Radwan v. Arteif Furniture Manufacturing, (2002) 321 A.R. 353 (QB)

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 10, 2002
• Citations: (2002), 321 A.R. 353 (QB);2002 ABQB 742

Radwan v. Arteif Furniture Mfg. (2002), 321 A.R. 353 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. AU.062

Hassan Radwan (plaintiff) v. Arteif Furniture Manufacturing (defendant)

(Action No. 0003 09851; 2002 ABQB 742)

Indexed As: Radwan v. Arteif Furniture Manufacturing

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

August 16, 2002.

Summary:

Radwan worked for 25 years as a punch press operator making furniture at the same location. Over the course of his employment, the business was operated by several entities, including EIF-Artmet. In 1995 Arteif Furniture Manufacturing Inc. bought the business from the trustee in bankruptcy of EIF-Artmet. In 2000, Arteif terminated Radwan's employment, paying him for two weeks on the basis that he had been employed by them for less than four years. Arteif Furniture claimed that EIF-Artmet's bankruptcy terminated Radwan's employment in 1995 and none of his previous employment should be considered in calculating notice. Radwan commenced an action against Arteif Furniture claiming that both at common law and under the Employment Standards Code his employment should be deemed to be continuous for the entire 25 year period for the purpose of calculating notice.

The Alberta Court of Queen's allowed the action, holding that Radwan's claim was unaffected by the bankruptcy where the business was sold as a going concern. Further, Arteif did not negate the implied term in the contracts of employment that employees would be given credit for past service. The court held that at a minimum Radwan was entitled to termination pay under the Employment Standards Code applicable to a person employed for 25 years. However, at common law, Radwan was entitled to 20 months' notice.

Master and Servant - Topic 1162.2

Contract of hiring - Employment contract -Implied terms - Re credit for service where business sold as a going concern (incl. bankruptcy sale) - The Alberta Court of Queen's Bench held that where an employer purchases a going concern there is an implied term in the contract of employment between the purchaser and the employees it keeps on that the employees will be given credit for the years of past service with the seller for the purposes of salaries, bonuses, and notice of termination - Further, the court held that this term could be negated by an express term to the contrary, but where the new employer does not include such a term, the employer is deemed to have contracted with the employees to give them credit for past service - See paragraph 38.

Master and Servant - Topic 1162.2

Contract of hiring - Employment contract -Implied terms - Re credit for service where business sold as a going concern (incl. bankruptcy sale) - Radwan, who was 64 years old, worked for 25 years as a punch press operator making furniture at the same location - Over the years, the business was operated by several entities and was purchased four years ago from a bankruptcy trustee by Arteif Furniture - Arteif terminated Radwan's employment, paying him two weeks salary in lieu of notice - Arteif claimed that its predecessor's bankruptcy terminated Radwan's employment such that his previous employment should not be considered in calculating notice - Radwan sued Arteif claiming that both at common law and under the Employment Standards Code the entire 25 year period should be used for calculating notice - The Alberta Court of Queen's agreed with Radwan's argument, holding that his claim was unaffected by the bankruptcy where the business was sold as a going concern - Further, Arteif did not negate the implied term in the contracts of employment that employees would be given credit for past service - The court held that at a minimum Radwan was entitled to termination pay under the Employment Standards Code applicable to a person employed for 25 years - At common law, Radwan was entitled to 20 months' notice.

Master and Servant - Topic 1225

Contract of hiring - Employment contract - Termination - On appointment of receiver or assignment in bankruptcy - [See second Master and Servant - Topic 1162.2 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - [See second Master and Servant - Topic 1162.2 ].

Master and Servant - Topic 8003.1

Dismissal without cause - Notice of dismissal - Reasonable notice - Calculation of length of service - [See second Master and Servant - Topic 1162.2 ].

Master and Servant - Topic 8007

Dismissal without cause - Notice of dismissal - Reasonable notice - Long service employees dismissed - [See second Master and Servant - Topic 1162.2 ].

Master and Servant - Topic 8007.1

Dismissal without cause - Notice of dismissal - Reasonable notice - Management v. non-management employees - The Alberta Court of Queen's Bench referred to the trend toward higher notice periods for employees in lower status positions - See paragraphs 69 to 75.

Master and Servant - Topic 8009

Dismissal without cause - Notice of dismissal - Notice period - Where employer or bankruptcy trustee sells business to employer who dismisses employees - [See second Master and Servant - Topic 1162.2 ].

Master and Servant - Topic 8404

Employment and labour standards - Layoff or dismissal - Notice - [See second Master and Servant - Topic 1162.2 ].

