Canadian Pacific v. Dick,
Jurisdiction | New Brunswick |
Judge | Ryan, Drapeau and Larlee, JJ.A. |
Neutral Citation | 2000 NBCA 10 |
Citation | (2000), 230 N.B.R.(2d) 39 (CA),2000 NBCA 10,230 NBR (2d) 39,[2000] NBJ No 373 (QL),100 ACWS (3d) 251,4 CCEL (3d) 6,230 NBR(2d) 39,230 N.B.R.(2d) 39,(2000), 230 NBR(2d) 39 (CA),[2000] N.B.J. No 373 (QL) |
Date | 24 February 2000 |
Court | Court of Appeal (New Brunswick) |
Dick v. Cdn. Pacific Ltd. (2000), 230 N.B.R.(2d) 39 (CA);
230 R.N.-B.(2e) 39; 593 A.P.R. 39
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2000] N.B.R.(2d) TBEd. OC.010
Canadian Pacific Limited (defendant/appellant) v. Harold Dick (plaintiff/respondent)
(145/99/CA; 2000 NBCA 10)
Indexed As: Dick v. Canadian Pacific Ltd.
New Brunswick Court of Appeal
Ryan, Drapeau and Larlee, JJ.A.
September 27, 2000.
Summary:
The plaintiff resigned from his employment. He sued his former employer for damages, claiming that he had been constructively dismissed.
The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 214 N.B.R. 341; 547 A.P.R. 341, allowed the plaintiff's action and assessed damages. The employer appealed. The plaintiff cross-appealed.
The New Brunswick Court of Appeal dismissed the appeal and the cross-appeal.
Damages - Topic 1326
Exemplary or punitive damages - Wrongful dismissal - The plaintiff, a long time employee, was the purchasing manager of CP's General Purchasing Department - CP informed him that it intended to cut his department's staff - The plaintiff resigned, claiming that he was constructively dismissed - The plaintiff sued CP, seeking inter alia, punitive or exemplary damages - The New Brunswick Court of Appeal affirmed that the plaintiff was constructively dismissed - The court refused to interfere with the trial judge's decision not to award punitive or exemplary damages - See paragraphs 53 and 54.
Damages - Topic 6753
Contracts - Employment relationship or contract - For breach by employer - Mitigation by employee - The plaintiff, a long time employee, was the purchasing manager of CP's General Purchasing Department - CP informed him that it intended to cut his department's staff - The plaintiff resigned, claiming that he was constructively dismissed - He obtained alternative employment, but after 17 months chose not to seek further employment for personal reasons - The plaintiff sued CP, claiming that he was entitled to damages on the basis of a 42 month notice period - The New Brunswick Court of Appeal affirmed that the plaintiff was constructively dismissed - The court held that the trial judge was entitled to limit the plaintiff's damages to a 17 month notice period based on the plaintiff's decision not to seek alternative employment - See paragraph 52.
Master and Servant - Topic 1151
Contract of hiring (employment contract) - Implied terms - General - The New Brunswick Court of Appeal stated that "[a] demotion may take place, with or without a downgrade in the employee's job title or remuneration. A substantial downward change in status may, in and of itself, constitute a breach by the employer of a fundamental or essential term of the contract of employment. ... Given the right set of circumstances, courts may imply a term in the employment contract denying the employer an untrammelled discretion to make substantially negative changes to the employee's job status" - See paragraph 37.
Master and Servant - Topic 1261
Contract of hiring (employment contract) - Variation - General - [See Master and Servant - Topic 1151 ].
Master and Servant - Topic 7502
Dismissal of employees - General principles - What constitutes dismissal or discharge - Constructive dismissal - The plaintiff, a long time employee, was the purchasing manager of CP's General Purchasing Department - CP informed him that it intended to cut his department's staff - The plaintiff resigned, claiming that he was constructively dismissed - The New Brunswick Court of Appeal held that the plaintiff was constructively dismissed - CP's decision to downsize the General Purchase Department entailed a loss of job status and prestige - It worsened the conditions under which the plaintiff was required to work and would inevitably aggravate his health and work-related problems - Therefore, the decision amounted to a fundamental change in the plaintiff's employment contract - See paragraphs 33 to 44.
Master and Servant - Topic 7502
Dismissal of employees - General principles - What constitutes dismissal or discharge - Constructive dismissal - [See Master and Servant - Topic 1151 ].
Master and Servant - Topic 7712
Dismissal of employees - Damages for wrongful dismissal - Punitive or vindictive damages - [See Damages - Topic 1326 ].
Master and Servant - Topic 8000
Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - [See Damages - Topic 6753 ].
Master and Servant - Topic 8064
Dismissal without cause - Damages - Mitigation - [See Damages - Topic 6753 ].
Master and Servant - Topic 8152
Resignation - When resignation takes effect - [See Master and Servant - Topic 8704 ].
