Bradbury V New Foundland

Date: 20011012 Docket: 00/130 Decision No.
: 2001 NFCA 63
2001 NFCA 63 (CanLII)
IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL
BETWEEN HER MAJESTY IN RIGHT OF NEWFOUNDLAND APPELLANT
AND: KENNETH BRADBURY RESPONDENT
Coram: Marshall, Steele and Cameron, JJ.A. Court Appealed From: Supreme Court of Newfoundland, Trial Division 1995 St. J. 1032
Appeal Heard: Judgment Rendered: Written Reasons Filed:
October 12, 2001 October 12, 2001 (orally) December 11, 2001
Reasons for Judgment by Marshall J.A. Concurred in by Steele and Cameron, JJ.A.
Counsel for the Appellant: Counsel for the Respondent: Marshall, J.A.:
Rolf Pritchard Peter OFlaherty
Background circumstances [2] The affected individual is Mr. Kenneth Bradbury, who entered the public service at the age of forty-one in 1981 as a mines inspecting engineer. He had previously been employed in the mining industry and established to the satisfaction of the judge at first instance that his move to the public service was prompted primarily by his desire for security of employment. In 1986 he had advanced to the position of Manager of Mines Inspections. [3] In 1990 Government began a major re-organization of its departments, which was fuelled by pressing needs of fiscal restraint. This involved posts within the public service being declared redundant. In March of 1991, Mr. Bradburys post was eliminated under the redundancy policy. [4] Included in that policy was a governmental direction that employees whose positions had been declared redundant were to be given priority for re-employment within the service. The testimony of a responsible government official tendered in the hearing which resulted in the finding of liability for damages indicated that the policy directives aim was to:
provide an opportunity on a priority basis for the individuals who through no fault of their own have lost their positions to be considered for alternate employment where they meet the qualifications for such positions.
[5] Responsibility for carrying out that directive was delegated by Government to the Public Service Commission, and affected employees were channelled to the Commission for assistance in their attempts to find alternate employment within the Service. Following receipt of the news that his post was eliminated, Mr.
[1] This is an appeal by the Government of Newfoundland, through its Attorney General, from a decision rendered in the Trial Division setting out the guidelines for the assessment of damages recoverable by an employee in the public service, for which Government had earlier been held liable, for loss of opportunity for reemployment within the civil service subsequent to the elimination of his prior post.
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Bradbury attended upon an official employed at the Commission and identified another managerial position in his own Department which he knew was unfilled. When the official contacted the Departments Assistant Deputy Minister regarding that position, she was informed by him that Mr. Bradbury was technically sound but totally inadequate in managerial skills. This was followed up with a letter from the Assistant Deputy Minister which the judge at first instance found would leave no doubt in anybodys mind that Bradbury was totally unsuitable for any management position. Mr. Bradbury had been unaware of that negative reference until the initial hearing in the Trial Division into Governments liability was completed, but before the decision had been rendered. Upon learning of it, he successfully applied to reopen the trial. [6] It is also noteworthy that Mr. Bradbury was erroneously left with the impression that his priority rights to re-employment under the redundancy policy terminated in May of 1991. In fact, due to internal governmental policy changes, his priority position had been extended at least seven months beyond the May date. Government witnesses testifying at the liability hearing agreed that Mr. Bradbury had been entitled to have this information relayed to him. By the same token, these witnesses agreed that Governments normal procedure with respect to negative references, such as the one affecting Mr. Bradbury in the case at bar, would be to consult the affected employees and to afford them opportunity to respond. This procedure, as already noted, was not done in his case. [7] Yet another mistaken impression was left with Mr. Bradbury by the official delegated to interface with him concerning the elimination of his post under the redundancy policy. This concerned his pension. He was officially advised by the Commissions officer that it had not yet vested, and the official discussed with him the available options for refund of his contributions. Mr. Bradbury was subsequently to have accepted the refund of his pension contributions. As the judge pointed out in his decision respecting damages to which Mr. Bradbury had been adjudged entitled, this information was also erroneous. His pension had been vested at the time. [8] In fairness, it should be noted that the official dealing with his case at the Commission who had primary responsibility for these matters went on sick leave during this period. While this is an explanation, it does not, of course, repair the
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disadvantage at which Mr. Bradbury was placed as a result of these oversights and misinformation.
The liability decision [9] The focus of the trial judge at the hearing into the Governments liability centered on Mr. Bradburys claim that he was entitled to be indemnified for loss of opportunity for re-employment to which he claimed entitlement under the directive. [10] Voicing satisfaction that the evidence showed Mr. Bradbury was amiable to taking alternate employment, the judge firstly found that the extended time period would have been sufficient to allow Bradbury to find re-employment provided the negative reference had been dealt with ..., and Mr. Bradbury had been aware of that extended priority period. However, the judge noted Mr. Bradbury was never given the opportunity to deal with the negative reference. The evidence, in the judges view, strongly suggested that Mr. Bradburys superiors may have accomplished what they could not do for cause by relying on the provisions of the redundancy policy. While coming short of an explicit affirmative finding to that effect, the judge nonetheless held:
... the manner in which Bradbury was dealt with by the Public Service Commission and the manner in which the negative reference was dealt with is in itself sufficient ground to find liability and award damages ....
[11] The judge pronounced the Government liable in contract and tort for depriving Mr. Bradbury of his opportunity for re-employment in the public service. He summed up his findings in that regard as follows:
In failing to deal with the Plaintiff under the policy ... the Defendant was negligent in contract. In failing to achieve the general standard of reasonableness in dealing with the Plaintiff for which the Government had a duty of care, they are liable in tort.
[12] The trial judge did not then assess damages, but gave either party leave to apply for continuation of the trial to deal with damages. In so doing, he indicated there may well be contributory negligence on Mr. Bradburys part and
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suggested that that issue should be addressed in determining damages. The Governments appeal to this Court of the trial judges decision was dismissed. [13] It should be explained how it came to pass that the contributory negligence issue was put over to the assessment of Mr. Bradburys damages. Neither of the decisions at first instance were handed down by the judge who had presided over the liability stage of the proceedings. Because of that judges illness, those decisions, in conformity with the rules governing procedure, were rendered by another judge in the Trial Division. With consent of the parties, advertence was had to the transcript for the evidence from which the liability disposition was authored. The judge sitting in the stead of his colleague obviously felt it necessary to defer the entire question of contributory negligence to the assessment stage and no objection was raised against that part of his decision. The hearing respecting damages [14] Advantage was subsequently taken of the leave to apply for further decision of the trial judge regarding damages. Counsel were heard on the matter on June 19, 2000, and the judges decision was handed down on September 28, 2000. The trial judge was not then asked to assess the quantum of damages, however. Both counsel requested to have resolved certain issues, the answers to which were needed to facilitate counsels efforts to agree upon the quantum of damages due to Mr. Bradbury. [15] The first of these issues was that of contributory negligence which, as preceding para. 12 recounts, the judge had indicated at the end of the liability hearing appeared to him to be a live one. However, after hearing testimony from Mr. Bradbury at the damages hearing in relation to the measures taken by him to seek employment after the decision was made to make his position redundant, the judge, having first observed it had been suggested by certain Government witnesses during the initial liability hearing that Mr. Bradbury may not have diligently pursued all remedies that were available to him, disposed of the contributory negligence issue thusly:
Since filing that decision, I have had the benefit of hearing from both Mr. Bradbury and representatives of the Public Service Commission. I am now satisfied that Bradbury did all he could to seek re-employment and did everything
Page: 6 that one could expect from a reasonable person to mitigate his damage. Bradbury dealt with the Public Service Commission expeditiously. However, the Public Service Commission clearly let him down.
[16] Expanding on this finding of reasonable steps taken in mitigation of damages, the judge went on to write:
After being notified by the Public Service Commission that no positions were available, I find that Bradbury took every available step that could be expected of a reasonable person to find and seek employment through ads, applications and other means .... Not only was he a victim of the negligent actions of the Public Service Commission, but he was also a victim of the poor economic conditions which prevented him from obtaining meaningful employment. In conclusion, I find that the defendant has not satisfied the onus of proving there was any failure by Bradbury to mitigate his losses.
