Bellini v. Ausenco Engineering Alberta Inc., (2016) 377 N.S.R.(2d) 107 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 24, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 377 N.S.R.(2d) 107 (SC);2016 NSSC 237

Bellini v. Ausenco Eng. Alta. Inc. (2016), 377 N.S.R.(2d) 107 (SC);

    1187 A.P.R. 107

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. SE.016

Robert Bellini (applicant) v. Ausenco Engineering Alberta Incorporated (respondent)

(Hfx. No. 443113; 2016 NSSC 237)

Indexed As: Bellini v. Ausenco Engineering Alberta Inc.

Nova Scotia Supreme Court

LeBlanc, J.

September 10, 2016.

Summary:

An employee sued his employer, alleging that he was wrongfully dismissed from his position as a Senior Mechanical Engineer after approximately three years of employment. The employer argued that the requirement of common law notice was ousted by a provision in the employment contract.

The Nova Scotia Supreme Court rejected the employer's argument, allowed the employee's action and held that the employee was entitled to six months' notice.

Contracts - Topic 7433

Interpretation - Ambiguity - Contra proferentem rule - [See Master and Servant - Topic 1010 ].

Master and Servant - Topic 1010

Contract of hiring (employment contract) - Interpretation - The Nova Scotia Supreme Court stated that a termination provision in an employment contract that could support more than one meaning should be read contra preferentum - See paragraph 10.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - Reasonable notice - What constitutes - An employee was hired as a Senior Mechanical Engineer by Projex Technologies on March 30, 2012 - In July 2013, Ausenco Engineering Alberta Inc. bought the company but continued the employee's employment, recognizing the former seniority date - The employee worked for Ausenco from July 22, 2013, until June 17, 2015, when his employment was terminated for lack of work - At issue was the reasonable notice period - The Nova Scotia Supreme Court determined that the employee was entitled to a reasonable notice period of six months - The court considered that the employees's job did not involve managerial responsibilities, that notice should be calculated from March 30, 2012, that the employee was now 61, and the availability of similar employment - See paragraphs 44 to 59.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - Reasonable notice - What constitutes - The Nova Scotia Supreme Court rejected the "rule of thumb" approach to determining reasonable notice (i.e., rejected using the formula of one month of notice per year of service as a starting point) - Rather, the Bardal v. Globe and Mail Ltd. case required an individualized approach - See paragraphs 47 to 48.

Master and Servant - Topic 8071

Dismissal without cause - Damages - Effect of contractual provision setting notice period - An employment contract provided that "... If it becomes necessary for us to terminate your employment for any reason other than cause, your entitlement to advance working notice or pay in lieu of such notice, will be in accordance with the provincial employment standards legislation" - At issue was whether the provision was sufficient to oust the common law notice requirements - The Nova Scotia Supreme Court held that a high level of clarity in termination provisions (i.e., the use clear and express language) was required to oust common law notice - What was required was significantly clearer and more specific that the language used here - The provision in this case was at best ambiguous as to whether the parties intended the statutory minimum to apply, or simply whether the applicable notice would be consistent with the legislation - The court was, therefore, not convinced that the termination provision ousted the employee's right to common law notice - See paragraphs 1 to 43.

Counsel:

James B. Green and Kelsey Black, Law Student, for the applicant;

Mark Tector and Michelle Black, for the respondent.

This application was heard in Halifax, N.S., on May 24, 2016, before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following decision on September 10, 2016.