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require”. Rule 62.21(5)(

b) states that those powers may be exercised “in favour of a party who has not appealed from the order or decision”. Rule 62.21(10)(

a) authorizes the referral back to the court appealed from any question of fact for its decision where it “is in a better position than the Court of Appeal to determine the question”. While this Court could send the assessment of damages back to the trial judge, I am satisfied that we are in as good a position as her to assess damages and that the interests of the parties and of justice in general would be best served if we did so. [ 63 ] Having regard to the admissions in the Statement of Defence, I am satisfied Mr. MacWilliams’ annualized income during the 20-month notice period would have been $94,286.40.

I accept as well that he would have benefited from AMEC’s contributions to his RRSP (a value of $6,600.05 annually). Counsel advised all bonuses owed were paid prior to trial. In addition, it is conceded there is no evidence that might allow the Court to put a dollar value on employment-related health and dental insurance benefits. Finally, Mr.

MacWilliams acknowledges he has not provided the Court with the means (e.g. copies of the pertinent statutory and regulatory provisions) that would enable it to readily assess the value to him of the EI and CPP contributions AMEC would have been required to make during the 20 months post-dismissal. Thus, the record shows a total annual loss of $100,886.45. [ 64 ] I therefore assess Mr. MacWilliams’ loss over the 20 month notice period at $168,144. This works out to a monthly loss of $8,407.20 and a weekly loss of $1,940.12. [ 65 ] In his pre-trial brief, Mr.

MacWilliams acknowledged he had received payment for lost wages and contributions to his RRSP from the date of his dismissal on February 15, 2010 to October 4, 2010. It will be recalled Mr. MacWilliams’ employment benefits were continued until May 6, 2010 and that he received an advance payment of special damages pursuant to an order under Rule 47.03(3). [ 66 ] Mr. MacWilliams is therefore entitled to damages from October 4, 2010 to October 15, 2011. I would assess Mr. MacWilliams’ special damages over that timeframe at $104,766.48 (54 weeks x $1,940.12).

I would allow interest at the rate of 2% on that sum from March 31, 2011 (the approximate midway point between October 4, 2010 and October 3, 2011, the date of judgment in the Court of Queen’s Bench). For a comprehensive discussion of interest payable in actions of this nature, see Jean v. Pêcheries Roger L. Ltée , 2010 NBCA 10 , 354 N.B.R. (2d) 300, paras. 67-76 . As well, I would reduce the award of costs at trial to $4,425.00 (amount involved of $100,000, Scale 1 of Tariff “A” under Rule 59).

I have selected Scale 1 to reward AMEC for its cooperation in simplifying the issues and shortening the proceedings in first instance. V. Conclusion and Disposition [ 67 ]

Summary judgment establishing the appellant employer’s liability in connection with the respondent employee’s wrongful dismissal was appropriate. The admissions in the Statement of Defence and the affidavit evidence submitted for the motion judge’s consideration show there was no triable defence in relation to liability. [ 68 ] Moreover, the admitted facts provide a sufficient foundation for setting at 20 months the reasonable notice of dismissal the respondent was entitled to receive, and to assess damages in lieu thereof.

The trial judge’s sole error was to leave up to the parties the determination of those damages. Absent consent of both parties, the trial judge was duty bound to make that determination. [ 69 ] That being so, the appeal must be allowed, but only for the limited purpose of assessing the respondent’s damages, together with interest thereon, and making the necessary adjustment to the award of costs at trial.

As indicated, I would direct the judgment in the Court of Queen’s Bench be amended to provide for the respondent’s entitlement to: (1) damages of $104,766.48; (2) interest of 2% on that sum from March 31, 2011 to October 3, 2011; and (3) costs of $4,425. The amended October 3, 2011 judgment

bears interest at the rate of 7% per year (see Rule 60.08(1)). [ 70 ] As should be readily apparent, it is the respondent who is, by far, the most successful party on appeal. We were advised at the hearing that his appeal-related legal fees will approximate $6,000, a most reasonable amount. Although an award of solicitor-client costs is not warranted having particular regard to AMEC’s cooperation, it is just that the respondent be awarded a sum substantially indemnifying him for his outlay. I would, accordingly, order the appellant pay costs on appeal of $5,000. ____________________________________ J.

ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: ____________________________________ KATHLEEN A. QUIGG, J.A. _____________________________________ BRADLEY V. GREEN, J.A.