[17] The judge then turned to the heads of damages. In this regard, he did assign a quantum to the first two headings despite his earlier observation that he had not been called upon to do so. As there was no explanation for this change in approach, it is assumed it must have been subsequently agreed that the judge should convey his view as to the appropriate measure of damages recoverable under these two headings. [18] The first head of damage related to out-of-pocket expenses incurred by Mr. Bradbury for which the sum of $4,000.00 was held to be justifiable. This award was not challenged and is not in issue in this appeal. [19] The judge then considered non-pecuniary damages, awarding under it the sum of $20,000.00 as general damages for mental stress and hardship. Elaborating on the basis of this award, beyond those circumstances he had already mentioned in his original decision ascribing liability to Government, the judge observed:
I find that there was a concerted effort to keep Mr. Bradbury out of the relocation policy by submitting the negative reference, and the failure of the Public Service Commission to adequately deal with the negative reference only compounded the matter. Over the years both Mr. and Mrs. Bradbury have suffered severe mental and physical distress.
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[20] With regard to loss of earnings, the judge assessed no specific amount, but laid down parameters for evaluating that head of damage. This part of his decision reads:
Dealing with the loss of earnings, as I have already stated, I am satisfied that Mr. Bradbury had every intention of staying with Government until he was pensionable. I found the defendant liable in both tort and contract for loss of opportunity for Mr. Bradbury to remain employed. I am satisfied Mr. Bradbury should have been offered, and he would have accepted, the position of Manager General Inspections and Mines on October 24, 1991. The law presumes that if he were capable, he would have been entitled to that position and, indeed, I find on balance that he should have been given the position. Although the job identified by Mr. Bradbury paid a lesser salary, I am satisfied that he would have accepted that position. The person who ultimately accepted the job is still an employee of Government, and is still in the same position. I find that there was a presumption that Mr. Bradbury would have been offered and accepted that job and he would have held at least that job, if not one of a higher scale, until the date of his retirement. In that regard, I find that Mr. Bradbury is entitled to be compensated for loss of earnings for the job identified from 1991 up to the date of what would have been his retirement at age 60. In essence, I accept the position put forth in the Grant Thornton Report known as scenario No. 1 ....
[21] The judge then turned to the parameters governing the assessment of loss of pension benefits. In so doing, he first dismissed the Governments contention that this loss should be calculated on the footing that Mr. Bradbury could have been laid off prior to his date of retirement if he had accepted the position he had identified to the Commissions official after his employment was terminated. The judge simply noted there was no evidence to support that contention. He went on to add that it had been acknowledged that the person who had accepted the identified position still held the job. He then made the findings which, as will presently be seen, have a real bearing upon the substantive issues raised in this appeal. Thus, he wrote that, whilst a negative reference was given which precluded Mr. Bradbury from future employment:
... this reference has never been substantiated and I am satisfied that if the plaintiff had been put into the position identified by him in 1991, he would have been employed until the date of his retirement. As to contingencies, I find that there was not a real or substantial likelihood of anything having occurred which would have affected the position that Bradbury identified and was entitled to.
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... to place Mr. Bradbury back in the same position he would have been had he stayed with Government as an employee in the position he identified back in 1991, working in that position until age 60 and then retiring.
Immediate reactions [23] The Government appealed the rulings in the second decision rendered by the judge which set out the parameters for the assessment of Mr. Bradburys damages. In the meantime, negotiations took place between counsel for both sides with a view to setting the monetary amount of the damages to which Mr. Bradbury would be entitled on the basis of the challenged principles laid down by the judge for the measurement of the compensation due. Counsel were able to arrive at figures calculated on the footing of the disputed parameters articulated in the second decision. They were subsequently incorporated in an order which was duly filed in the Trial Division on December 13, 2000. The operative portions of that Order read:
IT IS ORDERED THAT the defendant pay to the plaintiff the following sums: 1. 2. 3. 4. Non-pecuniary damages in the amount of $20,000.00; Loss of Earnings in the amount of $445,745.00; Loss of Pension Benefits in the amount of $262,202.00;* Severance Pay in the amount of $9,702.48;
LESS the following sums:
[22] On the basis of these two findings, the judge summarized the parameters governing the assessment of damages for the losses of earnings and pension benefits. Affirming his satisfaction that Mr. Bradbury would have worked until the age of sixty, whence he would have retired, the judge held Mr. Bradbury to be entitled to his loss of earning to that date and to his loss of pension based on present value calculation from the age of 60 forward. Then, whilst noting these entitlements were to be supplemented by both pre- and post-judgment interest, the judge stated the purpose of his findings to be:
Page: 9 1. 2. Pension contributions refunded in the amount of $26,508.00; Notional Provincial Pension Plan Contributions in the amount of $31,720.88; Actual Canada Pension Plan employee contributions from October 24, 1991 - October 4, 2000; and, Income tax and other deductions required by law to be withheld and remitted by the defendant.
3.
4.
AND IT IS ORDERED THAT the defendant pay to the plaintiff Out-of-Pocket Expenses in the amount of $4,000.00 and pre-judgment interest in the amount of $99,789.30; AND IT IS ORDERED THAT the defendant pay all employers contributions, plus interest and penalties, if any, necessary to reinstate the plaintiff to full benefits status under the Canada Pension Plan, or in the alternative, if the plaintiff is not reinstated to full benefits status by March 31, 2001, to pay $300,630.00 in loss of pension benefits to the plaintiff plus any actual Canada Pension Plan contributions from October 24, 1991 to October 4, 2000 previously withheld under the Order;* Together with post- judgment interest pursuant to the Judgement Interest Act (Nfld.), and costs to be taxed. [*At the hearing of this Appeal, the Court was advised that since the Canada Pension Plan did not lend itself to the reinstatement, the figure for loss of Pension Benefits was revised from $262,200.00 to $300,630.00.]
[24] The Court was advised that payment in full of the total of the sums reflected in the foregoing order was conditional upon the parameters set for their calculation in the appealed decision remaining operative after the Crown had exhausted such rights of appeal as it wished to pursue. In the meantime, the Court was advised, Government had made payment of an agreed undisclosed sum on its liability to Mr. Bradbury. [25] It is, then, evident from the foregoing that there has been agreement regarding the measure of damages calculated on the basis of the principles or parameters laid down in the decision now under appeal. The quantum of damages
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Setting of this appeal [26] Reflecting the finding of Governments concurrent liability in contract and in tort to Mr. Bradbury, the seven points defined in Governments factum as being in issue in this appeal addressed separately its challenges to the parameters for measuring damages according to whether the Governments liability was to be treated as grounded in contract or tort. However, while jural relationships may differ depending on whether liability is treated as sounding in contract or in tort, counsel for Government acknowledged at the commencement of his oral submissions to this Court that, in the circumstances obtaining, the substance of the complaints registered against the parameters for the assessment of damages articulated at first instance applied whether his clients liability was treated as contractual or tortious. [27] Through that acknowledgement, counsel is recognizing, whether grounded in contract or tort, that the remedy of compensatory damages aims at ensuring that the aggrieved party is placed, as nearly as possible, in the same position as if breach or injury had not occurred. By the same token, counsel is also proceeding on the footing that whatever may be the potential differences in remedies arising out of contract or tort, they do not come into play in the substantive complaints which Government here directs towards the parameters articulated by the judge for the determination of Mr. Bradburys damages in the case at bar. Thus, Governments counsel has not to any significant extent made submissions on the basis of whether liability in this case were taken to sound in tort or contract, but has rather been content to treat such distinction as immaterial on the assumption that the complaints would be relevant under either scenario. For the purpose of its disposition, this judgment accepts the appeal on that footing. [28] Governments counsel informs this Court that the substantive issues in this appeal should be regarded as boiling down to three. They are: that the parameters
incorporated in the order is not, therefore, directly under attack in this appeal. It is indirectly, however. This is because if Governments attacks on the parameters set by the decision under appeal for assessment of Mr. Bradburys damages result in material revisions to them, the amounts calculated on the basis of them, which are contained in the order, and whose relevant contents are reproduced in preceding para. 22, will obviously be affected.
