Garner v. Bank of Nova Scotia, (2015) 360 N.S.R.(2d) 200 (SC)

• Judge: Smith, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 15, 2014
• Jurisdiction: Nova Scotia
• Citations: (2015), 360 N.S.R.(2d) 200 (SC);2015 NSSC 122

Garner v. BNS (2015), 360 N.S.R.(2d) 200 (SC);

    1135 A.P.R. 200

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.045

Christopher Taylor Garner (plaintiff) v. The Bank of Nova Scotia (defendant)

(Hfx. No. 354371; 2015 NSSC 122)

Indexed As: Garner v. Bank of Nova Scotia

Nova Scotia Supreme Court

Smith, J.

April 22, 2015.

Summary:

The plaintiff was employed by the defendant bank for approximately 35 years. He filed a human rights complaint (age discrimination), when he was unsuccessful in getting a promotion. He subsequently withdrew the complaint and sued the bank, alleging age discrimination, constructive dismissal and tortious interference with contractual relations. The bank offered to continue the employment relationship if the plaintiff withdrew his action. The plaintiff refused and the bank terminated the plaintiff's employment without further notice. The plaintiff amended his pleadings to add a claim for wrongful dismissal.

The Nova Scotia Supreme Court first determined that it had jurisdiction to deal with the matter. The court held that the plaintiff was not constructively dismissed, but was wrongfully dismissed by the bank. The plaintiff was entitled to a notice period of 24 months. The court assessed damages accordingly.

Civil Rights - Topic 7069.03

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Retaliation or reprisal - The plaintiff, a long-time bank employee, filed a human rights complaint, alleging that the bank discriminated against him - He later withdrew the complaint and sued the bank, alleging constructive dismissal and discrimination - His employment with the bank was terminated - He amended his pleadings to add a wrongful dismissal claim - He claimed that the bank retaliated against him for taking proceedings against the bank (Canadian Human Rights Act, s. 14.1) - The Nova Scotia Supreme Court disagreed - The court found that the bank did not retaliate against the employee for filing the human rights complaint, nor did it retaliate against him in general - See paragraphs 211 to 213.

Damages - Topic 1326

Exemplary or punitive damages - Wrongful dismissal - [See Master and Servant - Topic 8000 ].

Damages - Topic 6750

Contracts - Employment relationship or contract - Breach by employer - Loss of bonus or profit sharing - [See Master and Servant - Topic 8000 ].

Evidence - Topic 4166

Witnesses - Privilege - Communications - General - Offers of settlement or settlement negotiations - [See both Evidence - Topic 4351 ].

Evidence - Topic 4351

Witnesses - Privilege - Particular relationships - Mediation privilege - The plaintiff, a long-time bank employee, alleged that the bank discriminated against him - The parties attempted mediation - After the mediation ended unsuccessfully, but while the parties were still together at the mediation facility, the bank's counsel made certain comments - Thereafter, the plaintiff sued the bank, alleging age discrimination, constructive dismissal, etc. - The plaintiff claimed that counsel's comments, unlike other comments made during the mediation, were not protected by settlement privilege and should be admitted into evidence - The Nova Scotia Supreme Court held that counsel's comments made at the mediation facility were prima facie protected by settlement privilege - Since there was no compelling or overriding interest of justice warranting an exception to settlement privilege being granted, the comments were privileged and not admitted into evidence - See paragraphs 28 to 48.

Evidence - Topic 4351

Witnesses - Privilege - Particular relationships - Mediation privilege - The Nova Scotia Supreme Court stated that "... Once parties have agreed to participate in without prejudice mediation, anything said at that mediation (subject to certain exceptions that will be discussed below) should be privileged, whether it is said as the parties enter the room, during the negotiations themselves, or as the parties are exiting the premises. The public policy reasons for developing this privilege are not served by parsing certain statements made at the beginning or end of the mediation and granting them less protection than would be accorded to statements made during the heart of the mediation" - See paragraph 35 - The court thereafter discussed the exceptions to settlement privilege - See paragraphs 37 to 43.

Master and Servant - Topic 7502

Dismissal of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - The plaintiff was employed by the defendant bank for approximately 35 years - He claimed that the bank discriminated against him on the basis of age when he was not promoted to district vice president - He sued the bank, alleging that he was constructively dismissed because the acts of discrimination breached the bank's duty of good faith and fair dealing - The Nova Scotia Supreme Court held that the plaintiff was not constructively dismissed - Age was not a factor in the decision not to promote him - His application was properly considered along with other qualified candidates - There was no breach of any alleged duty of good faith or fair dealing - There were no circumstances that would lead a reasonable person to conclude the bank no longer intended to be bound by the terms of the contract - See paragraphs 49 to 168.

