Saturday, 7 April 2012

Consequential Damages awarded to Terminated Journeyman Apprentice

The British Columbia upheld an award of $25,000 in “consequential damages” where an employer wrongfully terminated a journeyman apprentice who was thereafter unable to find another apprenticeship position.

At the trial of the action (Marchen v. Dams Ford Lincoln Sales Ltd., 2009 BCSC 400) Mr. Justice Goepel’s reasoning for awarding such damages was based on the accepted British exception to the ‘general rule of wrongful termination damages’, by holding that in cases of apprenticeship contracts consequential damages may be awarded.  Mr. Justice Goepel held that apprenticeship contracts, by their very nature, contemplated consequential damages if they were wrongfully terminated.
The British Columbia Court of Appeal (Marchen v. Dams Ford Lincoln Sales Ltd., 2010 BCCA 29) explicitly rejected such reasoning, preferring to rely on the Hadley v. Baxendale principles of foreseeability.  In nonetheless affirming the award of $25,000, the Honourable Mr. Justice Chiasson commented that:

The special circumstances under which this contract was made were known to the appellant.  It was in the reasonable contemplation of the parties that Mr. Marchen’s loss of the opportunity to earn a journeyman’s wage and a loss of the status of journeyman would result from the appellant’s breach of contract; the loss of the education and steps to qualification he would have enjoyed had he been employed to the time work became unavailable made it more difficult to complete the apprenticeship successfully.  On the facts as found by the trial judge, Mr. Marchen was not able to secure a further apprenticeship that would have allowed him to become a journeyman.  On the evidence, it is likely downsizing did not occur until late autumn 2005, which would have entitled Mr. Marchen to at least 10 months additional employment and training as an apprentice.
In my view, Justice Chiasson’s reasoning is simply a re-articulation of the exception.
The take away is that contracts for apprenticeship positions are different from general employment contracts, and damages in addition to damages for failure to give notice may be awarded.

As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer. He tweets from @SeanBawden.

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