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The contingency issue [29] There is no room to dispute that contingencies are factors to be considered in assessments of prospective damages. The law requires that eventualities likely to happen be reflected in such assessments, despite inability to be certain they will occur. It is also indisputable, as can be seen by reference to the passage from the appealed decision reproduced in preceding para. 21, that the trial judge made no allowance for contingencies in setting out the guidelines for the assessment of the damages at bar because he was of the view that there was no real or substantial likelihood of anything having occurred which would warrant being concerned with contingencies in measuring Mr. Bradburys damages. Government maintains the judge erred in failing to take contingencies into account and, as a result, important considerations are absent from the parameters he articulated for measuring the damage payable by it to Mr. Bradbury. [30] Governments submissions regarding that error suggest two categories of contingencies are absent from the impugned decisions approach to the assessment of Mr. Bradburys damages, the first of which is inherent in, and arises from, the nature of the liability from which his damages flow. The second is extrinsic to, and arises from, supervening events whose effect can reasonably be anticipated to short-circuit or frustrate full advantage being taken of the opportunity, had it materialized. As both categories import uncertainty into the prospect of realization or enjoyment of the opportunity, each will have a discounting impact on the measure of damages. Each one of these categories will now be discussed, and evaluations will be made of Governments submissions that the decision here under appeal is flawed for want of having included contingencies potentially stemming from them in the parameters laid down by the judge for the assessment of Mr. Bradburys damages. -a) the inherent contingency:
articulated in the decision under appeal are deficient because they omit consideration of contingencies; fail to make appropriate allowances for contributory negligence and inadequate efforts by Mr. Bradbury to mitigate damages; and, assign too high a quantum for non-pecuniary damages stemming from mental stress and hardship. Evaluation of each of these complaints will now be taken up in turn.
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[31] As the foregoing accounts of the prior proceedings show, Governments liability to Mr. Bradbury lies in respect of his loss of opportunity to regain employment in the public service. Assessments of damages for loss of opportunities will frequently pose peculiar challenge stemming from the reality that such losses will not invariably result in privations. This flows from the fact that opportunities by their very nature are chances which, by definition, are probabilities that may never materialize. If they do not, the aggrieved parties arguably lose nothing. On the other hand, if they would have materialized, gains lost could be substantial. This uncertainty of benefit inherent in the very concept of lost opportunity, therefore, will often present a dilemma in attempting to determine monetary compensation necessary to place aggrieved parties in the same position that they would have been if they had not been deprived of opportunity. [32] Early in the last century the English judiciary tackled that dilemma in Chaplin v. Hicks (1911), 2 K.B. 786 (C.A.). That case involved an appeal from a jurys award of damages against its organizer for loss of opportunity to participate in a beauty contest. It had been established that the plaintiff would have had one chance in four of winning a prize if she had not been deprived of her chance to participate. [33] Chaplin addressed two problems posed by the claim for damages grounded in that contingent loss. It first broached whether damages for lost opportunity, although directly resulting from a defendants conduct, were, nonetheless, too remote to admit to compensatory relief. In holding that damages based on chance were not too remote to be actionable, Chaplin established the principle, since well entrenched in the law, that damages are recoverable for lost opportunities. In so doing, it nonetheless recognized the difficulty in assessing such damages, which is presented by the uncertainty of benefit from the opportunity. At the same time, Chaplin was clear in underscoring such uncertainties should not bar recoveries. [34] In addressing the difficulty of assessing compensation for lost opportunity, Fletcher Moulton L.J. wrote at p. 795 of his judgment in Chaplin, that although it is unnecessary that there should be an absolute measure of damages in each case, it was nevertheless incumbent on triers of fact to do their best to estimate. Later, at p. 796 he went on to add that the measure of damages must be left to good sense. The judgment of Fletcher Moulton L.J. is not entirely devoid of direction
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[35] The holding in Chaplin that damages for loss of opportunities are to take into account the odds of the contingency of the chance not materializing has met with general acceptance down through the years. Relatively recently, this Court, through a judgment authored by Cameron J.A. in Health care Developers Inc. v. Newfoundland (1996), 141 Nfld. & P.E.I.R. 34, adopted this approach. It did so in its holding that damages for lost opportunity incurred by a preferred bidder under this Provinces tendering legislation, resulting from the Governments award of a tender to a contractor whose bid ought to have been rejected, should be assessed on the basis of compensation being confined to one-half the loss of profits (see para. 97). This discounting of damages sprang from evidence that there was another bidder whose bid also had a reasonable chance of success if the contract had not been improperly awarded (see paras. 79 and 84 of Health Care). Thus, Health Care stands as recent authority of this Court endorsing the wellsettled principle that damages for lost opportunities are recoverable on the basis of factoring in the contingency of uncertainty of certitude of loss by advertence to the odds of the chance of the opportunity actually materializing. [36] While the nature of lost opportunity liability frequently requires the prospect of uncertainty of benefit being factored into damage assessments, the facts in the case at bar give no reason to factor the chance of the opportunity not materializing into the calibration of the damages at bar. This is because, unlike Chaplin and Health Care, no probability was established in the case at bar that the aggrieved party would fail to capitalize on the opportunity of which he was deprived by Governments actions. Mr. Bradbury had priority to the job of which he was deprived. No other candidates were shown to have had equal preference, as was the situation in both Chaplin and Health Care. There was evidence before the judge that supports his key findings, recounted in preceding para. 20, that Mr. Bradbury was entitled to; should have been offered; would have accepted the other managerial position within the public service, which he had identified to the Public
as to how that good sense is to be exercised, however. Thus, his judgment goes on to add at p. 796 that, in the situation before him in Chaplin, effect must be given to the consideration that the plaintiffs chance is only one in four. This qualification may be taken as direction that the contingency of the chances materialization is to be dealt with by discounting damages awardable on the footing of certitude of benefit of an opportunity by reference to the odds of the likelihood of that opportunitys materialization.
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[37] Accordingly, this case may be legitimately regarded as presenting circumstances somewhat departing from the general rule governing assessments of compensation for lost opportunities in that the contingency inherently arising from the nature of such liabilities is inoperative in the circumstances obtaining. Those circumstances obviate the need to take into account the odds of Mr. Bradburys reemployment being affected by another candidates eligibility in setting the parameters for the calculation of damages in the case at bar. This is because it was no mere likelihood that Mr. Bradbury would have been offered the position he had identified in his first interview with the Public Service Commissions official. Nor was there only mere probability that he would have accepted the post if he had not been deprived of the opportunity to do so. The evidence shows that, if his preference for the position had been recognized as it should have been, the offer and acceptance were certainties. Mr. Bradbury was the only preferred candidate, and Government was bound by its own redundancy policy to have offered it to him. Likewise, Mr. Bradbury was quite familiar with the post since it was in the very Department that his redundant position had been, and he had left no doubt from the first that he would have accepted it. [38] In the result, the judge was not in error in laying down parameters which omitted to take into account the contingency which normally inherently arises from the nature of liability for lost opportunity. There is no need to consider the chance of the opportunity not being realized as a result of other candidacies for the identified position. In the circumstances presented by this appeal, the priority which Mr. Bradbury had to that position was exclusive. Thus, there is no basis to discount because of uncertainty in assessing the quantum of damages. The impugned decision ought not be faulted, therefore, for omitting to include this first category of contingency into the parameters for calculating the measure of Governments liability.
Service Commission official in their meeting immediately following him having been informed that he had been caught in the net of the redundancy policy; and, would have remained in Governments employ until retirement. On the other hand, there is no evidence of any other candidate who might claim the same preference as the redundancy policys directive conferred upon Mr. Bradbury.
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-b)
supervening likelihoods:(i) perspective of hindsight:

