Halischuk v. Color Ad Packaging Ltd., (2015) 323 Man.R.(2d) 290 (CA)

• Judge: Monnin, Cameron and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 08, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 323 Man.R.(2d) 290 (CA);2015 MBCA 117

Halischuk v. Color Ad Packaging (2015), 323 Man.R.(2d) 290 (CA);

      657 W.A.C. 290

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. DE.014

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

(AI 15-30-08400; 2015 MBCA 117)

Indexed As: Halischuk v. Color Ad Packaging Ltd.

Manitoba Court of Appeal

Monnin, Cameron and Mainella, JJ.A.

December 8, 2015.

Summary:

The plaintiff's contract of employment provided for a 90-day probation period where she could be terminated without cause and without notice. Clause 26 provided for minimum termination notice as required by law. The CEO of the defendant employer unilaterally revised clause 26 to provide that if the plaintiff was terminated without cause, the defendant would provide 90 days' pay and full company benefits as pay in lieu. The plaintiff was terminated within the probationary period, without cause. She sued for wrongful dismissal.

The Manitoba Court of Queen's Bench, in a decision reported at (2015), 313 Man.R.(2d) 57, held that the revision was done in good faith, and that the defendant was obligated to pay 90 days' wages. The Court rejected the arguments that the plaintiff and the CEO colluded to revise the contract and that the plaintiff had sufficient knowledge to conclude that the CEO had no authority to make the revision. The defendant appealed.

The Manitoba Court of Appeal dismissed the appeal. "[W]hat occurred here is an unusual and fact-specific situation. The employer unilaterally amended an employment contract, already entered into, to its detriment and to the benefit of the plaintiff. That said, we see no palpable and overriding errors in the trial judge's findings regarding how the contract was revised or her interpretation of the contract."

Contracts - Topic 4703

Discharge and termination - By notice - Interpretation of notice clause - [See Master and Servant - Topic 8071 ].

Contracts - Topic 7415.1

Interpretation - General principles - Good faith - [See Master and Servant - Topic 8071 ].

Company Law - Topic 4753

Contracts by companies - When and how company bound - Whether contract made by company - [See Master and Servant - Topic 8071 ].

Master and Servant - Topic 1010

Contract of hiring (employment contract) - General - Interpretation - [See Master and Servant - Topic 8071 ].

Master and Servant - Topic 1263

Contract of hiring (employment contract) - Variation - Notice period - [See Master and Servant - Topic 8071 ].

Master and Servant - Topic 1266

Contract of hiring (employment contract) - Variation - Unilateral variation - [See Master and Servant - Topic 8071 ].

Master and Servant - Topic 8008

Dismissal without cause - Notice of dismissal - Notice period - Working through or pay in lieu - [See Master and Servant - Topic 8071 ].

Master and Servant - Topic 8071

Dismissal without cause - Damages - Effect of contractual provision setting notice period - The contract of employment provided for a 90-day probation period where the plaintiff could be terminated without cause and without notice - Clause 26 provided for minimum termination notice as required by law - The CEO of the defendant employer revised clause 26 to provide that if the plaintiff was terminated without cause, the defendant would provide 90 days' pay and full company benefits as pay in lieu - The plaintiff was terminated within the probationary period, without cause - The trial judge held that the revision was done in good faith, and that the defendant was obligated to pay the plaintiff 90 days' wages - The judge rejected the defendant's arguments that the plaintiff and the CEO colluded to revise the contract and that the plaintiff had sufficient knowledge to conclude that the CEO had no authority to make the revision - The Manitoba Court of Appeal dismissed the appeal - "[W]hat occurred here is an unusual and fact-specific situation. The employer unilaterally amended an employment contract, already entered into, to its detriment and to the benefit of the plaintiff. That said, we see no palpable and overriding errors in the trial judge's findings regarding how the contract was revised or her interpretation of the contract."

Cases Noticed:

Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633; 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 1].

Counsel:

T.C. Andres and J.W.A. Enns, for the appellant;

L.M. Smordin, for the respondent.

This appeal was heard and decided on December 8, 2015, by Monnin, Cameron and Mainella, JJ.A., of the Manitoba Court of Appeal. In reasons written by Cameron, J.A., the Court pronounced the following decision.