BARDAL . THE GLOBE \& MAIL LTD. Ontario High Court, McRuer C.J.H.C. Aprit 21, 1960. BadL v. The GLobe \& MaIL InD. (MeRuer C.J.H.C.) 141 F. A. Brewin, Q.C., and I, G. Scott, for plaintiff. R. D. Poupore, Q.C., for defendant. McRugr C.I.H.C.:-This is an action brought for damages for wrongful dismissal. In the year 1942 the plaintiff, who at that time was manager of the Canadian Street Car Advertising Co, and had been previously assistant advertising manager of the Winnipeg Tribune, a paper published in the City of Winnipeg, was approached by the Globe Printing Co. Ltd, with a view to interesting him in becoming the assiatant advertising manager of that eompany. It was explained to him that when the advertising manager retired he would likely suceced him. During the diseuskions the plaintiff says that he impressed on Mr. Butler, who was interviewing him on behalf of the Globe company, that it was important at his age that his employment should be permanent. In due course the plaintiff was interviewed by Mr. MeCullagh, the publisher, to whom he repeated what he had previonsly said with reference to the importance of a deeision to ehange his employment at his age. After full consideration the plaintiff deeided to accept the office as offered with an initial salary of $6,500 a year, his employment eommencing on Oetober 1, 1942. In 1955 the assets of the Globe Printing Co. were sold to the Globe \& Mail Ltd. and the plaintiff, together with other employees, transierred their employment to the purchaser without any new agreement as to terms of employment. In 1954 the plaintiff was appointed advertising manager and in 1955 he was appointed director of advertising and a member of the Board of Direetors of the defendant. Throughout his employment with the defendant the plaintiff's salary was inereased periodically until on the termination of his employment he was receiving $1,479.16 per month, together with one week's salary by way of a Christmas bonus. In addition to the salary received the plaintiff was a benefleiary of three distributions made to seleeted employees pursuant to a profit-sharing plan which was administered under the sole direction of the prin- 142 Domrnon Law Rerokrs 24 D.L.R.(2d) cipal shareholder of the defendant. The receipts from this source were as follows: In addition to salary and bonnses received the plaintiff particlpated in a pension plan for employees. On April 28, 1959, the plaintiff was called to the ofliee of Mr. Dalgleish, the president, publisher and oditor of the defendant, who with a few preliminary remarlos asked him for his resignation. Mr. Dalgleish told the plaintift that if he rasigned he would be given 6 months' salary and allowed 1 month to look around for new employment. Aceording to the plaintiff's evidence, the reason given to him for requesting his resignation was that the defendant had beea losing money and Mr. Dalgleish wanted to get asemeone who eould inprove business in the advertising department. The plaintif told Mr. Dalglesh that be eouldn't agree to aceept aceusations of incompetency and he would consider what course he should take. In an interview the next day the plaintiff refused to regign either as an cmployee or as a director and he was thereupon given a letter signod by Mr, Dalgleish which reads as follows: "Dear Mr. Bardal: "This is to eonfirm the notiee given to you todny of the termination of your employment with the Globe and Mail Limited as of this date." The plaintiff was given a eheque for the balance of his salary owing to the date of his dismissal. Immediately after his dismissal the plaintiff made efforts to sceure other employment and finally made arrangements with another employer in the advertising business for employment at a salary of $15,000 a year for 2 years, with provision for certain stock option rights. At the time of his dismissal under the provisions of the defendant's pension plan the plaintift had earned a right to receive a refund of his contributions with interest which would amount to approximately $5,000, or an alternative right to accept a pension of approximately 81,350 per annum, commeneing on Febrary 1, 1970. The plaintf aceepted the latter alternative. In the statement of defenee flled the defendant denied that the plaintiff was wrongfully dismissed and pleaded that he voluntarily withdrew from the employment of the defendant. In tho alternative it was pleaded that if the defendant did terminate the plaintiff's employment it was justiffed in doing so by reason of the faet that the advertising department did not, during the period the plaintiff was advertiaing mansger, obtain the results which the defendant was reasonably entitled to expect. During the trial it was admitted both by Mr. Dalgleish and eounsel for the defend. Basdat