[39] As already noted, the second grouping of contingencies which Government complains was erroneously absent from the parameters laid down for the calculation of Mr. Bradburys damages adverts to supervening events whose happening might have curtailed full enjoyment of his re-employment had he not have been deprived of the opportunity. These events are described in Governments factum as similar to those which Doherty J.A. identifies in Leonetti v. Hussman Canada Inc. (1998), 39 O.R. (3d) 417 (Ont. C.A.). That case considered damages for failure to accord employees who had priority for reemployment subsequent to their dismissals following the downsizing of their corporate employers operations. Doherty J.A. decided that the affected employees were entitled to damages as if they had been re-employed up to their normal retirement dates, subject to the resultant compensation being discounted for contingencies. He expressed this finding thusly at p. 424:
... it follows that damages should have been calculated on the basis that Leonetti and Halsey would return to the bargaining unit and work until their normal retirement age discounted for contingencies such as lay off, illness, accident, voluntary early retirement and plant closing.
[40] No exception can be taken with the premise that contingencies such as those listed in the foregoing extract from Leonetti are fitting considerations to be taken into account in any prospective calculations of damages sustained by an employee relating to lost opportunities for employment. Moreover, the foregoing passage does not hold up its list of contingencies as exhaustive. The phrase such as preceding the list signifies it is proffered by way of example of contingencies that merit consideration in prospectively assessing damages for such lost opportunities. Not all may be relevant to all circumstances; and, others might appropriately be added. It would appear, for example, inappropriate to contemplate plant closing where Government is the employer; but, future redundancies in periods of restraint would seem a valid contingency to add in addressing compensation for lost opportunity of public service employment. Contingencies, then, may engage different elements depending upon the nature of the employment.
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[41] Generally speaking, it is recognized that contingencies, such as those listed in Leonetti, are essential components to be factored into all prospective assessments of damages. That said, there is, nonetheless, no doubt that contingencies are, with one exception, irrelevant considerations to the assessment of damages at bar. This is because these damages are being assessed retrospectively, not prospectively. This follows from the reality that the decision under appeal articulating the parameters for the assessment of Mr. Bradburys damages was handed down on September 28, 2000. This was just five days short of Mr. Bradburys sixtieth birthday which, as preceding para. 20 records, was found by the judge to have been his projected retirement date from the position he should have been offered. Hence, the parameters that should guide the assessment of damages were handed down with knowledge of events that had actually transpired in the period between the date that Mr. Bradbury would have accepted the re-employment ought to have been offered and his projected retirement date. [42] From the perspective of hindsight which that knowledge affords, there is nothing to suggest supervening illness or accident would have truncated Mr. Bradburys employment. Neither is there any basis to infer he might have sought early retirement. Nor is there scope to conjecture whether he would have again faced the prospect of layoff affecting the post to which the judge held him entitled through further redundancy declarations. Although the evidence established the Province passed through subsequent restraint periods forcing further redundancy measures, it also shows that, by the time the decision was handed down five days before Mr. Bradburys projected retirement date, the position was still in existence, and filled by the individual who had been offered it in Mr. Bradburys stead. This forecloses for all practical purposes any consideration that Mr. Bradbury might have been laid off from the post through its redundancy prior to his projected retirement from the public service. [43] Thus, since the parameters guiding the assessment of the damages were set down on the threshold of the date when Mr. Bradbury would have retired from the post to which he had been adjudged entitled, there was no need to have factored into them the type of contingencies which were of legitimate concern to a prospective assessment like that addressed in Leonetti. The judge was dealing with a retrospective assessment in the circumstances at bar. Hence, the future was subsumed in the past by the time the parameters were set. Supervening events affecting damages were not left to conjecture, but could be viewed in the actuality.
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No reduction in the damages for contingencies is warranted. The time to perform the entire agreement has passed, and we know that the appellant was available for employment throughout the entire period of time.
[44] It was pointed out to counsel for the Government on this appeals hearing that his factums seemingly unqualified reliance on the absence in the parameters of the contingencies listed in Leonetti , and its treating them as deficiencies in the decision under appeal, appear to have overlooked that those guidelines were intended to govern the approach to a prospective assessment, not a retrospective one which this case engages. Counsels response intimated that Government was not relying on wholesale application of the listed contingencies. He insisted, however, that the appealed decision was still deficient in failing to recognize that damages should still be discounted against the contingency of Mr. Bradburys layoff before his projected retirement date, had he acceded to the position. This, then, lies at the nub of the Governments submission that the impugned parameters are flawed for want of factoring contingency into them. (ii) scope of argument:
[45] In that oral submission, counsel implicitly acknowledges that, generally speaking, there may be no need to peer into a crystal ball to search for future contingencies in conducting retrospective assessments of damages for loss of employment opportunity. However, his argument may also be taken as maintaining knowledge of past events that occurred does not justify failure to look into the crystal ball to seek what might have happened if the loss had not occurred. Thus, he reasons, the parameters for the retrospective assessment of the damages at bar should have included advertence to the likelihood of Mr. Bradbury having been laid off before his projected retirement date, apart altogether from job elimination. In a nutshell, then, counsels position acknowledges that, while
What otherwise could only be considered as uncertain likelihoods had either emerged as events that had actually transpired, or could be disregarded as probabilities that had never materialized. The temporal retrospective vista allowed the assessor to put aside the crystal ball insofar as future contingencies were concerned. The situation was akin to that described by Sherstobitoff J.A. in Chonstaedt v. University of Regina (Sask.) (1994), 5 W.W.R. 153 (Sask. C.A.) where he wrote at p. 195:
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assessors of retrospective damages have no need to think in the future tense, they are nonetheless required to think in the past conditional, and explore likely events that would possibly have happened if the loss had not occurred. [46] No real exception may be taken with this aspect of counsels argument. Although affording a true picture of supervening events, retrospective analyses provide no perfect vision of what might have transpired if the damage had not occurred in the first place. In the context of cases like that at bar, for example, the likelihood of a person holding a job of which he or she was deprived cannot be fully determined with certitude from the perspective of retrospective assessments. Accordingly, the contingency that such a person might not have held the job until the date of normal retirement had the individual not been denied his opportunity to obtain it might well be a relevant consideration to factor into the parameters in setting damages for lost employment opportunity. Hence, counsels argument is unassailable where it posits that the likelihood that employment might not have lasted until retirement is a legitimate contingency to be weighed in a retrospective assessment of damages for lost employment opportunity. (iii) evidentiary foundation:
[47] The fact that there is scope to factor such a contingency into the parameters of retrospective damage assessments does not mean that the likelihood will be a relevant consideration in every specific case, however. An underlying evidentiary foundation justifying inference that that contingency might have materialized must first be shown to have existed in order to bring that likelihood within the parameters of damage assessment. Otherwise the inference lies outside the realm of contingent likelihood, and must be relegated to groundless speculation. In the present circumstances this means some probability must be demonstrated that Mr. Bradbury would have been laid off before projected retirement from the post, which he should have been offered and would have accepted. [48] In the case at bar, only one avenue exists to establish that probability. The advantage of hindsight dispels any need of factoring all but one likelihood of lay off before retirement into the damage assessment equation. In the first place, the evidence shows Mr. Bradbury survived his projected retirement date. Moreover, as already mentioned, there was no evidence of any debilitating illness or injury which would have led to his lay off or forced retirement. Neither was there any
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[49] This reliance on Governments part emerged more clearly during oral submissions when it was pointed out to counsel that his factums unqualified application of the contingencies listed in Leonetti appeared not to fit the circumstances of the retrospective assessment at bar. In response, counsel appeared to concede that many would not, but persisted in maintaining that the prospect of Mr. Bradburys lay off prior to retirement would still have been a live issue if he had acceded to the job to which he held preference, and the judge ought to have factored this likelihood into the parameters for this retrospective assessment. In arguing for advertence to this contingency, counsel questions the logic of the judges reasoning, as recounted in the passage from his decision reproduced in preceding para. 20, that because the person who ultimately accepted the job to which Mr. Bradbury was entitled was still in the position when the decision was filed, Mr. Bradbury would have held the post denied to him until his retirement date. Counsel argues the differences in the two individuals should have been considered before such a deduction could reasonably have been made by the trial judge. It was clear that he was here alluding to the different abilities of the two, and putting it forth as reason why it simply did not follow, because the successful candidate for the post to which Mr. Bradbury was entitled had still occupied it at the latters projected retirement date, that it could automatically be deduced that Mr. Bradbury would have as well. [50] With due respect, it is not that difference between these two individuals which is the material concern. The relevant question is not their relative abilities, but rather the capacity of Mr. Bradbury. Specifically, it is whether there was any proof that he lacked sufficient skills which allows inference of likelihood, short of certainty, that he would not be able to continue to fulfill the responsibilities of the post of which he was deprived. If such probability could be said to exist, some room could exist to infer he might have been laid off from that post before his
suggestion that Mr. Bradbury would have sought voluntary retirement prior to his sixtieth birthday. The job to which the judge held him to be entitled was not eliminated by subsequent redundancy declaration, thereby providing scope to claim lay off might have ensued through further public service downsizings. This leaves lay off because of inability to perform the responsibilities of the post as the only feasible avenue of conjecture. In fact, it became clear during this appeal that it was precisely that contingency which Government claims was missing from the parameters set by the judge.
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(iv)
performance review reliance:
[51] The first point that needs be made in addressing that issue is that the negative reference is clearly not receivable as proof of any deficiency in Mr. Bradburys capacity to have filled the post. It would be incongruous to have permitted resort to the reference for that purpose when its use without Mr. Bradburys knowledge was the primary ground of Governments liability. That would be tantamount to allowing Government to take advantage of its own negligence by using evidence in mitigation of its liability which was not admissible in defence of that liability. This would constitute impermissible indirect reliance upon evidence which could not be used directly. [52] Counsel for Government agreed that resort could not be had on assessment to the reference, and advised it was not intended to raise it. Instead, counsel said reliance was being placed on a performance review evaluating Mr. Bradburys efficiency in the redundant post that he had held. It should be explained that this report was dated January 17, 1991, and covered the period from July 1990 to June 1991. It had been prepared by the same departmental Assistant Deputy Minister who had furnished the Public Service Commission with the negative reference on Mr. Bradbury which received its first mention in this judgment in preceding para. 5. Indeed, it would appear reasonable to regard the performance review as the harbinger of that reference, which shortly followed it, in that both were authored by the same individual and portrayed Mr. Bradbury as having very poor management skills, whilst suggesting he might benefit from training courses. [53] In contrast to the negative reference, Mr. Bradburys signature on the performance review stands as proof that the negative comments in it had come to his attention. Mr. Bradbury described in his testimony how he had come to sign the review. He attested that he had received it through the internal departmental mailing system, and no one had ever sat down to discuss its contents with him. Describing the Assistant Deputy Minister as a very difficult bullying person, and the type of person who would go in a rage and shout at you, he thought rather
