Halischuk v. Color Ad Packaging Ltd., 2015 MBQB 4

• Judge: Pfuetzner, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 09, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBQB 4;(2015), 313 Man.R.(2d) 57 (QB)

Halischuk v. Color Ad Packaging (2015), 313 Man.R.(2d) 57 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JA.030

Kimberley Halischuk (plaintiff) v. Color Ad Packaging Ltd. (defendant)

(CI 13-01-82177; 2015 MBQB 4)

Indexed As: Halischuk v. Color Ad Packaging Ltd.

Manitoba Court of Queen's Bench

Winnipeg Centre

Pfuetzner, J.

January 9, 2015.

Summary:

On October 9, 2012, the plaintiff signed a contract (the first contract) under which she was hired as an executive assistant to Schneider. Paragraph 26 of the contract provided that the employer would provide "minimum termination notice as required by law". Schneider was not present when the contract was signed. The plaintiff began work on October 15, 2012. When Schneider was presented with the first contract, he changed paragraph 26 to provide that, if the plaintiff's employment was terminated without cause, she would receive "90 days salary and full company benefits as pay in lieu" (the second contract). Schneider signed the second contract on October 18, 2012, but it was dated October 9, 2012. Both contracts provided for a three month probationary period during which the employer could terminate employment "without any notice or compensation ... other than wages owed ...". Schneider's employment was terminated on October 25, 2012. The plaintiff's employment was terminated without cause on November 21, 2012. After rejecting the employer's offer of 90 days' "working notice", the plaintiff was told that, as a probationary employee, she would receive one week's pay in lieu of notice. The plaintiff sued for wrongful dismissal, asserting that she was entitled to 90 days' pay in lieu of notice and full company benefits under the second contract. The plaintiff began new employment with a different employer at the same salary on February 11, 2013.

The Manitoba Court of Queen's Bench granted judgment for the plaintiff. The plaintiff was entitled to the full 90 days' pay in lieu of notice and full company benefits provided for under the second contract. The court rejected the plaintiff's claims for exemplary damages arising from the manner of dismissal and punitive damages.

Company Law - Topic 4164

Directors - Powers - Improper exercise of powers - [See Company Law - Topic 4753 ].

Company Law - Topic 4311

Directors - Duties to company and shareholders - Duty to act in the best interest of the corporation - [See Company Law - Topic 4753 ].

Company Law - Topic 4753

Contracts by companies - When and how company bound - Whether contract made by company - On October 9, 2012, the plaintiff signed a contract (the first contract) under which she was hired as an executive assistant to Schneider - Paragraph 26 of the contract provided that the employer would provide "minimum termination notice as required by law" - Schneider was not present when the contract was signed - The plaintiff began work on October 15, 2012 - When Schneider was presented with the first contract, he changed paragraph 26 to provide that, if the plaintiff's employment was terminated without cause, she would receive "90 days salary and full company benefits as pay in lieu" (the second contract) - Schneider signed the second contract on October 18, 2012, but it was dated October 9, 2012 - Both contracts provided for a three month probationary period during which the employer could terminate employment "without any notice or compensation ... other than wages owed ..." - Schneider's employment was terminated on October 25, 2012 - The plaintiff's employment was terminated without cause on November 21, 2012 - After rejecting the employer's offer of 90 days' "working notice", the plaintiff was told that, as a probationary employee, she would receive one week's pay in lieu of notice - The plaintiff sued for wrongful dismissal, asserting that she was entitled to 90 days' pay in lieu of notice and full company benefits under the second contract - The Manitoba Court of Queen's Bench held that the parties were bound by the second contract - When he signed it, Schneider was the employer's CEO - Whether or not he was acting in good faith was irrelevant because he could and did legally bind the employer - There was insufficient evidence to support the employer's assertion of collusion between Schneider and the plaintiff - See paragraphs 24 to 35.

Contracts - Topic 7412

Interpretation - General principles - Inconsistent clauses - Specific v. general - On October 9, 2012, the plaintiff was hired as an executive assistant - Paragraph 26 of the contract provided that, if the plaintiff's employment was terminated without cause, she would receive "90 days salary and full company benefits as pay in lieu" - Paragraph 2 provided for a three month probationary period during which the employer could terminate employment "as and where permitted by law ... without any notice or compensation ... other than wages owed ..." - The plaintiff's employment was terminated without cause on November 21, 2012 - After rejecting the employer's offer of 90 days' "working notice", the plaintiff was told that, as a probationary employee, she would receive one week's pay in lieu of notice - The plaintiff sued for wrongful dismissal, asserting that she was entitled to 90 days' pay in lieu of notice and full company benefits - The Manitoba Court of Queen's Bench granted judgment for the plaintiff - Where there were apparent inconsistencies between different terms of a contract, as here, the court had to find an interpretation that reasonably gave meaning to each of the terms - Paragraph 26 was a specific term dealing with the employer's obligations on terminating employment without cause - Paragraph 2 was a general term - It was important that the employer's rights under paragraph 2 were only available "as and where permitted by law" - Paragraph 2 was subject to the employer's other legal obligations to the plaintiff, including Paragraph 26 - The employer was not entitled to terminate the plaintiff's employment without cause during the first three months without providing her with the benefits stipulated in Paragraph 26 - Further, the doctrine of contra proferentem applied to determine the plaintiff's rights on this basis as well - See paragraphs 36 to 61.

