Donovan v. New Brunswick Publishing Co., (1996) 184 N.B.R.(2d) 40 (CA)

• Judge: Rice, Ryan and Turnbull, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: December 18, 1996
• Jurisdiction: New Brunswick
• Citations: (1996), 184 N.B.R.(2d) 40 (CA);1996 CanLII 4832 (NB CA);184 NBR (2d) 40;[1996] NBJ No 601 (QL);469 APR 40

Donovan v. N.B. Publ. Co. (1996), 184 N.B.R.(2d) 40 (CA);

    184 R.N.-B.(2e) 40; 469 A.P.R. 40

MLB headnote and full text

[French language version follows English language version]

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

....................

New Brunswick Publishing Co. Ltd. (defendant/appellant) v. William L. Donovan (plaintiff/respondent)

(33/96/CA)

Indexed As: Donovan v. New Brunswick Publishing Co.

New Brunswick Court of Appeal

Rice, Ryan and Turnbull, JJ.A.

December 18, 1996.

Summary:

An employee sued his employer for dam­ages for wrongful dismissal.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 174 N.B.R.(2d) 23; 444 A.P.R. 23, allowed the action and awarded damages accordingly. The employer appealed. The employee cross-appealed the damage award.

The New Brunswick Court of Appeal, Rice, J.A., dissenting, dismissed the appeal and allowed the cross-appeal.

Master and Servant - Topic 7559

Dismissal of employees - Grounds - Insolence - Donovan was the executive sports editor of a newspaper at an annual salary of $46,000 - Donovan had worked there for 36 years - Donovan solicited a part-time public relations job (i.e., $8,000 to $10,000) with a local hockey team - After the discussions, Donovan was not invited to a team reception and news con­ference - Donovan was upset and left a message for the team president regarding the invitation (i.e., to "shove it") - The team had just become a $25,000 per year advertising customer of the newspaper - The newspaper dismissed Donovan for, inter alia, insolence - Donovan sued for damages on the ground of wrongful dis­missal - The New Brunswick Court of Appeal affirmed that a single incident of insolence did not justify dismissal.

Master and Servant - Topic 7561

Dismissal of employees - Grounds - Conflict of interest - Donovan was the executive sports editor of a newspaper - Donovan solicited a part-time public relations job (i.e., $8,000 to $10,000) with a local hockey team - Donovan had ex-pressed strong opinions regarding the team in his columns - The team became a $25,000 per year advertising customer of the newspaper - The newspaper dismissed Donovan on the ground of, inter alia, conflict of interest - The newspaper claimed that Donovan was trying to get money from the team in exchange for better coverage - Donovan submitted that he wanted to leave the newspaper and was willing to take the part-time position in the hope that it would become full-time (which it did) - The trial court held that there had been no conflict of interest - The New Brunswick Court of Appeal dismissed the employer's appeal.

Master and Servant - Topic 8007

Dismissal without cause - Notice of dis­missal - Reasonable notice - Long service employees dismissed - Donovan was the executive sports editor of a newspaper at an annual salary of $46,000 - Donovan had worked there for 36 years - Donovan solicited a part-time public relations job (i.e., $8,000 to $10,000) with a local hockey team - Subsequently, the newspa­per dismissed Donovan on the grounds of insolence and conflict of inter­est - A year later, Donovan obtained a posi­tion with another newspaper at a lower salary - Donovan sued for damages for wrongful dis­missal - The trial court ruled that Donovan was entitled to 18 months' notice less his earn­ings and pen­sion benefits from his new job - The New Brunswick Court of Appeal allowed the employee's cross-appeal and increased the notice period to 28 months.

Cases Noticed:

Bardal v. Globe & Mail Ltd., [1960] O.W.N. 253; 24 D.L.R.(2d) 140 (H.C.), consd. [para. 5].

Locke v. Avco Financial Services Canada Ltd. (1987), 85 N.B.R.(2d) 93; 217 A.P.R. 93 (T.D.), not apprvd. [para. 6].

Gordon v. Saint John Shipbuilding and Dry Dock Co. (1983), 47 N.B.R.(2d) 150; 124 A.P.R. 150 (T.D.), not apprvd. [para. 6].

Bishop v. Carleton Co-operative Ltd. (1996), 176 N.B.R.(2d) 206; 447 A.P.R. 206 (C.A.), folld. [paras. 8, 32].

Carnaghan v. Bernard Freedman Insurance Ltd. (1982), 16 A.C.W.S.(2d) 32 (N.S.S.C.), refd to. [para. 20].

Edwards v. Levy (1860), 2 F. & F. 94 (N.P.), refd to. [para. 20].

Lake Ontario Portland Cement Co. v. Groner, [1961] S.C.R. 553, refd to. [para. 24].

Duguay v. Maritime Welding and Rentals Ltd. (1989), 100 N.B.R.(2d) 212; 252 A.P.R. 212 (T.D.), refd to. [para. 24].

Tozer v. Hutchison (1869), 12 N.B.R. 548 (C.A.), refd to. [para. 24].

LeFurgey v. Royal Bank of Canada (1984), 56 N.B.R.(2d) 286; 146 A.P.R. 286 (T.D.), refd to. [para. 24].

Pearce v. Foster et al. (1886), 17 Q.B.D. 536 (C.A.), refd to. [para. 24].

Dey v. Valley Forest Products Ltd. (1995), 162 N.B.R.(2d) 207; 415 A.P.R. 207 (C.A.), folld. [para. 32].

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. 32].

Lightburn v. Mid Island Consumer Ser­vices Cooperative (1984), 4 C.C.E.L. 263 (B.C. Co. Ct.), refd to. [para. 32].

Emery v. Royal Oak Mines Inc. (1995), 11 C.C.E.L.(2d) 149 (Ont. Gen. Div.), refd to. [para. 32].

Trudeau-Linley v. Plummer Memorial Public Hospital (1993), 1 C.C.E.L.(2d) 114 (Ont. Gen. Div.), refd to. [para. 32].

Johnston v. Algoma Steel Corp. (1989), 24 C.C.E.L. 1 (Ont. H.C.), refd to. [para. 32].

Fraser v. Kelowna (City) (1993), 1 C.C.E.L.(2d) 127 (B.C.S.C.), refd to. [para. 32].

Authors and Works Noticed:

Levitt, Howard A., The Law of Dismissal in Canada (2nd Ed. 1992), p. 158 [para. 19].

Spears, Richard A., Dictionary of Slang and Euphemism (Abridged Ed. 1982), p. 364 [para. 19].

Counsel:

Rodney J. Gillis, Q.C., for the defen­dant/appellant;

John P. Barry, Q.C., and M. Shane Dugas, for the plaintiff/respondent.

This appeal and cross-appeal were heard on September 19, 1996, before Rice, Ryan and Turnbull, JJ.A., of the New Brunswick Court of Appeal.

On December 18, 1996, judgment for the Court of Appeal was delivered and the following opinions were filed:

Ryan and Turnbull, JJ.A. - see para­gra­phs 1 to 12;

Rice, J.A., dissenting - see paragraphs 13 to 34.