Clarke v. Halifax Herald Ltd., 2017 NSSC 337

Supreme Court of Nova Scotia Citation: Clarke v. Halifax Herald Ltd. , 2017 NSSC 337 Date: 20171128 Docket: Hfx No. 440009 Registry: Halifax Between: Calvin Clarke Plaintiff v. The Halifax Herald Limited Defendant Library Heading Judge: The Honourable Justice Suzanne M. Hood Heard: November 8, 9, 17, 2017 in Halifax, Nova Scotia Oral Decision: November 28, 2017 Written Release of Oral Decision: January 11, 2018 Subject: Constructive dismissal; mitigation.

Summary: Calvin Clarke claims he was constructively dismissed from The Halifax Herald. Issues:

(1) Was Calvin Clarke constructively dismissed?

(2) If so, did he fail to mitigate?

(3) If constructively dismissed, what is the appropriate notice period?

(4) What are the damages? Result: Calvin Clarke was constructively dismissed and did not fail to mitigate his damages. Notice period is 16 months and damages calculated based on average income over the three year period prior to Calvin Clarke’s constructive dismissal. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Clarke v. Halifax Herald Ltd. , 2017 NSSC 337 Date: 20171128 Docket: Hfx No. 440009 Registry: Halifax Between: Calvin Clarke Plaintiff v. The Halifax Herald Limited Defendant Decision

Judge: The Honourable Justice Suzanne M. Hood Heard: Oral Decision: Written Release of Oral Decision: November 8, 9, 17, 2017, in Halifax, Nova Scotia November 28, 2017 January 11, 2018 Counsel: Colin D. Bryson, Q.C., and Thomas Morehouse, for the Plaintiff Sean Kelly and Killian McParland, for the Defendant By the Court: Introduction [ 1 ] Calvin Clarke claims he was constructively dismissed from The Halifax Herald. [ 2 ] The issues are: 1. Constructive dismissal 2. Mitigation 3. Notice period 4. Damages Facts [ 3 ] Calvin Clarke was a 21 year employee of The Halifax Herald Limited (the Herald).

His father had been an employee before him. For 18 years he was an account executive and had worked with sales of print advertising. He said he was a “Herald guy”. He had never had another job. [ 4 ] His earnings were: 1. 2010 $96,069 2. 2011 $95,082 3. 2012 $73,883 4. 2013 $93,330 5. 2014 $76,039, but it is agreed that he was overpaid $10,743.49. [ 5 ] Calvin Clarke said his income fluctuated because the percentage increase in target was based on the previous year’s sales.

He had been on paid sick leave in 2014 for seven weeks and again in 2015 from January 1 to March 2. [ 6 ] On the day of his return to work, which was March 2, he met with Alex Liot who gave him the particulars of his new job as a business development specialist. He was also given a letter of reprimand. [ 7 ] As business development specialist he was to spend 75 percent of his time working in sales for Bounty Print and 25 percent for Headline Promotions. [ 8 ] The details of the new role are set out in Tab 17, the first two paragraphs of which are: Overview :

This is a new role that has been created to capitalize on the opportunity that exists to appeal and strengthen the value proposition of some of The Chronicle Herald’s non-media product by providing clients a more comprehensive package including both media and non-media products. Specific focus for this role will be on two product categories: Printing – Bounty Print (Approx. 75% of focus) Promotional Products – Headline Promotions (Approx. 25% of focus) The objective for both products (sic) lines is to solidify and grow existing customer business and prospect and secure new client opportunity.

The approach will be to engage current and potential customers, conduct a thorough discovery of the client needs and opportunities and then build and propose programs that sell respective products and are made additionally compelling through the inclusion of added value, primarily media products of The Chronicle Herald. [ 9 ] The letter also set out the projected targets for sales for 2015 for both Bounty Print and Headline Promotions as well as the financial terms for Calvin Clarke.

Compensation : This role with be compensated through a combination of base salary plus commissions performance incentives which will vary based on the product type and customer lifecycle state. Base salary: $24,000/yr Bounty: Current client business: 1.5% of sales New client business: 5% of sales Headline: New client business: 5% of sales Annual Bonus: If Bounty & Headline budget met: 1% of total sales. 50% paid quarterly, 50% banked for year end.