v. THE Gtode \& Marl LTD, (MeRuer C.J.H.C.) 143 ant that it eould not be eontended that the defendsnt was justifled in dismissing the plaintiff without notiec. No improper conduct on the part of the plaintifl was proved or snggested and I think the evidenee of Mr. Dalgleish ean be summed up by saying that be had come to the eonclusion that he thought he could got an advertising manager who would produce better results than the plaintiff. In view of this it is quite annecessury for me to discuss the evidence of the plaintiff with reference to the results he produeod and the eircumstanees that gave rise to some decline in revenue from the advertiking department preceding his dismissal. It remains only for me to eonsider what damages the plaintifl is entitled to recover. In every easo of wrongful dismissal the mossure of damages must be eonsidered in the light of the terns of employment and the character of the aervioes to be rendered. In this ease there was no stipulated term during whieh the enployment was to last. Both purtios undoabtedly considered that the employment was to be of a permanent eharacter. All the evidence goes to show that the offlee of advertising manager is one of the most important offiens in the service of the defendant. In fact, it is by means of the revenue derived under the supervision of the advertising manager that the publieation of a nerspaper becomes a profitable enterpriae. The fact that the plaintiff wis appointed to the Board of Directors of the defendant goes to demonstrate the permanent character of his employment and the importance of the oflice. It is not argued that there was a deflnite agrecment that the plaintiff was employed for life but the ense is put on the basis of an indefinite hiring of a permanent charaeter which conld be terminatod by reasonable notice. In Carter v. Bell \& Sons, [1936], 2 D.I.R. 438 at p, 439, 0.R. 290 at p. 297,Mr. Justice Middleton coneisely and with great elarity gtated the law applieable to this ease in this way ; "In the case of master and servant there is implied in the eontmet of hiring an obligation to give reasonable notiee of as intention to terminate the arrangement." On this branch of the case the only remaining matter to be eonsidered is what should be implied as reasonable notieo in the eireumstanees of the eontruet in question. In Carter v. Bell Middleton J.A. went on at D. 439 D.L.R., p. 297 O.R. to say; "This notiee in a case of an indefinite hiring is generally 6 months, but the length of notice is always a matter for inguiry and determination, and in specinl circumstances may be less." The contractual obligation is to give reasonable notice and to contimue the servant in his employment. If the scrvant is dismiesed without reasonable notice he is entitled to the damages that flow from the failure to observe this entmetual obligation, which 144 Doscrstose Latw Rerosts 24 D.I.R.(2d) damages the servant is bound in law to mitigate to the best of his ablity, In 13 C.E.D. (Ont. 2nd), p. 227, it is stated: "'In Ontario damages in eases of indefinite hiring are limited to wages for aix mosths." I am convineed this is not a corroet statement of the law. The authority for this statement is Norman v. Nat'l Life Ass'ce Co. of Canada, [1938] 0.W.N. 509. In this case the plaintift was employed at a yearly salary as a moltical referee. At the time of his employment he was told that the defendant would roquire a molleal referee and that he had no eanse to worry about the duration of employment. Daring his employment he earried on a medieal practiee in addition to the services he rendered to the defendant. On the termination of his employment he was paid approximately 6 months' salary in Bed of notice. Godfrey J. stated [p,511] : "In this Provinee, however, it seems to be well established that six months is the maximum notive required to terminate a contrict of indefinite hiring," He referred to Harnoell v. Parry Sound Larmber Co. (1897), 24 O.A.R. 110; Normandin v. Sollonoy MiMl (1931), 400.W,N,429; Meseer v. Barnett Co. (1926), 59 O. I. R. 566, and Carfer v. Bell, rupra. With great respect I do not think any of these eases warmant a statement as a proposition of law that a Court in Ontario cannot decide that the ressonable notice required as implied in the contract of hiring should not in any eace be greater than 6 months In Abbott,G.M, Gest Ltd., [1944] O.W.N, 524, Hogr J. made reference to the Norman ease, but eunnot be suid to have passed on it as the learned Judge found on the facts of the esse be was considering that the plaintiff was only entitled to 4 months' notice. In Campbell v. Buriness Fleets Led, [1953], 4 D.T.R. 223, O.W.N. 707, and in appeal [1954], 2 D.L.R. 263, O.R. 87 , the contruct in question was an oral one of