[1]           The plaintiff, Mark Bishop, is seeking damages against his former employer, Rexel Canada Electrical Inc., for wrongful dismissal.

[2]           Mr. Bishop is 61 years old. He has a high school diploma. He was employed as a buyer for Rexel, a large electrical products retailer and distributor, for over 27 years. His employment ended on January 4, 2016.

[3]           Mr. Bishop claims he was wrongfully dismissed. He says his employment was terminated without notice and without cause when he was escorted from the workplace by a Rexel manager. Mr. Bishop claims he is therefore entitled to damages in lieu of reasonable notice.

[4]           Rexel does not claim that Mr. Bishop was terminated for cause. It does, however, say Mr. Bishop voluntarily resigned on January 4, 2016. He is therefore not entitled to any damages.

[5]           The pertinent issues are as follows:

[6]           I will deal first with the question of whether Mr. Bishop resigned from his employment with Rexel or whether he was dismissed.

[7]           Rexel says Mr. Bishop clearly resigned from his position based on what was said and done. Among other things, it says Mr. Bishop told his manager Ms. King that he quit, and had expressed his intention to resign with other colleagues beforehand.

[8]           Mr. Bishop says, however, that he did not resign and the evidence does not support that finding. He challenges Ms. King’s credibility by pointing to her plan to lay him off soon in any event; and he points to circumstances that he says belie an intention to resign.

[9]           In the alternative, if it is found that Mr. Bishop did not resign, Rexel says Mr. Bishop has not established that he was terminated. Rexel says the sole evidence relied upon by Mr. Bishop was that he was escorted from the premises before the end of his shift and that is insufficient evidence to make that finding.

[10]        Mr. Bishop argues that he has adduced sufficient evidence that he was terminated. In addition to being “walked out” before his shift ended, his keys were taken confirming he could not return to work, among other factors.

[11]        If an employee voluntarily resigns from his or her employment, rather than being dismissed, the employee cannot bring a wrongful dismissal action: Gebreselassie v. VCR Active Media Ltd., [2007] O.J. No. 4165 (Ont. S.C.J.) at para. 42.

[12]        In an action for wrongful dismissal the plaintiff bears the burden of establishing the threshold fact of having been dismissed from his or her position, as opposed to having resigned. The employer, however, must show that the actions of the employee which it alleges to be a resignation were voluntary: Gebreselassie, at para. 42.

[13]        In Beggs v. Westport Foods Ltd., 2011 BCCA 76, the Court of Appeal recently summarized the two-part test as to whether an employee has voluntarily resigned from employment. A finding of resignation requires both a subjective element of intent and an objective element establishing the act of resignation. An assessment must therefore be made as to whether the employee intended to resign and whether the employee’s words and acts, objectively viewed, support a finding that he or she clearly resigned: Beggs, at para. 36.

[14]        The Court in Beggs at para. 36 stated the different tests for a dismissal and a voluntary resignation:

[15]        The Court further explained the test for resignation. The objective aspect of the test focuses on what a “reasonable employer” would have thought about the intentions of the employee based on what the employee says or does. The subjective aspect of the test takes into account the employee’s state of mind and his or her conduct in relation to that state of mind. This may well include the employee’s timely retraction, or attempted retraction of his or her alleged resignation: Beggs, at para. 37.

[16]        Whether words or actions amount to a resignation must be determined contextually, with reference to the surrounding circumstances: Gill v. A & D Precision Ltd., 2010 ONSC 4646 at para. 66; Robinson v. Team Cooperheat-MQS Canada Inc., 2008 ABQB 409 at para. 50.

[17]        To answer the dismissal issue I must look closely at the facts.

[18]        Mr. Bishop was a buyer in Rexel’s purchasing department. His duties consisted of reviewing his vendor list and creating temporary purchase orders to replenish inventory on a daily basis. He normally arrived at 7:00 a.m. and worked until 3:30 p.m. Mr. Bishop reported to Sheila King over the last six to seven years. His annual performance reviews were consistently problem-free and indicated he was competent or better.

[19]        At all relevant times, Ms. King was the purchasing and inventory manager for Westburne Electric Supply, a division of Rexel. Ms. King was based in Calgary. Three purchasers in Burnaby reported to her, including Mr. Bishop, and four in Calgary. At the time, she managed 11 employees in total.