In the interim as this is a new role, guaranteed compensation will be provided by way of a draw, equivalent to $66,500 per year ($2,557.69 bi-weekly) for a period of 3 months from today. All other benefits and existing obligations will remain in place. [ 10 ] A timeline was set for Calvin Clarke’s first three weeks in this role. [ 11 ] Calvin Clarke said he was unprepared for this new role and had expected on his return to work to continue as an account executive.

Previously on a return to work from vacation or sick leave, account executives would have their previous clients returned to them and after a two week ramp up period, each continued with that client base. [ 12 ] Calvin Clarke said this was what had happened when he was on sick leave and returned in 2014. [ 13 ] The job description and compensation scheme for account executives is set out at Tabs 1 and 2.

The commission program provided for a base salary of $24,000 with increased commissions based on results related to performance compared to budget. [ 14 ] Calvin Clarke testified he did what the work plan called for. He met with Aubrey Graham at Bounty Print who had set the budget projection for 2015. [ 15 ] He prepared a list of the top 100 Bounty Print clients. The top one was the Herald, but no commissions were to be paid on that. The second was Eastlink, but it had moved its business to a competitor.

This was a loss in sales from 2014 of $173,000. [ 16 ] Calvin Clarke also prepared a list of prospects for Headline Promotions and made calls. The plan was for him to sell sports uniforms and equipment. [ 17 ] He met with Bounty Print customers but found they were not interested in a marketing plan integrating Bounty Print products with the Herald and Headline Promotions products.

He said he was told they would put out tenders for what they needed and would go with the lowest bid of three. [ 18 ] When he contacted prospects for Headline Promotions, they all said they had longstanding relationships with the big three suppliers like Cleve’s. [ 19 ] He testified he was also concerned with the limited product line; for example, there was no goalie gear, no Adidas and that the Headline Promotions products were no-name products. [ 20 ] From the start he believed the projections were unrealistic.

Bounty Print had lost a major customer and an increase in sales, including making up that loss, was unrealistic in his opinion. He also said that it was unrealistic to expect $260,000 in growth with respect to Headline Promotions where there was no track record of sales. [ 21 ] He met with Alex Liot weekly and expressed his concerns. After one meeting, Alex Liot added commission sales from a third employee of Bounty Print to the list of those from whose sales Calvin Clarke would earn a 1.5 percent commission.

[ 22 ] Calvin Clarke prepared scenarios for his possible income (Tab 20) in which he estimated income of $56,995 and $56,505 in the first two scenarios. He projected income of $71,505 if he met the Bounty Print projections but not those for Headline Promotions.

It would only be if he met all projections that his income would be $84,100, but he believed the target projections were unattainable and his income would be lower than $56,000 or $57,000. [ 23 ] After meeting with Alex Liot and discussing his income concerns, he retained Colin Bryson who wrote to Nancy Cook, then Vice President Administration, on March 27, 2015.

The letter reiterated Calvin Clarke’s concerns about loss of income and referred to the unilateral transfer to a junior position and the potential for a claim of constructive dismissal. [ 24 ] The letter indicated Calvin Clarke would accept the BDS position only if there was a base salary of $50,000. [ 25 ] Calvin Clarke met with Nancy Cook and Alex Liot on April 13. The $50,000 proposal was rejected and instead the guarantee period, based on $66,500, was increased from three months to six months.

This was done on April 13. [ 26 ] Thereafter Calvin Clarke resigned on April 23 and commenced action for constructive dismissal. [ 27 ] Alex Liot and Nancy Cook testified for the Herald. [ 28 ] Alex Liot is the Vice President of Sales and he said he had concerns with client service by Calvin Clarke as an account executive, and was concerned about the disruption that would be caused to clients on Calvin Clarke’s return to work. [ 29 ] Nancy Cook and Alex Liot testified about the customer service complaints they said they had received with respect to Calvin Clarke.

An email was sent to Nancy Cook from Calvin Clarke’s immediate supervisor, the advertising sales manager. In that letter, there was a reference to issues “to justify why he [Alex Liot] is not putting him back in the same position with that account list”.