somewhat indefinite terms. The trial Jadge held that it eame within the Statute of Frands and the action was dismissed. The only evidence of the eontract was the evidence of the plaintiff who, as the learned trial Judge put it, roferred to it as a eontract "for life" or " as long as there was no wrongdoing on my part I would be there". "The Court of Appeal held that the Statute of Fruads dbd not apply and at p. 268 D.I.R., p. 950.R. Macksy J. A. writing the jodgment of the Court, said: "The Court is of opinion that the eontract in the case at bar was one that oould be terminated only on reasonable notice and reasonable notiee in all the circumatances of this. case, in the eonsidered opinion of this Court is one year." In Duncan v. Cockahutt Farm Equipmont Ltd, (1956) 19 W.W.R. 554, Campbell J. conniderod the pessago from the Can- Baspat v. Tur Guotes \& Matt Ima. (MeRoer C.J.H.C.) 145 adian Eneyclopedio Digest which I hare qaoted and Norman . Nat' Liffe Ass'ce Co. in relation to an action brought for wrrongful dismisal of the branch manager of a farm equipenent company who had been employed for 27 years under an indelinite hiring and who, had he been eontinned in the defendant's employment, would have been entitled to a pension. He eame to the eonelusion that the eases relied on in Norman v. Natl Life and the learned authors of the Canadian Encyelogochic Digast were not comparable with the ease under eonsideration and shonld be distinguished on their facts. He also sadd: [p. 558] : "Furthernore, different eeonomie eonditions prevailod then, and pension plans, for inatanee, were rare. Effect should now be given to these factors." In Grundy v. Sun Printing \& Publibhing Ass's (1916), 33 T.L.R. 77, the plaintiff was an editor of a newsyeper eariing a salary of 220 a week. The jury awarded the plaintif damagos based on the failure to give 12 months' notice of termination of the contract On appeal to the Court of Appeal this award was sustained. In delivering the judgroent of the Coart Loed Justioe Swinfen Eady said at p. 78: "In eases which had come before this Court a custom has been proved that an editor was entitled to 12 months' notiee, and a sub-editor to six months' notice. In the absence of evidence of custoen it oycld not be said that the view of the jury in this esse was unressocable." There is no evidence of eustom in the ease before me and I think I must determine what wotld be retsonable sotioe in all the cireumstaneos and proper eompensation for the lows the plaintiff has suffered by reason of the breneh of the liaplied term in the contraet to give him reasonable notiee of its termination. There ean be no catalogne laid down as to what is ressonable notiee in particular elusses of esses. The ransceableness of the notice must be decided with reference to esch partieular east, having regand to the eharneter of the employnseat, the length of serviee of the servant, the age of the servant and the avallablity of similar employment, having regard to the experience, truining and qualifleations of the servant. Applying this prineiple to this case, we have a servant who, through a lifetime of training, was qualifod to manage the advertising department of a large metripolitan newspeper. With the exeeption of a short period of employment as manager of a street ear advertling agponey, his whole training has been in the advertising department of two large daily neaspepers. There are few eomparable offices available in Canuda and the plaintiff has in mitigation of his damages taken employment with an advertising ageney, in which employment he will no doabt find useful his advertising experience, but the employment must neccssarity be of a different ehraraeter. 1024D.tak.(2d) I have eome to the eonelasion, as the jury did in the Sun Printing \& Publithing Asr'n ease and as the Court of Appeal agreed, that 1 year's notice would hnve been reasonable, having regard to all the circumstanoes of this esen That being trae, the neat question to decide is what damages hasre flowed frosa the fallure of the defendant to give a year's notice and how far have those damages been mitigated by the reocipt by the plaintiff of a salary frum mother employer. The plaintiff's salary with the defendant was $17,750 per year. In his new employment he has been reeeiving $15,000 per year sinee July 1, 1959. He is therefone entitled to rocover $8,254.15 for loss of salury from April 25th to July lst and $2,2$5.20, being the differcwee between the salary which would have been roeeived from July 1, 1959 to April 24, 1960, and the salary aotually received in his new emplosment during that time. Upon the termination of the plaintiff's employment with the defendant his pension rights were ssid to have been valued as an employee with 16 to 17 