Roche v. Sameday Worldwide, (2014) 347 Nfld. & P.E.I.R. 181 (NLTD(G))

• Judge: Burrage, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: December 13, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: (2014), 347 Nfld. & P.E.I.R. 181 (NLTD(G))

Roche v. Sameday (2014), 347 Nfld. & P.E.I.R. 181 (NLTD(G));

    1080 A.P.R. 181

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. MR.010

Imelda Roche (plaintiff) v. Sameday Worldwide, a division of Day and Ross Inc. (defendant)

(201001T1453; 2014 NLTD(G) 26)

Indexed As: Roche v. Sameday Worldwide

Newfoundland and Labrador Supreme Court

Trial Division (General)

Burrage, J.

March 3, 2014.

Summary:

Roche began her employment with the defendant in 1980. In a November 2008 meeting, she was told that she was being removed from her position. She was given the option of one of two other positions at less pay. The possibility of a severance package was discussed. Roche did not return to work after that meeting. Following a diagnosis of depression, she went on short-term disability, followed by long-term disability (LTD). In September 2009, the employer learned that the insurer had closed Roche's LTD claim. She was advised to contact her supervisor for a return to work. When she failed to do so, in October 2009, the employer advised her that her employment would be terminated. However, in November 2009, the employer learned that Roche's LTD benefits had been reinstated. The employer immediately stopped the termination of Roche's employment. All of her benefits including pension contributions were reinstated. Roche's action claimed wrongful dismissal as of October 2009.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the action.

Editor's Note: For a decision related to this action, see (2012), 326 Nfld. & P.E.I.R. 248; 1012 A.P.R. 248.

Damages - Topic 911

Aggravation - In contract - Aggravated damages - Wrongful dismissal - Roche began her employment with the defendant in 1980 - In a November 2008 meeting, she was told that she was being removed from her position - She was given the option of one of two other positions at less pay - The possibility of a severance package was discussed - Roche did not return to work after that meeting - Following a diagnosis of depression, she went on short-term disability, followed by long-term disability (LTD) - In September 2009, the employer learned that the insurer had closed Roche's LTD claim - She was advised to contact her supervisor for a return to work - When she failed to do so, in October 2009, the employer advised her that her employment would be terminated - However, in November 2009, the employer learned that Roche's LTD benefits had been reinstated - The employer immediately stopped the termination of Roche's employment - All of her benefits including pension contributions were reinstated - Roche's action claimed wrongful dismissal as of October 2009 - The Newfoundland and Labrador Supreme Court, Trial Division (General), having held that Roche had not been dismissed, indicated that, had she been dismissed without cause, the court would have dismissed her claim for exemplary, aggravated and punitive damages arising from the manner of her dismissal - Such damages were only awarded for conduct during the course of dismissal that was unfair or in bad faith by being, for example, untruthful, misleading or unduly insensitive - Normal distress and hurt feelings associated with dismissal were not compensable - There was nothing reprehensible or unfair in the employer's conduct toward or treatment of Roche - See paragraphs 128 to 147.

Damages - Topic 1326

Exemplary or punitive damages - Wrongful dismissal - [See Damages - Topic 911 ].

Master and Servant - Topic 2203

Breach of contract - General - Frustration - Roche began her employment with the defendant in 1980 - In a November 2008 meeting, she was told that she was being removed from her position - She was given the option of one of two other positions at less pay - The possibility of a severance package was discussed - Roche did not return to work after that meeting - Following a diagnosis of depression, she went on short-term disability, followed by long-term disability (LTD) - In September 2009, the employer learned that the insurer had closed Roche's LTD claim - She was advised to contact her supervisor for a return to work - When she failed to do so, in October 2009, the employer advised her that her employment would be terminated - However, in November 2009, the employer learned that Roche's LTD benefits had been reinstated - The employer immediately stopped the termination of Roche's employment - All of her benefits including pension contributions were reinstated - Roche's action claimed wrongful dismissal as of October 2009 - The Newfoundland and Labrador Supreme Court, Trial Division (General), having held that Roche had not been dismissed, rejected the employer's argument that, as Roche had been on sick leave since November 2008 and was unlikely to recover in the foreseeable future, her contract of employment had been frustrated - As Roche had not been dismissed, the question of whether there would be justification for dismissal on account of her illness did not arise - Frustration of contract was only available to a defendant as a defence in circumstances where there had been a termination of the employment relationship - See paragraphs 118 to 127.

