Pike v. Loblaws Inc., (2005) 244 Nfld. & P.E.I.R. 181 (NLCA)

• Judge: Wells, C.J.N.L., Roberts and Welsh, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: February 14, 2005
• Jurisdiction: Newfoundland and Labrador
• Citations: (2005), 244 Nfld. & P.E.I.R. 181 (NLCA);2005 NLCA 9

Pike v. Loblaws Inc. (2005), 244 Nfld. & P.E.I.R. 181 (NLCA);

  726 A.P.R. 181

MLB headnote and full text

Temp. Cite: [2005] Nfld. & P.E.I.R. TBEd. FE.020

Gary Pike (appellant) v. Loblaws Inc. T/A Dominion (respondent)

(200001T0711; 2005 NLCA 9)

Indexed As: Pike v. Loblaws Inc. T/A Dominion

Newfoundland and Labrador Supreme Court

Court of Appeal

Wells, C.J.N.L., Roberts and Welsh, JJ.A.

February 14, 2005.

Summary:

The plaintiff sued the defendant for wrongful dismissal. The defendant moved for a nonsuit at the close of the plaintiff's case.

The Newfoundland and Labrador Supreme Court, Trial Division, in a decision reported at 227 Nfld. & P.E.I.R. 356; 677 A.P.R. 356, allowed the application and dismissed the action. The plaintiff appealed.

The Newfoundland and Labrador Court of Appeal dismissed the appeal.

Master and Servant - Topic 4204

Duties of servant - Duty not to compete with employer - The plaintiff sued the defendant for wrongful dismissal - A trial judge allowed a nonsuit application at the close of the plaintiff's case, holding that his admitted misconduct was just cause for dismissal - The plaintiff, a member of the defendant's management team, appropriated for himself a business opportunity which had been presented to the defendant - He thereby competed with the defendant, contrary to his common law duty of loyalty and the defendant's Code of Business Conduct, of which he had knowledge - In carrying out the transaction, he utilized the defendant's transportation, physical facility and funds - The misconduct was not offset by the plaintiff's lengthy and unblemished record and the fact that he was experiencing significant stress and anxiety due to illness in his family - The plaintiff appealed - The Newfoundland and Labrador Court of Appeal dismissed the appeal - See paragraphs 11 and 12.

Master and Servant - Topic 7553

Dismissal of employees - Grounds - Misconduct or misconduct of business - [See Master and Servant - Topic 4204 ].

Master and Servant - Topic 7558

Dismissal of employees - Grounds - Disloyalty - [See Master and Servant - Topic 4204 ].

Master and Servant - Topic 7582.1

Dismissal of employees - Grounds - Personal use of company property - [See Master and Servant - Topic 4204 ].

Practice - Topic 5390

Dismissal of action - Application or motion for dismissal - Nonsuit - At close of plaintiff's case - Evidence and proof - The plaintiff sued the defendant for wrongful dismissal - The defendant applied for a nonsuit at the end of the plaintiff's case - The trial judge granted a nonsuit - The plaintiff appealed - The Newfoundland and Labrador Court of Appeal held that although the defendant had the burden of proof on the nonsuit application, that did not prevent the defendant from proving its case by the evidence of the plaintiff - The court held that the trial judge properly discharged his role on a nonsuit application - See paragraphs 4 to 10.

Cases Noticed:

Petten et al. v. E.Y.E. Marine Consultants et al. (1995), 131 Nfld. & P.E.I.R. 351; 408 A.P.R. 351 (Nfld. T.D.), refd to. [para. 7].

Hodder et al. v. Waddleton et al. (1990), 87 Nfld. & P.E.I.R. 52; 271 A.P.R. 52 (Nfld. C.A.), refd to. [para. 9].

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161, refd to. [para. 10].

Counsel:

Robert Regular and John Taylor Hood, for the appellant;

Robert Andrews, Q.C., for the respondent.

This appeal was heard and orally decided on February 14, 2005, by Wells, C.J.N.L., Roberts and Welsh, JJ.A., of the Newfoundland and Labrador Court of Appeal. The court filed the following reasons on February 18, 2005.