projected retirement date. In other words, the issue is whether there was evidentiary foundation of inability to fill the post sufficient to warrant factoring the contingency of lay-off into the parameters for assessment of Mr. Bradburys damages.
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[54] While these reasons were offered by Mr. Bradbury as his explanation for signing, and although the transcript records him as steadfastly rebuffing the reviews appraisal of his poor management skills, he nonetheless, in signing the review, left scope for Governments counsel, both at trial and in this appeal, to press the notion that his acknowledgement of the reviews portrayal of his job performance signified his own acceptance of that portrayal. Indeed, this acknowledgement was seized in the present appeal by counsel to buttress his argument that Mr. Bradburys inability to effectively perform in his old post could reasonably be taken to reflect on his capacity to competently discharge the duties of the position denied to him; and, to support the likelihood of lay-off preceding his projected retirement date that ought to have been factored as a contingency discounting the damages which he had been adjudged entitled to recover from Government. (v) misplaced reliance: * reviews terms and weight:
[55] However, the performance review cannot so serve, in lieu of the inadmissible negative reference, as a source of proof of Mr. Bradburys incompetency in his old redundant post. There are three reasons - one primary and two ancillary - for denying its use for that purpose in the particular circumstances of this case. Attention will first be directed to the two ancillary reasons. They are: the reviews terms:
than get into a raging shouting match by going to the Assistant Deputy Minister and inquiring what was wrong, it was better to just sign it, have it over with. Besides, he went on to add, the report only said he was a poor manager, but was short on specifics and he felt if you say somebodys a poor management or poor anybody, and you cannot show examples why, that persons poor, then that comment was made out of poor malice and this is pure malice. Finally, Mr. Bradbury indicated in his testimony that the Assistant Deputy Minister was known for giving bad reports, thereby intimating he felt he could sign it with confidence that it would not be taken seriously.
Page: 22 The review signed by Mr. Bradbury does not take the position that his alleged deficiency in his old post was irreparable to the extent that he should have been discharged from the then shortly-to-be-declared redundant post. It is true the deficiency was couched in fairly strong terms in that it describes Mr. Bradbury as exhibiting very poor management skills especially as they pertain to supervision of staff. It is also recognized that that criticism, without more, might normally justify its transposability to any managerial post, including the one in which he was wrongfully denied the opportunity to serve. However, there was more. The review held out the hope that Mr. Bradbury could have functioned adequately in his former position with the benefit of training courses. Even considered in their most unfavourable light, then, the reviews terms cannot be construed as recommending discharge for cause. Considering its terms alone in their full context, therefore, the review does not provide strong evidence that Mr. Bradbury was so hopelessly inadequate in the performance of his prior post to raise a probability that he would have been discharged from the position to which he had priority. Thus, the terms of the review in themselves cannot be taken as unequivocal insofar as the likelihood of lay-off due to inability to discharge the duties of the new position is concerned. They import a high degree of uncertainty into any such contingency. credibility & weight: Amongst the documents before the trial judge, in addition to the performance review report, was a letter to Mr. Bradbury dated March 11, 1991, from the Deputy Minister of the Department in which he served advising him of the abolition of his post under the redundancy policy as part of Government-wide financial restraints. After brief reference to the benefits available to him, including the Governments Reemployment Priority Policy, the Deputy Minister ended his letter by wishing Mr. Bradbury well for the future and thanking him for your valuable contribution to the Public Service. This letter stands out in sharp contrast with the performance review which had been written by the Assistant Deputy Minister less than two months earlier. Even allowing for perfunctory expressions of good will that might be expected in a letter of that nature, the expression of gratitude for your valuable contribution in the Deputys letter contrasts starkly with the condemnation so roundly communicated in the performance review prepared by the Assistant Deputy Minister.
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Throughout this assessment of the weight to be lent to the reviews aspersions on Mr. Bradburys competency in his old post in the public service, it is well to bear in mind that it is no small thing to cast imputations on any individuals capacity to discharge the duties of a position that he or she has occupied. This is especially so when the affected individual is in the final decade of his or her productive working life, as was Mr. Bradbury during the time in question, when qualifications and experience must be relied upon to out-trump the calendar, if one is constrained to seek alternate employment. This being so, it seems not unreasonable to require coherent evidence from the employer labelling an employee incompetent, be it adduced as proof to justify dismissals for cause or, as in the case at bar, to lessen the burden of damages. That quality of proof is not apparent here. While Mr. Bradbury signed the review, his explanation for doing so stands unrebutted. The author of the review who levied the criticism of his past performance did not testify. There is some room to infer that the authors immediate superior did not share his opinion of Mr. Bradburys performance in his old post, and that there is reason to question the weight that should be lent to the performance review. In these circumstances, it seems not unreasonable that Mr. Bradburys explanation should stand, and that the stigmatizing evidence of incapacity be viewed with studied circumspection.
[56] These two reasons, in themselves, are arguably adequate to dismiss Governments contention that Mr. Bradburys performance in his old post allows inference of probability that he would have been laid off in the position denied him before his projected retirement date because of inability to discharge its responsibilities. Apart from them, however, there is even more fundamental reason to deny use of that review as a springboard for factoring the contingency of Mr. Bradburys probable lay off for inability to perform the duties of the position to which he was entitled into the calculation of damages. This stems from the fact
The stark difference between these appraisals of Mr. Bradburys public service record gives room to question the weight that should be accorded to the review. It also gives scope, in the absence of testimony to the contrary, to lend credibility to Mr. Bradburys assertion that the Assistant Deputys appraisal was a singular one, not likely to be shared by others, and discountable as an unreliable product of known personal propensity to denigrate the performance of colleagues in the workplace.
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that Mr. Bradbury lost his old post not for cause, but because it was abolished under the redundancy policy.
incongruity and injustice:
[57] As the extract from the testimony of Governments own witness reproduced in preceding para. 4 shows, individuals whose posts were abolished under that policy were recognized as having become unemployed through no fault of their own. This was the rationale for the accompanying policy of giving affected public servants top priority for re-employment. As a person whose post was caught in the redundancy policy, Mr. Bradbury must be considered numbered amongst those public servants who found themselves out of employment through no fault of their own. The letter from the Deputy Minister of March 11, 1991, advising him of his posts abolition gives no reason to treat Mr. Bradburys severance from the public service otherwise. [58] It is important to underscore that Mr. Bradbury was not relieved of his old post for cause. If Government felt his alleged deficiencies in executing the responsibilities of the post, as outlined by its Assistant Deputy Minister in the review report, justified Mr. Bradburys dismissal for cause, it could have elected to discharge him on that basis. It did not elect that course, but rather treated him as one of the casualties of the enforced redundancy policy, whose severance from the public service was no fault of his own and who had priority for re-employment within the public service. Hence, inasmuch as Mr. Bradburys lay-off resulted from a Government policy which acknowledged his performance in his post had nothing to do with his loss of his employment, it appears incongruous to entertain argument for reduction in damages arising from the negligent application of that policy to him on the basis of probability of early lay-off in his re-employment being presaged by alleged failings in discharge of the duties of that post from which he was entitled to be treated as having been relieved through no fault of his own. [59] Apart from this inconsistency, it also appears manifestly unfair and unjust to consider argument which resorts to the performance review to found reduction in damages based on contingency of early lay-off for inability to perform the duties that Mr. Bradbury would have had to discharge in the position he should have been offered. It has to be appreciated that Government was held liable to Mr. Bradbury
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[60] That negative reference was furnished by the performance reviews author; cast similar aspersions on Mr. Bradburys managerial skills; and, may reasonably be inferred to have had its roots in the review. As preceding para. 5 recounts, the evidence shows Government dealt through its Public Service Commission with Mr. Bradbury in so egregious a manner that the extraordinary step of re-opening the liability trial was taken when Mr. Bradbury chanced upon the existence of the negative reference about which he had been kept in ignorance. [61] In these circumstances, resort to these same negative aspersions by Government to shield itself from full responsibility for its liability has a distinct air of injustice to it. This is because it cannot be overlooked that Governments liability is founded on its failure to have disclosed to Mr. Bradbury those same reflections upon his reputation, whilst effectively feigning to treat him as a public servant who had become unemployed through no fault of his own, and whose candidacy for re-employment was being accorded priority. It must be borne in mind that it was the use of those undisclosed aspersions communicated in the negative reference which grounded the finding of liability. This being so, the notion that Government should be permitted to avoid its liability by resorting to those self-same aspersions as a contingency to parry Governments full responsibility stands out as a very questionable proposition. Such is the case even with those reflections on Mr. Bradburys abilities having been conveyed through the review, rather than the reference, and even if Mr. Bradburys signature to the review establishes his prior awareness of its contents. While no exception is taken with probability of incapacity to acquit the responsibilities of a job that a candidate had been wrongfully denied the opportunity to fill being reckoned as an appropriate contingency consideration even in retrospective assessments, such a contingency should not be founded on likelihoods that effectively renounce the basis of the finding of liability for which damages are being evaluated. That would result in an unjust and unfair denial of responsibility for contractual breach or negligent act.
for dealing improperly with him under its policy by failing to disclose the negative comments on his managerial skills in the Assistant Deputys reference. Thus, as the passage from the appealed decision reproduced in preceding para. 10 records, the judge found there was sufficient ground to find liability and award damages in the manner in which Mr. Bradbury was dealt with by the Public Service Commission and the matter in which the negative reference was dealt with ....
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erroneous and problematic approach:
