Unusual <i>Wallace</i> damages upheld after appeal time runs out

Court awarded additional damages because worker wasn't given a hearing

There is a limited time to make an appeal from a court’s decision. The British Columbia Court of Appeal has ruled the clock starts ticking on the date a court makes its decision on the essential issues.

On June 10, 2004 a trial court ruled in favour of Jerome Reglin in a wrongful dismissal suit against the town of Creston. Creston had paid him four months’ salary plus benefits for the five years he had worked for the town. Within a few months of being let go, Reglin found permanent employment in a different community at a higher salary.

The trial judge awarded Reglin Wallace damages (for bad faith during the termination) of an additional four months’ salary plus benefits because Creston had not provided Reglin with the hearing to which he was entitled. The extra four months salary was intended as a sanction against Creston and was thus not subject to being mitigated, the judge ruled. Reglin was also to get “the value of any benefits that would otherwise have accrued to him during that additional time.”

As is often done the judge left the exact calculation of those damages to counsel. The parties were unable to settle that amount. On June 14, 2005, just over a year after the initial judgment, the judge clarified an issue they’d raised about the value of the benefits.

The judge said it was what the town would have had to pay during those four months. If, for example, it paid $20 for an insurance policy, that amount was to be paid to Reglin.

On June 30, 2005, Creston filed an appeal of the original trial decision. It questioned the correctness of the award of Wallace damages; the ruling on mitigated damages; and the damages as they relate to benefits, which the town said was the key issue.

Reglin sought to dismiss the appeal on the grounds it came outside the time provided for in the province’s Court of Appeal Act. Creston said the matter had been undecided by the court until the June 14, 2005, clarification, which was when the clock started on any appeal it wished to file.

The British Columbia Court of Appeal ruled against the town. It said that in June 2004 the trial judge determined liability, assessed damages and ruled on the issue of mitigation. The essential issue of benefits was ruled on then and subsequently only the incidental question of its calculation needed to be dealt with.

The assessment of Wallace damages only because the fired worker wasn’t given a hearing was unique, and may have provided a basis for an appeal, the court said. But the town had let the clock run out and could no longer appeal the essential questions previously ruled on.

For more information see:

Reglin v. Creston (Town), 2005 CarswellBC 3044 (B.C. C.A.)

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