Nunavut v. Schram, 2014 NBCA 53

• Judge: Drapeau, C.J.N.B., Larlee and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: August 21, 2014
• Jurisdiction: New Brunswick
• Citations: 2014 NBCA 53;(2014), 423 N.B.R.(2d) 294 (CA)

Nunavut v. Schram (2014), 423 N.B.R.(2d) 294 (CA);

    423 R.N.-B.(2e) 294; 1103 A.P.R. 294

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2014] N.B.R.(2d) TBEd. AU.011

Renvoi temp.: [2014] N.B.R.(2d) TBEd. AU.011

The Government of Nunavut (appellant) v. Marie Humphrey Schram (respondent)

(138-13-CA; 2014 NBCA 53)

Indexed As: Nunavut v. Schram

Répertorié: Nunavut v. Schram

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Larlee and Quigg, JJ.A.

August 21, 2014.

Summary:

Résumé:

The plaintiff, a New Brunswick (NB) resident, accepted in writing an employment offer for a three year term position from the defendant (government of Nunavut) in July 2007. The acceptance was faxed to Nunavut. Her husband remained in their NB home and the plaintiff returned to NB quarterly. In August 2010, at the end of the three year term, the plaintiff, while in Nunavut, accepted an offer to extend her employment term for three more years. In February 2011, the defendant terminated the plaintiff's employment. The plaintiff returned to NB and sued for damages for the breach of her employment contract. The defendant moved to set aside service outside of NB, arguing that NB was not the forum conveniens where the only connection with NB was that the plaintiff was currently resident there.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (2013), 406 N.B.R.(2d) 168; 1053 A.P.R. 168, dismissed the motion. NB was a forum conveniens and Nunavut was not proved to be a more appropriate forum. The plaintiff moved under rule 22.01(1)(b) for summary judgment for the loss of income portion of her claim. The defendant opposed summary judgment on the ground that there were triable issues as to quantum (including her contractual entitlement to the Northern Allowance), whether the plaintiff mitigated her loss, and whether the plaintiff would have terminated her employment contract early in any event due to health concerns (breast cancer). The plaintiff also sought an advance payment of special damages for her income loss.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (2013), 420 N.B.R.(2d) 114; 1091 A.P.R. 114, granted summary judgment for the income and benefits payable over the balance of the three year contract ($256,595.71). The court ordered a trial of the issues of the plaintiff's health concerns and her entitlement to the Northern Allowance. There was no triable issue respecting mitigation or whether New Brunswick or Nunavut law applied (law the same). An advance payment of special damages was ordered under rule 47.03(3) for the lesser amount of $225,000, recognizing the triable issues which might ultimately affect the amount. Nunavut appealed the granting of summary judgment and the advance payment of special damages, primarily on the ground that the trial judge erred in finding that there was no triable issue respecting mitigation. The plaintiff cross-appealed the refusal to preclude Nunavut from exploring her inability to complete the term of her contract due to health problems.

The New Brunswick Court of Appeal allowed the appeal in part. The trial judge did not err in granting summary judgment or in ordering an advance payment of special damages. However, the trial judge erred in not leaving the affirmative defence of failure to mitigate to the trial on the issue of damages. The cross-appeal was dismissed.

Damages - Topic 6753

Contracts - Employment relationship or contract - Breach by employer - Mitigation by employee - [See Practice - Topic 5702 ].

Practice - Topic 5205

Trials - General - Advance payment of damages - [See Practice - Topic 5702 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or appropriate - The plaintiff's three year employment contract was admittedly breached by the defendant with 2.5 years left in the term when the defendant terminated the plaintiff without cause - The plaintiff sued for damages for breach of contract (balance of income and benefits over the three year term), plus general damages for mental distress, etc., punitive damages and solicitor/client costs - The plaintiff moved under rule 22.01(1)(b) for summary judgment for the loss of income portion of her claim - The defendant opposed summary judgment on the ground that there were triable issues as to quantum of damages (including the plaintiff's contractual entitlement to the Northern Allowance), mitigation, and whether the plaintiff would have terminated her contract early in any event due to health concerns (breast cancer) - The trial judge granted summary judgment for the income and benefits payable over the balance of the three year contract ($256,595.71) - The court ordered a trial of the issues of the plaintiff's health concerns and her entitlement to the Northern Allowance - There was no triable issue respecting mitigation - The court stated that the defendant alleged mitigation in its statement of defence, but did not provide the material facts relied upon to support the defence, as required by rule 27.06(1) - Nor did the defence adduce any evidence to support a failure to mitigate - There was also no triable issue as to whether Nunavut or New Brunswick law applied, as the law in both jurisdictions was the same - An advance payment of special damages was ordered under rule 47.03(3) for the lesser amount of $225,000, recognizing the triable issues which might ultimately affect the amount - The New Brunswick Court of Appeal held that the trial judge did not err in granting summary judgment or in ordering an advance payment of special damages - However, the trial judge erred in not leaving the affirmative defence of failure to mitigate to the trial on the issue of damages - The plaintiff's motion sought only a declaration of dismissal without cause (which opened the door for an advanced payment of special damages) and sought a trial limited to the issue of damages - Nunavut's defences, including the plaintiff's failure to mitigate and whether the plaintiff's health concerns would have precluded her from completing the contract, were not in issue on the motion - Nunavut adequately pleaded material facts in support of the failure to mitigate, and that issue had to be determined at trial - See paragraphs 7 to 30.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Practice - Topic 5717

