Johnson v. Investors Group Financial Services Inc., (1999) 220 N.B.R.(2d) 13 (TD)

• Judge: McLellan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 21, 1999
• Jurisdiction: New Brunswick
• Citations: (1999), 220 N.B.R.(2d) 13 (TD)

Johnson v. Inv. Group Financial (1999), 220 N.B.R.(2d) 13 (TD);

    220 R.N.-B.(2e) 13; 565 A.P.R. 13

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[French language version follows English language version]

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

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Temp. Cite: [1999] N.B.R.(2d) TBEd. NO.011

James Richard Johnson (plaintiff) v. Investors Group Financial Services Inc., a duly incorporated company (defendant)

(S/C/1340/98)

Indexed As: Johnson v. Investors Group Financial Services Inc.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

McLellan, J.

October 21, 1999.

Summary:

The plaintiff "independent contractor" was summarily terminated after nine years fol­lowing an extremely rude outburst. There was no prior similar behaviour and the plaintiff did not receive a written warning. The plaintiff sued for damages for wrongful dismissal.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment report­ed at 217 N.B.R.(2d) 317; 555 A.P.R. 317, held that the plaintiff was dismissed without cause. The court adjourned the matter to determine the issue of whether "a provision for the termination without cause and with­out notice of an independent con­tractor in a long-term rela­tionship of econ­omic depen­dence akin to full-time employ­ment should be held to be void for unconscionability".

The New Brunswick Court of Queen's Bench, Trial Division, after receiving written submissions by counsel, ruled that the agree­ment for termi­nation without cause or notice was not void for unconscionability. Accord­ingly, the court dismissed the plain­tiff's wrongful dismissal action.

Contracts - Topic 4701

Discharge and termination - By notice - General - At issue was whether "a provi­sion for the termination without cause and with­out notice of an independent con­trac­tor in a long-term rela­tionship of econ­omic depend­ence akin to full-time em­ploy­ment should be held to be void for un­conscionability" - The New Brunswick Court of Queen's Bench, Trial Division, held that the provision was not void for unconscionability - Although the parties bargained from substantially unequal bar­gaining positions, the independent con­tractor received substantial commissions for many years - The agreement respect­ing termination of the relationship without cause or notice was not ambiguous and was neither improvident nor unconscion­able.

Contracts - Topic 7426

Interpretation - Ambiguity - What consti­tutes ambiguity - [See Contracts - Topic 4701 ].

Equity - Topic 1122

Equitable relief - Contracts - Un­con­scion­able bargain - Unconscionable bar­gain defined - [See Contracts - Topic 4701 ].

Cases Noticed:

Toussaint v. Toussaint (1982), 40 N.B.R.(2d) 541; 105 A.P.R. 541 (C.A.), refd to. [para. 3].

Hillis Oil and Sales Ltd. v. Wynn's Can­ada Ltd., [1986] 1 S.C.R. 57; 65 N.R. 23; 71 N.S.R.(2d) 353; 171 A.P.R. 353, dist. [para. 5].

Counsel:

David M. Brown, Q.C., for the plaintiff;

Deno P. Papas, Q.C., and Mélanie Cyr, for the defendant.

This action was heard on September 10-11, 1999, before McLellan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on October 21, 1999.