Holmes v. Saint John Shipbuilding Ltd.,

• Jurisdiction: New Brunswick
• Judge: Glennie, J.
• Neutral Citation: 2001 NBQB 142
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Citation: (2001), 241 N.B.R.(2d) 316 (TD),2001 NBQB 142
• Date: 31 August 2001

Holmes v. St. John Shipbuilding (2001), 241 N.B.R.(2d) 316 (TD);

    241 R.N.-B.(2e) 316; 625 A.P.R. 316

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2001] N.B.R.(2d) TBEd. SE.024

Thomas Stewart Holmes (plaintiff) v. Saint John Shipbuilding Limited (now Irving Shipbuilding Inc.) (defendant)

(S/C/1391/95; 2001 NBQB 142)

Indexed As: Holmes v. Saint John Shipbuilding Ltd.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

August 31, 2001.

Summary:

A former employee sued Saint John Ship­building Ltd. for damages for wrongful dismissal.

The New Brunswick Court of Queen's Bench, Trial Division, awarded the employee three months' salary in lieu of notice.

Master and Servant - Topic 1263

Contract of hiring (employment contract) - Variation - Notice period - Holmes was given six months' working notice when he was laid off by Saint John Shipbuilding Ltd. (SJSL) - Prior to the end of the six month period, SJSL offered Holmes a term position in another department - Holmes accepted the offer and also accepted two subsequent offers for term positions - The third term position terminated on January 29 - Holmes continued working - He was offered temporary employment and, on February 19 he signed an employment contract that provided he would be given one month's notice of termination - In June he was given his final notice of ter­mination - He was unable to find work for nine months - The New Brunswick Court of Queen's Bench, Trial Division, held that, when Holmes continued working after the end of the term position, he became entitled to reasonable notice - The entitle­ment was not taken away by signing the employment contract on February 19 be­cause there was no consideration for the variation - See paragraphs 62 to 69.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dis­missal - What constitutes reasonable notice - Holmes was given six months' working notice of termination of his position as a draftsperson with Saint John Shipbuilding Ltd. (SJSL) because the frigate program was coming to an end - Prior to the end of the six month period, SJSL offered Holmes a term position, performing the same work, in another department - Holmes accepted - He was offered two more term positions which he also accepted - He was then offered employment for an indefinite term - He accepted and subsequently signed an employment contract that provided for one month's notice of termination - Holmes was given one month's notice of termina­tion - Holmes was unable to find work for nine months - He sued SJSL for damages - The New Brunswick Court of Queen's Bench, Trial Division, held that Holmes was entitled to reasonable notice - Holmes was entitled to four months' notice of termination less the one month already given for a net award of three months' salary in lieu of notice.

Master and Servant - Topic 8008

Dismissal without cause - Notice of dis­missal - Notice period - Working through or pay in lieu - The New Brunswick Court of Queen's Bench, Trial Division, dis­cussed the concept of working notice - See paragraphs 98 to 104.

Cases Noticed:

Ahmad v. Procter & Gamble Inc. (1991), 44 O.A.C. 338; 34 C.C.E.L. 1; 77 D.L.R.(4th) 515; 1991 CarswellOnt 909 (C.A.), refd to. [paras. 52, 74].

Yeager v. Hastings (R.J.) Agencies Ltd. (1984), 5 C.C.E.L. 266 (B.C.S.C.), refd to. [para. 52].

Wilson v. Crown Trust Co. (1992), 44 C.C.E.L. 123 (Ont. Gen. Div.), refd to. [para. 53].

Mulcahy v. Sony of Canada Ltd. (1988), 22 C.C.E.L. 13 (B.C. Co. Ct.), refd to. [para. 56].

Dvorkin v. Turecki (1986), 1 A.C.W.S.(3d) 216, refd to. [para. 56].

Humby v. University of New Brunswick, [1998] N.B.R.(2d) (Supp.) No. 9 (T.D.), refd to. [para. 57].

Kalaman v. Singer Valve Co. et al. (1997), 93 B.C.A.C. 93; 151 W.A.C. 93 (C.A.), refd to. [para. 57].

Jalbert v. University of British Columbia (2000), 145 B.C.A.C. 285; 231 W.A.C. 235 (C.A.), refd to. [para. 57].

Buckley v. Students Union of St. Thomas University Inc. (1991), 127 N.B.R.(2d) 278; 319 A.P.R. 278 (T.D.), refd to. [para. 63].

Francis v. Canadian Imperial Bank of Commerce (1994), 75 O.A.C. 216; 1994 CarswellOnt 995; 7 C.C.E.L.(2d) 1; 120 D.L.R.(4th) 393 (C.A.), refd to. [para. 66].

Francis v. Canadian Imperial Bank of Commerce (1992), 41 C.C.E.L. 37 (Ont. Gen. Div.), refd to. [para. 66].

Ahmad v. Procter & Gamble Inc., 1987 CarswellOnt 914; 18 C.C.E.L. 124 (H.C.), refd to. [para. 72].

Savoie v. Chiasson et al. (2000), 231 N.B.R.(2d) 378; 597 A.P.R. 378 (C.A.), refd to. [paras. 76, 91].

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; 152 D.L.R.(4th) 1, refd to. [para. 79].

Bishop v. Carleton Co-operative Ltd. (1996), 176 N.B.R.(2d) 206; 447 A.P.R. 206 (C.A.), refd to. [para. 82].

Bramble et al. v. Medis Health and Phar­maceutical Services Inc. (1999), 214 N.B.R.(2d) 111; 547 A.P.R. 111 (C.A.), refd to. [para. 85].

Seelall v. Proctor & Redfern Ltd. (1996), 10 O.T.C. 65; 1996 CarswellOnt 2611; 21 C.C.E.L.(2d) 71 (Gen. Div.), refd to. [para. 94].

Hall v. Hendrickson Canada Ltd. (1996), 95 O.A.C. 162; 1996 CarswellOnt 473 (C.A.), refd to. [para. 95].

Gordon v. Saint John Shipbuilding & Dry Dock Co. (1983), 47 N.B.R.(2d) 150; 124 A.P.R. 150 (T.D.), refd to. [para. 96].

Annett v. Electrohome Ltd. (1979), 2 A.C.W.S. 562 (Ont. H.C.), refd to. [para. 97].

Pitre v. Gordie's Auto Sales Ltd. and Babin (1977), 16 N.B.R.(2d) 328; 21 A.P.R. 328 (C.A.), refd to. [para. 97].

LeBlanc v. Eurodata Support Services Inc. (1998), 204 N.B.R.(2d) 179; 520 A.P.R. 179 (C.A.), refd to. [paras. 97, 112].

McLeod v. ABM Systems Ltd. (1994), 144 N.B.R.(2d) 121; 368 A.P.R. 121 (T.D.), refd to. [para. 102].

Statutes Noticed:

Employment Standards Act, S.N.B. 1982, c. E-7.2, sect. 30(3) [para. 44]; sect. 31(3) [para. 45].

Authors and Works Noticed:

Harris, David, Wrongful Dismissal, p. 3.2 [para. 101].

Levitt, Howard A., The Law of Dismissal in Canada (2nd Ed. 1992), p. 61 [para. 68]; paras. 804 [para. 93]; 808.16 [para. 77]; 808.18 [para. 56].

Counsel:

J. Anderson Ritchie, for the plaintiff;

Catherine A. Lahey, for the defendant.

This case was heard on May 17 and 18, 2001, at Saint John, New Brunswick, before Glennie, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on August 31, 2001.