That email (Tab 56, pg. 1) was received by Nancy Cook on February 27 just days before Calvin Clarke returned to work and received the reprimand letter and the information on the new position. [ 30 ] Alex Liot said the Herald wanted to create a full service marketing enterprise, an integrated model involving print ad sales, and Bounty Print and Headline Promotions sales. [ 31 ] He said they wanted to bundle products and add value for clients which would allow the Herald to adapt and keep revenue up.

He testified that Calvin Clarke was well suited for the BDS position because he was great with respect to sales, he was enthusiastic and had drive, was likeable and was keen on new things. [ 32 ] He said he wanted to give him a fresh start rather than go through what he referred to as the lengthy ramp-up period on Mr. Clarke’s return to work. [ 33 ] Alex Liot said the BDS position was an improved over account executive because there would be better compensation with the same office, same reporting structure and the same benefits. He said it was not a demotion.

He said he saw no difference in the two roles; they both involved marketing efforts, the possibility of identifying new opportunities, and engaging customers in discovering their needs. [ 34 ] Alex Liot said he was optimistic about the projected targets while Calvin Clarke was pessimistic. When he reviewed Calvin Clarke’s scenarios, he said they showed little or no effect from Calvin Clarke’s efforts. He said his projections (Tab 63) were more optimistic.

He discounted Calvin Clarke’s concerns with respect to Bounty Print’s first quarter results saying you can’t judge whole year by the first quarter. [ 35 ] He said he did not agree with large base salaries but his preference is to have employees be motivated to earn commission income. [ 36 ] As a result of one of their meetings, he added one more Bounty Print employee to the list of those for whom Calvin Clarke would receive what he called override commissions, i.e., commissions in addition to those paid to the three listed employees for their sales. [ 37 ] After receipt of Colin Bryson’s letter, he and Nancy Cook met with Calvin Clarke and on April 13 the guarantee period was increased from three months to six months. [ 38 ] He also said he told Calvin Clarke that they would meet after four months, around August 2015, to review progress. [ 39 ] He said he was disappointed when Calvin Clarke resigned.

He said there was a limited pool of people to achieve what the BDS position could achieve. [ 40 ] He agreed, however, on cross-examination that the move was a transfer and Calvin Clarke had no choice in the matter. [ 41 ] Nancy Cook was the Vice President of Administration with the Herald at the relevant time. [ 42 ] She too referred to the integrated sales approach and said the Herald could be a one-stop shop.

She said Bounty Print and Headline Promotions were growth areas because print sales were declining. [ 43 ] She said Calvin Clarke’s income was decreasing over time as an account executive and referred to two things in 2013 that increased his income for that year only: one was a large commission earned in May and another was a payout for loss of an account to another sales division. [ 44 ] She said the income guarantee was to allow Mr. Clarke time to ramp up in the new position. She said she wanted him to be successful.

[ 45 ] She said the BDS position was a similar role, just selling different products. [ 46 ] Nancy Cook testified that she and Alex Liot met with Calvin Clarke after receiving Colin Bryson’s letter. As a result, she said they decided to increase the guarantee period from three to six months. [ 47 ] She said Aubrey and Steve at Bounty Print had other operational roles and did not have the time to meet with customers and increase the business.

This would be something Calvin Clarke could do. [ 48 ] She said the plan was that Alex Liot would meet with Calvin Clarke regularly and review things in four months and she said the targets could be adjusted at that time. [ 49 ] Nancy Cook said Calvin Clarke’s accounts had been redistributed while he was on leave and that no one was hired to replace him as account executive. [ 50 ] She agreed the BDS position was not filled after Calvin Clarke resigned.

She agreed on cross-examination that the new job description for account executive dated January 2015 did not include Calvin Clarke in that position. [ 51 ] She also admitted on cross-examination that the letter of reprimand dated March 2, 2015, did not contain sufficient information to result in sufficient cause for termination. [ 52 ] I rule at trial that ex post facto information was not relevant since this was not information that Calvin Clarke knew or could have foreseen so that evidence from Alex Liot and Nancy Cook was rejected.