[20]        In December 2015, Ms. King asked Mr. Bishop to take on an additional task of “releasing web orders” to assist another buyer who was overwhelmed. The details of the task are not pertinent. What is important, however, is that Mr. Bishop felt significantly overburdened by the addition of this task.

[21]        By January 2016, Mr. Bishop felt he had one of the heaviest workloads of the seven buyers. Indeed, he was consistently first or second in the number of orders placed.

[22]        The events that led to the end of Mr. Bishop's employment occurred on January 4, 2016, the details of which are in dispute.

[23]        At 1:24 p.m. P.S.T. on January 4, 2016, Ms. King sent Mr. Bishop an email requesting that he continue to perform the task of releasing web orders. Mr. Bishop was upset at being asked to continue this task. He had thought it was only a temporary assignment which had since lapsed and he felt overloaded with work.

[24]        Three minutes later, he emailed Ms. King as follows:

[25]        Mr. Bishop testified he sent the email hastily and was angry at the time. It was not his intent to resign. He thought he could possibly have Ms. King pass on the task to another buyer by suggesting he might not return. At the very least, he thought that by adding the words “Please advise” he could elicit a discussion with Ms. King on the matter.

[26]        Mr. Bishop said he did not discuss their conversation with anyone at the time although his colleague, Frances Gushue, was standing beside his computer and saw the email.

[27]        Once he sent his reply email, Mr. Bishop commenced releasing the web purchase orders as requested.

[28]        At 2:01 p.m. P.S.T., Ms. King called Mr. Bishop. She said she wanted to know what he meant by his email and if he was resigning. Mr. Bishop was surprised by her question. Ms. King noted she had to assign the job as part of the duties that needed to be done and he did not argue with her. Ms. King told Mr. Bishop if he was going to resign that it was to be in writing. Mr. Bishop said “okay”, indicating he understood what she had said.

[29]        After the call, Mr. Bishop returned to the task of releasing the web orders.

[30]        At approximately 2:30 p.m., Tom Mikes, a manager in Rexel’s Burnaby office, approached Mr. Bishop at his desk. He told Mr. Bishop he had received a call from Ms. King and would like to see Mr. Bishop in his office.

[31]        In the meeting, Mr. Mikes told Mr. Bishop that Ms. King had called him and asked him to escort Mr. Bishop out of the office. Mr. Bishop said he was shocked, as he realized Ms. King was firing him. Mr. Mikes asked Mr. Bishop what had happened and Mr. Bishop replied: “Sheila – it was bound to happen”.

[32]        Mr. Bishop testified Mr. Mikes was a friend and there was no animosity between them. Mr. Mikes escorted Mr. Bishop to his desk. Mr. Bishop grabbed a few things and asked to pick up the rest later. Mr. Mikes walked with him past his colleagues and out the front door through reception. Mr. Bishop said this was very humiliating and traumatic.

[33]        Larry Ng, a co-worker, testified that as he saw Mr. Bishop being escorted from the building, he thought Mr. Bishop had been fired. Other colleagues over the years had been “walked out” of the office when terminated or having resigned to work at a competitor. In the latter case, they would be walked out to protect private information.

[34]        Mr. Bishop said before his job ended he planned to work until he retired at age 65. He was not in a financial position to retire earlier. In retirement, he hoped to move to the Okanagan with his wife and children.

[35]        Rexel does not agree with this version of the events. It called Ms. Gushue and Ms. King to testify about what it says transpired.

[36]        After receiving Mr. Bishop’s reply email at 1:27 p.m. P.S.T. on January 4, 2016, Ms. King concluded, that Mr. Bishop was not happy with being assigned the impugned task. She said she left the matter for half an hour. He was obviously upset and she wanted to give him an opportunity to calm down.

[37]        At approximately 2:00 p.m. P.S.T., Ms. King called Mr. Bishop to clarify what was happening. She asked Mr. Bishop why he was upset. He advised her he did not want to do the web orders and if it was a requirement of the job, he would not be coming back. She explained it was a requirement of the job, as it was for everyone on the team. He responded he was not hired to release web orders and “I’m not coming back”. Ms. King said she asked him if he was resigning and he said “yes”. She asked again if he was sure he was resigning and he replied “yes I’m done”. Ms. King advised Mr. Bishop he would need to give her a letter of resignation. He replied he would send her one that night. Ms. King says she then said “okay I accept your resignation”.

