Espey v. Chapters Inc., (1998) 225 A.R. 68 (QB)

• Judge: Fruman, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 22, 1998
• Citations: (1998), 225 A.R. 68 (QB)

Espey v. Chapters Inc. (1998), 225 A.R. 68 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. AU.054

Bernice Espey (applicant) v. Chapters Inc. (respondents)

(No. 9701-06582)

Indexed As: Espey v. Chapters Inc.

Alberta Court of Queen's Bench

Judicial District of Calgary

Fruman, J.

April 22, 1998.

Summary:

Espey's position as a manager with Chapters Inc., a bookstore, was terminated after 12.5 years. She was given four weeks working notice and four weeks salary. She sued for wrongful dismissal and applied for summary judgment. Chapters Inc. argued that this was not an appropriate case for summary judgment.

The Alberta Court of Queen's Bench granted summary judgment and held that appropriate notice was 11 months less two months for Espey's failure to mitigate her damages.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dis­missal - What constitutes reasonable notice - Espey's position as a manager with Chapters Inc., a bookstore, was terminated after 12.5 years - She was 52 with a grade twelve education - It was the only job she had had since raising her family - She received four weeks working notice and four weeks salary - She refused a clerical position which offered a material reduction in salary and an erosion of managerial responsibilities - She sued for wrongful dismissal - The Alberta Court of Queen's Bench held that the appropriate notice period was 11 months less two months for Espey 's failure to mitigate - Her refusal to accept the clerical position was not unrea­sonable - However, her job search was "lackadaisical and unprofessional" for someone seeking a managerial position.

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - [See Master and Servant - Topic 8000 ].

Practice - Topic 5702

Judgments and orders - Summary judg­ments - Jurisdiction or when available - An employee sued for wrongful dismissal and sought summary judgment under rule 159 -The employer argued that summary judg­ment was inappropriate because, inter alia, an action for wrongful dismissal required the exercise of judicial discretion in deter­mining the sufficiency of the notice period, quantifying damages and considering miti­gation - The Alberta Court of Queen's Bench rejected the argument and granted summary judgment - The law and facts were clear - There were no credibility issues - All that was required was an appli­cation of the law to the facts - Although this required the exercise of judicial discre­tion, nothing in rule 159 prevented such a judicial exercise - The court would not be assisted by a trial - See paragraphs 4 to 28.

Cases Noticed:

Mac-Mel Financial Corp. v. Laydor Oil Reclaimers Ltd. et al., [1997] A.R. Uned. 436, refd to. [para. 8].

Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), red to. [para. 12].

Bagby v. Gustavson International Drilling Co. (1980), 24 A.R. 181 (C.A.), refd to. [para. 12].

Alberta v. Wenley Enterprises & Sales Ltd. et al. (1985), 66 A.R. 232 (Q.B.), refd to. [para. 13].

Smith v. Crain, [1990] A.J. No. 509, refd to. [para. 18].

Meija v. Edmonton Running Room Ltd., [1991] A.J. No. 1027, refd to. [para. 19].

Parkwood Forest Products Ltd. v. Kehler (1986), 75 A.R. 245; 34 D.L.R.(4th) 386 (C.A.), refd to. [para. 20].

Christianson v. North Hill News Inc. (1993), 145 A.R.. 58; 55 W.A.C. 58; 13 Alta. L.R.(3d) 78 (C.A.), refd to. [para. 40].

Statutes Noticed:

Rules of Court (Alta.), rule 159(1) [para. 5]; rule 159(3) [para. 6]; rule 159(5) [para. 7].

Authors and Works Noticed:

Levitt, H.A., The Law of Dismissal in Canada (2nd Ed. 1992), p. 234 et seq. [para. 13].

Stevenson and Cote, Civil Procedure Guide (1992), p. 482 et seq. [para. 17].

Counsel:

C.G. Burz, for the applicant;

B.B. Johnston, for the respondent.

This application was heard before Fruman, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment orally on April 22, 1998.