years' service. Aeconding to ex. 7 the pension allowed to the plaintiff was based on the defendant's contribution to his penaion at 40%. If be had been eontinued in the service for another year, parsuant to proper notice, the defend. ant's eocrtribution wotald have been on a higher basis. The matter of what the dollar value of the plaintift's pension would have been had he been employed for another year is a matter for actuarial computation. This aspeet of the ease was not developed in angu+ ment. It is, however, quite elear that had the plaintiff been given proper notice acconding to the implied term of the eontract he woald have had another year's service with the defendant which woald have increased his pension allowanee. In view of the unsutisfactory ecedition of the evidenee, I am. unable to make a proper asvesenent of what damsge the plaintiff has suffered in loss of pension by reason of his employment having been terminated a year soones than it ought to have been terminated. If the parties eatnot agroe as to these damages, I would direet a reference to the Master to nascertain these damages. Three other aspects of damage remain to be eonsiderd: the alleged loss of the Christass bonus, participation in the profitsharing plan and loss of diroetor's fees. I do not think the plaintiff is entitlod to recover moder any of these heads. The Christmas bonas was a purely voluntary gift distributed among the employees as a matter of good wil between employer and employee. I do not think this ease comes within the prinejples applied in Menubens v. Leom, [1919] 1K. B. 208. In that ease Insh J. al. lowed a plaintiff who was a haindresser's sassistant damages for loss of tips that he might ressonably have expeeted to have roeeived from his enstoenens, if his emplogment had not been wrongfolly BARDAL v. TrE GLoEE \& Mafl LrD, (MeRuer CJ.H.C.) 147 terminated. It was beld that it was within the contemplation of the parties at the time of the engagement that the assistant would receive gratuitons payments from his customers. I think that is quite different from the ense before me where the bonus was something that eame from the employer and was not within the contemplation of the parties at the time that the plaintiff entered the service. The case for elaiming damages for loss of any share in the distribution of profits is still weaker. The proflt-sharing plan was not founded on eontract. It was instituted by the chief shareholder of the defendant and was not applieable to all employees but only those who were seleeted by a conmittee appointed by him. There was no obligation to put anyone on the list of those who should roceive benefits in this way. It would appear to me that it would have been very improbable that the committee would have distributed profits to an employee who had reeeived notiee of the termination of his contract. I therefore allow no damages under this heading. The appointment of the plaintiff to the Board of Directors of the defendant was an appointment at the will of the shareholders of the company and they were under no obligation to eontinue him on the Board for any period of time. There is no foundation for a elaim for loss of director's fees. It was argued that in his new employment the plaintift is entitled to certain stock option rights and some allowance should be made in assessing damages on this aecount. I do not think it has been established in evidence that any allowance should be made in mitigation of the damages by reason of these alleged benefits. In the first place, the value of the stoek option rights is purely speculative. There is no evidence that any events have happened to entitle the plaintiff to stock under the agreement nor is there evidence that the stock would be worth anything if be did beoome entitled to it under the provisions of the agreement. The plantiff will therefore be entitled to judgment for $5,499,35, with a referenee to the Mnster to ascertain the amount by which the dollar value of the plaintifi's participation in the pension plan was reduced by reason of the termination of his employment before April 24, 1960. The plaintiff will have the eosts of the action. I may be spoken to as to the costs of the reference after the Master's report. Judgment for plaintiff. 1. WITHOUT PLAGERISZING - Provide a complete Summary of your case, Giving indication to who the plaintiff and Defendant where in the Case. Additionally, ensure that you provide an indication of the outcome and judgment rendered. 