Jean v. Pêcheries Roger L. Ltée, (2010) 354 N.B.R.(2d) 300 (CA)

• Judge: Drapeau, C.J.N.B., Deschênes and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 22, 2009
• Jurisdiction: New Brunswick
• Citations: (2010), 354 N.B.R.(2d) 300 (CA);354 NBR (2d) 300;2010 NBCA 10

Jean v. Pêcheries Roger (2010), 354 N.B.R.(2d) 300 (CA);

    354 R.N.-B.(2e) 300; 913 A.P.R. 300

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Sommaire et texte intégral

[French language version follows English language version]

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

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Temp. Cite: [2010] N.B.R.(2d) TBEd. FE.024

Renvoi temp.: [2010] N.B.R.(2d) TBEd. FE.024

Ovide Jean (plaintiff/appellant) v. Pêcheries Roger L. ltée (defendant/respondent)

(37-09-CA; 2010 NBCA 10)

Indexed As: Jean v. Pêcheries Roger L. ltée et al.

Répertorié: Jean v. Pêcheries Roger L. ltée et al.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Deschênes and Quigg, JJ.A.

February 11, 2010.

Summary:

Résumé:

The plaintiff sued the defendant for damages for wrongful dismissal.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 342 N.B.R.(2d) 163; 878 A.P.R. 163, allowed the action and assessed damages. The plaintiff appealed.

The New Brunswick Court of Appeal allowed the appeal in part.

Damages - Topic 1326

Exemplary or punitive damages - Wrongful dismissal - The plaintiff was employed as a seasonal deckman on the defendant's fishing vessel from 1990 to 1997 - He usually began work at mid-March and worked until the end of June or mid-July - In February 1998, the defendant informed the plaintiff that his services would no longer be required - The plaintiff was unable to find alternative employment until the beginning of June when he found work as a construction worker - The plaintiff sued the defendant for damages for wrongful dismissal and sought exemplary or punitive damages - The trial judge denied exemplary or punitive damages - There was no evidence to support the allegations of improper conduct by the defendant - The plaintiff's employment was terminated for purely economic reasons, not because of the quality of the plaintiff's work - The dismissal was not outrageous and the defendant's conduct was not reprehensible or cruel or insensitive - The plaintiff appealed - The New Brunswick Court of Appeal dismissed the appeal on this issue - The trial judge did not make any palpable or overriding error - Further, the plaintiff's assertion that the manner of termination was "malicious" could not be sustained - Notice of termination communicated by letter as it was in this case could not possibly be characterized as malicious - See paragraphs 42 to 47.

Interest - Topic 5009

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Calculation of - The plaintiff was employed as a seasonal deckman on the defendant's fishing vessel from 1990 to 1997 - He usually began work at mid-March and worked until the end of June or mid-July - In February 1998, the defendant informed the plaintiff that his services would no longer be required - The termination was for purely economic reasons - The plaintiff was unable to find alternative employment until the beginning of June when he found work as a construction worker - The plaintiff sued the defendant for damages for wrongful dismissal - The trial judge held that reasonable notice was five months and ordered the defendant to pay $17,945.36 - The trial judge refused to award interest for the entire period between the breach of the contract and the date of judgment - He wanted to sanction the plaintiff for the lack of diligence on the part of his lawyers in prosecuting the action - The plaintiff appealed - The New Brunswick Court of Appeal allowed the appeal - It was unclear where the responsibility for the deplorable state of affairs truly lied - Further, there was nothing to suggest that the delay was inspired by an oblique motive or that it visited serious prejudice upon the defendant - The plaintiff was entitled to pre-judgment interest - The debt to the plaintiff was incurred over a 12 month period ending in March 1999 and most of this debt was due at the beginning of September 1998 - The court ordered the defendant to pay interest at the annual rate of 6% from September 1, 1998, the midway point between the breach of contract and the end of the reasonable notice period - See paragraphs 67 to 76.

Interest - Topic 5104

Interest as damages (prejudgment interest) - Breach of contract - Employment contracts - [See Interest - Topic 5009 ].

