A British Columbia Supreme Court judge has corrected a calculation error in a wrongful dismissal case, ruling that an employee’s earnings after the notice period should not be deducted from their damages award.
The correction significantly increased the plaintiff’s award from about $13,000 to nearly $32,000, resolving what the court called a “patently unjust” error in the original calculation.
Case background
In Plank v. Hapnin Enterprises Ltd., the plaintiff, N.P., had sued her former employer for wrongful dismissal after being terminated on November 9, 2021.
N.P. had initially sought damages based on a 24-month notice period, but the trial judge determined 18 months was appropriate. The plaintiff had successfully mitigated her damages by finding new employment by January 2022.
The calculation error
The controversy arose from how the mitigation earnings were calculated in the original judgment. The trial judge had deducted the plaintiff’s entire earnings from her new employer for both 2022 and 11 months of 2023, despite having established an 18-month notice period that would have ended in May 2023.
This meant the plaintiff’s earnings for June through November 2023—a six-month period after the established notice period had expired—were incorrectly being deducted from her damages.
The court noted this was “a manifest error that should be corrected,” stating: “There is no basis in legal principle to use earnings of the wrongfully dismissed employee arising after the appropriate notice period to reduce the employee’s claim.”
The corrected calculation
The court recalculated the plaintiff’s damages by removing the six months of earnings that fell outside the 18-month notice period:
- The plaintiff’s total earnings for the 11 months in 2023 (ending November 2023) were $33,961.20
- The court calculated that six months of these earnings ($33,961.20 × 6/11 = $18,524.29) should not be deducted
- This left only $15,436.91 of 2023 earnings that legitimately fell within the notice period
The original judgment had incorrectly deducted the full $33,961.20 amount from the plaintiff’s award.
Legal authority for the correction
The court cited two sources of authority for making this correction:
- Rule 13-1(17) of the BC Rules of Court, which provides that “The court may at any time correct a clerical mistake in an order or an error arising in an order from an accidental slip or omission, or may amend an order to provide for any matter that should have been but was not adjudicated on.”
- The court’s inherent jurisdiction to correct errors, citing Buschau v. Rogers Communications Inc., where the BC Court of Appeal stated that a court has “the inherent jurisdiction to correct the order insofar as it did not reflect its manifest intention” and that “it cannot be in the interests of justice for the respondents to rely on that order to retain a sum to which they have no entitlement in principle.”
The defendant had argued that the court was functus officio (having fulfilled its function and thus lacking further authority), but the judge rejected this argument, noting that an order had not yet been entered and that the court maintained inherent jurisdiction to address the matter.
The original calculation versus the corrected calculation
The original calculation deducted the plaintiff’s total mitigation earnings of $64,988.18 ($31,026.98 from 2022 plus $33,961.20 from 2023) from the 18-month notice period damages of $78,297.60, resulting in an award of $13,309.42.
The corrected calculation reduced the mitigation amount by $18,524.29 (the six months of earnings after the notice period), bringing the total mitigation to $46,463.89 ($31,026.98 from 2022 plus $15,436.91 from the relevant portion of 2023).
When subtracted from the 18-month notice period damages of $78,297.60, this resulted in the corrected award of $31,833.71, plus pre-judgment interest.
For more information, see Plank v Hapnin Enterprises Ltd., 2025 BCSC 790 (CanLII).
