No damages if fired employee earns more than notice award: Court

Worker couldn't explain more than $85,000 deposited since firing; court ruled it was employment income

A British Columbia man’s appeal for wrongful dismissal damages has been denied because he made more money during the notice period than he would have received in damages.

David Strauss won a wrongful dismissal decision against Albrico Services, a commercial and industrial insulation company, in 2007. However, though the B.C. Supreme Court found Strauss was entitled to 16 months’ notice, it ruled he wasn’t entitled to be paid in lieu of notice. This was because the Supreme Court found Strauss had earned more in the 16 months following his dismissal than he would have at Albrico, resulting in no loss on his part.

Strauss claimed he only made $28,000 with more than $3,000 in business expenses, significantly below the $91,200 he would have made with Albrico. However, his bank records showed he had deposited $85,900 in the first 12 months and earned $9,710 in the next four.

Strauss couldn’t show any records that showed where the bank deposits came from. He offered several explanations, such as an inheritance, his son’s earnings and money borrowed from others. However, he couldn’t provide proof for any of these explanations. Without proof otherwise, the Supreme Court ruled the money must be employment income, bringing his total earnings in the 16 months after his dismissal to $91,760, or $560 more than his Albrico salary would have been over that time period.

Strauss appealed, arguing the B.C. Supreme Court shouldn’t have attributed unearned income to him and it reversed the burden of proof to him.

The B.C. Court of Appeal upheld the decision, finding the lower court hadn’t attributed unearned income but in fact found Strauss had earned it as employment income. It also found there was no burden of proof as the evidence of the bank deposits was enough for the court to make its determination.

“In the absence of the kind of corroborated explanation to be expected from someone who claims to have been largely unemployed as to where he got that amount of money in the course of one year, I see no reason why, on the evidence in this case, the judge could not find the money was employment earnings which were not disclosed,” the Court of Appeal said. See Strauss v. Albrico Services (1982) Ltd., 2008 CarswellBC 920 (B.C. C.A.).

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