[38]        After the call, Ms. King felt Mr. Bishop was very upset. She did not want him to have keys to access the building or to disrupt the staff. She tried to contact a number of management personnel. She ultimately contacted Mr. Mikes at 2:30 p.m. P.S.T. She said she told him Mr. Bishop had resigned and was upset. She told Mr. Mikes that she needed him to ensure Mr. Bishop did not have keys to the building and to escort him from the building to ensure staff would not be disrupted.

[39]        Mr. Mikes did as instructed. He called Ms. King a short time later indicating Mr. Bishop had gone and “everything was okay”.

[40]        On January 6, 2016, Mr. Bishop picked up an envelope from reception after having picked up the rest of his items from his desk. The envelope contained a letter dated January 5, 2016, from Nicola Pereira, the human resources manager at Rexel. That letter commenced with the following comment:

[41]        Mr. Bishop said he had never sent any resignation letter. As a result of these events, he realized he needed help and contacted a lawyer’s office immediately for advice.

[42]        A series of emails sent on January 5, 2016 by Ms. King to Ms. Pereira are pertinent and revealing. At 10:34 a.m., Ms. King wrote to Ms. Pereira and said:

[43]        Ms. Pereira replied:

[44]        Ms. King then said:

[45]        Ms. Pereira replied:

[46]        After reviewing the events in this matter, I am ultimately not convinced there was a “clear and unequivocal” resignation: Beggs at para. 36. Accordingly, I conclude Mr. Bishop did not resign.

[47]        The following three factors, which I elaborate on below, were most important in arriving at my conclusion:

[48]        On the first factor, there is no question Mr. Bishop was upset on January 4, 2016. Ms. King had informed him that he must continue a burdensome task despite already feeling overwhelmed at work. The reply email was undoubtedly sent in the heat of the moment only minutes later. A review of the testimony on point suggests Mr. Bishop’s anger remained throughout the subsequent telephone call. Mr. Bishop’s emotional state and the brevity of the event belie a clear and unequivocal resignation.

[49]        In fact, as the alleged resignation occurred during a heated exchange, Rexel had a duty to revisit the matter after a cooling off period to confirm Mr. Bishop’s intention to resign: Bru v. AGM Enterprises Inc., 2008 BCSC 1680.

[50]        In Lelievre v. Commerce and Industry Insurance Company of Canada, 2007 BCSC 253, Madam Justice Boyd said at para. 52:

[51]        Ultimately, Rexel did not meet its duty to inquire. Instead of asking Mr. Bishop to “confirm his resignation and eliminate any uncertainty” as required, it simply sent him a letter “accepting” his resignation and referred to a non-existent letter of January 4, 2016 from Mr. Bishop indicating his “resignation of employment”: Balogun v. Deloitte & Touche, LLP, 2011 BCSC 1314 at para. 36.

[52]        While there may be some issue about Mr. Bishop’s own duty to clarify, the letter of January 5, 2016 from Rexel indicating it had received his non-existent resignation letter naturally led Mr. Bishop to believe he was definitively fired and his employer was now being dishonest with him.

[53]        On the second factor, Ms. King’s testimony that Mr. Bishop said he was resigning must be viewed in the context of the evidence that indicates Ms. King had nominated Mr. Bishop for termination/layoff in January 2016. The general manager of Rexel was seeking a round of terminations to be carried out in 2016 as a result of economic pressures. While Ms. King did not have approval at the time, she had identified Mr. Bishop as a poor performer based on his 2015 work performance. It appears Ms. King saw the opportunity to end Mr. Bishop’s employment by taking advantage of his reaction. This is supported by the fact Ms. King did not advise Mr. Bishop to take real time to consider his resignation or try and address his concerns. Rather, she accepted his resignation immediately albeit requesting written confirmation. I am unable to rely on Ms. King’s account of the events as a result.

[54]        I also note that Ms. Gushue’s testimony is more consistent with Mr. Bishop’s account of not resigning than Ms. King’s contrary account. Ms. Gushue said Mr. Bishop told her when the email from Ms. King arrived that if this was a continuing task he would not do it and would leave the company. Ms. Gushue told him not to send a reply email, as he was clearly angry.

[55]        Ms. Gushue also overheard a subsequent conversation. After Mr. Bishop’s call with Ms. King, another co-worker asked him what had happened. He said: “Sheila told me if I am refusing to do the work orders and resigning I need this in writing by the end of the day”. Ms. Gushue said she asked him if he was sure he made the right decision and he said yes. There was much cross-examination on whether Ms. Gushue heard Mr. Bishop say he was resigning or had resigned. Ultimately, she agreed Mr. Bishop indicated he “was resigning”. Indeed, she agreed she never heard him say he had resigned.

