Irvine v. Gauthier (Jim) Chevrolet Oldsmobile Cadillac Ltd., 2013 MBCA 93

• Judge: Hamilton, Monnin and Burnett, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 21, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBCA 93;(2013), 299 Man.R.(2d) 161 (CA)

Irvine v. Gauthier Chevrolet (2013), 299 Man.R.(2d) 161 (CA);

      590 W.A.C. 161

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. NO.007

Kelly Irvine (plaintiff/appellant) v. Jim Gauthier Chevrolet Oldsmobile Cadillac Ltd. (defendant/respondent)

(AI 12-30-07887; 2013 MBCA 93)

Indexed As: Irvine v. Gauthier (Jim) Chevrolet Oldsmobile Cadillac Ltd.

Manitoba Court of Appeal

Hamilton, Monnin and Burnett, JJ.A.

October 18, 2013.

Summary:

The plaintiff sued the defendant, his former employer, alleging wrongful or constructive dismissal.

The Manitoba Court of Queen's Bench, in a decision reported at (2012), 285 Man.R.(2d) 43, dismissed the action. Damages were provisionally assessed in the sum of $346,111.04. The plaintiff appealed.

The Manitoba Court of Appeal allowed the appeal. Damages were awarded in accordance with the provisional assessment.

Damage Awards - Topic 1454

Contracts - Employment contracts - Wrongful dismissal - [See second Master and Servant - Topic 7502 ].

Master and Servant - Topic 7502

Dismissal or discipline of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - At issue in the plaintiff's wrongful dismissal action was whether he had been constructively dismissed when he had been encouraged to go on disability and to return to work when his health improved - The Manitoba Court of Appeal reviewed the law of constructive dismissal, stating, "Where an employer pleads that an employee's illness has rendered the employee incapable of doing their job, the onus is on the employer to demonstrate that is the case. Therefore, while the initial onus is on the plaintiff to prove a fundamental breach of the employment contract, once that has been established, the onus shifts to the employer to demonstrate just cause or frustration of the contract by the employee." - Regarding constructive dismissal, there was little, if any, distinction between termination for just cause and frustration of the employment contract - Whether a contract had been frustrated due to illness depended on a number of factors - See paragraphs 43 to 59.

Master and Servant - Topic 7502

Dismissal or discipline of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - The plaintiff alleged that he had been wrongfully dismissed at a meeting on May 5, 2009 - The employer asserted that the plaintiff had not been dismissed, but had been encouraged to go on disability and to return to work when his health improved - The trial judge dismissed the action, finding that the plaintiff had remained an employee after the May 5 meeting, but had subsequently quit his job - The Manitoba Court of Appeal allowed the plaintiff's appeal - The May 5 meeting was a "fait accompli" that was decided unilaterally - The plaintiff was, effectively, told to go home and apply for disability coverage - This forced leave of absence was a fundamental change in the employment contract going to the root of the contract - The plaintiff had demonstrated a prima facie case that the employer had breached the employment contract - This shifted the onus to the employer to demonstrate that the employment contract was frustrated due to the plaintiff's health issues - However, the employer provided no documentation attesting to the plaintiff's prognosis or whether he was permanently disabled from doing his job - The onus was not met - The plaintiff was constructively dismissed and was entitled to damages of $346,111.04, according to the trial judge's provisional assessment, which was not appealed by the employer - See paragraphs 60 to 73.

Master and Servant - Topic 7612

Dismissal or discipline of employees - Defences - Frustration - [See both Master and Servant - Topic 7502 ].

Master and Servant - Topic 7613

Dismissal or discipline of employees - Defences - Illness of employee - [See both Master and Servant - Topic 7502 ].

Master and Servant - Topic 7704

Dismissal of employees - Damages for wrongful dismissal - Measure of - [See second Master and Servant - Topic 7502 ].

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - The plaintiff alleged that he had been wrongfully dismissed - The trial judge dismissed the action, finding that the plaintiff had quit his job - At issue on the plaintiff's appeal was whether the trial judge had erred in failing to consider whether the plaintiff was constructively dismissed - The Manitoba Court of Appeal stated, "The identification and application of the correct legal principles is a question of law calling for the standard of review of correctness. ...  Therefore, the failure to address a relevant legal principle is an error of law. In that situation, an appellate court must determine the issue based on, wherever possible, the findings of fact and credibility assessments of the trial judge, unless any of those findings cannot be sustained by the evidence." - See paragraph 42.