2. Identify the main arguments of both the Defendant and the Plaintiff of your particular case. 3. Based on the facts outlined within the case, do you agree with the judgment rendered, support your answer using material from lecture and or integrate points of the case into your response. BARDAL . THE GLOBE \& MAIL LTD. Ontario High Court, McRuer C.J.H.C. Aprit 21, 1960. BadL v. The GLobe \& MaIL InD. (MeRuer C.J.H.C.) 141 F. A. Brewin, Q.C., and I, G. Scott, for plaintiff. R. D. Poupore, Q.C., for defendant. McRugr C.I.H.C.:-This is an action brought for damages for wrongful dismissal. In the year 1942 the plaintiff, who at that time was manager of the Canadian Street Car Advertising Co, and had been previously assistant advertising manager of the Winnipeg Tribune, a paper published in the City of Winnipeg, was approached by the Globe Printing Co. Ltd, with a view to interesting him in becoming the assiatant advertising manager of that eompany. It was explained to him that when the advertising manager retired he would likely suceced him. During the diseuskions the plaintiff says that he impressed on Mr. Butler, who was interviewing him on behalf of the Globe company, that it was important at his age that his employment should be permanent. In due course the plaintiff was interviewed by Mr. MeCullagh, the publisher, to whom he repeated what he had previonsly said with reference to the importance of a deeision to ehange his employment at his age. After full consideration the plaintiff deeided to accept the office as offered with an initial salary of $6,500 a year, his employment eommencing on Oetober 1, 1942. In 1955 the assets of the Globe Printing Co. were sold to the Globe \& Mail Ltd. and the plaintiff, together with other employees, transierred their employment to the purchaser without any new agreement as to terms of employment. In 1954 the plaintiff was appointed advertising manager and in 1955 he was appointed director of advertising and a member of the Board of Direetors of the defendant. Throughout his employment with the defendant the plaintiff's salary was inereased periodically until on the termination of his employment he was receiving $1,479.16 per month, together with one week's salary by way of a Christmas bonus. In addition to the salary received the plaintiff was a benefleiary of three distributions made to seleeted employees pursuant to a profit-sharing plan which was administered under the sole direction of the prin- 142 Domrnon Law Rerokrs 24 D.L.R.(2d) cipal shareholder of the defendant. The receipts from this source were as follows: In addition to salary and bonnses received the plaintiff particlpated in a pension plan for employees. On April 28, 1959, the plaintiff was called to the ofliee of Mr. Dalgleish, the president, publisher and oditor of the defendant, who with a few preliminary remarlos asked him for his resignation. Mr. Dalgleish told the plaintift that if he rasigned he would be given 6 months' salary and allowed 1 month to look around for new employment. Aceording to the plaintiff's evidence, the reason given to him for requesting his resignation was that the defendant had beea losing money and Mr. Dalgleish wanted to get asemeone who eould inprove business in the advertising department. The plaintif told Mr. Dalglesh that be eouldn't agree to aceept aceusations of incompetency and he would consider what course he should take. In an interview the next day the plaintiff refused to regign either as an cmployee or as a director and he was thereupon given a letter signod by Mr, Dalgleish which reads as follows: "Dear Mr. Bardal: "This is to eonfirm the notiee given to you todny of the termination of your employment with the Globe and Mail Limited as of this date." The plaintiff was given a eheque for the balance of his salary owing to the date of his dismissal. Immediately after his dismissal the plaintiff made efforts to sceure other employment and finally made arrangements with another employer in the advertising business for employment at a salary of $15,000 a year for 2 years, with provision for certain stock option rights. At the time of his dismissal under the provisions of the defendant's pension plan the plaintift had earned a right to receive a refund of his contributions with interest which would amount to approximately $5,000, or an alternative right to accept a pension of approximately 81,350 per annum, commeneing on Febrary 1, 1970. The plaintf aceepted the latter alternative. In the statement of defenee flled the defendant denied that the plaintiff was wrongfully dismissed and pleaded that he voluntarily withdrew from the employment of the defendant. In tho alternative it was pleaded that if the defendant did terminate the plaintiff's employment it was justiffed in doing so by reason of the faet that the advertising department did not, during the period the plaintiff was advertiaing mansger, obtain the results which the defendant was reasonably entitled to expect. During the trial it was admitted both by Mr. Dalgleish and eounsel for the defend. Basdat