Burns v. Sobeys Group Inc., 2008 NSSC 102

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 03, 2007
• Jurisdiction: Nova Scotia
• Citations: 2008 NSSC 102;(2008), 263 N.S.R.(2d) 385 (SC)

Burns v. Sobeys Group Inc. (2008), 263 N.S.R.(2d) 385 (SC);

    843 A.P.R. 385

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. AP.007

Deborah Irene Burns (plaintiff) v. Sobeys Group Inc., a body corporate (defendant)

(SK 217352; 2008 NSSC 102)

Indexed As: Burns v. Sobeys Group Inc.

Nova Scotia Supreme Court

Warner, J.

April 7, 2008.

Summary:

The plaintiff was a valued 17.5 year Sobeys employee when, without prior notice, she was advised that her position was terminated. She was offered alternative employment at the same salary, benefits and location, but 50% of the job was menial clerical work (which she felt was beneath her) and the balance of the job was undefined and yet to be determined. She was asked to respond by the next morning. The next morning, the emotional plaintiff, being sick and not having slept the night before, met briefly with the Vice President, complained about her treatment, and asked that someone from personnel or her supervisor call her. She turned in her key, but did not expressly quit or resign. Sobeys took the position that she quit, so no one called her. The next day, the plaintiff's lawyer wrote to Sobeys requesting a description of the alternative employment offered and what severance package was being offered, so that the plaintiff could assess her options. Two weeks later, Sobeys responded that the plaintiff had quit and offered a small severance package. The plaintiff sued for damages for constructive dismissal. Sobeys submitted that she had quit and, alternatively, failed to mitigate her loss by refusing to accept the alternative employment offered.

The Nova Scotia Supreme Court, in a judgment reported (2007), 260 N.S.R.(2d) 227; 831 A.P.R. 227, held that the plaintiff had not quit. Even if she had quit, she was constructively dismissed because the vague offer of alternative employment constituted a unilateral fundamental change to her employment contract. The court awarded 16 months' salary in lieu of reasonable notice. There was no failure to mitigate by declining the alternative employment. At issue was costs, particularly whether the "old" Tariff in existence when the action was commenced applied, the applicable scale and "amount" involved, whether the court should exercise its discretion to award a lump sum instead, the effect of a settlement offer and disbursements.

The Nova Scotia Supreme Court held that the "old" Tariff applied and using an amount involved of $60,000 and Scale 3 would result in $5,375 in costs to the plaintiff. As the plaintiff was entitled to a substantial contribution towards costs, and $5,375 fell short, the court exercised its discretion to award lump sum costs of $10,750, plus an extra $4,300 on account of the defendant's failure to accept the plaintiff's settlement offer for less than what she was awarded at trial.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - The plaintiff's action was commenced in March 2004, before the "new" Tariff for party and party costs was promulgated in September 2004 - The plaintiff obtained judgment for $55,000 plus prejudgment interest, costs and disbursements - The plaintiff, after incurring 60% of her costs, made an offer to settle for $40,000, which was rejected by the defendant - The Nova Scotia Supreme Court held that the "old" Tariff continued to apply to actions commenced before September 2004 - If the award under the "old" Tariff did not provide a substantial contribution towards costs, then the appropriate remedy was to award lump sum costs to achieve a substantial contribution - Based on an amount involved of $60,000, costs on scale 3 of the "old" Tariff resulted in costs of $5,375, which did not constitute a substantial contribution - Accordingly, the court exercised its discretion to award lump sum costs of $10,750 - The award was increased by $4,300 to reflect the defendant's failure to accept the plaintiff's settlement offer, which was made three months before trial, after the plaintiff had incurred 60% of her costs - The $4,300 reflected a doubling of the 40% of the plaintiff's costs incurred after the settlement offer - See paragraphs 1 to 24.

Practice - Topic 7134

Costs - Party and party costs - Disbursements - Photocopies or printing - A plaintiff claimed as a disbursement photocopying charges that exceeded what the lawyer's actual cost would be - The Nova Scotia Supreme Court held that the plaintiff was required to prove the actual cost of photocopying and that such cost was reasonable - The amount for which the plaintiff was entitled to recover as a disbursement was not necessarily the same amount that the lawyer was contractually entitled to recover from the plaintiff, as such contract may entitle the lawyer to include photocopying as a profit centre - The plaintiff had to prove the actual cost by way of affidavit evidence - See paragraph 27.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See Practice - Topic 7117 ].

Practice - Topic 7648

Costs - The tariffs, schedules, etc. - Effect of change - [See Practice - Topic 7117 ].

Cases Noticed:

Bevis et al. v. CTV Inc. et al. (2004), 228 N.S.R.(2d) 34; 723 A.P.R. 34; 2004 NSSC 209, refd to. [para. 4].

Little v. Chignecto Central Regional School Board (2004), 230 N.S.R.(2d) 1; 729 A.P.R. 1; 2004 NSSC 265, refd to. [para. 4].

Driscoll v. Crombie Developments Ltd. (2006), 247 N.S.R.(2d) 289; 785 A.P.R. 289; 2006 NSSC 262, refd to. [para. 4].

Sand, Surf and Sea Ltd. v. Nova Scotia (Minister of Transportation and Public Works) (2005), 237 N.S.R.(2d) 295; 54 A.P.R. 295; 2005 NSSC 278, refd to. [para. 4].

Conrad v. Bremner (2006), 242 N.S.R.(2d) 330; 770 A.P.R. 330; 2006 NSSC 99, refd to. [para. 4].

Williamson v. Williams et al. (1998), 223 N.S.R.(2d) 78; 705 A.P.R. 78 (C.A.), refd to. [para. 9].

Landymore et al. v. Hardy et al. (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410 (T.D.), refd to. [para. 10].

Morash v. Burke (2007), 252 N.S.R.(2d) 335; 804 A.P.R. 335; 2007 NSSC 68, refd to. [para. 11].

Knox v. Interprovincial Engineering Ltd. et al. (1993), 120 N.S.R.(2d) 288; 332 A.P.R. 288 (S.C.), refd to. [para. 26].

Counsel:

Randall P.H. Balcome, for the plaintiff;

G. Grant Machum and Mark Tector, for the defendant.

This matter was heard on June 26-28 and July 3, 2007, at Kentville, N.S., before Warner, J., of the Nova Scotia Supreme Court, who delivered the following judgment on April 7, 2008.