Products & Services

Court Testimony from Experts @ BEC

Excerpt from Stewart v. DIGI Canada Incorporated

[2007] ABQB 662 (CanLII)


[17] As the plaintiff has proved his claim for the loss of wages he is entitled to 13 months salary based on an annual rate of $112,000 per annum. From there should be deducted the severance pay that he already received and the mitigated earnings of $15,599.03.

[18] In addition, the plaintiff has proven his entitlement to 13 months of lost benefits of $14,300. This is based on 13 months of loss and a multiplier of $1,100 per month based on the actuarial evidence agreed upon by the parties. Although Cara L. Brown did not give evidence, her report was filed by agreement and the parties did reach agreement that I utilize a rate of $1,100 per month for the benefit loss in calculating damage if I found for the plaintiff. The actuarial report indicates that the amount of $1,100 per month is made up of both traditional health care benefits and the loss of use of the leased vehicle. The vehicle loss was calculated utilizing the Canada Revenue Agency standby charges upon which the plaintiff would presumably have been taxed. Although the monthly benefit cost was agreed upon by the parties, the approach taken by Ms. Brown appears both reasonable and logical.

[19] The plaintiff was driving a leased vehicle supplied to him by his employer that he had picked out and equipped as he wished. The employer had indicated to him that he could buy out that vehicle at the end of the lease. The plaintiff lost that right once the vehicle was surrendered back to the defendant at the defendant’s demand. This constitutes damage only if the vehicle value at the date of buyout is greater than the buyout cost. The actuarial report prepared by Cara Brown admitted as an exhibit in these proceedings indicates that the difference between the value of the vehicle and the buyout price on the lease termination is $12,875. To earn this right however, the plaintiff would have to pay taxes on a monthly taxable benefit of approximately $335 per month. There was no evidence given about Mr. Stewart’s tax rate however, his 2004 T1 General was made an exhibit in these proceedings. It shows that on earnings of about $112,000 he had $32,000 deducted and received a refund of close to $6,000. In short he paid roughly $28,000 on $112,000 of income which absent any specific evidence is close enough to 25% that I will assume a 25% tax rate. Thus he would have to earn the benefit of the right to purchase the car, by staying employed and by paying about $85 per month in taxes which of course he did not pay. As a result $1,105.00 should be deducted from Cara Brown’s final assessment to deal with tax consequence and to place the plaintiff in the position he had been in if the defendant had not breached the employment contract. His vehicle loss is thus $11,770.