Métis National Council Secretariat Inc. et al. v. Dumont, (2008) 236 Man.R.(2d) 17 (CA)

• Judge: Steel, Hamilton and Chartier, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 09, 2008
• Jurisdiction: Manitoba
• Citations: (2008), 236 Man.R.(2d) 17 (CA);2008 MBCA 142

Métis Nat. Council v. Dumont (2008), 236 Man.R.(2d) 17 (CA);

      448 W.A.C. 17

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. DE.031

Métis National Council Secretariat Inc. and Clement Chartier, on behalf of the Métis National Council and the Métis National Council (plaintiffs/appellants) v. W. Yvon Dumont (defendant/respondent)

(AI 07-30-06701; 2008 MBCA 142)

Indexed As: Métis National Council Secretariat Inc. et al. v. Dumont

Manitoba Court of Appeal

Steel, Hamilton and Chartier, JJ.A.

December 9, 2008.

Summary:

The plaintiffs sued the defendant for breach of a restrictive covenant in his employment contract and for resulting damages.

The Manitoba Court of Queen's Bench, in a decision reported at 204 Man.R.(2d) 265, dismissed the action. The court held that the clause was unenforceable for violating public interest and that, even if the restriction was valid, the plaintiffs had failed to prove any damages flowing from its breach. The plaintiffs appealed.

The Manitoba Court of Appeal allowed the appeal and awarded damages of $1 against the defendant.

Contracts - Topic 6726

Illegal contracts - Contrary to public policy - Restraint of trade - Public interest - The defendant (Dumont) accepted the position of Governor of the Métis National Council Secretariat (MNC), a governing body for various provincial Métis organizations - Subsequently, MNC's Board of Governors passed, and Dumont accepted, certain "terms of reference" for the Governor's position - A politics clause required that the Governor not seek or hold political office in MNC (or any of its Governing Members) for two years after he ceased being the Governor - The trial judge held that the restrictive covenant was reasonable so long as Dumont held the position of Governor - However, the clause was unenforceable as being against the public interest in letting the Métis people choose their own leader without interference from MNC - The plaintiffs appealed - The Manitoba Court of Appeal allowed the appeal - This was not a contract in restraint of trade, and even if it was, the trial judge erred in holding that the covenant was unenforceable because it was contrary to the public interest - See paragraphs 1 to 35.

Damages - Topic 1202

Nominal damages - For breach of contract - [See Damages - Topic 1206 ].

Damages - Topic 1206

Nominal damages - Where no loss or injury - The defendant (Dumont) accepted the position of Governor of the Métis National Council Secretariat (MNC), a governing body for various provincial Métis organizations, including the Manitoba Métis Federation (MMF) - Subsequently, MNC's Board of Governors passed, and Dumont accepted, certain "terms of reference" for the Governor's position - A politics clause required that the Governor not seek or hold political office in MNC (or any of its Governing Members) for two years after he ceased being the Governor - Dumont resigned as MNC's Governor and ran for the position of MMF President - He lost - MNC sued Dumont for the salary paid under the terms of reference - The trial judge dismissed the action - The Manitoba Court of Appeal held that where the trial judge found a breach of the contract but no proven damages, nominal damages should have been awarded - The court held that the quantum of nominal damages should be $1 and awarded that amount - See paragraphs 36 to 46.

Master and Servant - Topic 4526

Liabilities of servant - To master - Breach of employment contract - [See Contracts - Topic 6726 and Damages - Topic 1206 ].

Practice - Topic 7025

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Failure to agree or use less expensive or simplified procedure - [See Practice - Topic 7026 ].