v. THE Gtode \& Marl LTD, (MeRuer C.J.H.C.) 143 ant that it eould not be eontended that the defendsnt was justifled in dismissing the plaintiff without notiec. No improper conduct on the part of the plaintifl was proved or snggested and I think the evidenee of Mr. Dalgleish ean be summed up by saying that be had come to the eonclusion that he thought he could got an advertising manager who would produce better results than the plaintiff. In view of this it is quite annecessury for me to discuss the evidence of the plaintiff with reference to the results he produeod and the eircumstanees that gave rise to some decline in revenue from the advertiking department preceding his dismissal. It remains only for me to eonsider what damages the plaintifl is entitled to recover. In every easo of wrongful dismissal the mossure of damages must be eonsidered in the light of the terns of employment and the character of the aervioes to be rendered. In this ease there was no stipulated term during whieh the enployment was to last. Both purtios undoabtedly considered that the employment was to be of a permanent eharacter. All the evidence goes to show that the offlee of advertising manager is one of the most important offiens in the service of the defendant. In fact, it is by means of the revenue derived under the supervision of the advertising manager that the publieation of a nerspaper becomes a profitable enterpriae. The fact that the plaintiff wis appointed to the Board of Directors of the defendant goes to demonstrate the permanent character of his employment and the importance of the oflice. It is not argued that there was a deflnite agrecment that the plaintiff was employed for life but the ense is put on the basis of an indefinite hiring of a permanent charaeter which conld be terminatod by reasonable notice. In Carter v. Bell \& Sons, [1936], 2 D.I.R. 438 at p, 439, 0.R. 290 at p. 297,Mr. Justice Middleton coneisely and with great elarity gtated the law applieable to this ease in this way ; "In the case of master and servant there is implied in the eontmet of hiring an obligation to give reasonable notiee of as intention to terminate the arrangement." On this branch of the case the only remaining matter to be eonsidered is what should be implied as reasonable notieo in the eireumstanees of the eontruet in question. In Carter v. Bell Middleton J.A. went on at D. 439 D.L.R., p. 297 O.R. to say; "This notiee in a case of an indefinite hiring is generally 6 months, but the length of notice is always a matter for inguiry and determination, and in specinl circumstances may be less." The contractual obligation is to give reasonable notice and to contimue the servant in his employment. If the scrvant is dismiesed without reasonable notice he is entitled to the damages that flow from the failure to observe this entmetual obligation, which 144 Doscrstose Latw Rerosts 24 D.I.R.(2d) damages the servant is bound in law to mitigate to the best of his ablity, In 13 C.E.D. (Ont. 2nd), p. 227, it is stated: "'In Ontario damages in eases of indefinite hiring are limited to wages for aix mosths." I am convineed this is not a corroet statement of the law. The authority for this statement is Norman v. Nat'l Life Ass'ce Co. of Canada, [1938] 0.W.N. 509. In this case the plaintift was employed at a yearly salary as a moltical referee. At the time of his employment he was told that the defendant would roquire a molleal referee and that he had no eanse to worry about the duration of employment. Daring his employment he earried on a medieal practiee in addition to the services he rendered to the defendant. On the termination of his employment he was paid approximately 6 months' salary in Bed of notice. Godfrey J. stated [p,511] : "In this Provinee, however, it seems to be well established that six months is the maximum notive required to terminate a contrict of indefinite hiring," He referred to Harnoell v. Parry Sound Larmber Co. (1897), 24 O.A.R. 110; Normandin v. Sollonoy MiMl (1931), 400.W,N,429; Meseer v. Barnett Co. (1926), 59 O. I. R. 566, and Carfer v. Bell, rupra. With great respect I do not think any of these eases warmant a statement as a proposition of law that a Court in Ontario cannot decide that the ressonable notice required as implied in the contract of hiring should not in any eace be greater than 6 months In Abbott,G.M, Gest Ltd., [1944] O.W.N, 524, Hogr J. made reference to the Norman ease, but eunnot be suid to have passed on it as the learned Judge found on the facts of the esse be was considering that the plaintiff was only entitled to 4 months' notice. In Campbell v. Buriness Fleets Led, [1953], 4 D.T.R. 223, O.W.N. 707, and in appeal [1954], 2 D.L.R. 263, O.R. 87 , the contruct in question was an oral one of