Was Calvin Clarke constructively dismissed? [ 53 ] The leading authority on this subject is Potter v. New Brunswick (Legal Aid Services Commission) , 2015 SCC 10 . [ 54 ] The onus is on the employee to establish constructive dismissal. [ 55 ] In para. 32, Wagner, J. referred to two branches of the test. First, the express or implied term of the contract of employment which was breached must be identified. Then the court must determine whether the breach was serious enough to equal constructive dismissal.

He went on to say: Typically, the breach in question involves changes to the employee’s compensation, work assignments or place of work that are both unilateral and substantial. (para. 32) [ 56 ] Wagner, J. went on in para. 37 to say that in the first step the court has to determine objectively if a breach has occurred. If there was an express or implied term that allows the change, or if the employee acquiesces, the change is not a unilateral one and therefore not a breach.

He also noted the change must be detrimental to the employee. [ 57 ] In the second step, he said the court must ask whether a reasonable person in the same situation as the employee would have felt there was a substantial change to the essential terms of the employee contract. (paraphrasing para. 39) [ 58 ] Wagner, J. pointed out that this is “a highly fact-driven exercise”. (para. 40) [ 59 ] In this case, there was no written contract of employment.

I conclude it was not an implied term of the contract that Calvin Clarke could be transferred from his position as account executive for 18 years to a newly created position. This was a unilateral decision of the Herald which breached the employment contract viewed on an objective basis.

It affected his compensation and changed his duties and responsibilities. [ 60 ] With respect to step two of the test, I must determine whether these changes were substantial, based upon a determination of whether a reasonable person in Calvin Clarke’s position would consider them to be a substantial change to his contract of employment. [ 61 ] I am satisfied that Calvin Clarke’s income would be reduced and that his duties changed. The Herald said he was still in sales and dealing with clients face-to-face with the same benefits available to him.

However, I am satisfied that the nature of Calvin Clarke’s duties changed from those he had as an account executive. Instead of selling print ads in the newspaper and related publications, he was to sell printing materials such as Bounty Print’s business cards and brochures, and Headline Promotions’ logo’d sports apparel and equipment. [ 62 ] With respect to compensation, I am satisfied that Calvin Clarke’s compensation would be less than when he was an account executive.

I find as a fact that his projections are more realistic than those of Alex Liot who was unduly optimistic. [ 63 ] Bounty Print had lost its second largest customer and Headline Promotions has no history of sales for a realistic comparison of past sales against the projections in the 2015 budget. I conclude that a reasonable person in Calvin Clarke’s position would believe there were substantial changes to his compensation and the duties of his employment. [ 64 ] Accordingly I conclude Calvin Clarke was constructively dismissed. Mitigation [ 65 ] On the subject of mitigation, the Herald raises three issues: 1.

The Herald says that Calvin Clarke failed to mitigate by not taking the BDS position and this is a complete defence to any claim for pay in lieu of reasonable notice.

2. Alternatively, the Herald that Calvin Clarke’s efforts to mitigate by seeking other work were insufficient. 3. In the further alternative, the Herald says when Calvin Clarke set up his own landscaping company that was a failure tomitigate. First mitigation issue [66] The Herald says following the decision in Evans v.

Teamsters Local Union No. 31, 2008 SCC 20, that Calvin Clarke had theobligation to mitigate his damages by remaining in the BDS position. [67] The Herald says Calvin Clarke had no other position to go to when he resigned and therefore should have stayed on in the BDSposition. [68] In Evans supra, Bastarache, J. concluded there are some circumstances when the employee must mitigate his or her damagesby returning to work for the same employer (para. 28).

He said the notice period provides an employee the sufficient opportunity to seeknew employment during the working notice period. [69] It is the employer who has the onus of demonstrating a failure to mitigate. The issue is whether a reasonable person wouldaccept the opportunity to continue to work. Bastarache, J. then refers to factors which should be considered. He referred to the decision in Mifsud v.