Contracts - Topic 7433

Interpretation - Ambiguity - Contra proferentem rule - [See Contracts - Topic 7412 ].

Damage Awards - Topic 2014

Exemplary or punitive damages - Wrongful dismissal - On October 9, 2012, the plaintiff was hired as an executive assistant - Paragraph 26 of the contract provided that, if the plaintiff's employment was terminated without cause, she would receive "90 days salary and full company benefits as pay in lieu" - Paragraph 2 provided for a three month probationary period during which the employer could terminate employment "as and where permitted by law ... without any notice or compensation ... other than wages owed ..." - The plaintiff's employment was terminated without cause on November 21, 2012 - After rejecting the employer's offer of 90 days' "working notice", the plaintiff was told that, as a probationary employee, she would receive one week's pay in lieu of notice - The plaintiff sued for wrongful dismissal, asserting that she was entitled to 90 days' pay in lieu of notice and full company benefits - The Manitoba Court of Queen's Bench granted judgment for the plaintiff - The court rejected the plaintiff's claims for exemplary damages arising from the manner of dismissal and punitive damages - Damages for conduct in dismissal were meant to be compensatory and were awarded only for mental distress beyond the parties' contemplation - The normal distress and hurt feelings resulting from dismissal were not compensable - There was insufficient evidence to establish that the manner of dismissal caused the plaintiff mental distress beyond what was expected - The employer's conduct was not unfair or in bad faith - Nor was the employer's conduct of such a malicious and outrageous character that it would attract damages that were designed to punish - See paragraphs 74 to 103.

Damages - Topic 1002

Mitigation - General principles - Duty to mitigate - [See Master and Servant - Topic 8064 ].

Damages - Topic 1326

Exemplary or punitive damages - Wrongful dismissal - [See Damage Awards - Topic 2014 ].

Master and Servant - Topic 8008

Dismissal without cause - Notice of dismissal - Notice period - Working through or pay in lieu - On October 9, 2012, the plaintiff was hired as an executive assistant - Paragraph 26 of the contract provided that, if the plaintiff's employment was terminated without cause, she would receive "90 days salary and full company benefits as pay in lieu" - Paragraph 2 provided for a three month probationary period during which the employer could terminate employment "as and where permitted by law ... without any notice or compensation ... other than wages owed ..." - The plaintiff's employment was terminated without cause on November 21, 2012 - After rejecting the employer's offer of 90 days' "working notice", the plaintiff was told that, as a probationary employee, she would receive one week's pay in lieu of notice - The plaintiff sued for wrongful dismissal, asserting that she was entitled to 90 days' pay in lieu of notice and full company benefits - The Manitoba Court of Queen's Bench granted judgment for the plaintiff - The court rejected the employer's argument that its offer of 90 days' working notice with reasonable time off to seek other employment was equivalent to "90 days salary and full company benefits as pay in lieu" - The plaintiff was within her rights in rejecting the offer - Notice of termination and pay in lieu were not equivalent - See paragraphs 62 to 64.

Master and Servant - Topic 8063

Dismissal without cause - Damages - Mental distress - [See Damage Awards - Topic 2014 ].

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - The plaintiff's employment was terminated without cause - She sued for wrongful dismissal - The court found that the plaintiff's employment contract provided for a pre-determined entitlement to 90 days' pay in lieu of notice if the plaintiff was terminated without cause - At issue was mitigation - The Manitoba Court of Queen's Bench held that, in these circumstances, the plaintiff was under no obligation to mitigate her damages - See paragraphs 65 to 73.

Master and Servant - Topic 8071

Dismissal without cause - Damages - Effect of contractual provision setting notice period - [See Master and Servant - Topic 8064 ].

Cases Noticed:

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, refd to. [para. 47].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al., [1998] 2 S.C.R. 129; 227 N.R. 201, refd to. [para. 48].

Gannon v. Leaf Rapids Town Properties Ltd. (1979), 3 A.C.W.S. 29 (Man. Q.B.), dist. [para. 66].

Ellis v. Whitepass Transport Ltd., 1983 CanLII 288 (B.C.C.A.), refd to. [para. 66].

Bowes v. Goss Power Products Ltd. (2012), 293 O.A.C. 1; 2012 ONCA 425, refd to. [para. 71].

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. 92].

Counsel:

Lyle M. Smordin, for the plaintiff;

Todd C. Andres, for the defendant.

This action was heard by Pfuetzner, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on January 9, 2015.