Kerr v. 2463103 N.S., 2015 NSCA 7

Judge:MacDonald, C.J.N.S., Saunders and Fichaud, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:January 22, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 7;(2015), 354 N.S.R.(2d) 327 (CA)
 
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Kerr v. 2463103 N.S. (2015), 354 N.S.R.(2d) 327 (CA);

    1120 A.P.R. 327

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Temp. Cite: [2015] N.S.R.(2d) TBEd. JA.049

Gary Wilfred Kerr (appellant) v. 2463103 Nova Scotia Limited, carrying on business as Valley Volkswagen (respondent)

(CA 425085; 2015 NSCA 7)

Indexed As: Kerr v. 2463103 Nova Scotia Ltd.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Saunders and Fichaud, JJ.A.

January 22, 2015.

Summary:

An employee, by way of an Application in Court, claimed that he was dismissed without cause after asking for a $100 per week raise in his base salary of $35,000. The employer claimed that the employee resigned, which it accepted, after the employee gave it an ultimatum: that he would quit if he did not get the raise.

The Nova Scotia Supreme Court, in a judgment reported (2014), 339 N.S.R.(2d) 336; 1073 A.P.R. 336, dismissed the claim on the basis that the employee had given the employer an ultimatum and that the employer accepted the employee's resignation. The employee was not terminated. He quit.

The Nova Scotia Supreme Court, in a judgment reported (2014), 342 N.S.R.(2d) 307; 1083 A.P.R. 307, awarded the employer costs of $4,000 under Scale 1 of Tariff A. The employee appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Master and Servant - Topic 7614

Dismissal or discipline of employees - Defences - Resignation of employee - An employee, by way of application, claimed that he was dismissed without cause after asking for a $100 per week raise in his base salary of $35,000 - The employer told the employee that a raise would not be considered until his substandard performance respecting excess inventory was addressed - The employee continued to work for three weeks - He did not deal with the inventory problem, nor did he withdraw his raise request or retract his ultimatum of quitting unless he got the raise - The employer advised the employee that he accepted his resignation - The employee claimed that he did not threaten to quit; that he only threatened to consider other employment options - The trial judge held that the employee quit - He was not terminated - The employee's intent to quit absent a raise was, objectively, clear and unequivocal - The employer did not opportunistically accept the ultimatum - The employee could have retracted his ultimatum at any time in the three week period before the employer accepted his resignation and communicated that acceptance to him - The employee did not do so - The Nova Scotia Court of Appeal affirmed the decision - The employee clearly and unequivocally stated that he would resign unless he got his raise - When the employer accepted the resignation before the employee withdrew it, the employment contract came to an end - Had the employee withdrawn his conditional offer of resignation before it was accepted, he would not necessarily have been bound by the resignation and the employer would have to have shown detrimental reliance - However, where the resignation offer was accepted before withdrawal, detrimental reliance was irrelevant.

Cases Noticed:

Kieran v. Ingram Micro Inc. (2004), 189 O.A.C. 58 (C.A.), refd to. [para. 15].

Tolman v. Gearmatic Co., [1986] B.C.J. No. 481 (C.A.), refd to. [para. 16].

Central London Property Trust v. High Trees House, [1947] K.B. 130; [1956] 1 All E.R. 256, refd to. [para. 16].

Turner v. Westburne Electrical Inc., [2004] A.R. Uned. 572; 2004 ABQB 605, refd to. [para. 17].

Kirby v. Amalgamated Income Limited Partnership et al., [2009] B.C.T.C. Uned. 1044; 2009 BCSC 1044, refd to. [para. 18].

Cranston v. Canadian Broadcasting Corp., [1994] O.J. No. 605 (Sup. Ct.), refd to. [para. 19].

Authors and Works Noticed:

Ball, Stacy, Canadian Employment Law (2013), p. 8-10 [para. 13].

Waddams, S.M., The Law of Contracts (6th Ed. 2010), p. 20 [para. 12].

Counsel:

Michael V. Coyle, for the appellant;

Peter D. Nathanson, for the respndent.

This appeal was heard on December 1, 2014, at Halifax, N.S., before MacDonald, C.J.N.S., Saunders and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On January 22, 2015, Saunders, J.A., delivered the following judgment for the Court.

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