Bodnarchuk v. RBC Life,

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Steel and Chartier, JJ.A.
• Neutral Citation: 2011 MBCA 18
• Date: 30 November 2010
• Court: Court of Appeal (Manitoba)

Bodnarchuk v. RBC Life (2011), 262 Man.R.(2d) 225 (CA);

      507 W.A.C. 225

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. FE.039

Wayne Curtis Michael Bodnarchuk (plaintiff/respondent) v. Assante Financial Management Ltd. (defendant/appellant) and RBC Life Insurance Company, William Carey, carrying on business under the firm name and style W.R. Carey Corporation and the said William Carey (defendants)

(AI 10-30-07397; 2011 MBCA 18)

Indexed As: Bodnarchuk v. RBC Life Insurance Co. et al.

Manitoba Court of Appeal

Scott, C.J.M., Steel and Chartier, JJ.A.

February 11, 2011.

Summary:

Bodnarchuk sued Assante Financial Management Ltd., RBC Life Insurance Co. and others. The claim against RBC Life related to its denial of Bodnarchuk's claim for long-term disability benefits. The action against Assante alleged wrongful dismissal, negligence, negligent misrepresentation, intentional infliction of mental suffering and emotional shock. It was also asserted that Assante, as agent for RBC Life, breached its duty to Bodnarchuk, contributing to denial of the disability benefits. Assante moved for summary judgment to dismiss the claim.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at [2009] Man.R.(2d) Uned. 76, granted the summary motion, and dismissed Bodnarchuk's action against Assante in its entirety. Bodnarchuk appealed.

The Manitoba Court of Queen's Bench, in a decision reported at (2010), 253 Man.R.(2d) 7, allowed Bodnarchuk's appeal and dismissed Assante's motion for summary judgment, with the exception of Bodnarchuk's claim for intentional infliction of mental suffering and emotional shock, which was dismissed. Assante appealed. Assante argued that Bodnarchuk's claim for wrongful dismissal ought to be summarily dismissed. The key question was whether the motions court judge erred in the exercise of her discretion in concluding that Bodnarchuk had demonstrated that his claim for damages for wrongful dismissal had a real chance of success.

The Manitoba Court of Appeal allowed the appeal in part.

Damages - Topic 6703

Contracts - Employment relationship or contract - General principles - Wrongful dismissal - The defendant applied for summary judgment - The motions court judge concluded that the defendant had raised a primary case for dismissal of the plaintiff's claim for damages for wrongful dismissal, but that the plaintiff, in response, had succeeded in demonstrating that his claim for damages, with one exception, had a "real chance of success" - The Manitoba Court of Appeal stated that "[t]here can be no doubt that the motions court judge was in error when she appeared to accept that a claim for 'general damages for pain and suffering' could be advanced in a wrongful dismissal proceeding" - However, having regard to her reasons as a whole, the judge could not have intended her remark to be a finding that as a principle of law there was an entitlement to general damages for pain and suffering in proceedings such as this - During the course of oral submissions, counsel for the defendant rightly conceded that general damages could be awarded stemming from a wrongful dismissal in two instances: firstly, for so-called "Wallace damages", where the employer engaged in conduct that was unfair or in bad faith; and secondly, where parties had contemplated at the time of the contract that a breach in certain circumstances would cause the plaintiff mental distress - See paragraphs 18 and 19.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - The Manitoba Court of Appeal stated that the "critical issue" before the court was whether the motions court judge exercised her discretion correctly after giving the plaintiff's action for wrongful dismissal a "good hard look" when she concluded that there was an arguable case for trial - The answer to that question required consideration of "the nature and extent of the burden upon a responding party to a summary judgment application once the moving party has demonstrated a prima facie case (in this instance, that [the plaintiff's] action should fail)" - The court, after reviewing the authorities of the past decade, stated that a significant factor was the deference due by an appellate court to a discretionary order - "Thus it can readily be seen that the burden on an appellant before this court in a Rule 20 summary judgment application is a high one indeed" - See paragraphs 32 to 37.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - The motions court judge concluded that the defendant had raised a primary case for dismissal of the plaintiff's claim for damages for wrongful dismissal, but that the plaintiff, in response, had succeeded in demonstrating that his claim for damages, with one exception, had a "real chance of success" - The defendant appealed - The Manitoba Court of Appeal allowed the appeal in part - The plaintiff's claim for damages was permitted to proceed to trial - The supporting medical evidence was demonstrably not strong; "but I cannot say that the experienced motions court judge erred in fact or in principle or that her decision is 'so "clearly wrong" as to yield a truly unjust result' in her determination that there was a sufficient prospect of success ... Rule 20 is not a shortcut to deny a plaintiff with an apparently real case of his/her day in court" - However, with respect to the plaintiff's asserted diminution of compensation, the judge erred - There was no hard evidence to support the assertion, but, at best, only a "theoretical possibility" that the claim might succeed - Accordingly, the appeal was allowed with respect to that claim, but was otherwise dismissed - See paragraphs 38 to 41.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See second Practice - Topic 5708 ].