[62] Yet this is precisely what Government has attempted to do throughout these proceedings. Thus, both at trial and in this appeal its approach has been to rely upon the reviews portrayal of Mr. Bradburys alleged deficiencies in Mr. Bradburys performance in his old post as a springboard to factor the contingency of early lay-off into the parameters of damages; and, to thereby discount the compensation payable to Mr. Bradbury. In the hearing at first instance to set those parameters for the assessment of Mr. Bradburys damages, and in the present challenge of its disposition, Government consistently has used the review as a basis to urge inclusion in the parameters of damages of the contingency of early lay-off from the position Mr. Bradbury ought to have been given the opportunity to occupy. [63] While such reliance upon the performance review was misplaced, this approach was nonetheless unmistakeably steadfastly maintained. Thus, the transcript at first instance records Mr. Bradbury being closely cross-examined regarding the review and his signature to it; and, being pressed as to why he should not accordingly be taken to have signified his agreement with its contents. The obvious objective of that line of questioning was to bolster argument that Mr. Bradburys alleged deficiencies in his old post as identified in the review would have affected proper discharge of his duties in the position denied to him, thereby justifying the likelihood of early lay-off being factored into the damages parameters. [64] The same strategy could be discerned in Governments factum and oral submissions in this appeal. In fact, Governments concentration upon the performance reviews negative reflections on Mr. Bradburys managerial skills seemed at times in the course of these proceedings to have reached sufficient proportions to sew impression that Government was proceeding on the footing that Mr. Bradburys public service employment was terminated for cause, rather than redundancy. By the same token, this approach lends credence to the viewpoint expressed by the trial judge in his liability decision, which has already been mentioned in preceding para. 10, that there is room to suggest Mr. Bradburys superiors may have accomplished what they could not do for cause in relying on the provision of the redundancy policy.
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[65] This approach of reducing damages for improper treatment associated with a redundancy lay-off, professed to be unrelated to job performance, by relying upon alleged deficiencies in the discharge of the posts duties rings somewhat hollow. Even more open to question is the use of redundancy to surreptitiously dispense with the services of an employee for perceived cause that the employer suspects might not stand up to challenge. Basic justice requires that employees know the actual reasons for early termination of their employment to enable them to fully and effectively deal with the situation confronting them. After all, similar lack of full disclosure was essentially the reason behind finding the Government liable to Mr. Bradbury in the first place. [66] For these reasons the approach of resorting to the performance review, in lieu of the negative reference, to discount damages for this redundancy displacement by factoring in the contingency of early termination from the position, had Mr. Bradburys priority to it not been denied, is both erroneous and problematic. Reliance on the review by Government as a contingency to ratchet down the damages to which Mr. Bradbury has been adjudged entitled is misplaced. -c) dismissal of contingency issue:
[67] Governments contention that the trial judge erred by failing to take contingencies into account in his decision setting the parameters of the assessment of damages at bar must be dismissed. The judge made no error in his finding, expressed in the passage from his decision reproduced in preceding para. 21, that there was not a real or substantial likelihood of anything having occurred which would have affected the position that Bradbury identified and was entitled to. [68] Scope to have factored contingencies into the parameters for damages was significantly constricted in this case because of the retrospective perspective in which the parameters were set. From the perfect vantage of hindsight, it could be seen from the evidence there was no other candidate for the position with priority to it equal to that which Mr. Bradbury enjoyed. This supports the judges finding that the position should have been offered to him and that he would have accepted it, and foreclosed need to factor into the damage parameters the uncertainty of benefit by reason of the opportunity not materializing. Such uncertainty is a factor which flows intrinsically from the very nature of lost opportunity liability, and for that reason is frequently a contingency consideration that needs be taken into
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account in prospective calibrations of damages. However, the retrospective time frame in which these damaged parameters were set foreclosed that need in the circumstances at bar. [69] The same hindsight vantage obviates the need to consider most extrinsic supervening events which might be legitimate contingency considerations in prospective damage assessments. By the date the parameters were articulated in the impugned decision at bar it was known that many eventualities, which normally are contingency concerns in prospective assessments of damages, were not considerations. Thus, the evidence showed Mr. Bradbury had survived to projected retirement date and no supervening illness or accident, nor further redundancy declarations, had occurred which would have truncated his tenure of the position to which he had been entitled to accede. Neither had the evidence established any reason to infer that Mr. Bradbury would have sought early retirement. In the circumstances at bar, the only avenue of legitimate inquiry which might entail discounting of damages for contingency was probability of lay off for cause. However, there was no evidentiary foundation to support such a likelihood. The negative reference was inadmissible for that purpose, and Governments attempt to make use of the performance review to that end must be rejected as misplaced reliance for reasons explained in the foregoing discussions. [70] Accordingly, the trial judge did not err in failing to make allowance for contingencies in setting the parameters for the assessment of damages in this case. Having dealt with the first of the three issues raised by Government in this appeal, this judgment now turns to address the remaining two. Contributory negligence and mitigation: [71] The contributory negligence issue is raised here in the context of alleged failure on Mr. Bradburys part to have mitigated his damages. An allegation that an aggrieved party did not respond reasonably, and thus suffered greater loss than a breach or injury needed to have caused, may arise out of actions sounding either in contract or tort, and is classifiable as contributory negligence. Some scope exists to suggest its proof exacts a stricter standard in contract than in tort (see. Cheshire, Fifoot and Furmston: Law of Contract, 11th ed., 1986, Butterworth, London at pp. 603-4). In view of the fact that the outcome of this mitigation challenge would be the same whatever the standard of proof exactable, there is no reason in
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addressing it to depart from this judgments position, explained in preceding paras. 26 and 27, of treating as immaterial any distinction between whether this liability sounds in contract or in tort. (i) private sector efforts:
[72] The evidence shows there is absolutely no substance to this complaint of failure to mitigate insofar as Mr. Bradburys efforts to secure alternative employment outside of the public service is concerned. In the first place, the transcript records that the same economic conditions that had led to the imposition of governmental restraints, and to Mr. Bradbury being a casualty of the redundancy policy, resulted in him quickly discovering from concerted attempts that there was little prospect for his employment in the private sector within this Province. His efforts to secure work locally were exhaustive, and included regular checking of newspaper listings; inquiries at the unemployment office; contacts with everyone with whom he was acquainted within the Province who might assist his search for employment; and, unsuccessful approaches to operators of a provincial mining company and the Hibernia project. [73] Secondly, Mr. Bradburys evidence shows his efforts to secure work elsewhere proved equally unfruitful. It recounts how he registered with an employment agency in Toronto, which was reputed to hold best prospects for securing employment in the mining industry, and travelled to that city to meet with one of the agencys job procurement officers. He also made use of other employment agencies in Toronto. In the six months following his lay-off from the public service, Mr. Bradbury continued to search newspapers for job opportunities, using the facilities of the local library to check publications outside the Province for potential employment. In this period, he testified to making some 30 to 40 applications for positions to no avail. After six months of fruitless job searching from his home Province, Mr. Bradbury and his wife decided to uproot and leave for Ontario in September of 1991, where they took up residence in Guelph. Upon arrival Mr. Bradbury registered with several other employment agencies; advertised himself for employment; contacted enterprises not advertising for employees; and, made between 150 to 200 applications. These resulted in 4 or 5 interviews, but no job offers.
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[74] Unsuccessful in his efforts to secure employment, Mr. Bradbury turned to create his own. Having earlier in his working life been involved in residential construction, he started a house-building business in Ontario. Into that business he invested RRSPs acquired from the refund of his contributions to his public service pension which he had been mistakenly advised was not vested. He sold three houses, but lost money in that venture. Following this, Mr. Bradbury began to do sub-contracting work in the furnace duct cleaning business, whilst participating in the proceedings at bar that were instituted in February of 1996. He continued thusly until health problems requiring back surgery forced his withdrawal from the furnace duct business in Ontario in late 1999. [75] The following profile of Mr. Bradburys efforts to obtain employment in the private sector, which comes from the record of his own uncontested testimony, depicts consistent, bordering on feverish, attempts by this man to find meaningful employment in the last years of his productive working life. These efforts continued up to some months before his sixtieth birthday on October 13, 2000, which was his projected retirement date. It should be noted in passing that there was no evidence to suggest his back problem would have precluded him performing the duties associated with the public service position which he should have been offered, as it had in the more physically demanding furnace duct business. The picture outlined by this uncontested profile of Mr. Bradbury, then, is one of a person diligently seeking alternate employment in the private sector within and without this Province. There is clearly, then, absolutely no basis to contend that Mr. Bradbury fell short of his responsibility to mitigate his damages in that regard. (ii) public sector efforts:
[76] Actually, counsel for Government does not dispute that Mr. Bradbury had expended every effort to secure alternate employment within the private sector. In fact, counsel acknowledges that those efforts were extensive both locally and elsewhere. He does, however, argue that Mr. Bradbury can be faulted for failing to mitigate his damages within the provincial public service. He identifies this failure as little effort on Mr. Bradburys part to follow-up with the Public Service Commission, and cites, as an example of this failure, Mr. Bradburys apparent omission to advise the Commission how to contact him when he moved to Ontario. These facts, the Governments factum submits, along with the issues of
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mitigation during the priority period and up to the end of his eligibility for internal competitions , must be taken into account in determining a quantum of damages here. [77] There are three weaknesses to this arm of Governments argument. Firstly, it is not readily apparent that Governments portrayal of the evidence adduced before the trial judge is correct. Although unable to testify with certainty that he furnished the Public Service Commission with his Ontario address and telephone number, the transcript records Mr. Bradbury being able to attest that his former Department knew where he was because they were writing me letters from time to time. The evidence, therefore, may be viewed as somewhat indefinite regarding whether Mr. Bradbury had advised the Commission directly of his whereabouts. Be that as it may, it would seem a small matter, and a natural recourse, for any official working on his file at the Commission to have contacted his former Department if the need had arisen to get in touch with Mr. Bradbury, whereupon information on how to contact him would have been obtainable. [78] Furthermore, and this is the second weakness, even if Mr. Bradbury had not advised the Commission of his whereabouts, but had been content with leaving that information with his former Department, such a course by him would seem logical in the circumstances. It has to be borne in mind that, by the time he moved to Ontario, he had been mistakenly led to believe that his priority for re-employment had lapsed. He moved there in September of 1991, under the impression that his priority for re-employment in the public service had already terminated the previous May, whereas it was not to expire until November 29, 1991. Moreover, he had been advised in the letter dated March 31, 1991, from his former Departments Deputy Minister informing him of abolition of his post under the redundancy policy that his re-employment/severance benefits included a two year eligibility to apply in all internal competitions. Thus, having been led to believe his priority had expired, it seems logical that he would have seen no advantage in leaving a forwarding address or means of contact with the Commission whose interfacing with him had been primarily for the purpose of assisting him in his attempts to secure alternate employment within the public service under the priority rider to the redundancy policy. On the other hand, it seems reasonable for him to have concluded, whatever benefit might be attainable from the provincial service through the redundancy policys eligibility to apply in all internal
