Brunswick News Inc. v. Sears, (2012) 390 N.B.R.(2d) 167 (CA)

• Jurisdiction: New Brunswick
• Judge: Drapeau, C.J.N.B., Larlee and Green, JJ.A.
• Neutral Citation: 2012 NBCA 32
• Citation: (2012), 390 N.B.R.(2d) 167 (CA),2012 NBCA 32,390 NBR (2d) 167,[2012] NBJ No 258 (QL),[2012] N.B.J. No 258 (QL),390 NBR(2d) 167,(2012), 390 NBR(2d) 167 (CA),390 N.B.R.(2d) 167
• Date: 14 March 2012
• Court: Court of Appeal (New Brunswick)

Brunswick News Inc. v. Sears (2012), 390 N.B.R.(2d) 167 (CA);

    390 R.N.-B.(2e) 167; 1011 A.P.R. 167

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.B.R.(2d) TBEd. JL.044

Renvoi temp.: [2012] N.B.R.(2d) TBEd. JL.044

Brunswick News Inc., a body corporate (appellant) v. Timothy Sears (respondent)

(146-11-CA; 2012 NBCA 32)

Indexed As: Brunswick News Inc. v. Sears

Répertorié: Brunswick News Inc. v. Sears

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Larlee and Green, JJ.A.

March 14, 2012.

Summary:

Résumé:

Sears was employed as an advertising sales consultant with Brunswick News Inc. from 1995 until his resignation in 2011. Sears' income was substantially based on commission. Brunswick News adjusted the sales commission scheme, which resulted in a negative impact on Sears' income. Sears resigned and sued Brunswick News, alleging constructive dismissal because of a fundamental change in the terms of employment. A motion judge granted summary judgment for the constructive dismissal claim, but dismissed the motion for a direction of advance payment of special damages. Brunswick News appealed. Sears cross-appealed the motion judge's refusal to direct an advance payment of special damages.

The New Brunswick Court of Appeal dismissed the appeal and allowed the cross-appeal.

Master and Servant - Topic 7502

Dismissal or discipline of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - Sears was employed as an advertising sales consultant with Brunswick News Inc. from 1995 until his resignation in 2011 - Sears' income was substantially based on commission - Brunswick News adjusted the sales commission scheme, which resulted in a negative impact on Sears' income - Sears resigned and sued Brunswick News, alleging constructive dismissal because of a fundamental change in the terms of employment - A motion judge granted summary judgment for the constructive dismissal claim - Brunswick News appealed - The New Brunswick Court of Appeal dismissed the appeal - The motion judge applied the right test - Based on the following uncontradicted facts, the motion judge had evidence to find constructive dismissal: "Brunswick News dramatically reduced Mr. Sears' sales territory in geographic size; Mr. Sears' yearly sales volume/value of the sales territory was reduced from $800,000 to $429,000 a year; Brunswick News reduced Mr. Sears' sales commission from 10% to 5%.; Mr. Sears' sales targets for 2011 were set 10-15% above the 2010 sales achievements for his territory; Brunswick News eliminated Mr. Sears' 'Flyers Booking' commission earnings; Brunswick News reduced Mr. Sears' commission on Commercial Print Jobs from 20% on Brunswick News' revenue to 5% on a reduced portion of Brunswick News' revenue" - The motion judge concluded there was no room for doubt on what the outcome would be at trial on the issue of constructive dismissal - Having regard to the record and the applicable standard of review, that finding of liability was not reversible - The related grounds of appeal were without merit - See paragraphs 11 to 16.

Practice - Topic 5205

Trials - Severance of issues - Advance payment of special damages - Sears was employed as an advertising sales consultant with Brunswick News Inc. from 1995 until his resignation in 2011 - Sears' income was substantially based on commission - Brunswick News adjusted the sales commission scheme, which resulted in a negative impact on Sears' income - Sears resigned and sued Brunswick News, alleging constructive dismissal because of a fundamental change in the terms of employment - A motion judge granted summary judgment for the constructive dismissal claim, but dismissed the motion for a direction of advance payment of special damages - Sears cross-appealed the motion judge's refusal to direct an advance payment of special damages - The New Brunswick Court of Appeal allowed the cross-appeal - Once liability was found, an advance payment of damages should have followed, unless good cause was shown to the contrary - There was no principled basis for denying an advance payment to Sears - The effect of upholding the motion judge's summary judgment was that Sears was dismissed without reasonable notice - He was therefore legally entitled to damages in lieu of notice - See paragraphs 17 to 22.

Employeurs et employés - Cote 7502

Congédiement d'employés ou mesures disciplinaires - Principes généraux - Éléments constitutifs d'un congédiement ou d'un licenciement (y compris le congédiement implicite) - [Voir Master and Servant - Topic 7502 ].

Procédure - Cote 5205

Procès - Généralités - Paiement anticipé des dommages-intérêts - [Voir Practice - Topic 5205 ].

Cases Noticed:

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 5].

Shareline Systems Ltd. v. New Brunswick et al. (2001), 235 N.B.R.(2d) 162; 607 A.P.R. 162; 2001 NBCA 29, refd to. [para. 7].

Morrow v. Aviva Canada Inc. (2004), 279 N.B.R.(2d) 77; 732 A.P.R. 77; 2004 NBCA 100, refd to. [para. 7].

MacWilliams v. AMEC Americas Ltd. (2012), 388 N.B.R.(2d) 254; 1006 A.P.R. 254; 2012 NBCA 46, refd to. [para. 8].

Dick v. Canadian Pacific Ltd. (2000), 230 N.B.R.(2d) 39; 593 A.P.R. 39; 2000 NBCA 10, refd to. [para. 9].

Smith v. Agnew (2001), 240 N.B.R.(2d) 63; 622 A.P.R. 63; 2001 NBCA 83, refd to. [para. 18].

Jean v. Pêcheries Roger L. ltée et al. (2010), 354 N.B.R.(2d) 300; 913 A.P.R. 300; 2010 NBCA 10, refd to. [para. 20].

Fraser v. Brookville Carriers Van LP Inc. (2007), 319 N.B.R.(2d) 297; 823 A.P.R. 297 (C.A.), refd to. [para. 20].

Mayberry v. Hampton Golf Club Ltd. (2007), 322 N.B.R.(2d) 7; 829 A.P.R. 7 (T.D.), refd to. [para. 20].

Vautour v. Core States Atlantic Ltd., [2007] N.B.R.(2d) Uned. 115; 2007 NBQB 339, refd to. [para. 20].

C.J.G. v. L.T.G. (2011), 369 N.B.R.(2d) 202; 952 A.P.R. 202; 2011 NBCA 12, refd to. [para. 23].

Doucet et al. v. Spielo Manufacturing Inc. et al. (2011), 372 N.B.R.(2d) 1; 961 A.P.R. 1; 332 D.L.R.(4th) 407; 2011 NBCA 44, refd to. [para. 23].

Burns et al. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 219 et al. (2012), 383 N.B.R.(2d) 245; 991 A.P.R. 245; 2012 NBCA 13, refd to. [para. 23].

Authors and Works Noticed:

Harris, David, Wrongful Dismissal, Looseleaf (1989), §3.3B, pp. 3-32.45, 3-32.46 [para. 10].

Counsel:

Avocats:

Kelly T. VanBuskirk, for the appellant;

Michel C. Poirier, for the respondent.

This appeal and cross-appeal were heard and decided on March 14, 2012, by Drapeau, C.J.N.B., Larlee and Green, JJ.A., of the New Brunswick Court of Appeal. The following written judgment of the Court of Appeal was delivered in both official languages, by Larlee, J.A., on July 26, 2012.