Judge rejects age discrimination suit by Scotiabank manager

But awards wrongful dismissal damages

A Halifax bank-branch manager’s four-year-long pursuit of damages against the Bank of Nova Scotia, claiming he was discriminated against in advancement opportunities because of his age, has ended with a judge rejecting the allegation, but awarding the plaintiff $250,000 for other reasons.

Christopher Garner had sued his employer of 35 years first through the Human Rights Commission and then through the Supreme Court of Nova Scotia, claiming in both cases that he had been denied opportunities for advancement because of his age, and claiming constructive dismissal.

Garner began his suit for constructive dismissal when he was 59 years old, while still employed at the bank. He was terminated four years ago as he continued to pursue his lawsuit while managing the Scotiabank branch.

Associate Chief Justice Deborah Smith has ruled that Garner was not constructively dismissed. But she did find that Garner — who had received a “superior” overall achievement rating in his last full year — had been wrongfully dismissed and “was entitled to a notice period of 24 months.”

“In my view Mr. Garner was involuntarily terminated in the circumstances of the case,” wrote Justice Smith. “He was entitled to reasonable notice when the dismissal actually occurred.”

Contacted for comment, the Bank of Nova Scotia sent the Financial Post this statement: “We are satisfied with the outcome that the Bank did not discriminate against Mr. Garner. The Bank works hard to maintain a working environment where everyone is treated fairly and with respect, and the decision confirms that.”

In her 64-page decision the judge reviewed Garner’s time with the bank and his numerous attempts to get promoted, especially the last couple of years of his employment. She called him “a well-respected and successful manager of a large branch of the Bank.”

But while Smith agreed with Garner on certain points, she agreed with the bank, after reviewing the circumstances surrounding the various promotion opportunities, that he had not been passed over due to his age. “I am satisfied, and I find, that age was not a factor in the decision not to promote him.”

While Garner had asserted that, in meetings about promotional opportunities, the bank’s senior vice-president Peter Bessey had made comments relating to Garner’s age, the judge was not persuaded there was conclusive evidence of discrimination. “On a balance of probabilities, something was said by Mr. Bessey during this meeting about age discrimination. However, I am unable to conclude based on the evidence before me, specifically what was said or the context in which it was said.”

Given that the key issue “is whether Garner was discriminated against,” the judge ruled she was satisfied that “the Bank acted fairly and in good faith when considering Garner’s candidacy.”

However, she did agree with Garner that he had been terminated — and did not resign — and therefore was entitled to 24 months of base salary plus a prorated award for bonuses and benefits he would have received through the 24 months.