Master and Servant - Topic 7502

Dismissal of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - The plaintiff, a long-time bank employee, sued the bank for constructive dismissal - The bank offered continued employment if the plaintiff withdrew his action - The plaintiff refused and the bank terminated him without further notice - The plaintiff added a wrongful dismissal claim - The bank claimed that by bringing the constructive dismissal action, the plaintiff repudiated the employment contract and was therefore not dismissed - The Nova Scotia Supreme Court held that the plaintiff was not constructively dismissed; however, he was wrongfully dismissed and entitled to reasonable notice - There was no evidence that he actually resigned from his job - He did not resign by operation of law or repudiate his employment contract by filing the action against the employer - Nor did the commencement of the action make continued employment untenable - See paragraphs 169 to 210.

Master and Servant - Topic 7502

Dismissal of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - The Nova Scotia Supreme Court discussed whether the commencement by an employee of an action for constructive dismissal resulted in repudiation of the employment contract and a resignation by operation of law - The court noted that in obiter in Potter v. N.B. Legal Aid Services Commission (SCC 2015), the court stated that where the employment relationship had not become untenable, it was not evident that by commencing legal action the employee should be held to have resigned by operation of law - The court opined that the Supreme Court's view allowed for a more contextual approach to this issue and a consideration of all of the circumstances in order to determine whether a resignation or repudiation actually occurred - "Clearly, there will be circumstances in which the filing of an action against an employer will constitute repudiation of the employment contract or a resignation by operation of law ... However, there may be cases where the circumstances will dictate against such a finding. Each case will have to be decided on its own facts" - See paragraphs 180 to 197.

Master and Servant - Topic 7712

Dismissal of employees - Damages for wrongful dismissal - Punitive or vindictive damages - [See Master and Servant - Topic 8000 ].

Master and Servant - Topic 7902

Dismissal without cause - General - Jurisdiction (incl. discrimination issues) - The plaintiff, a long-time bank employee, sued the bank, alleging age discrimination, constructive dismissal and tortious interference with contractual relations - The bank claimed that the court lacked jurisdiction because this was a discrimination case "dressed up" as a case of constructive/wrongful dismissal - The Nova Scotia Supreme Court held that it had jurisdiction to deal with the plaintiff's allegations of constructive and wrongful dismissal - The court was satisfied that in the circumstances, the court had jurisdiction to decide the discrimination issue as an integral part of the plaintiff's claim for constructive and wrongful dismissal - See paragraphs 20 to 27.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - The plaintiff was employed by the defendant bank for approximately 35 years, most recently as branch manager - He sued the bank for constructive dismissal, alleging age discrimination when he was not promoted to district vice president - The bank offered continued employment if the plaintiff withdrew his action - The plaintiff refused and the bank terminated him without further notice - The plaintiff added a wrongful dismissal claim - He was 59 when dismissed - Unable to find similar employment - The Nova Scotia Supreme Court held that the plaintiff was wrongfully dismissed and entitled to a reasonable notice period of 24 months - The court also held that the plaintiff was entitled to a bonus, notwithstanding an internal bank document that proposed to preclude the payment of a bonus if an employee was terminated - Moral or punitive damages were not warranted - See paragraphs 214 to 249.

Practice - Topic 5259.8

Trials - General - Mediation - Confidentiality - [See both Evidence - Topic 4351 ].

Practice - Topic 9867

Settlements - Disclosure (incl. privilege and admissibility issues) - [See both Evidence - Topic 4351 ].

Cases Noticed:

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 20].

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 20].

Kennedy v. Hewlett Packard (Canada) Co. (2011), 312 N.S.R.(2d) 100; 987 A.P.R. 100; 2011 NSSC 502, refd to. [para. 20].

Kaiser v. Multibond Inc. (2003), 219 N.S.R.(2d) 91; 692 A.P.R. 91; 2003 NSCA 122, refd to. [para. 21].

Sable Offshore Energy Inc. et al. v. Ameron International Corp. et al. (2013), 446 N.R. 35; 332 N.S.R.(2d) 1; 1052 A.P.R. 1; 2013 SCC 37, refd to. [para. 37].

Brown v. Cape Breton (Regional Municipality) (2011), 302 N.S.R.(2d) 84; 955 A.P.R. 84; 2011 NSCA 32, refd to. [para. 39].

Dos Santos Estate v. Sun Life Assurance Co. of Canada (2005), 207 B.C.A.C. 54; 341 W.A.C. 54; 2005 BCCA 4, refd to. [para. 41].

Meyers v. Dunphy (2007), 262 Nfld. & P.E.I.R. 173; 794 A.P.R. 173; 2007 NLCA 1, refd to. [para. 42].

Unilever plc v. Procter & Gamble Co., [2000] 1 W.L.R. 2436 (C.A.), refd to. [para. 42].

Farber v. Compagnie Trust Royal, [1997] 1 S.C.R. 846; 210 N.R. 161, refd to. [para. 49].

Potter v. Legal Aid Services Commission (N.B.) (2015), 468 N.R. 227; 432 N.B.R.(2d) 1; 1128 A.P.R. 1; 2015 SCC 10, refd to. [para. 50].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 54].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 55].

Shaw et al. v. Phipps et al. (2012), 289 O.A.C. 163; 2012 ONCA 155, refd to. [para. 56].