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competitions, that it would be adequately safeguarded by leaving his forwarding address with colleagues from his former Department.
[79] The third and final point to be made is that Governments mitigation argument, like its reliance on alleged deficiencies in Mr. Bradburys performance in his redundant post to ground factoring into the parameters the contingency of early lay-off, rings hollow, and for essentially the same reason. This reason, applicable to both arguments, is well summed up in the following words in Banco de Portugal v. Waterlow, [1932] A.C. 452 at 506, where Lord McMillan wrote:
It is often easy after an emergency has passed to criticize the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency.
[80] The foregoing words of Lord McMillan are quite apropos here. Just as it does not come well for Government to criticize the damage parameters at bar for failure to have factored into them the contingency of an early lay-off, so, too, it does not sit well to hear Government criticize them for not having factored into them Mr. Bradburys alleged failure to have mitigated his damages during the priority period. This is because Government must shoulder responsibility for failure to have advised Mr. Bradbury of the extended priority period, just as it must shoulder liability for failing to have disclosed to him the negative aspersions cast on his performance within the public service. Being responsible for misleading Mr. Bradbury into believing that the period for taking advantage of his priority expired six months earlier than it did, it hardly seems just to hear complaint from Government that Mr. Bradbury failed to take full advantage of his priority rights over the extended period. Neither, it might be added, does such a complaint sit well with Government considering that the Public Service Commission, the body to which Mr. Bradburys potential priority placement was delegated, and was responsible for misleading him, had instructed him not to initiate inquiries regarding the availability of alternate employment with governmental departments, but to funnel them through the Commission. [81] By the same token, it ill behoves Government to lay criticism at Mr. Bradburys feet for failure to mitigate his damages by taking sufficient advantage of his eligibility to apply in all internal competitions. Neither does such a complaint come well from Government, considering its liability for preventing
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(iii)
mitigation issues dismissal:
[82] In the result, Governments attempt to fault Mr. Bradbury for failure to mitigate should be rejected. His efforts in that regard both within and without the public service cannot be validly criticized in the circumstance obtaining. Accordingly the judges holdings that Mr. Bradbury did everything that one could expect from a reasonable person to mitigate his damage, and that the Government had not satisfied its onus of proving there was any failure by Bradbury to mitigate his losses must be sustained. This leaves for discussion the third and final issue of the allegedly excessive quantum for non-pecuniary damages stemming from mental stress and hardship. Quantum of general damages: [83] As preceding para. 19 recounts, the judge awarded $20,000.00 to Mr. Bradbury as general damages for mental stress and hardship. Government does not dispute that this is a ground for such a non-pecuniary damage award, but argues the sum awarded to Mr. Bradbury under this heading was excessively high. (i) submissions of Government:
[84] Two cases from this jurisdiction were cited as examples of general damages being awarded for mental anguish and hardship. One is a judgment of this Court: Trask v. Terra Nova (1995), 127 Nfld. & P.E.I.R. 310. This case involved the award of general damages for mental distress as an independent actionable wrong in a wrongful dismissal action. The employer was not only held liable in Trask for the wrongful dismissal, but also for the manner of Mr. Trasks firing and its
Mr. Bradburys access to the position identified by him within the public service and which, on supportable evidence, the judge found should have been offered to him. Had the position been offered to him as it should have been, the need for him to be alert to internal competitions would have been eclipsed. Besides, there was ample evidence establishing Mr. Bradbury cannot be fairly criticized for failing to take all reasonable steps to avail of his internal competition rights in the provincial public service. Nor may he be criticized for failure to take full advantage of this priority status within the constricted period he was led to believe was open for exercise of his priority rights.
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[85] The other case is Arthur Petten et al v. E.Y.E. Marine Consultants et al (2000), 180 Nfld. & P.E.I.R. (S.C.T.D.) 1 where the owners of a shipbuilding company were awarded general damages for mental anguish and hardship. In his decision, Green J. noted at para. 346 that the owners had no doubt ... suffered considerable frustration and agony as a result of what they perceived to be improper treatment by the defendants. He singled out particularly the Fisheries Loan Board, one of the defendants to the action, for its responsibility in visiting stress upon the owners, citing its exclusion of the owners from participation in some investigations and from the failure of the Board to address the matter in a definite way in a timely fashion. While stating he did not believe that this is a case where it is appropriate, given the complexity of the matter, to award a substantial amount of general damages for this purpose, Green J. set $5,000 as the amount recoverable for these general damages. [86] As already stated, Government is not contesting that mental stress and hardship is a legitimate basis for an award of general damages in the circumstances at bar, but maintains the $20,000 awarded was too high. As the foregoing accounts of the two relatively recent cases out of this jurisdiction show, this amount is 80% and 75% higher than the respective awards made in Trask and Petten. That is not determinative, however. The question is whether the $20,000 is inordinately high in the circumstances of this case. (ii) overview of claim:
[87] The first observation to be made in addressing that question is that a perusal of the foregoing accounts of Mr. Bradburys efforts to mitigate his damages affords some insight into the anguish and hardship he experienced as a result of Governments breach of contract and negligent conduct. Apart from Mr. Bradburys own testimony of their effects, the perception of the extent of the stress and hardship visited upon him as a result of Governments actions gleanable from
conduct associated with the severance. Thus, as para. 25 of Trask records, the employer not only mistakenly and improperly fired the respondent for the offence of theft but subsequently compounded that result by informing others of its reasons for terminating the respondents employment. Gushue J.A., who authored the unanimous judgment in Trask, confirmed the award of $4,000 at first instance for pain and suffering (see para. 34).
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those accounts is assisted by appreciation that they transpired after he reached the age of fifty, and had passed into the twilight years of his productive working life. [88] It is not by any means suggested that age insulates anyone from lay-offs in the work place. However, age is a relevant factor when measuring the extent of mental stress and hardship experienced as a result of negligence depriving a person of Mr. Bradburys age from alternate employment he should have been offered; depriving him of potential opportunity for still other placement in the public service by misinforming him of the duration of his priority eligibility for reemployment; and, depriving him of accrued pension rights by mistakenly advising that these rights were not vested causing him to withdraw his contributions on termination of his services. It is axiomatic that these privations would be more serious for a person of Mr. Bradburys years than they would be for someone younger, and this gives reasonable cause for heightened stress and anxiety because of them. (iii) guidelines for awards:
[89] These privations fall under the rubric of acts that are independently actionable which, in Vorvis v. I.C.B.C., [1989] 1 S.C.R. 1085, at p. 1103, McIntyre J. held necessary to render an employer in a wrongful dismissal case liable for aggravated damage awards for mental stress, even though declining to sanction such an award in the appeal before him because the conduct complained of preceded the wrongful dismissal (see. p. 1104). Here, the conduct responsible for Mr. Bradburys mental stress did not precede the redundancy lay-off, but occurred subsequent to him being advised his post had been abolished. [90] It is, however, one thing to define the basis for damage awards for mental stress, but quite another to measure them. Obviously, by their very nature, there is no ready monitor to calibrate precisely the degree of mental stress and hardship in any given case. The assessor is left to set damages by considering the gravity of the impugned conduct, which is causative of the stress and hardship, through resort to generally accepted guidelines prescribing parameters for arriving at the amount awardable. [91] The first noteworthy point extractable from those guidelines is that while general damages for mental stress and hardship will frequently cover conduct
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[92] The next guideline of relevance to the quantum at bar is that the scale of awards will not, as a general rule, be as high as might apply to assessments of intangible damages for loss of other of lifes amenities. This conclusion can also be gleaned from Vorvis where, at p. 1099, McIntyre J., drawing himself from the 2nd edition of Waddams, The Law of Damages, goes on to point out that damages for mental distress will generally augment damages assessed under the general rules relating to the assessment of damages. The use of augment in this quotation is significant. It conveys the notion that compensation should be treated as supplementary to other damage awards which, in turn, is suggestive of an add on of a smaller component to the whole. This may be viewed as implicit direction to keep such damages within a relatively lower scale and might well reflect the common laws recognition that monetary awards cannot furnish perfect compensation for pain and suffering. It perhaps, however, stands even more as recognition that, although independently actionable, such general damage awards are related to the same conduct that will command damages of more substantial magnitude recoverable under other headings. Thus, by treating these supplementary damages as augmentative, the totality of damages are kept within realistic limits. In any event, whatever the rationale, general damages for mental stress are imposable on a comparatively lower scale, as the awards in Trask and Petten witness. (iv) advertence to other awards:
[93] Guided by these directions that damages for mental distress are compensatory, albeit on a lower scale, and not punitive, assessments such as those at bar virtually hinge on weighing the independently actionable conduct with a view to focusing upon the seriousness of its consequences in the circumstances obtaining. Turning, as such assessments do, on the specific circumstances of each case, other awards will tend to have lesser comparative utility than they might have in evaluations of other heads of damage. That said, other awards cannot be just
which could also be the subject of punitive damages, they are distinct from punitive awards. Vorvis makes this observation at pp. 1098-9 where it draws clear distinction between punitive damages which are designed to punish, and general damages (there referred to as aggravated damages) for mental distress whose role is compensatory. The first guideline, then, is to address the damages as compensatory, not penal.
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(v)
distinctive aspects:
