Fleming v. Calyniuk Restaurants Inc., (2007) 302 Sask.R. 131 (CA)

• Judge: Klebuc, C.J.S., Sherstobitoff and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 15, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 302 Sask.R. 131 (CA);2007 SKCA 85

Fleming v. Calyniuk Restaurants Inc. (2007), 302 Sask.R. 131 (CA);

      411 W.A.C. 131

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. AU.005

Calyniuk Restaurants Inc. (appellant) v. Daniel Fleming (respondent)

(No. 1165; 2007 SKCA 85)

Indexed As: Fleming v. Calyniuk Restaurants Inc.

Saskatchewan Court of Appeal

Klebuc, C.J.S., Sherstobitoff and Jackson, JJ.A.

August 17, 2007.

Summary:

The plaintiff worked as a manager for the defendant nightclub for four years and eight months. He sued the nightclub and its owner for wrongful dismissal.

The Saskatchewan Court of Queen's Bench, in a decision reported at 268 Sask.R. 295, allowed the action against the nightclub and dismissed it against the owner. The court awarded damages based on a reasonable notice period of 4.5 months. The nightclub appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Master and Servant - Topic 4207

Duties of servant - General - Fiduciary duty - The defendant nightclub alleged that it had just cause to dismiss the plaintiff because he was actively looking for a competing business to buy while still employed in a managerial position by the defendant - The Saskatchewan Court of Appeal held that the trial judge did not err by failing to apply the law of fiduciary duty in concluding that the plaintiff's activities did not constitute just cause for dismissal - The plaintiff was doing nothing more than scouting opportunities - He had not reached the point of opportunistically diverting his employer's resources to his or her own self interest rather than for the limited purpose authorized by the employer - No resource belonging to the employer was used in his activities - There was no evidence that the plaintiff served the defendant less than faithfully throughout his employment there - See paragraphs 29 to 38.

Master and Servant - Topic 4207

Duties of servant - General - Fiduciary duty - [See Master and Servant - Topic 7561 ].

Master and Servant - Topic 7561

Dismissal of employees - Grounds - Conflict of interest - The defendant nightclub alleged that it had just cause to dismiss the plaintiff because he was actively looking for a competing business to buy while still employed in a managerial position by the defendant - The trial judge held that this, in itself, did not constitute a conflict of interest - The plaintiff was scouting opportunities, but never reached the stage, before termination, of even negotiating to buy another business - The trial judge stated that "merely exploring to determine what alternative opportunities existed did not constitute pursuing one's own interest in conflict with a fiduciary duty owed to an employer" - The Saskatchewan Court of Appeal assumed without deciding that the plaintiff owed the defendant a fiduciary duty and held that the trial judge did not err in making this statement - When the words "on one's own time" were added, the statement did not offend the jurisprudence - See paragraphs 12 to 28.

Cases Noticed:

Canadian Aero Service Ltd. v. O'Malley et al., [1974] S.C.R. 592; 40 D.L.R.(3d) 371, refd to. [para. 13].

State Vacuum Stores of Canada Ltd. v. Phillips, [1954] 3 D.L.R. 621; 12 W.W.R.(N.S.) 489 (B.C.C.A.), refd to. [para. 14].

Wilcox and Marshall v. G.W.G. Ltd., [1986] 1 W.W.R. 567; 67 A.R. 144 (C.A.), dist. [para. 14].

Crawley v. Trans-Power Construction Ltd., [1996] B.C.T.C. Uned. E74 (S.C.), refd to. [para.14].

Felker v. Cunningham et al. (1998), 79 O.T.C. 139 (Gen. Div.), revd. (2000), 135 O.A.C. 172 (C.A.), dist. [para. 14].

Restauronics Services Ltd. et al. v. Forster et al., [2001] B.C.T.C. 922 (S.C.), revd. (2004), 195 B.C.A.C. 105; 319 W.A.C. 105 (C.A.), refd to. [para. 14].

Torcana Valve Services Inc. v. Anderson et al. (2007), 421 A.R. 157 (Q.B.), refd to. [para. 27].

Authors and Works Noticed:

England, Geoffrey, Wood, Roderick, and Christie, Innis, Employment Law in Canada, §§ 11.168, 11.169, 11.171 [para. 25].

Counsel:

Kevin Smith, for the appellant;

Daniel Tangjerd, for the respondent.

This appeal was heard on May 15, 2007, by Klebuc, C.J.S., Sherstobitoff and Jackson, JJ.A., of the Saskatchewan Court of Appeal. Jackson, J.A., delivered the following decision for the court on August 17, 2007.