Practice - Topic 7026

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Nominal success - The defendant (Dumont) accepted the position of Governor of the Métis National Council Secretariat (MNC), a governing body for various provincial Métis organizations, including the Manitoba Métis Federation (MMF) - Subsequently, MNC's Board of Governors passed, and Dumont accepted, certain "terms of reference" for the Governor's position - A politics clause required that the Governor not seek or hold political office in MNC (or any of its Governing Members) for two years after he ceased being the Governor - Dumont resigned as MNC's Governor and ran for the position of MMF President - He lost - MNC sued Dumont for the salary paid under the terms of reference - The trial judge dismissed the action - The Manitoba Court of Appeal allowed the plaintiffs' appeal and awarded nominal damages of $1, but ordered each party to bear their own costs both at trial and on appeal - The plaintiffs could have obtained an injunction to restrain Dumont from running for president of the MMF and enforced their right in a more expedient and less expensive way - The MNC's Governor's position was new and apparently council was still developing its position in that respect - Two years had passed and the result would have no practical significance as between the MNC and Dumont, although it confirmed the principle for the future - See paragraphs 47 to 49.

Cases Noticed:

Collins (J.G.) Insurance Agencies Ltd. v. Elsley's Estate, [1978] 2 S.C.R. 916; 20 N.R. 1, refd to. [para. 10].

Richardson v. Mellish, [1824-34] All E.R. Rep. 258, refd to. [para. 11].

Millar Estate, Re, [1938] S.C.R. 1, refd to. [para. 12].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, consd. [para. 17].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, consd. [para. 17].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 17].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 17].

Simpson v. Mair et al. (2008), 376 N.R. 80; 256 B.C.A.C. 1; 431 W.A.C. 1; 293 D.L.R.(4th) 513; 2008 SCC 40, refd to. [para. 17].

Winnipeg Livestock Sales Ltd. v. Plewman et al. (2000), 150 Man.R.(2d) 82; 230 W.A.C. 82; 2000 MBCA 60, refd to. [para. 22].

Westco Storage Ltd. v. Kraft Holdings Ltd. (1988), 56 Man.R.(2d) 1 (C.A.), refd to. [para. 40].

Ship Mediana (Owners) v. Ship Comet (Owners, Master and Crew), [1900] A.C. 113 (H.L.), refd to. [para. 41].

Place Concorde East Limited Partnership et al. v. Shelter Corp. of Canada Ltd. et al. (2006), 211 O.A.C. 141 (C.A.), folld. [para. 45].

Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Industries Ltd., [1951] 1 All E.R. 873 (K.B.), refd to. [para. 46].

Burke v. Efstathianos et al. (1961), 27 D.L.R.(2d) 518 (Man. C.A.), refd to. [para. 47].

Butler Realty Ltd. v. Banfield (1982), 39 Nfld. & P.E.I.R. 240; 111 A.P.R. 240 (Nfld. C.A.), refd to. [para. 47].

Marynowsky v. Stuartburn (Local Government District) (1994), 97 Man.R.(2d) 60; 79 W.A.C. 60 (C.A.), refd to. [para. 47].

Authors and Works Noticed:

Ball, Stacey Reginald, Canadian Employment Law (2008 Looseleaf), vol. 1, paras. 7:20.1 [para. 21]; 7:20.3 [para. 22]; 7:30.1 [para. 21].

Fridman, Gerald Henry Louis, The Law of Contract in Canada (5th Ed. 2006), pp. 362 [para. 15]; 379 [paras. 23, 32]; 398 [para. 19].

Kain, Brandon, and Yoshida, Douglas T., The Doctrine of Public Policy in Canadian Contract Law (2007), Ann. Rev. Civ. Lit. 1, pp. 7 [para. 11]; 44 [para. 12].

Scott, Rosemary, Post-Employment Restraints: A Trail of Broken Promises (2006), Ann. Rev. Civ. Lit. 93, pp. 101 [para. 21]; 102 [para. 20].

Symmons, C.R., The Function and Effect of Public Policy in Contemporary Common Law (1977), 51 Aust. L.J. 185, p. 189 [para. 30].

Waddams, Stephen M., The Law of Damages (2008 Looseleaf Ed.), paras. 10.10 [paras. 41, 43]; 10.30 [para. 45]; 10.40 [para. 42].

Counsel:

M.N. Trachtenberg, for the appellants;

A. Bruun, for the respondent.

This appeal was heard by Steel, Hamilton and Chartier, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., delivered the following reasons for decision for the court on December 9, 2008.