Master and Servant - Topic 8445

Employment and labour standards - Layoff or dismissal - Payments or compensation - Requirement of continuous employment - [See second Master and Servant - Topic 1162.2 ].

Master and Servant - Topic 8485

Employment and labour standards - Successor rights - Liability of successor employer to employees - [See second Master and Servant - Topic 1162.2 ].

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 22].

Sorel v. Tomenson Saunders Whitehead Ltd. (1987), 39 D.L.R.(4th) 460 (B.C.C.A.), refd to. [para. 24].

Saan Stores Ltd. v. Labour Relations Board (N.S.) et al. (1999), 173 N.S.R.(2d) 222; 527 A.P.R. 222; 172 D.L.R.(4th) 134 (C.A.), refd to. [para. 31].

Saan Stores Ltd. v. United Steelworkers of America, Local 596 (Retail Wholesale Canada, Canadian Services Division) - see Saan Stores Ltd. v. Labour Relations Board (N.S.) et al.

Grimm's Fine Foods Ltd., Re, [2000] Alta. L.R.B.R. 1, refd to. [para. 35].

Gas Plus Inc. v. Alberta (Employment Standards Officer), [1996] A.J. No. 87 (Prov. Ct.), refd to. [para. 36].

Carr v. Ireco Canada II Inc. et al. (1991), 118 A.R. 53 (Q.B.), refd to. [para. 40].

Taylor v. Dallas Investments Inc. (1993), 138 A.R. 269 (Q.B.), refd to. [para. 40].

Bell v. Stanley Industrial Consultants Ltd. et al. (1996), 188 A.R. 53 (Q.B.), refd to. [para. 40].

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 55].

Machtinger v. HOJ Industries Ltd. - see Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd.

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. 55].

Stanton et al. v. Reliable Printing Ltd. et al. (1998), 222 A.R. 19 (Q.B.), refd to. [para. 57].

Act Computer Services Ltd. v. Miller et al. (1990), 105 A.R. 129 (C.A.), refd to. [para. 60].

Bardal v. Globe and Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), refd to. [para. 67].

Cronk v. Canadian General Insurance Co. (1994), 19 O.R.(3d) 515 (Gen. Div.), varied (1995), 85 O.A.C. 54; 25 O.R.(3d) 505 (C.A.), refd to. [para. 69].

Byers v. Prince George Downtown Parking Commission (1998), 111 B.C.A.C. 144; 181 W.A.C. 144; 53 B.C.L.R.(3d) 345 (C.A.), refd to. [para. 70].

Bramble et al. v. Medis Health and Pharmaceutical Services Inc. (1999), 214 N.B.R.(2d) 111; 547 A.P.R. 111; 175 D.L.R.(4th) 385 (C.A.), refd to. [para. 70].

Tanton v. Crane Canada Inc. (2000), 278 A.R. 137 (Q.B.), refd to. [para. 72].

Clark v. Fiberglas Canada Inc. (1993), 138 A.R. 280 (Q.B.), refd to. [para. 75].

Kuny v. Owens-Corning Canada Inc. (1999), 246 A.R. 168 (Q.B.), refd to. [para. 75].

Wilkinson v. Eaton (T.) Co. (1992), 130 A.R. 55 (Q.B.), affd. (1992), 135 A.R. 217; 33 W.A.C. 217 (C.A.), refd to. [para. 75].

Michaels et al. v. Red Deer College, [1976] 2 S.C.R. 324; 5 N.R. 99, refd to. [para. 77].

Christianson v. North Hill News Inc. (1993), 145 A.R. 58; 55 W.A.C. 58 (C.A.), refd to. [para. 77].

Jorgenson v. Jack Cewe Ltd., [1980] B.C.J. No. 1746 (S.C.), revd. in part (1978), 93 D.L.R.(3d) 464 (B.C.C.A.), affd. [1980] 1 S.C.R. 812; 32 N.R. 1, refd to. [para. 77].

Bowen Estate v. Ritchie Bros. Auctioneers Ltd. (1999), 126 O.A.C. 139; 47 C.C.E.L.(2d) 232 (C.A.), refd to. [para. 79].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 81].

Authors and Works Noticed:

Adams, George W., Canadian Labour Law (2nd Ed. 1993), generally [para. 35].

England, Geoffrey, Christie, Innis, and Christie, Merran, Employment Law in Canada (3rd Ed. 1998), para. 14,131, note 7 [para. 72].

Counsel:

Dennis Groh, Q.C. (Biamonte Cairo & Shortreed LLP), for the plaintiff;

Norma Mitchell (Duncan & Craig LLP), for the defendant.

This action was heard on April 10, 2002, before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on August 16, 2002.