Master and Servant - Topic 7901

Dismissal without cause - General - The New Brunswick Court of Appeal held that the governing principles with respect to wrongful dismissal and compensation in lieu of notice had been clarified and refined by the decisions in Fidler v. Sun Life Assurance Co. of Canada (SCC 2006), Honda Canada Inc. v. Keays (SCC 2008) and Schurman v. Covered Bridge Recreation Inc. (NBCA 2009) - The court stated that "[t]he key principles in the matter before us are as follows: (1) an action for wrongful dismissal is predicated upon an implied obligation under the contract of employment between the parties; (2) that obligation is an obligation to give reasonable notice of termination; (3) breach of that obligation may result in an award of damages; (4) damages are in no way intended to compensate the employee for the loss of his employment; rather, their purpose is limited to providing compensation for the breach of contract caused by the employer's failure to give reasonable notice of the termination of employment; (5) the purpose of damages for breach of contract is to provide a financial remedy that places the aggrieved party in the same position he would have been in had the contract been performed; (6) that remedy is 'such as may fairly and reasonably be considered either arising naturally ... from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties' ... (7) this is a rule of general application ... and (8) damages for loss resulting from breach of contract must be determined 'according to what was in the reasonable contemplation of the parties at the time of contract formation'" - See paragraphs 48 and 49.

Master and Servant - Topic 8062

Dismissal without cause - Damages - Elements - The plaintiff was employed as a seasonal deckman on the defendant's fishing vessel from 1990 to 1997 - He usually began work at mid-March and worked until the end of June or mid-July - In February 1998, the defendant informed the plaintiff that his services would no longer be required - The termination was for purely economic reasons - The plaintiff was unable to find alternative employment until the beginning of June when he found work as a construction worker - The plaintiff sued the defendant for damages for wrongful dismissal - The trial judge held that reasonable notice was five months and ordered the defendant to pay $17,945.36 - The plaintiff appealed - The New Brunswick Court of Appeal allowed the appeal in part - The trial judge erred in his assessment of compensation in lieu of reasonable notice: (1) he should have taken into account the loss of employment insurance benefits suffered by the plaintiff by reason of the defendant's failure to provide reasonable notice of the termination of his employment; and (2) he should have awarded the plaintiff one-quarter rather than one-sixth of the vessel's net earnings based on the admissions of fact prescribed by rule 21.02(1)(a) and on the evidence presented - Had the plaintiff's employment been continued in 1998, his total income (employment income and employment insurance income) would have been $39,265.04 to the end of March 1999 at which time he would likely have found alternative comparable employment, including work as a deck hand on another snow crab fishing vessel - His actual income (employment income and employment insurance benefits) for the relevant period was $18,341.70 - He therefore suffered a loss of $20,923.34, which the court rounded off at $21,000 - See paragraphs 50 to 66.

Dommages-intérêts - Cote 1326

Dommages-intérêts exemplaires ou punitifs - Congédiement injustifié - [Voir Damages - Topic 1326 ].

Employeurs et employés - Cote 7901

Congédiement non motivé - Généralités - [Voir Master and Servant - Topic 7901 ].

Employeurs et employés - Cote 8062

Congédiement non motivé - Dommages-intérêts - Éléments - [Voir Master and Servant - Topic 8062 ].

Intérêts - Cote 5009

Intérêts accordés à titre de dommages-intérêts (intérêts avant jugement) - Principes généraux - Intérêts avant jugement - Calcul - [Voir Interest - Topic 5009 ].

Intérêts - Cote 5104

Intérêts accordés à titre de dommages-intérêts (intérêts avant judgement) - Violation du contrat - Contrat d'emploi - [Voir Interest - Topic 5104 ].

Cases Noticed:

Hadley v. Baxendale (1854), 9 Ex. 341; 156 E.R. 145, refd to. [para. 1].

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. 5].

Paulin v. Vibert (2008), 328 N.B.R.(2d) 270; 841 A.P.R. 270; 2008 NBCA 23, refd to. [para. 33].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 43].

