Kerr v. 2463103 Nova Scotia Ltd., 2014 NSSC 27

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 23, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSSC 27;(2014), 339 N.S.R.(2d) 336 (SC)

Kerr v. 2463103 N.S. (2014), 339 N.S.R.(2d) 336 (SC);

    1073 A.P.R. 336

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JA.045

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

(Ken No. 419749; 2014 NSSC 27)

Indexed As: Kerr v. 2463103 Nova Scotia Ltd.

Nova Scotia Supreme Court

Warner, J.

January 23, 2014.

Summary:

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 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 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.

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 Nova Scotia Supreme Court held that the employee quit - He was not terminated - The court held that 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 - See paragraphs 37 to 56.

Master and Servant - Topic 7614

Dismissal or discipline of employees - Defences - Resignation of employee - The Nova Scotia Supreme Court stated that "Case law suggests that where an employee expresses dissatisfaction with an employer or about a wrong committed by the employer (real or perceived), and declares an intention to seek other employment without words or actions indicative of an immediate firm intention to quit, he or she has not quit. ... Case law suggests that where the employee, in a state of depression, frustration or emotional angst makes a hasty (usually) statement that he or she quits and shortly thereafter, realizing the rashness of his or her statement or actions, either retracts the statement in short order or engages in discussions with the employer to patch up the dispute leading to the declaration of intent to quit, the employee has not quit. ... On the other hand, when the words or actions of the employee demonstrate a clear intent to resign, either unconditionally, or as part of an ultimatum, the courts have not hesitated to find that the employee quit. ... the retraction of a clear notice to quit must occur and be communicated to the employer before the employer communicates acceptance of the resignation to the employee." - See paragraphs 37 to 39, 41.

Cases Noticed:

McKinley v. BC Tel et al. (2001), 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161; 2001 SCC 38, refd to. [para. 24].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 25].

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. 26].

Burns v. Sobeys Group Inc. (2007), 260 N.S.R.(2d) 227; 831 A.P.R. 227; 2007 NSSC 363, refd to. [para. 32].

Ruparell v. Halifax Ladies College (2012), 317 N.S.R.(2d) 234; 1003 A.P.R. 234; 2012 NSSC 211, refd to. [para. 32].

Hynes v. Qullig, 2013 NUCJ 25, refd to. [para. 32].

Larsen v. Airarms Fasteners & Industrial Ltd. (1999), 8 B.C.T.C. 286 (S.C.), refd to. [para. 32].

Anderson v. Buffalo Airways, 2011 NWTSC 3, refd to. [para. 32].

Kieran v. Ingram Micro Inc. (2004), 189 O.A.C. 58 (C.A.), refd to. [para. 33].

Robinson v. Team Cooperheat-MQS Canada Inc., [2008] A.R. Uned. 477; 2008 ABQB 409, refd to. [para. 33].

Dragone v. Riva Plumbing Ltd., [2007] O.T.C. Uned. K33 (Sup. Ct.), refd to. [para. 36].

Mosher v. Twin-Cities Co-Operative Dairy Ltd. (1984), 63 N.S.R.(2d) 252; 141 A.P.R. 252 (T.D.), refd to. [para. 37].

Widmeyer v. Municipal Enterprises Ltd. (1991), 103 N.S.R.(2d) 336; 282 A.P.R. 336 (T.D.), refd to. [para. 37].

Tolman v. Gearmatic Co., [1986] B.C.J. No. 481 (C.A.), refd to. [para. 37].

Danroth v. Farrow Holdings Ltd. (2005), 219 B.C.A.C. 151; 361 W.A.C. 151; 2005 BCCA 593, refd to. [para. 37].

Assouline v. Ogivar Inc., [1991] B.C.J. No. 3419 (S.C.), refd to. [para. 37].

Turner v. Westburne Electrical Inc., [2004] A.R. Uned. 572; 2004 ABQB 605, refd to. [para. 37].

Carmichael v. Mantis Racing Inc., [2009] O.T.C. Uned. W16 (Sup. Ct.), refd to. [para. 37].

Cranston v. Canadian Broadcasting Corp., [1994] O.J. No. 605 (Sup. Ct.), refd to. [para. 38].

Maguire v. Sutton, [1998] B.C.J. No. 138 (S.C.), refd to. [para. 38].

Movileanu v. Valcom Manufacturing Group Inc., [2007] O.T.C. Uned. O43 (Sup. Ct.), refd to. [para. 38].

Bevis v. Renaissance Wine Merchants Ltd. et al., [2006] A.R. Uned. 893; 2006 ABQB 8, affd. (2007), 422 A.R. 240; 415 W.A.C. 240; 2007 ABCA 356, refd to. [para. 39].

Eichenberger v. Heath Consultants Ltd., [1997] B.C.T.C. Uned. F97 (S.C.), refd to. [para. 39].

Billows v. Canarc Forest Products Ltd., [2003] B.C.T.C. 1352; 2003 BCSC 1352, refd to. [para. 39].

Hopaluk v. Transx Ltd. (1998), 131 Man.R.(2d) 1; 187 W.A.C. 1 (C.A.), refd to. [para. 43].

Pauloski v. Nascor Inc. (2002), 311 A.R. 67; 2002 ABQB 171, refd to. [para. 43].

Crouch v. Securitas Canada, [2008] O.T.C. Uned. 14 (Sup. Ct.), refd to. [para. 43].

Bocaneala v. Liberatore (2013), 337 N.S.R.(2d) 109; 1067 A.P.R. 109; 2013 NSSC 372, refd to. [para. 44].

Authors and Works Noticed:

Ball, Stacey Reginald, Canadian Employment Law (1996 looseleaf), c. 8 [para. 31].

England, Geoffrey, Christie, Innis, and Barnacle, Peter, Employment Law in Canada (4th Ed. 2005) (looseleaf), c. 13.1 to 13.17 [para. 31].

Hall, Geoff R., Canadian Contractual Interpretation Law (2nd Ed. 2012), c. 7.4.1 [para. 27].

Levitt, Howard A., The Law of Dismissal in Canada (3rd Ed. 2003) (looseleaf), c. 12:10.20 [para. 31].

Mole, Ellen E., Wrongful Dismissal Practice Manual (2nd Ed. 2005) (looseleaf), c. 2.99 to 2.247 [para. 31].

Counsel:

Michael Coyle, for the applicant;

Peter Nathanson and Cheri Killam, A.C., for the respondent.

This application was heard on January 8 and 10, 2014, at Kentville, N.S., before Warner, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 23, 2014.