[56]        Ms. Gushue said the next day Mr. Bishop called to ask her for advice on a retirement/resignation letter. In doing so, however, he told her as he had “already been walked out” he was not sending it. All of the above is more consistent with Mr. Bishop not having resigned or at least not having finalized his resignation.

[57]        Ms. Gushue did say that Mr. Bishop appeared disgruntled and was seeking other job opportunities ever since she began work in 2010; however, that was not reflected in his performance reviews which were positive until 2015.

[58]        Mr. Mikes’ testimony is also more consistent with Mr. Bishop’s version of the events. While Mr. Mikes indicated that Ms. King asked him to walk Mr. Bishop out of the office because he had resigned, in the conversation in his office Mr. Bishop said he had had enough of the situation and would be resigning from the company. Mr. Mikes asked Mr. Bishop if he would be sending a letter to Ms. King and he indicated he would. This is also consistent with Mr. Bishop not having resigned.

[59]        The only discordant note in Mr. Mikes’ testimony is that Mr. Bishop did not seem upset. Rather, he said Mr. Bishop was calm like he had accepted the situation. However, Mr. Mikes is the only witness to indicate that Mr. Bishop was not upset. In any case, his meeting with Mr. Mikes occurred sometime after his heated conversation with Ms. King and he was friends with Mr. Mikes which may have calmed his anger.

[60]        On the third factor, the series of emails between Ms. King and Ms. Pereira demonstrate that Rexel acted in haste to confirm Mr. Bishop’s resignation. Ms. King’s initial email on January 5, 2016 says Mr. Bishop had “refused to provide his letter of resignation”. Despite this indication that further steps would be needed to clarify the situation, this concern was ignored in an apparent rush to finalize the resignation. Rexel appeared more concerned with ending Mr. Bishop’s employment than clarifying his intentions.

[61]        As I conclude Mr. Bishop did not resign, I must consider whether Rexel terminated his employment.

[62]        I conclude Mr. Bishop was terminated on January 4, 2016 based on the evidence, objectively viewed. Mr. Bishop was escorted from the office by a manager sometime before the end of his shift. While Rexel argues being relieved of one’s duties less than an hour before the end of their shift after an insubordinate, angry outburst is not a termination, Mr. Bishop was also asked for his keys which confirmed that he could no longer access his work and that his termination was final.

[63]        I also note Rexel’s “acceptance” of his purported letter of resignation, as reflected in the letter from Rexel which Mr. Bishop received two days later, would have made the termination seem definitive.

[64]        A number of cases with analogous circumstances support this conclusion. In Balogun, the Court found the “delivery of the [Record of Employment] clearly communicated to the plaintiff that the employer considered the employment relationship to have ended”, notwithstanding that the Record of Employment listed “quit” as the reason for the end of the employment even though the employee, in his view, had not quit: paras. 36, 24. On this logic, Mr. Bishop would have considered his employment to have ended by being informed that Rexel had accepted his resignation in the letter, even though he had sent no such letter and, in his view, he had not resigned.

[65]        Additionally, in Maguire v. Sutton, [1998] B.C.J. No. 138 (S.C.), a termination of an individual who was said to have resigned was founded on the employer’s words (to the effect of) “I think we should part company”:  paras. 39, 57. Following from this, Mr. Bishop was terminated on learning that Rexel had accepted his professed resignation despite having made some indications about his intention to resign beforehand.

[66]        Finally, in Lelievre, the employer was found to have terminated the employee when it demanded the return of company property, including her keys, notwithstanding that it made this request after the plaintiff had expressed her intention to resign: at para. 64. Accordingly, Mr. Bishop was terminated after Mr. Mikes asked him to return his keys despite having expressed some intention to resign beforehand.

[67]        Having decided Mr. Bishop was wrongfully dismissed, I will now determine the appropriate notice period.

[68]        Mr. Bishop maintains 23 months is an appropriate notice period. He relies on a number of cases which set the notice period at close to one month per year of service.

[69]        He also provided a series of cases in which the individual had a similar age, length of service and employment duties. The notice periods in those cases range from 10 to 24 months.

[70]        Rexel says a period of 16 months is more appropriate. It distinguishes the cases which set the notice period at one month per year of service largely by pointing to the different function or role the individual played in the company. It also says many of those cases involved special circumstances which led to an increase in the notice period.

