Lewycky v. EXP Services Inc./Les Services EXP Inc. et al., (2014) 418 N.B.R.(2d) 253 (TD)

Judge:Clendening, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:February 25, 2014
Jurisdiction:New Brunswick
Citations:(2014), 418 N.B.R.(2d) 253 (TD);2014 NBQB 110
 
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Lewycky v. EXP Services Inc. (2014), 418 N.B.R.(2d) 253 (TD);

    418 R.N.-B.(2e) 253; 1087 A.P.R. 253

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Temp. Cite: [2014] N.B.R.(2d) TBEd. MY.008

Renvoi temp.: [2014] N.B.R.(2d) TBEd. MY.008

Lydia Lewycky (plaintiff) v. EXP Services Inc./Les Services Exp Inc., C.O.B. EXP, a body corporate (defendant)

(FC-147-2013)

Thomas Horrocks (plaintiff) v. EXP Services Inc./Les Services EXP Inc., c.o.b. EXP, a body corporate (defendant)

(FC-146-2013; 2014 NBQB 110; 2014 NBBR 110)

Indexed As: Lewycky v. EXP Services Inc./Les Services EXP Inc. et al.

Répertorié: Lewycky v. EXP Services Inc./Les Services EXP Inc. et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Clendening, J.

April 30, 2014.

Summary:

Résumé:

A husband and wife (the plaintiffs) were both employed by the same company and were both terminated without notice and without just cause. The plaintiffs brought a wrongful termination suit against the employer and moved for the advance payment of special damages pursuant to rule 47.03(3) of the Rules of Court.

The New Brunswick Court of Queen's Bench, Trial Division, granted the motions.

Damages - Topic 1415.1

Special damages - Wrongful dismissal - [See Practice - Topic 5205 ].

Master and Servant - Topic 7704

Dismissal of employees - Damages for wrongful dismissal - Measure of damages for wrongful dismissal - [See Practice - Topic 5205 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - [See Practice - Topic 5205 ].

Practice - Topic 5205

Trials - General - Advance payment of damages - A husband and wife (the plaintiffs), both aged 57, were employed by the same company (EXP Services Inc.) and were both terminated around April 2013 - The husband was employed in a senior managerial position and had 19 years of service - The wife was employed as a project manager and had almost six years of service - The plaintiffs secured new employment in Newfoundland in August 2013 (the husband) and October 2013 (the wife) - The plaintiffs brought a wrongful termination suit against EXP - EXP admitted that the plaintiffs were terminated without notice and without cause, but argued that the husband should have accepted the severance package that was offered, and the wife failed to mitigate her alleged losses - The plaintiffs moved for the advance payment of special damages pursuant to rule 47.03(3) of the Rules of Court - They submitted that the payment of special damages in advance would help to alleviate the financial strain associated with their period of unemployment and their move to Newfoundland to obtain new employment - The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiffs were entitled to advance payments - EXP did not provide a strong reason to the contrary - There might still be issues to be resolved regarding some aspects of the claims, but if the advance payment exceeded the final recovery, the discrepancy could be accounted for by a reimbursement order - The wife was entitled to six months' notice, resulting in a payment of $37,128 - The husband was entitled to 18 months' notice, resulting in a payment of $139,456.

Dommages-intérêts - Cote 1415.1

Dommages-intérêts particuliers - Congédiement injustifié - [Voir Damages - Topic 1415.1 ].

Employeurs et employés - Cote 7704

Congédiement d'employés ou discipline - Dommages-intérêts pour congédiement injustifié - Base du calcul - [Voir Master and Servant - Topic 7704 ].

Employeurs et employés - Cote 8000

Congédiement non motivé - Avis de congédiement - Préavis raisonnable - Éléments constitutifs - [Voir Master and Servant - Topic 8000 ].

Procédure - Cote 5205

Procès - Généralités - Paiement anticipé des dommages-intérêts - [Voir Practice - Topic 5205 ].

Cases Noticed:

Morrow v. Aviva Canada Inc. (2004), 279 N.B.R.(2d) 77; 732 A.P.R. 77; 2004 NBCA 100, refd to. [para. 7].

Brunswick News Inc. v. Sears (2012), 390 N.B.R.(2d) 167; 1011 A.P.R. 167; 2012 NBCA 32, refd to. [para. 12].

Davenport v. Metalfab Ltd. (2012), 397 N.B.R.(2d) 129; 1028 A.P.R. 129; 2012 NBQB 371, refd to. [para. 12].

Kent v. Stop 'N' Cash 1000 Inc. et al., [2006] O.T.C. 610 (Sup. Ct.), refd to. [para. 17].

Slater v. Reebok Canada Inc., [1994] O.J. No. 2922 (C.J.), refd to. [para. 17].

MacWilliams v. AMEC Americas Ltd. (2011), 378 N.B.R.(2d) 315; 973 A.P.R. 315; 2011 NBQB 272, refd to. [para. 18].

McNamara v. Alexander Centre Industries Ltd., [2000] O.T.C. 396 (Sup. Ct.), refd to. [para. 18].

Scott v. Irving Oil Ltd. (1984), 55 N.B.R.(2d) 327; 144 A.P.R. 327 (T.D.), refd to. [para. 19].

Boddington v. Vaughan Electronics Ltd. (1987), 81 N.B.R.(2d) 222; 205 A.P.R. 222 (T.D.), affd. (1988), 88 N.B.R.(2d) 1; 224 A.P.R. 1 (C.A.), refd to. [para. 19].

Bardal v. Globe & Mail Ltd., [1960] O.J. No. 149 (H.C.), refd to. [para. 22].

Dick v. Canadian Pacific Ltd. (1999), 214 N.B.R. 341; 547 A.P.R. 341 (T.D.), affd. (2000), 230 N.B.R.(2d) 39; 593 A.P.R. 39; 2000 NBCA 10, refd to. [para. 28].

Smith v. Agnew (2001), 240 N.B.R.(2d) 63; 622 A.P.R. 63; 2001 NBCA 83, refd to. [para. 29].

Counsel:

Avocats:

Brenda Laudia Comeau, for the plaintiffs;

Mark D. Tector, for the defendant.

These motions were heard on February 25, 2014, before Clendening, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on April 30, 2014.

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