MacMillan Bathurst Inc., (1989) (ON CA), 70 O.R. (2nd) 701 (C.A.), where the court concluded theemployee should continue where the salary is the same, the working conditions not substantially different, and the personal relationshipsare not acrimonious. [70] Bastarache, J. also referred to Cox v. Robertson, 1999 BCCA 640, where the Court of Appeal said there may be other factors.These factors include the history and nature of the employment, whether the employee has sued and the offer of employment was madebefore or after the employee left.

Bastarache, J. said there must be a multi-faceted and contextual analysis. [71] He said the critical element is that the employee not have to work in an environment of hostility, embarrassment or humiliation. [72] He continued to say that the non-tangible elements, including the work atmosphere, dignity and stigma are to be considered aswell as the nature and conditions of employment. [73] He pointed out that employees dismissed as a result of a change in position, not performance, are more likely to be required tomitigate by returning to the same employer. [74] The reasonableness of the employee’s decision must be assessed on an objective standard, whether a reasonable person wouldhave continued to work out the notice period. [75] In this case, Calvin Clarke had expressed his concerns to the Herald.

Some concessions were made, that is, including a thirdBounty Print employee’s commission in Calvin Clarke’s commission structure as well as increasing the guarantee period from three tosix months. In spite of these, Calvin Clarke believed his income would be reduced. I have found as a fact that that would be the case.Had he stayed on in the position, the income reduction would have occurred. [76] There is no evidence that there was any acrimony with Nancy Cook, Alex Liot or the Bounty Print principals. However CalvinClarke felt he had been demoted.

Both Nancy Cook and Alex Liot said they wanted Calvin Clarke to remain with the Herald and besuccessful. [77] However income is a critical issue in determining whether a reasonable person would stay on. [78] In Gillis v. Sobeys Group Inc., 2011 NSSC 443, Coady, J. concluded that although there would be a decrease in Ms. Gillis’salary it was not a substantial reduction (para. 36) and there was a potential for a future increase as a store manager plus an opportunityfor a bonus. [79] In Irwin v. Sysco Halifax, 2010 NSSC 291, the court concluded in para. 43 that Ms.

Irwin’s working conditions, salary,benefits, etcetera, would have remained the same, including working in the same department and reporting to the same person. The courtconcluded there were no barriers to her continued employment. [80] In Younger v. Canadian National Railway Company, 2014 BCSC 1258, Romilly, J. concluded the plaintiff failed to mitigate hisdamages. However, the salary was to be continued for one year at the same level. [81] Similarly in Loehle v. Purolator Courier Ltd., (Ont S.C.), D.J.

Gordon, J. referred to the salary being thesame and that was a factor in determining whether the employee should have continued with the employer, which he concluded shouldhave occurred in that case. [82] In Constantinoff v. Racine, 2000 SKQB 60, the plaintiff had an effective hourly rate which was substantial and was offeredemployment with “most of the same benefits”. She was found not to have mitigated by not accepting the offer of employment. [83] In Bergmann v. BPT Canada Power Technology, (AB KB), [1997] A.J. No. 906 (Q.B.), Kennedy, J.concluded there was a significant change in the plaintiff’s income.

She concluded under the circumstances, including that factor, that thiswas not a situation where the plaintiff should have been obliged to continue to work for the employer in mitigation of his damages. [84] In Prince v. The T. Eaton Co. Ltd., (BCSC), Lysyk, J. concluded it was not unreasonable for the plaintiffCharlton to have refused the positions offered, which were not a lateral move, and where his income and benefits would not be protectedbeyond one year. He said they were “reduced positions”.

[85] I conclude that it was not unreasonable for Calvin Clarke not to continue in the BDS position. As I have found, hiscompensation would decrease. I therefore find that there was not a failure to mitigate on his part. Second mitigation issue [86] In the alternative, the Herald says that Calvin Clarke’s efforts at mitigation were insufficient. It says he made only fourapplications for employment and that his initial efforts were insufficient. [87] Calvin Clarke said he had not updated his resumé in over 18 or 19 years and he spent the first week working on that.

He said helooked at the market through various websites, contacted previous clients, updated his LinkedIn profile and sent a resumé to CareerBeacon, a job search website which he said seemed more likely to have jobs fitting his needs. He testified he received emails from it andthere were daily updates. [88] Calvin Clarke testified that some of the positions not only provided less income, but required extensive travel and/or workingevery weekend.