Practice - Topic 8825.6

Appeals - General principles - Duty of appellate court on reviewing summary judgment decisions - [See first Practice - Topic 5708 ].

Cases Noticed:

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 8].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 10].

Homestead Properties (Canada) Ltd. v. Robert - see Homestead Properties (Canada) Ltd. v. Sekhri et al.

Towers Ltd. v. Quinton's Cleaners Ltd. et al. (2009), 245 Man.R.(2d) 70; 466 W.A.C. 70; 2009 MBCA 81, appld. [para. 11].

Perth Services Ltd. v. Deloitte Haskins & Sells et al., [2005] Man.R.(2d) Uned. 4; 2005 MBCA 14, refd to. [para. 13].

Beavis et al. v. PricewaterhouseCoopers Inc. (2010), 258 Man.R.(2d) 15; 499 W.A.C. 15; 87 C.P.C.(6th) 392; 2010 MBCA 69, refd to. [para. 13].

Blanco et al. v. Canada Trust Co. et al. (2003), 173 Man.R.(2d) 247; 293 W.A.C. 247; 2003 MBCA 64, refd to. [para. 5].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 17].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 17].

Hadley v. Baxendale (1854), 9 Ex. 341; 156 E.R. 145, refd to. [para. 19].

Goldstein et al. v. Freed & Freed International Ltd., [2000] Man.R.(2d) Uned. 36 (Q.B.), affd. [2000] Man.R.(2d) Uned. 118; 2000 MBCA 91, refd to. [para. 25].

Ungermann (Irving) Ltd. et al. v. Galanis and Haut (1991), 50 O.A.C. 176; 4 O.R.(3d) 545 (C.A.), refd to. [para. 25].

Simmons et al. v. Webb et al., [2008] O.T.C. Uned. S24; 84 C.C.E.L.(3d) 196 (S.C.), refd to. [para. 27].

Bru v. AGM Enterprises Inc. et al., [2008] B.C.T.C. Uned. F23; 2008 BCSC 1680, refd to. [para. 27].

Chapell v. Canadian Pacific Railway Co., [2010] A.R. Uned. 531; 29 Alta. L.R.(5th) 380; 2010 ABQB 441, refd to. [para. 27].

Bridgwater v. Stanhope et al., [2009] Man.R.(2d) Uned. 73; 2009 MBCA 126, refd to. [para. 31].

Hydro Electric Board (Man.) v. Inglis (John) Co. et al., [2000] Man.R.(2d) Uned. 183; 2000 MBQB 218, refd to. [para. 34].

Atlas Acceptance Corp. et al. v. Lakeview Development of Canada Ltd. et al. (1992), 78 Man.R.(2d) 161; 16 W.A.C. 161 (C.A.), refd to. [para. 39].

Statutes Noticed:

Rules of Court (Man.), Queen's Bench Rules, rule 20.01(3), rule 20.03(1) [para. 9].

Queen's Bench Rules (Man.) - see Rules of Court (Man.), Queen's Bench Rules.

Counsel:

S.Z. Raber and C.P. McNicol, for the appellant;

T.J. Lach, for the respondent.

This appeal was heard on November 30, 2010, before Scott, C.J.M., Steel and Chartier, JJ.A., of the Manitoba Court of Appeal. In reasons written by Scott, C.J.M., the Court delivered the following judgment dated February 11, 2011.