Lee v. British Columbia (Attorney General) et al. (2004), 204 B.C.A.C. 113; 333 W.A.C. 113; 2004 BCCA 457, refd to. [para. 57].

Shakes v. Rex Pak Ltd. (1981), 3 CHRR D/1001, refd to. [para. 58].

Ogunyankin v. Queen's University, 2011 HRTO 1910, refd to. [para. 59].

MacAulay v. Port Hawkesbury (Town), [2008] NSHRBID No. 1, refd to. [para. 60].

Premakumar v. Air Canada, [2002] CHRD No. 3, refd to. [para. 61].

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. 130].

Suleman v. British Columbia Research Council (1990), 52 B.C.L.R.(2d) 138 (C.A.), refd to. [para. 172].

Hulme v. Cadillac Fairview Corp. (1993), 1 C.C.E.L.(2d) 94 (Ont. Gen. Div.), affd. [1998] O.A.C. Uned. 328 (C.A.), leave to appeal refused (1999), 236 N.R. 188; 122 O.A.C. 381 (S.C.C.), refd to. [para. 172].

Zaraweh v. Hermon, Bunbury & Oke (2001), 157 B.C.A.C. 116; 256 W.A.C. 116; 2001 BCCA 524, refd to. [para. 172].

Potter v. Legal Aid Services Commission (N.B.) (2011), 384 N.B.R.(2d) 14; 995 A.P.R. 14; 2011 NBQB 296, affd. (2013), 402 N.B.R.(2d) 41; 1044 A.P.R. 41; 2013 NBCA 27, refd to. [para. 172].

Fulawka v. Bank of Nova Scotia (2012), 293 O.A.C. 204; 2012 ONCA 443, refd to. [para. 182].

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161; 2001 SCC 38, refd to. [para. 184].

Bonneville v. Unisource Canada Inc. (2002), 222 Sask.R. 107; 2002 SKQB 304, refd to. [para. 187].

McLeod v. Whebby (W.E.) Ltd. (2014), 349 N.S.R.(2d) 299; 1101 A.P.R. 299; 2014 NSSC 306, refd to. [para. 187].

Anstey v. Fednav Offshore Inc. (1990), 34 F.T.R. 192 (T.D.), refd to. [para. 190, footnote 1].

Evans v. Teamsters Union Local No. 31, [2008] 1 S.C.R. 661; 374 N.R. 1; 253 B.C.A.C. 1; 425 W.A.C. 1; 2008 SCC 20, refd to. [para. 191].

Kerr v. 2463103 Nova Scotia Ltd. (2015), 354 N.S.R.(2d) 327; 1120 A.P.R. 327; 2015 NSCA 7, refd to. [para. 198].

Bardal v. Globe and Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), refd to. [para. 216].

Silvester v. Lloyd's Register North America Inc. (2004), 221 N.S.R.(2d) 230; 697 A.P.R. 230; 2004 NSCA 17, refd to. [para. 219].

Bauer v. Unitel Communications Inc., [1994] B.C.T.C. Uned. 836; 5 C.C.E.L.(2d) 179 (S.C.), refd to. [para. 220].

Blackburn v. Victory Credit Union Ltd. et al. (1997), 160 N.S.R.(2d) 167; 473 A.P.R. 167; 32 C.C.E.L.(2d) 39 (S.C.), varied (1998), 165 N.S.R.(2d) 1; 495 A.P.R. 1 (C.A.), refd to. [para. 220].

Cain v. Clarica Life Insurance Co. (2004), 364 A.R. 218; 2004 ABQB 531, revd. in part (2005), 384 A.R. 11; 367 W.A.C. 11; 2005 ABCA 437, refd to. [para. 220].

Mastrogiuseppe v. Bank of Nova Scotia, [2005] O.T.C. 1132; 144 A.C.W.S.(3d) 488 (Sup. Ct.), varied [2007] O.A.C. Uned. 411; 2007 ONCA 726, refd to. [para. 220].

Mathieson v. Scotia Capital Inc., [2009] O.T.C. Uned. S03; 78 C.C.E.L.(3d) 76 (Sup. Ct.), refd to. [para. 220].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), p. 1033 [para. 32].

England, Geoffrey, Wood, Roderick, and Christie, Innis, Employment Law in Canada (2005) (2014 Looseleaf Update), pp. 7-1 [para. 197]; 10-13 to 10-14 [para. 128]; 13-65 [para. 129].

Halsbury's Laws of Canada: Employment (2011 Reissue), s. HEM-301 [para. 183].

Levitt, Howard, The Law of Dismissal in Canada (3rd Ed. 2003) (2015 Looseleaf Update), pp. 9-6 to 9-7 [para. 230]; 9-8 [para. 231].

Counsel:

Kevin A. MacDonald, for the plaintiff;

G. Grant Machum, Rebecca Saturley and Sean Kelly, for the defendant.

This matter was heard in Halifax, N.S., on various dates from February 19 to May 15, 2014, before Smith, J., of the Nova Scotia Supreme Court, who delivered the following written decision on April 22, 2015.