Schurman v. Covered Bridge Recreation Inc. (2009), 340 N.B.R.(2d) 168; 871 A.P.R. 168; 2009 NBCA 1, refd to. [para. 48].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 1; 374 W.A.C. 1; 2006 SCC 30, refd to. [para. 48].

Jorgenson v. Cewe (Jack) Ltd., [1980] 1 S.C.R. 812; 32 N.R. 1, refd to. [para. 50].

Genyk v. H & R Block (Canada) Ltd. and Irving (1980), 5 Man.R.(2d) 123 (Co. Ct.), refd to. [para. 51].

Fleming v. Alpha College, [1986] B.C.J. No. 2709 (S.C.), refd to. [para. 51].

Pawlin v. KVOS-TV (B.C.) Ltd., [1987] B.C.J. No. 2831 (S.C.), refd to. [para. 51].

Levy v. Ken-Wo Country Club (2001), 194 N.S.R.(2d) 213; 606 A.P.R. 213; 2001 NSSC 84, refd to. [para. 51].

Savoie v. Les Entreprises de Tabac Bernard (1976) ltée and Bernard (1983), 47 N.B.R.(2d) 179; 124 A.P.R. 179 (C.A.), refd to. [para. 51].

Savoie v. Chiasson et al. (2000), 231 N.B.R.(2d) 378; 597 A.P.R. 378; 2000 NBCA 56, refd to. [para. 51].

Duplessis v. Irving Pulp & Paper Ltd., Irving (J.D.) Ltd. and Irving (1983), 47 N.B.R.(2d) 11; 124 A.P.R. 11 (C.A.), refd to. [para. 56].

Bishop v. Carleton Co-operative Ltd. (1996), 176 N.B.R.(2d) 206; 447 A.P.R. 206 (C.A.), refd to. [para. 56].

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. 56].

Scott v. Renton et al. (1999), 215 N.B.R.(2d) 263; 551 A.P.R. 263 (C.A.), refd to. [para. 59].

Lawson v. Dominion Securities Corp. (1977), 2 A.C.W.S. 259 (Ont. C.A.), refd to. [para. 59].

Walsh v. Nicholls et al. (2004), 273 N.B.R.(2d) 203; 717 A.P.R. 203; 2004 NBCA 59, refd to. [para. 62].

Beaverbrook Canadian Foundation v. Beaverbrook Art Gallery (2006), 302 N.B.R.(2d) 161; 784 A.P.R. 161; 2006 NBCA 75, refd to. [para. 68].

LeClerc v. Sunbury Transport Ltd. and Risteen (1996), 184 N.B.R.(2d) 1; 469 A.P.R. 1 (C.A.), refd to. [para. 69].

Cyr v. Roman Catholic Bishop of Edmundston (1982), 39 N.B.R.(2d) 361; 103 A.P.R. 361 (C.A.), refd to. [para. 69].

Sweet (George C.) Agencies Ltd. v. Sklar-Peppler Furniture Corp. (1995), 140 N.S.R.(2d) 69; 399 A.P.R. 69 (C.A.), refd to. [para. 71].

Stevens v. Globe and Mail et al. (1996), 90 O.A.C. 361; 28 O.R.(3d) 481 (C.A.), refd to. [para. 71].

Janke v. Cenalta Oilwell Servicing Ltd. et al. (1997), 152 Sask.R. 32; 140 W.A.C. 32 (C.A.), refd to. [para. 72].

Christianson v. North Hill News Inc. (1993), 145 A.R. 58; 55 W.A.C. 58 (C.A.), refd to. [para. 73].

Morrow v. Aviva Canada Inc. (2004), 279 N.B.R.(2d) 77; 732 A.P.R. 77; 2004 NBCA 100, refd to. [para. 74].

Authors and Works Noticed:

Ball, Stacey Reginald, Canadian Employment Law (2009 Looseleaf), vol. 2, para. 22.20.26 [para. 73].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 47 [para. 62].

Counsel:

Avocats:

Jean-Marc Gauvin, for the appellant;

Sacha D. Morisset, for the respondent.

This appeal was heard on October 22, 2009, by Drapeau, C.J.N.B., Deschênes and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages by Drapeau, C.J.N.B., on February 11, 2010.