Previously printed in the LexisNexis Labour Notes
In Consbec Inc. v. Walker, 2016 BCCA 114, the
B.C. Court of Appeal significantly reduced the amount of damages
owed by Peter Walker to his former employer, Consbec Inc., and
provided valuable insight into the steps which must be taken by
employers in order to justify damages claims against former
This dispute began in 2002 after Walker resigned from employment
without notice. At trial, Consbec advanced several claims against
Walker, including a claim to the effect that he was competing
unfairly and had misappropriated confidential information. While
most of the claims were dismissed, the trial judge upheld
Consbec's claim for damages arising out of Walker's failure
to provide notice of resignation and ordered Walker to pay Consbec
more than $56,000 in damages.1
The damages were comprised of the costs incurred by Consbec in
transferring two existing employees from Ontario, which included
reimbursement for mileage, per diems and moving expenses.
B.C. Court of Appeal Decision
Before the B.C. Court of Appeal, Walker asserted that the trial
decision was flawed because Consbec had failed to prove that it had
suffered any damages.
The Court of Appeal agreed, noting that the trial judge had
failed to assess the amount of notice that Walker was obligated to
provide Consbec and finding that many of the expenses claimed by
Consbec had not been proved or established as necessary.
In particular, the Court described Consbec's decision to
have an employee drive between Ontario and British Columbia and
incur mileage and per diems in the process as
"unnecessary", given that the employee could have flown
between locations. The Court also found that Consbec had failed to
establish why it needed to relocate two employees to B.C. as
opposed to just one.
Accordingly, the Court of Appeal reduced the damages award to
$5,875, approximately 10 percent of what had been awarded at
There are several key lessons to be learned from this case:
The main purpose of the requirement on an employee to provide
notice of departure is to give the employer a reasonable period to
adjust to the departure. In determining the appropriate period of
notice in the absence of a written agreement, consideration will be
given to the employee's duties, responsibilities and length of
service and the time it would reasonably take to reallocate the
work or hire a replacement.
In determining damages, the measure of damages is the cost
incurred as a result of the employee's failure to provide
To justify an award of damages, an employer needs to establish
that the costs incurred were reasonable and necessary in the
circumstances.This case should also get employers thinking about
what steps they can take to eliminate or reduce the risk of their
employees leaving them in the lurch and quitting without notice.
After over a decade of legal wrangling, the legal fees incurred by
Consbec almost certainly exceeded the amount awarded through the
court process. Employers would be well served to implement
employment agreements with provisions clearly dictating the amount
of notice an employee has to provide on resignation from
employment. Had there been such agreement between Consbec and
Walker, their dispute might have been avoided in its entirety.
The last of these three points is perhaps the most significant
lesson to be taken from the Court's decision. It is a strong
indication that, going forward, employer claims for damages will be
subject to strict judicial analysis and scrutiny.
1 2014 BCSC 2070.
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