Master and Servant - Topic 8704
Dismissal - Practice - Limitation periods - The plaintiff, a long time employee, was the purchasing manager of CP's General Purchasing Department - In mid-December 1988, CP informed the plaintiff that it intended to cut his department's staff - On December 28, 1988, the plaintiff told a superior that he "would be resigning" - The superior told him to send in the necessary forms - The plaintiff sent in his resignation on January 4, 1989 - CP accepted his resignation on January 6, 1989 - The plaintiff commenced a constructive dismissal action on December 30, 1994 - CP argued that the action was barred by the six year limitation period (Limitation of Actions Act, s. 9) - The New Brunswick Court of Appeal affirmed that the plaintiff's action was not statute barred - The plaintiff's resignation was not a fait accompli on December 28, 1988 - His cause of action only arose in early January 1989 - See paragraphs 46 to 50.
Cases Noticed:
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. 2].
Farber v. Compagnie Trust Royal, [1997] 1 S.C.R. 846; 210 N.R. 161, refd to. [para. 33].
Farber v. Royal Trust Co. - see Farber v. Compagnie Trust Royal.
Smith v. Viking Helicopter Ltd. (1989), 31 O.A.C. 368; 24 C.C.E.L. 113 (C.A.), refd to. [para. 35].
Saint John Shipbuilding Ltd. v. Snyders (1989), 100 N.B.R.(2d) 14; 252 A.P.R. 14 (C.A.), refd to. [para. 35].
Brennan v. Henley Publishing Ltd. (1997), 188 N.B.R.(2d) 338; 480 A.P.R. 338 (C.A.), refd to. [para. 35].
Dickinson v. Connell Chrysler Ltd., [2000] N.B.R.(2d) (Supp). No. 49 (T.D.), refd to. [para. 36].
Lynch v. Carter (Mac) Ltd. (1995), 169 N.B.R.(2d) 202; 434 A.P.R. 202 (T.D.), refd to. [para. 36].
Perkins v. Saint John Shipbuilding Ltd. (1989), 92 N.B.R.(2d) 344; 236 A.P.R. 344 (C.A.), refd to. [para. 36].
Johnson v. Moncton Chrysler Dodge (1980) Ltd. (1990), 104 N.B.R.(2d) 315; 261 A.P.R. 315 (T.D.), varied (1991), 114 N.B.R.(2d) 192; 289 A.P.R. 192 (C.A.), refd to. [para. 36].
Duplessis v. Irving Pulp & Paper Ltd., Irving (J.D.) Ltd. and Irving (1983), 47 N.B.R.(2d) 11; 124 A.P.R. 11 (C.A.), refd to. [para. 36].
Sherrard v. Moncton Chrysler Dodge (1980) Ltd. (1990), 104 N.B.R.(2d) 334; 261 A.P.R. 334 (T.D.), affd. (1990), 113 N.B.R.(2d) 355; 285 A.P.R. 355 (C.A.), refd to. [para. 36].
Orth v. MacDonald Dettwiler & Associates Ltd. (1986), 8 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 37].
Elliott v. Southam Inc. (1988), 88 A.R. 329; 59 Alta. L.R.(2d) 376 (Q.B.), refd to. [para. 37].
Shah v. Xerox Canada Ltd. (1998), 77 O.T.C. 171 (Gen. Div.), affd. (2000), 131 O.A.C. 44 (C.A.), refd to. [para. 40].
Whiting v. Winnipeg River Brokenhead Community Futures Development Corp. (1997), 116 Man.R.(2d) 89 (Q.B.), affd. (1998), 126 Man.R.(2d) 176; 167 W.A.C. 176; 159 D.L.R.(4th) 18 (C.A.), refd to. [para. 41].
Bramble et al. v. Medis Health and Pharmaceutical Services Inc. (1999), 214 N.B.R.(2d) 111; 547 A.P.R. 111 (C.A.), refd to. [para. 51].
Bishop v. Carleton Co-operative Ltd. (1996), 176 N.B.R.(2d) 206; 447 A.P.R. 206 (C.A.), refd to. [para. 51].
Corbin v. Standard Life Assurance Co. et al. (1995), 167 N.B.R.(2d) 355; 427 A.P.R. 355 (C.A.), refd to. [para. 52].
Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321, refd to. [para. 53].
Gauthier v. Canada (Attorney General) (2000), 225 N.B.R.(2d) 211; 578 A.P.R. 211; 185 D.L.R.(4th) 660 (C.A.), refd to. [para. 53].
Authors and Works Noticed:
Bruce, B.D., Work, Unemployment and Justice (1994), p. 129 [para. 34].
England, Geoffrey, Christie, Innis, and Christie, Merran, Employment Law in Canada (3rd Ed. 1998), vol. 2, paras. 13.24 [para. 49]; 13.36 to 13.49 [para. 37].
Mole, Ellen E., Wrongful Dismissal Practice Manual (Looseleaf), c. 3, paras. 3.48, 3.53.1 [para. 37].
Sherstobitoff, Nicholas W., Constructive Dismissal in Bruce, B.D., Work, Unemployment and Justice (1994), p. 129 [para. 34].
Counsel:
Wayne R. Chapman, Q.C., and Jeffrey R. Parker, for the appellant;
Thomas G. O'Neil, Q.C., and J. Michael Wirvin, for the respondent.
This appeal and cross-appeal were heard on February 24, 2000, by Ryan, Drapeau and Larlee, JJ.A., of the New Brunswick Court of Appeal. On September 27, 2000, Drapeau, J.A., delivered the following decision for the court.
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