He said because he was a single parent with shared custody of his children he needed to be available for them and thatkind of travel and work every weekend were not suitable. [89] He said he wanted a minimum income of $65,000 with the possibility of growth. He said his areas of interest were senior sales,marketing and project management. [90] He met with people at Nova Scotia Home Builders and in construction sales.

As well, there was a job opportunity withCanadian Tire but it was in Greenwood and not one he could consider for the above reasons. [91] In addition Calvin Clarke made contact with Clothesline Media but it was a new company, which did not have a history, and itcould not offer him any guarantees. [92] He also said he made contact with Talentworks but learned the position to which they were referring was a desk job makingcalls out. [93] He also contacted Venor Search Group and, as a result, in December 2015, he applied to Parts for Trucks but did not hear backfrom them.

He also applied to a confidential employer which turned out to be Saltscapes. The remuneration was good and it was amanagement position. He was hired and began work on January 11, 2016, at a base salary which would have increased after six monthswith a commission component. Unfortunately the job ended on April 11, 2016. [94] Thereafter he continued to search for jobs but there were none.

He said he knew people in the commercial landscaping businesswho told him there was a need for residential landscaping. [95] He said when he had considered university as a teen his alternate university path would have been in that field at Nova ScotiaAgricultural College. He said he always had that interest so he began his landscaping business in June 2016.

His net income from it for2016 was $5,791 and that is set out in Tab 45 of the exhibit book. [96] He said he still continues with Career Beacon with no success. [97] Early in his job search, his father was ill and had to have six weeks of cancer treatment in May and June of 2015. He attendedwith him although he was at the same time continuing to receive information from Career Beacon. [98] There were few opportunities that fit Calvin Clarke’s skills and compensation requirements as well as his personal familyrequirements. I conclude Mr.

Clarke did what he could to obtain employment and in fact did gain a position as Director of Sales atSaltscapes. [99] In the circumstances, I conclude Calvin Clarke did what he could and what was reasonable to mitigate his damages. Third mitigation issue [100] I also conclude that in all the circumstances it was not unreasonable for Mr. Clarke to start his own business. [101] In Stacey Ball, Canadian Employment Law, the author discusses starting one’s own business in the context of mitigation. Shesays in

section 12:40 that it can be a reasonable form of mitigation where the plaintiff’s skills are not marketable or there are fewopportunities for his or her area of expertise. The contrary is also true where suitable employment opportunities are available she pointedout. [102] In my view, based upon the evidence of Calvin Clarke, there were no suitable jobs for him even though he made reasonableefforts to find one. I therefore conclude it was not unreasonable for him to start his own business.

He had gross income in his start-upmonths of over $19,000, for only part of a year, since he had been employed until mid-April, and had to acquire equipment before hecould begin his business in June 2016. Period of Notice [103] The plaintiff says 14-18 months is the appropriate notice period. The Herald, in the alternative, says ten months is theappropriate period in the event I conclude Calvin Clarke was constructively dismissed and if the Herald is unable to prove a failure tomitigate. [104] Bardal v. Globe & Mail Ltd. (1960), (ON SC), 24 D.L.R. (2d) 140 (Ont.

S.C.) and the factors referred to in thatdecision are often cited in decisions dealing with the period of notice.

[105] In Grant v. Allstate Insurance Co., [1995] N.S.J. No. 566 (S.C.) at para. 27, MacAdam, J. quoted from Bardal as follows: 27 The factors cited by Chief Justice McRuer in Bardal v. The Globe & Mail Ltd. (1960), (ON SC), 24 D.L.R. (2d) 140are often cited in deciding the period of reasonable notice to which a dismissed employee is entitled, in the absence of just cause. At p.145, Chief Justice McRuer says: “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.” 1) Character of the Employment [106] Calvin Clarke was a senior account executive, having held that position for 18 years. He was one of the top account executivesand had worked hard to achieve his position and obtain good commissions based on his sales.