[71]        Rexel also relies on a number of cases with similar facts. The range in these cases extends from 10 to 16 months.

[72]        The test for what constitutes reasonable notice is set out in the leading case of Ansari v. B.C. Hydro & Power Authority, 1986 CanLII 1023 (BC SC), [1986] B.C.J. No. 3005 (S.C.), aff’d [1986] B.C.J. No. 3006 (C.A.) as follows:

[73]        Also, in Saalfeld v. Absolute Software Corporation, 2009 BCCA 18, the Court of Appeal instructed that reasonable notice periods in wrongful dismissal cases should be assessed with regard to past case law concerning employees in like circumstances: at para. 14.

[74]        The question of reasonable notice is fact specific.

[75]        Mr. Bishop is 61 years old and worked for Rexel for 27 years. He was a buyer in Rexel’s purchasing department, which is largely similar to a clerical position. His applications for new employment indicate some availability of similar employment. While he does not have the university degree required in some of the job postings or experience as a buyer in a field other than electrical parts, he does have significant experience as a buyer.

[76]        I conclude reasonable notice is 20 months in the circumstances of this case. I arrived at this conclusion based on my application of the factors noted in Ansari and with guidance from past relevant case law.

[77]        Applying the first of the Ansari factors, employment function, Mr. Bishop’s role in the company was mainly clerical in nature. As a result, his position was not so specialized that it would contribute to unique difficulties in finding future employment: Wright v. Kimberly-Clark Canada Inc., [1995] O.J. No. 1566 (Ct. J. (Gen. Div.) at paras. 31-32; Moody v. Telus, 2003 BCSC 471 at paras. 33-34.

[78]        Regarding the second factor, equivalent alternative employment, there is some alternative employment available to him, based on his applications for new employment, and that although he may not meet all of the necessary qualifications for those jobs his prospects of gaining that employment are good given his experience in buying.

[79]        On age, Mr. Bishop at 61 is reaching the normal age of retirement. This could likely pose some troubles with finding alternative employment. In any case, this factor requires a longer notice period.

[80]        On length of service, Mr. Bishop has worked for Rexel for 27 years. That is undoubtedly a longer period of time and is deserving of a longer notice period.

[81]        Past case law provided some assistance on this issue as well. No case cited by either party was particularly relevant; most involved individuals in management or other positions more specialized than Mr. Bishop’s clerical role. Still, I found Jamieson v. Finning International Inc., 2009 BCSC 861 most relevant and helpful on the facts. Mr. Jamieson was a 53-year-old salesperson who had worked for the company for almost 21 years. He was ultimately awarded 18 months’ notice. Mr. Bishop as a buyer had a comparable position to Mr. Jamieson. He also worked for Rexel for a comparable period of time. Yet. Mr. Bishop at 61 is considerably older in age which warrants a greater notice period.

[82]        There is an issue with respect to how I should treat the “juniority” of Mr. Bishop’s position. As indicated in David Harris, Wrongful Dismissal (Toronto, Ont.: Carswell, 1989) (loose-leaf updated 2016) vol 2 at p. 4-48.6:

[83]        As indicated, I have decided to simply treat like-cases alike, and rely more thoroughly on the cases involving individuals in similar positions to Mr. Bishop than cases involving more managerial or specialized positions.

[84]        I also note while some cases assign one month per year of service, there is a rough upper limit of 18-24 months. I took this limit into account in arriving at 20 months’ notice.

[85]        I now turn to whether there should be a reduction in the damages for failing to mitigate the damages.

[86]        Rexel’s main argument with respect to mitigation is that Mr. Bishop failed to mitigate by declining its offer of re-employment which came shortly after Mr. Bishop informed Rexel that he had not resigned.

[87]        Mr. Bishop says that it was not unreasonable for him to deny Rexel’s offer of re-employment given the lack of trust and animosity that had developed between the parties since the alleged resignation.

[88]        In the alternative, Rexel argues Mr. Bishop failed to mitigate his damages by failing to seek out alternative employment in a timely fashion.

[89]        Mr. Bishop disagrees and says the evidence establishes that he did satisfy his duty to mitigate by properly seeking out alternative employment.

[90]        If an employee declines an offer of re-employment from the former employer after dismissal, he or she may be found to have failed to mitigate his damages and the award will be reduced on the basis of that failure to mitigate.