Cases Noticed:

Johnson v. BFI Canada Inc. et al. (2010), 258 Man.R.(2d) 268; 499 W.A.C. 268; 2010 MBCA 101, refd to. [para. 42].

Giesbrecht v. Canada Life Assurance Co. et al., [2013] 8 W.W.R. 24; 294 Man.R.(2d) 62; 581 W.A.C. 62; 2013 MBCA 53, refd to. [para. 42].

Johnson v. General Motors of Canada Ltd. (2013), 307 O.A.C. 359; 2013 ONCA 502, refd to. [para. 46].

Farber v. Compagnie Trust Royal, [1997] 1 S.C.R. 846; 210 N.R. 161, refd to. [para. 47].

Piron v. Dominion Masonry Ltd. (2013), 337 B.C.A.C. 103; 576 W.A.C. 103; 2013 BCCA 184, refd to. [para. 48].

Allen v. Ainsworth Lumber Co. (2013), 339 B.C.A.C. 113; 578 W.A.C. 113; 2013 BCCA 271, refd to. [para. 48].

Lewis v. Terrace Tourism Society (2010), 290 B.C.A.C. 105; 491 W.A.C. 105; 2010 BCCA 346, refd to. [para. 48].

Fisher v. Lakeland Mills Ltd. (2008), 250 B.C.A.C. 311; 416 W.A.C. 311; 2008 BCCA 42, refd to. [para. 48].

Pathak v. Jannock Steel Fabricating Co. et al. (1999), 228 A.R. 312; 188 W.A.C. 312; 1999 ABCA 8, refd to. [para. 48].

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. 48].

Card Estate v. Robertson (John A.) Mechanical Contractors (1985) Ltd. (1989), 26 C.C.E.L. 294 (Ont. S.C.), refd to. [para. 51].

Bishop v. Carleton Co-operative Ltd. (1996), 176 N.B.R.(2d) 206; 447 A.P.R. 206 (C.A.), refd to. [para. 53].

Gillette v. Sisett (Ian) Law Corp., [2008] B.C.T.C. Uned. 740; 2008 BCSC 1116, refd to. [para. 54].

Convergys Customer Management Inc. v. Luba et al. (2005), 192 Man.R.(2d) 129; 340 W.A.C. 129; 2005 MBCA 29, refd to. [para. 56].

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. 56].

Gielen v. Ste. Anne (Town) (2009), 247 Man.R.(2d) 105; 2009 MBQB 292, refd to. [para. 56].

White v. Woolworth (F.W.) Co. (1996), 139 Nfld. & P.E.I.R. 324; 433 A.P.R. 324 (Nfld. C.A.), refd to. [para. 57].

McLean v. Miramichi (City) (2011), 380 N.B.R.(2d) 398; 980 A.P.R. 398; 2011 NBCA 80, refd to. [para. 57].

Wightman Estate v. 2774046 Canada Inc. et al. (2006), 231 B.C.A.C. 75; 381 W.A.C. 75; 2006 BCCA 424, refd to. [para. 57].

Authors and Works Noticed:

Echlin, Randall Scott, and Fantini, Jennifer Mary, Quitting for Good Reason: The Law of Constructive Dismissal in Canada (2001), pp. 35 [para. 46]; 392 [para. 49].

Levitt, Howard Alan, The Law of Dismissal in Canada (3rd Ed.) (2013 Looseleaf), vol. 1, pp. 5-1 [paras. 43, 44]; 5-2 [para. 44]; 6-37 to 6-72, 6-89 to 6-91 [para. 56].

Mole, Ellen E., Wrongful Dismissal Practice Manual (2nd Ed.) (2005 Looseleaf), vol. 1, paras. 2.24 [para. 50]; 3.1 [para. 45]; 3.3 [para. 46]; 4.229 [para. 57].

Counsel:

R.M. Beamish and R.M. Caithness, for the appellant;

D.G. Hill and S. Cadili, for the respondent.

This appeal was heard on May 21, 2013, by Hamilton, Monnin and Burnett, JJ.A., of the Manitoba Court of Appeal. On October 18, 2013, Hamilton, J.A., delivered the following judgment for the court.