He did not have any managerialresponsibilities but was responsible for meeting his budget targets as a self-starter. He provided a list of his clients and said many hadbeen developed solely by him. It was a position of responsibility, important to the financial success of the Herald and he was highlyskilled at it. In 18 years, he was reprimanded twice, the second one being on the day he was transferred to the BDS position. The earlierone involved a missed appointment with a client when Calvin Clarke had to respond to an emergency at his son’s school and take his sonto the dentist.

Although the client initially complained to Mr. Clarke’s employer, he subsequently accepted Mr. Clarke’s explanation asvalid and reasonable. 2) Age [107] Calvin Clarke was 40 when he was constructively dismissed. That is an age when it should not have been impossible for him tofind employment, subject to its availability. 3) Length of Service [108] Calvin Clarke said he was a Herald guy as was his father before him.

He held no other positions since university and had beenemployed for 21 years, part-time while at university, then as a junior sales executive, followed by 18 years as a senior account executive. 4) Availability of similar employment [109] As his evidence discloses, Calvin Clarke could not find equivalent work. Therefore this is a significant factor here. [110] The positions he did find were junior sales positions or positions with low income prospects.

Some required extensive travel andregular weekend work, something not at all suitable for a single parent sharing custody of his children. [111] The authorities cited provide some guidance but are not on all fours with the facts in this case. Those cited by Mr. Clarke rangefrom 13 months to 24 months. In Lane v. Carson Group Inc, 2002 NSSC 218, Hall, J. said that was at the top of the range in the case of a57 year old, 25 year employee. In Krieser v. Active Chemicals Ltd., 2005 BCSC 1370 , [2005] B.C.J. No. 2056 (S.C.), theplaintiff was 43 and had worked for the defendant for 17 years as a salesman.

In Hamer-Jackson v. McCall Pontiac Buick Ltd, [1998]B.C.J. No. 1868, the notice period was 13 months for a 37 year old 13 year employee. However, most of the authorities cited fell withinthe 15 to 18 month range. [112] The defendant on the other hand had referred to authorities where the plaintiff was given nine to 12 months notice, with oneexception. In Loehle, the plaintiff was a five-year employee.

In Bergman, the plaintiff was a 17 year employee, age 40 and the period ofnotice was determined to be ten months, as was the case in Prince where the plaintiff Charlton had been in retail sales at Eatons as asales supervisor. He was age 41, had worked for Eatons for 17 years, the past nine as sales supervisor. The notice period was 42 weeks,approximately ten months. [113] In Constantinoff supra, and Smith v. Robin Hood Multifoods, 1990 Carswell NB 183, the notice period was 12 months for 21year employees. The former was a dental assistant and the latter was a sales representative.

One exception in the cases referred to by theHerald was MacKinnon v. Acadia University, 2009 NSSC 269, where Warner, J. concluded the plaintiff had failed to mitigate but wouldotherwise have been entitled to 16 months as a long-term employee at age 48. [114] Under the circumstances and considering the Bardol factors, I conclude Calvin Clarke is entitled to 16 months notice. Damages [115] Calvin Clarke is entitled to damages in lieu of 16 months notice, subject to the balance owing to the Herald from the 2014overpayment.

Calvin Clarke’s income from Saltscapes is also to be deducted as well as his net income from his landscaping business.These latter figures are respectively $15,741.95 earned between January and April 2016, and $2275.80 net income beginning June 1,2016 up to August 23, 2016, the end of the 16 month notice period. [116] Calvin Clarke says his damages should be based on his five year earnings average of $84,898. [117] The Herald says Calvin Clarke’s income as an account executive was declining and therefore $57,000 would be his expectedincome as such in 2015.

[118] In Lane supra, Hall, J. used the plaintiff’s average monthly income during the last full three years of his employment. In theHarris text Wrongful Dismissal, the author said in s. 4.18 that if the plaintiff’s income at the date of dismissal is artificially high or low“his or her average income during the last few years of employment should be used”. [119] In Veach v. Diversey Inc., [1993] B.C.J. No. 2420 (S.C.), the British Columbia Supreme Court used a five year average for acommissioned sales person.

