Johnson v. Investors Group Financial Services Inc., (2000) 227 N.B.R.(2d) 49 (CA)

• Judge: Ayles, Drapeau and Larlee, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 10, 2000
• Jurisdiction: New Brunswick
• Citations: (2000), 227 N.B.R.(2d) 49 (CA)

Johnson v. Inv. Group Financial (2000), 227 N.B.R.(2d) 49 (CA);

    227 R.N.-B.(2e) 49; 583 A.P.R. 49

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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: [2000] N.B.R.(2d) TBEd. MY.043

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

(247/99/CA)

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

New Brunswick Court of Appeal

Ayles, Drapeau and Larlee, JJ.A.

May 10, 2000.

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 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, in a judgment report­ed 220 N.B.R.(2d) 13; 565 A.P.R. 13, subse­quently 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. The plaintiff appealed.

The New Brunswick Court of Appeal dismissed the appeal.

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 trial judge 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 - The New Brunswick Court of Ap­peal affirmed the decision.

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 ].

Master and Servant - Topic 7559

Dismissal of employees - Grounds - Inso­lence - 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 trial judge held that the plaintiff was dismissed with­out cause - A single act of insolence may constitute "near cause", but did not consti­tute cause for dismissal - The New Bruns­wick Court of Appeal affirmed the deci­sion.

Cases Noticed:

Friolet v. Friolet (1998), 201 N.B.R.(2d) 118; 514 A.P.R. 118 (C.A.), refd to. [para. 4].

Gauthier v. Canada (Attorney General) (1999), 216 N.B.R.(2d) 175; 552 A.P.R. 175 (T.D.), refd to. [para. 4].

Jeux Maritimes Inc. v. Commission des loteries (N.-B.) (1999), 212 N.B.R.(2d) 341; 541 A.P.R. 341 (C.A.), refd to. [para. 4].

Counsel:

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

Thomas B. Drummie, Q.C., for the re­spon­dent.

This appeal was heard on May 10, 2000, before Ayles, Drapeau and Larlee, JJ.A., of the New Brunswick Court of Appeal.

On May 10, 2000, the following judgment was delivered orally by the court.