somewhat indefinite terms. The trial Jadge held that it eame within the Statute of Frands and the action was dismissed. The only evidence of the eontract was the evidence of the plaintiff who, as the learned trial Judge put it, roferred to it as a eontract "for life" or " as long as there was no wrongdoing on my part I would be there". "The Court of Appeal held that the Statute of Fruads dbd not apply and at p. 268 D.I.R., p. 950.R. Macksy J. A. writing the jodgment of the Court, said: "The Court is of opinion that the eontract in the case at bar was one that oould be terminated only on reasonable notice and reasonable notiee in all the circumatances of this. case, in the eonsidered opinion of this Court is one year." In Duncan v. Cockahutt Farm Equipmont Ltd, (1956) 19 W.W.R. 554, Campbell J. conniderod the pessago from the Can- Baspat v. Tur Guotes \& Matt Ima. (MeRoer C.J.H.C.) 145 adian Eneyclopedio Digest which I hare qaoted and Norman . Nat' Liffe Ass'ce Co. in relation to an action brought for wrrongful dismisal of the branch manager of a farm equipenent company who had been employed for 27 years under an indelinite hiring and who, had he been eontinned in the defendant's employment, would have been entitled to a pension. He eame to the eonelusion that the eases relied on in Norman v. Natl Life and the learned authors of the Canadian Encyelogochic Digast were not comparable with the ease under eonsideration and shonld be distinguished on their facts. He also sadd: [p. 558] : "Furthernore, different eeonomie eonditions prevailod then, and pension plans, for inatanee, were rare. Effect should now be given to these factors." In Grundy v. Sun Printing \& Publibhing Ass's (1916), 33 T.L.R. 77, the plaintiff was an editor of a newsyeper eariing a salary of 220 a week. The jury awarded the plaintif damagos based on the failure to give 12 months' notice of termination of the contract On appeal to the Court of Appeal this award was sustained. In delivering the judgroent of the Coart Loed Justioe Swinfen Eady said at p. 78: "In eases which had come before this Court a custom has been proved that an editor was entitled to 12 months' notiee, and a sub-editor to six months' notice. In the absence of evidence of custoen it oycld not be said that the view of the jury in this esse was unressocable." There is no evidence of eustom in the ease before me and I think I must determine what wotld be retsonable sotioe in all the cireumstaneos and proper eompensation for the lows the plaintiff has suffered by reason of the breneh of the liaplied term in the contraet to give him reasonable notiee of its termination. There ean be no catalogne laid down as to what is ressonable notiee in particular elusses of esses. The ransceableness of the notice must be decided with reference to esch partieular east, having regand to the eharneter of the employnseat, the length of serviee of the servant, the age of the servant and the avallablity of similar employment, having regard to the experience, truining and qualifleations of the servant. Applying this prineiple to this case, we have a servant who, through a lifetime of training, was qualifod to manage the advertising department of a large metripolitan newspeper. With the exeeption of a short period of employment as manager of a street ear advertling agponey, his whole training has been in the advertising department of two large daily neaspepers. There are few eomparable offices available in Canuda and the plaintiff has in mitigation of his damages taken employment with an advertising ageney, in which employment he will no doabt find useful his advertising experience, but the employment must neccssarity be of a different ehraraeter. 1024D.tak.(2d) I have eome to the eonelasion, as the jury did in the Sun Printing \& Publithing Asr'n ease and as the Court of Appeal agreed, that 1 year's notice would hnve been reasonable, having regard to all the circumstanoes of this esen That being trae, the neat question to decide is what damages hasre flowed frosa the fallure of the defendant to give a year's notice and how far have those damages been mitigated by the reocipt by the plaintiff of a salary frum mother employer. The plaintiff's salary with the defendant was $17,750 per year. In his new employment he has been reeeiving $15,000 per year sinee July 1, 1959. He is therefone entitled to rocover $8,254.15 for loss of salury from April 25th to July lst and $2,2$5.20, being the differcwee between the salary which would have been roeeived from July 1, 1959 to April 24, 1960, and the salary aotually received in his new emplosment during that time. Upon the termination of the plaintiff's employment with the defendant his pension rights were ssid to have been valued as an employee with 16 to 17 