[91]        However, the onus is on the employer to show the employee acted unreasonably in rejecting an offer of re-employment: Evans v. Teamsters Local Union No. 31, 2008 SCC 20 at para. 30.

[92]        The Supreme Court set out the test for whether an employee failed in his duty to mitigate by rejecting an offer of re-employment from a former employee in Evans at para. 30:

[93]        This analysis must be contextual. In fact, the Supreme Court highlighted a “critical element” that the employee “‘not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation’”: Evans at para. 30.

[94]        The Court of Appeal in Fredrickson v. Newtech Dental Laboratory Inc., 2015 BCCA 357, noted that the full nature of the employment relationship must be considered when deciding whether an offer of re-employment should have been accepted, including the obligations of good faith or fidelity on the part of both the employer and employee, consistent with the nature of the work and the workplace: Fredrickson at para. 29.

[95]        Further, the Court made clear that the ongoing level of trust between the employer and employee must be considered when assessing such an offer: Fredrickson at para. 29.

[96]        The Court also noted that “it is an infrequent case that requires the employee to accept re-employment”: Fredrickson at para. 33.

[97]        The assessment of the mitigation issue is also fact specific.

[98]        Rexel learned on February 3, 2016 by a letter from Mr. Bishop’s counsel that he took the position he had not resigned. A re-employment offer was made two weeks later on February 17, 2016.

[99]        On February 22, 2016, counsel for Mr. Bishop rejected that offer.

[100]     The re-employment offer of February 17, 2016 was on the same terms and conditions as Mr. Bishop’s previous position and offered compensation back to the date of his dismissal. Accordingly, Mr. Bishop was being asked to return without a loss in wages.

[101]     The rejection in large part is argued to be reasonable because of a lack of mutual understanding and respect between Mr. Bishop and Rexel. This is noted as important in Evans, Fredrickson, and Farquhar v. Butler Brothers Supplies Ltd. (1988), 1988 CanLII 185 (BC CA), 23 B.C.L.R. (2d) 89 (C.A.). In Farquhar, the Court said at p. 95:

[102]     Rexel, however, maintains the relationship was not acrimonious despite the fact Mr. Bishop had commenced litigation. His co-workers treated him with kindness and his phone conversation with Ms. King was not hostile. He and Ms. King had not had a major disagreement in the past and most of his dealings with Ms. King were by email.

[103]     Mr. Bishop says, however, the trust between the parties was broken for essentially two reasons. First, he did not think Ms. King would treat him fairly if he returned. Presciently, Ms. King admitted in cross-examination that if Mr. Bishop had accepted Rexel’s February offer of re-employment, there was a significant likelihood that she would have nominated him for termination later in 2016 in any event.

[104]     While Rexel says Mr. Bishop did not know that was her plan and Ms. King did not have the authority to terminate Mr. Bishop, she exhibited a rush to judgment in accepting Mr. Bishop’s alleged resignation and having him escorted from the office. This reasonably raised a serious concern for Mr. Bishop about his treatment from Ms. King who was and would continue to be his supervisor should he accept the offer.

[105]     Furthermore, I accept Mr. Bishop’s testimony that he was humiliated by the manner of his termination when escorted out of the building by management part way though his shift. This manner of termination has been found to demonstrate a significant deterioration in an employment relationship: Parks v. Vancouver International Airport Authority, 2005 BCSC 1883.

[106]     While Rexel says Ms. King was entitled to do this due to security concerns, the evidence does not establish the existence of any such concerns.

[107]     I also note Mr. Bishop perceived a fundament breach of trust reflected in Rexel’s January 5, 2016 letter which purported to accept his resignation letter of January 4, 2016. As Mr. Bishop had sent no such letter, this was reasonably seen as a deceptive move by his employer.

[108]     Ultimately, there was clearly a breach of trust and some animosity between the parties. Therefore, I conclude this is not one of those rare cases where the employee should have accepted re-employment in order to mitigate his losses.

[109]     I also conclude Mr. Bishop has not failed to mitigate otherwise. He has applied for at least nine jobs which he was qualified for. Although he has not yet been hired, that is not for want of trying and I do not fault him for his present lack of success.

[110]     In summary, I find the following:

[111]      If the parties cannot agree on costs, they may apply to this Court within 60 days of this judgment for a determination on the issue.

[112]     Finally, I thank both counsel for their thoughtful and helpful submissions in this matter.