Josephson, J. in para. 24 referred to fluctuating commission sales income and said that the plaintiff’s incomeover a number of years must be considered to arrive at a representative figure to determine the plaintiff’s loss. [120] Similarly in Roney v. Knowlton Realty Ltd., [1995] B.C.J. No. 1251 (S.C.), Trainor, J. used a four year average since heaccepted that the plaintiff’s income in his last year of employment was not representative of his usual earnings. [121] In Corkum v. Maritime Telegraph & Telephone Co., [1992] N.S.J. No. 173 (N.S.S.C., Trial Division), and in BMO NesbittBurns Inc. v. Bond, (Ont.

SC), the courts referred to the fact that commission income is not guaranteed. Thecommission structure at the Herald changed from time to time. This is evident from the testimony of Calvin Clarke who said that at onetime income was based on commission only with a draw; that later changed in 2012 to a base salary of $24,000 plus commissions. Thestructure in place in 2014 is set out at Tab 2 and that was changed again as of January 29, 2015 (see Tab 51). [122] In Holland v. Midland Walwyn Capital Inc., [1993] N.S.J.

No. 351 (N.S.S.C.), Davison, J. at para. 46 said that the income priorto dismissal was to be considered “and any factors which would indicate the income would increase or decrease during the period ofnotice”. [123] In Carroll v. Purcee Industrial Controls Ltd, 2017 ABQB 211, Pentelechuk, J. (Alberta Queen’s Bench) said that there wasinsufficient evidence to predict what the plaintiff’s commissions would have been during the notice period. She was satisfied that usingthe plaintiff’s 2011 and 2012 average income would result in a windfall since she accepted that his sales were declining.

She thenapplied a 15 percent reduction to his average two years income. It appears there was no dispute about the use of the two year incomeaverage. [124] Nancy Cook testified that Calvin Clarke’s income was declining and attributed the 2013 income level to two unusual events: abig commission in May and a payout when a client was transferred to another sales division. [125] However, Mr. Clarke explained how commission income fluctuates since the annual budgeted sales targets are based on theprevious year’s sales.

A year with higher commission income leads to a higher core budget for sales in the following year, which canresult in a lower income, since the percentage on higher sales is more difficult to achieve. Conversely he said that a year of lower salescan lead to a lower core target for the following year which he said can result in the target being reached more easily and commissionpercentages being higher. [126] Calvin Clarke said since his sales were lower in 2014, his 2015 target should have resulted in a return to higher commissionincome.

He said he expected his core budget in 2015 would be $950,000 to $1,000,000 as opposed to $1.1 to $1.4 million in previousyears. He said he was optimistic about his income level for 2015 as an account executive. [127] I accept that commission income can fluctuate. Even Mr. Clarke admitted that print media sales were trending down and it wasmore difficult to sell print media because of competition from digital advertising. [128] In my view, it would be unfair to base Calvin Clarke’s income during the notice period on the 2014 income level only or onanticipation that it would decrease to $57,500 in 2015.

It is not reasonable to account for the substantial increase between 2012 and 2013by referring to one time events without considering whether there were one time negative events in 2012 and 2014. [129] However I do accept that print media sales were declining with a small drop of one percent between 2013 and 2014 (evidentfrom Tab 62) without taking into consideration the overpayment to Mr. Clarke of approximately $10,000 in 2014.

I also note the numberof account executives was six in 2013 and 2014 but down to four positions in 2015 and 2016. [130] Taking all these factors into consideration, I conclude that the three year average prior to Calvin Clarke’s constructive dismissalrepresents the most realistic income that Mr. Clarke would have earned during the notice period. That average is $77,713 or $6,476 permonth for a total of $103,616.

From that amount is to be deducted the amounts to which I have referred above: $7,836 owing to theHerald, $15,741.95 income from Saltscapes, and landscaping business net income to August 23 only, of $2,275.80, resulting in a net of$77,761.87. [131] With respect to other matters, Calvin Clarke says an additional two percent should be added to this total for pension loss.However, although Mr. Clarke says this loss is established, it has not been quantified.

It is therefore not allowed. [132] Calvin Clarke is entitled to interest on the damage award as well as his costs and disbursements. [133] If the parties cannot agree, I will accept brief written submissions to be filed within 30 days, if that is acceptable to counsel. Hood, J. Hood, J.