years' service. Aeconding to ex. 7 the pension allowed to the plaintiff was based on the defendant's contribution to his penaion at 40%. If be had been eontinued in the service for another year, parsuant to proper notice, the defend. ant's eocrtribution wotald have been on a higher basis. The matter of what the dollar value of the plaintift's pension would have been had he been employed for another year is a matter for actuarial computation. This aspeet of the ease was not developed in angu+ ment. It is, however, quite elear that had the plaintiff been given proper notice acconding to the implied term of the eontract he woald have had another year's service with the defendant which woald have increased his pension allowanee. In view of the unsutisfactory ecedition of the evidenee, I am. unable to make a proper asvesenent of what damsge the plaintiff has suffered in loss of pension by reason of his employment having been terminated a year soones than it ought to have been terminated. If the parties eatnot agroe as to these damages, I would direet a reference to the Master to nascertain these damages. Three other aspects of damage remain to be eonsiderd: the alleged loss of the Christass bonus, participation in the profitsharing plan and loss of diroetor's fees. I do not think the plaintiff is entitlod to recover moder any of these heads. The Christmas bonas was a purely voluntary gift distributed among the employees as a matter of good wil between employer and employee. I do not think this ease comes within the prinejples applied in Menubens v. Leom, [1919] 1K. B. 208. In that ease Insh J. al. lowed a plaintiff who was a haindresser's sassistant damages for loss of tips that he might ressonably have expeeted to have roeeived from his enstoenens, if his emplogment had not been wrongfolly BARDAL v. TrE GLoEE \& Mafl LrD, (MeRuer CJ.H.C.) 147 terminated. It was beld that it was within the contemplation of the parties at the time of the engagement that the assistant would receive gratuitons payments from his customers. I think that is quite different from the ense before me where the bonus was something that eame from the employer and was not within the contemplation of the parties at the time that the plaintiff entered the service. The case for elaiming damages for loss of any share in the distribution of profits is still weaker. The proflt-sharing plan was not founded on eontract. It was instituted by the chief shareholder of the defendant and was not applieable to all employees but only those who were seleeted by a conmittee appointed by him. There was no obligation to put anyone on the list of those who should roceive benefits in this way. It would appear to me that it would have been very improbable that the committee would have distributed profits to an employee who had reeeived notiee of the termination of his contract. I therefore allow no damages under this heading. The appointment of the plaintiff to the Board of Directors of the defendant was an appointment at the will of the shareholders of the company and they were under no obligation to eontinue him on the Board for any period of time. There is no foundation for a elaim for loss of director's fees. It was argued that in his new employment the plaintift is entitled to certain stock option rights and some allowance should be made in assessing damages on this aecount. I do not think it has been established in evidence that any allowance should be made in mitigation of the damages by reason of these alleged benefits. In the first place, the value of the stoek option rights is purely speculative. There is no evidence that any events have happened to entitle the plaintiff to stock under the agreement nor is there evidence that the stock would be worth anything if be did beoome entitled to it under the provisions of the agreement. The plantiff will therefore be entitled to judgment for $5,499,35, with a referenee to the Mnster to ascertain the amount by which the dollar value of the plaintifi's participation in the pension plan was reduced by reason of the termination of his employment before April 24, 1960. The plaintiff will have the eosts of the action. I may be spoken to as to the costs of the reference after the Master's report. Judgment for plaintiff. 1. WITHOUT PLAGERISZING - Provide a complete Summary of your case, Giving indication to who the plaintiff and Defendant where in the Case. Additionally, ensure that you provide an indication of the outcome and judgment rendered. 2. Identify the main arguments of both the Defendant and the Plaintiff of your particular case. 3. Based on the facts outlined within the case, do you agree with the judgment rendered, support your answer using material from lecture and or integrate points of the case into your response