Judgments and orders - Summary judgments - For part of claim - [See Practice - Topic 5702 ].

Dommages-intérêts - Cote 6753

Contrats - Relation employeur-employé ou contrat de travail - Violation par l'employeur - Limitation des dommages par l'employé - [Voir Damages - Topic 6753 ].

Procédure - Cote 5205

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

Procédure - Cote 5702

Jugements et ordonnances - Jugements sommaires - Compétence ou conditions d'ouverture ou opportunité - [Voir Practice - Topic 5702 ].

Procédure - Cote 5708

Jugements et ordonnances - Jugements sommaires - Obstacle à la demande - Existence d'une question justiciable - [Voir Practice - Topic 5708 ].

Procédure - Cote 5717

Jugements et ordonnances - Jugements sommaires - Pour une partie de la demande - [Voir Practice - Topic 5717 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 6].

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 8].

656340 N.B. Inc. v. 059143 N.B. Inc. (2014), 423 N.B.R.(2d) 203; 1103 A.P.R. 203; 2014 NBCA 46, refd to. [para. 8].

Shareline Systems Ltd. v. New Brunswick et al. (2001), 235 N.B.R.(2d) 162; 607 A.P.R. 162 (C.A.), refd to. [para. 8].

Morrow v. Aviva Canada Inc. (2004), 279 N.B.R.(2d) 77; 732 A.P.R. 77 (C.A.), refd to. [para. 9].

MacWilliams v. AMEC Americas Ltd. (2012), 388 N.B.R.(2d) 254; 1006 A.P.R. 254; 2012 NBCA 46, refd to. [para. 10].

Gay v. Regional Health Authority 7 et al. (2014), 421 N.B.R.(2d) 1; 1094 A.P.R. 1; 2014 NBCA 10, refd to. [para. 15].

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 772 v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada et al. (2013), 404 N.B.R.(2d) 332; 1048 A.P.R. 332; 2013 NBCA 33, refd to. [para. 15].

Estabrooks v. New Brunswick Real Estate Association (2014), 422 N.B.R.(2d) 121; 1096 A.P.R. 121; 2014 NBCA 48, refd to. [para. 15].

Davidson et al. v. Craig Manufacturing Ltd. (2009), 345 N.B.R.(2d) 359; 889 A.P.R. 359 (C.A.), refd to. [para. 16].

McLaughlin v. Levesque (2008), 337 N.B.R.(2d) 283; 864 A.P.R. 283 (T.D.), refd to. [para. 16].

Brunswick News Inc. v. Sears (2012), 390 N.B.R.(2d) 167; 1011 A.P.R. 167 (C.A.), refd to. [para. 24].

Fraser v. Brookville Carriers Van LP Inc. (2007), 319 N.B.R.(2d) 297; 823 A.P.R. 297 (C.A.), dist. [para. 25].

Authors and Works Noticed:

Harris, David, Wrongful Dismissal (1990 Looseleaf), ch. 9, para. 9-14.6(22) [para. 24].

Counsel:

Avocats:

Lucie LaBoissonnière and Dominique P. Fontaine, for the appellant;

James F. LeMesurier, Q.C., for the respondent.

This appeal and cross-appeal were heard on May 22, 2014, before Drapeau, C.J.N.B., Larlee and Quigg, JJ.A., of the New Brunswick Court of Appeal.

On August 21, 2014, Larlee, J.A., delivered the following judgment in both official languages for the Court of Appeal.