British Columbia Court of Appeal, 2009


The plaintiff R. Lewis was employed by the defendant Lehigh Northwest Cement Limited for 26 years. He was dismissed without cause following a 28 month medical leave of absence because there was no position available for him when he was able to return to work. The trial judge held that the plaintiff was entitled to 22 months' notice and damages in lieu of such. The plaintiff had opted for a lump sum payout of his retirement benefits upon dismissal and claimed an entitlement to the difference between the lump sum he received versus the sum he would have been eligible to receive had he received it at the end of the notice period. The trial judge rejected the plaintiff's claim related to pension benefits when calculating the quantum of damages. The plaintiff appealed this aspect of the decision arguing that he should have at the least been entitled to the effect of 22 months pensionable service on his pension entitlement.


The issue on appeal was whether the trial judge was correct to reject the plaintiff's measure of damages related to lost pension growth when assessing damages.


The Court of Appeal held that the trial judge correctly denied the claim as it was put forward by the plaintiff. The Court agreed that the plaintiff should not be compensated for the growth of his pension entitlement after he had withdrawn it from the fund.

However, the Court found that it was wrong to deny the plaintiff of the benefit he would have derived from the inclusion of 22 additional months of pensionable service in his pension calculation. The Court reasoned that the additional pension rights would have accrued from his additional pensionable service and that he had not waived his right to damages in this regard by taking a lump sum payout of his pension.

In calculating the award per the defendant's benefit entitlement formula, the court took into account the fact that the plaintiff had not contributed to the pension fund during the 22 month notice period.