Master and Servant - Topic 2264

Breach of contract - Repudiation by employer or employee - What constitutes repudiation - Roche began her employment with the defendant in 1980 - In a November 2008 meeting, she was told that she was being removed from her position - She was given the option of one of two other positions at less pay - The possibility of a severance package was discussed - Roche did not return to work after that meeting - Following a diagnosis of depression, she went on short-term disability, followed by long-term disability (LTD) - In September 2009, the employer learned that the insurer had closed Roche's LTD claim - She was advised to contact her supervisor for a return to work - When she failed to do so, in October 2009, the employer advised her that her employment would be terminated - However, in November 2009, the employer learned that Roche's LTD benefits had been reinstated - The employer immediately stopped the termination of Roche's employment - All of her benefits including pension contributions were reinstated - Roche's action claimed wrongful dismissal as of October 2009 - The Newfoundland and Labrador Supreme Court, Trial Division (General), having held that Roche had not been dismissed, rejected the employer's argument that Roche, by commencing the lawsuit, had repudiated her employment contract - Roche had continued to receive her health and accumulated pension benefits as an employee uninterrupted by the issuance of her statement of claim - She remained a willing recipient of those benefits and the employer was a willing contributor - Nothing suggested that either party had treated the employment relationship as repudiated - See paragraphs 111 to 117.

Master and Servant - Topic 7502

Dismissal or discipline of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - Roche began her employment with the defendant in 1980 - In a November 2008 meeting, she was told that she was being removed from her position - She was given the option of one of two other positions at less pay - The possibility of a severance package was discussed - Roche did not return to work after that meeting - Following a diagnosis of depression, she went on short-term disability, followed by long-term disability (LTD) - In September 2009, the employer learned that the insurer had closed Roche's LTD claim - She was advised to contact her supervisor for a return to work - When she failed to do so, in October 2009, the employer advised her that her employment would be terminated - However, in November 2009, the employer learned that Roche's LTD benefits had been reinstated - The employer immediately stopped the termination of Roche's employment - All of her benefits including pension contributions were reinstated - Roche's action claimed wrongful dismissal as of October 2009 - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that Roche had not been dismissed - After October 2009, the employer had in all respects continued to treat Roche as an employee - But for this litigation, Roche had been accepting of that treatment - To conclude that she had been dismissed in October 2009 would require the court to ignore the circumstances - See paragraphs 95 to 110.

Master and Servant - Topic 7566

Dismissal or discipline of employees - Grounds - Repudiation of employment contract - [See Master and Servant - Topic 2264 ].

Master and Servant - Topic 7612

Dismissal or discipline of employees - Defences - Frustration - [See Master and Servant - Topic 2203 ].

Master and Servant - Topic 7707

Dismissal or discipline of employees - Damages for wrongful dismissal - Mental distress - [See Damages - Topic 911 ].

Master and Servant - Topic 7712

Dismissal or discipline of employees - Damages for wrongful dismissal - Punitive or vindictive damages - [See Damages - Topic 911 ].

Master and Servant - Topic 7713

Dismissal or discipline of employees - Damages for wrongful dismissal - Aggravated damages - [See Damages - Topic 911 ].

Cases Noticed:

Kelland v. POI Business Interiors Inc., [2008] O.T.C. Uned. D30 (Sup. Ct.), revd. [2009] O.A.C. Uned. 41; 2009 ONCA 67, refd to. [para. 105].

Evans v. Listel Canada Ltd., [2007] B.C.T.C. Uned. 146; 2007 BCSC 299, dist. [para. 114].

Marshall v. Harland & Wolff Ltd., [1972] 2 All E.R. 715; [1972] 1 W.L.R. 899 (N.I.R.C.), refd to. [para. 119].

Wightman Estate v. 2774046 Canada Inc. et al. (2006), 231 B.C.A.C. 75; 381 W.A.C. 75; 2006 BCCA 424, dist. [para. 122].

Duong v. Linamar Corp. et al., [2010] O.T.C. Uned. 3159; 2010 ONSC 3159, dist. [para. 122].

Demuynck v. Agentis Information Services Inc., [2003] B.C.T.C. 96; 2003 BCSC 96, dist. [para. 122].

Keays v. Honda Canada Inc. (2008), 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 130].

Smith et al. v. Centra Windows Ltd. et al., [2009] B.C.T.C. Uned. 606; 2009 BCSC 606, refd to. [para. 131].

Mulvihill v. Ottawa (City) (2008), 235 O.A.C. 113; 90 O.R.(3d) 285; 2008 ONCA 201, refd to. [para. 132].

Counsel:

Toby J. Bristow, for the plaintiff;

Nancy F. Barteaux and Hanaa Al Sharief, for the defendant.

This action was heard at St. John's, N.L., on November 12-15 and 18 to 22 and December 13, 2013, by Burrage, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on March 3, 2014.