[94] There is no doubt that serious consequences could be said to have been being visited upon the injured parties in Trask and Petten. In Trask, for example, the independently actionable conduct involved slanderous accusations of theft which would understandably bring on significant distress. Likewise, the impugned conduct in Petten brought on considerable mental anguish and hardship. As already mentioned, the age factor was an aggravating element in the circumstances at bar which, when weighed in the light of a reading of Trask and Petten, notwithstanding the acknowledged gravity of the conduct of the perpetrators in those instances, gives room to reasonably infer an even greater level of consequential mental stress and hardship inflicted on Mr. Bradbury. [95] However, a more telling differential is identifiable between the circumstances at bar and those in the two highlighted cases. This stems from the judges finding, reproduced in preceding para. 19, where he writes of a concerted effort to keep Mr. Bradbury from being relocated within the public service under the redundancy policy by submitting the negative reference, as well as the Commissions failure to adequately deal with the negative reference. The reference to the concerted effort obviously alludes to the judges suggestion in the liability decision, mentioned in preceding para. 10, that Mr. Bradburys superiors may have accomplished what they could not do for cause by relying on the provisions of the redundancy policy. As ensuing para. 64 went on to observe, Governments approach in these proceedings lends credence to that finding of erroneous ulterior motivation. [96] The finding of ulterior motivation is supportable on the evidence and lends a distinct aura of disingenuousness to Governments treatment of Mr. Bradbury. Moreover, the concerted effort to foreclose him from gaining re-employment within the public service by frustrating the exercise of his priority rights through the negative references submission constitutes actionable conduct transcending
completely ignored. It is still necessary to address the divergence between the award at bar and other awards for mental stress. Specifically, in this case it is necessary to address the awards in Trask and Petten which were adjudged to merit awards up to 80% less than the quantum of damages for mental stress and hardship awarded to Mr. Bradbury.
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(vi)
independent conducts effect:
[97] Incremental mental stress and hardship beyond the trauma naturally associated with any lay-off might reasonably be anticipated to have flowed from the independent actionable conduct perpetrated through that concerted effort. The evidence shows the wrongful, surreptitious attempt to rid the public service of Mr. Bradbury for cause under the guise of a redundancy attributable to no fault of his own was hidden from him until the end of the liability hearing when he chanced upon the negative references existence. By that time, this professional engineer had already experienced the stress of a long string of rejections for positions within the mining industry in which he had been employed for substantially all of his working life, as well as for other positions outside that industry for which his experience had qualified him. When he learned of the negative aspersions cast in the reference, he was approaching his projected retirement date and engaged in the furnace duct business which was to be his last source of gainful employment prior to his retirement date. While the impact of the stress of those rejections undoubtedly would have been felt by Mr. Bradbury long after their receipt, the effect of learning of the negative aspersions cast on his competence, which were previously hidden from him, at a time when he was fast approaching, if not on the threshold, of the end of his working years, can be reasonably viewed as a fresh cause of distress significantly enhancing that which he had already experienced. [98] Counsel for Mr. Bradbury has pointed out that, in his clients dealings with employment agencies and in his job applications, Mr. Bradbury would refer to his prior employment with Government in blissful ignorance of the negative aspersions cast upon his public service career. Counsel goes so far as to suggest that this might explain why his client received only 4-5 interviews and no
mere mishandling of Mr. Bradburys severance rights by the Public Service Commission, as serious as that was. Indeed, the effort adds an entirely new complexion to the situation. It speaks to a deliberate lack of forthcoming candour contrived to rid the public service of Mr. Bradbury under the guise of his posts redundancy, whilst depriving him of his rightful benefits to which the policy associated with his terminated employment entitled him. It also signals that the actionable conduct went beyond the breach and negligence perpetrated by the Commission, and extended to more widespread conduct within Government.
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employment from upwards of 240 applications he had made. This inference might be too great a quantum leap considering the evidence of the general economic climate of that time, and the absence of evidence that potential employers had contacted Government and had been deterred from hiring Mr. Bradbury because of the response. Nevertheless, the discovery of the negative reference can reasonably be calculated to have visited incremental distress on Mr. Bradbury. It is no small matter to discover at the end of ones working days that ones professional reputation has been stained. Some degree of the extent of the distress of such a discovery is captured in the following passage from Re Public Service Employee Relations Act, [1987] 1 S.C.R. 3l3 where at p. 368, Dickson C.J.C., writing in dissent, made the following commentary which is quite germane to the present discussion:
Work is one of the most fundamental aspects in a persons life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A persons employment is an essential component of his or her sense of identity, self-worth and emotional well being.
[99] It must follow as consequential corollary that an individual should be able on retirement to look back upon the contributory role he or she played in society through his or her lifes work. A persons reputation in that regard would seem just as important to his or her sense of identity, self-worth and emotional well being after retirement as when he or she was earning it. Seen from the perspective which the foregoing passage affords, therefore, it is not difficult to appreciate that considerable pain and distress would normally accompany discovery, on the veritable threshold of ones retirement, that ones professional reputation had been wrongfully stained in the manner that occurred in the circumstances at bar. (vii) gravity of consequences: [100] There is no room in those circumstances to consider the staining of Mr. Bradburys reputation as other than wrongful. The judges holding, which is supported by the evidence, that Mr. Bradbury should have been offered the alternate position originally identified by him lends firm impression of illegitimacy and wrong-headedness to the aspersions cast in the negative reference. Moreover, the misuse of the redundancy policy in the manner in which the judge found the
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evidence suggested, i.e. to accomplish what could not be done for cause, was also wrong. This was compounded by its non-disclosure and used to deny Mr. Bradbury the priority to the position to which the policy entitled him. [101] By any yardstick of justice, a person is entitled to know the reason for early termination of employment so he or she can deal with it. It is no trifling wrong to hide the real reason for an employees dismissal while feigning redundancy. The discovery that ones reputation in the work place has been sullied when one is at the threshold of, or after retirement age, when little opportunity remains to repair it outside of litigation, is no mean thing, and understandably gives independent ground for considerable stress. This is particularly so when the staining of ones reputation was deliberate and uncalled for. [102] Lest the foregoing underscoring of the wrongness of Governments actions be thought to be bordering on punitive, rather than on general damages which has to be the basis of the impugned $20,000 award, it should be stressed that the wrongful aspect of the governmental actions is being highlighted purely in the context of the incremental distress and hardship they inflicted upon Mr. Bradbury. As Gushue J.A. observed in Trask at para. 31, Vorvis appears to recognize that the manner of the breach could itself cause mental distress. This is the sense in which the wrongfulness of Governments actions is being mentioned here. As preceding para. 91 has already noted, the conduct that supports recovery for mental stress and hardship will frequently be the same as that warranting awards for punitive damage. The underscoring of the wrongfulness of the acts that have attracted liability in this case is illustrative of that similarity. It has been raised, however, solely in relation to the justification of the non-pecuniary general damage award for mental stress and hardship. (viii) confirmation of award: [103] It is acknowledged that the degree of mental distress and anguish was significant in both Trask and Petten. It is particularly recognized that the aspect of the staining of Mr. Bradburys reputation was not of the order of the slanderous accusation of theft which grounded the general damage award in Trask. That said, the distinguishing traits of the independently actionable conduct at bar, which warrant a higher award than those made in both these cases, lie in the seriousness of its consequences. This is a case where the upshot of the actions of officials of
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[104] Those actions also can reasonably be viewed as the cause of significant harm to Mr. Bradbury in terms of anguish and mental stress at a time of his life when he could do little to counteract the stain on his reputation beyond seeking redress in the courts. In addition to the traumatic period through which he passed in his unsuccessful quest for employment when he was entitled to have been re-employed in the public service, he was left to cope on the eve of, and after reaching, retirement years with his chance discovery of negative comments that had been circulated concerning his abilities, the unfairness and incongruity of which are supported in the circumstances at bar. [105] It is quite understandable that such a discovery would be upsetting to Mr. Bradbury. If, as preceding para. 98 notes, the Supreme Court of Canada has held ones work to be a means of ones identity, self-worth and emotional well-being and a fundamental means of playing a contributory role in society, it follows that it is important that one be able to look back over ones working life with the satisfaction that one has discharged that role. It is comprehensible that the revelation of the negative aspersions cast, without sustainable cause, on the role that he played in his working lifetime would have been a source of appreciable stress for Mr. Bradbury in the circumstances which this appeal presents. It is no small trifle to discover when ones working life has run its course that ones reputation as a contributing member of the work place has been besmirched in circumstances such as obtained at bar. [106] It is recognised that in analyses of this nature that care should be taken to avoid even unconsciously painting worst case scenarios to justify awards. It is to be borne in mind that all assessments are retrospect insofar as judicial comparisons of kindred awards are concerned. In that regard, courts enjoy no gifts of clairvoyance, and the fixing of immutable worst case scenarios is beyond their ken. The present analysis does not purport to paint such a scenario. It does conclude, however, that the consequences of the independently actionable conduct in this case are such that the general damages awarded at first instance for mental stress and hardship ought not be considered inordinately high, even in comparison with
Government resulted in Mr. Bradbury learning that serious reflections had been cast on his capacity to discharge his duties competently in the work place only when he was on the threshold of his retirement years. Governments actions in this regard were improper.
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the two highlighted awards recently made in this jurisdiction. Hence, the award of $20,000 for general damages in respect of Mr. Bradburys mental stress and hardship must be confirmed. Conclusion [107] Governments contention of errors in the parameters set out at first instance for the assessment of the damages at bar must be rejected. The trial judge did not err in holding that there was no real or substantial likelihood of anything happening that would have justified factoring contingencies into those parameters. Nor did he err in holding Mr. Bradbury did all that one could expect from a reasonable person to mitigate his damages. Finally, he did not set an inordinate quantum of nonpecuniary damages in compensation of the mental stress and hardship inflicted upon Mr. Bradbury. [108] The parties to this appeal were advised at the end of oral submissions that the panel had decided this appeal should be dismissed. The foregoing constitute the reasons for the dismissal. Accordingly, it is formally declared that this appeal is dismissed with costs to the respondent.
W.W. Marshall, J.A. I Concur: G.L. Steele, J.A.
I Concur: M.A. Cameron, J.A.

Bradbury V New Foundland

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Bradbury V New Foundland

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Date: 20011012 Docket: 00/130 Decision No.

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL

BETWEEN HER MAJESTY IN RIGHT OF NEWFOUNDLAND APPELLANT

AND: KENNETH BRADBURY RESPONDENT

Appeal Heard: Judgment Rendered: Written Reasons Filed:

Rolf Pritchard Peter OFlaherty

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

LESS the following sums:

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

supervening likelihoods:(i) perspective of hindsight:

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

performance review reliance:

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

incongruity and injustice:

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

erroneous and problematic approach:

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

mitigation issues dismissal:

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

independent conducts effect:

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

2001 NFCA 63 (CanLII)

W.W. Marshall, J.A. I Concur: G.L. Steele, J.A.

I Concur: M.A. Cameron, J.A.

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