Sparkes v. Enterprise Newfoundland and Labrador Corp., (1998) 167 Nfld. & P.E.I.R. 218 (NFCA)

• Judge: O'Neill, Marshall and Cameron, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: September 29, 1998
• Jurisdiction: Newfoundland and Labrador
• Citations: (1998), 167 Nfld. & P.E.I.R. 218 (NFCA)

Sparkes v. Ent. Nfld. (1998), 167 Nfld. & P.E.I.R. 218 (NFCA);

    513 A.P.R. 218

MLB headnote and full text

Temp. Cite: [1998] Nfld. & P.E.I.R. TBEd. OC.009

Raymond Sparkes (appellant) v. Enterprise Newfoundland and Labrador Corporation (respondent)

(94/176)

Indexed As: Sparkes v. Enterprise Newfoundland and Labrador Corp.

Newfoundland Supreme Court

Court of Appeal

O'Neill, Marshall and Cameron, JJ.A.

September 29, 1998.

Summary:

Sparkes was a senior financial advisor of the Newfoundland and Labrador Develop­ment Corp. (NLDC), formerly Enterprise Newfoundland and Labrador Corp. The NLDC dismissed Sparkes, claiming conflict of interest. Sparkes sued for wrongful dis­missal.

The Newfoundland Supreme Court, Trial Division, in a decision reported 122 Nfld. & P.E.I.R. 25; 379 A.P.R. 25, dismissed the action. The NLDC appealed.

The Newfoundland Court of Appeal, O'Neill, J.A., dissenting, allowed the appeal. The court remitted the matter for an assess­ment of damages.

Master and Servant - Topic 7522

Dismissal of employees - Grounds - Gen­eral - Consideration of total situation - The Newfoundland Court of Appeal agreed that "to properly assess a wrongful dismissal case, a trier of fact must be cognisant of the employee's duties and position." - The court further stated that "the higher the position of the employee in an organiz­ation, the higher the standard of conduct demanded of him or her. Further, the nature of the business engaged in by the employer is also a factor." - See para­graph 25.

Master and Servant - Topic 7529

Dismissal of employees - Grounds - Gen­eral - Company policy - Absence of - Sparkes was a senior financial advisor of the Newfoundland and Labrador Develop­ment Corp. (NLDC) - His job responsibil­ities included "troubleshooter" and "men­tor" - Hutton's company sought financing from NLDC - Meanwhile, Sparkes agreed to "guarantee" a mortgage for Hutton's mother-in-law to assist Hutton's company in starting up - Sparkes did not inform his superiors of his actions - NLDC dismissed Sparkes, alleging a conflict of interest - Sparkes sued for wrongful dismissal - The Newfoundland Court of Appeal allowed Sparkes' action - Although the court affirmed that Sparkes had placed himself in an apparent conflict of interest, his lapse of judgment did not justify termination, given his years of service, his otherwise excellent performance and the lack of consensus at NLDC as to appropriate behaviour - See paragraphs 43 to 53.

Master and Servant - Topic 7529

Dismissal of employees - Grounds - Gen­eral - Company policy - Absence of - Sparkes was a senior financial advisor of the Newfoundland and Labrador Develop­ment Corp. (NLDC) - His job responsibil­ities included "troubleshooter" and "men­tor" - Hutton's company sought financing from NLDC - Hutton purchased an airline ticket to Toronto for Sparkes - While in Toronto, Sparkes attended a Trade Show related to Hutton's business - Sparkes presented himself to potential Hutton supp­liers as an NLDC representative - Sparkes' supervisors believed that Sparkes went to Toronto on personal business and attended the trade show out of general interest and not as an NLDC representa­tive - Sparkes did not inform his supervi­sors that Hutton purchased the ticket - NLDC dismissed Sparkes alleging improper con­duct - The Newfoundland Court of Appeal held that Sparkes' actions could not be seen as violating policy, because there was no clear policy with respect to his role or responsibilities within NLDC - See para­graphs 28 to 31, 38 to 42.

Master and Servant - Topic 7561

Dismissal of employees - Grounds - Con­flict of interest - [See both Master and Servant - Topic 7529 ].

Cases Noticed:

Threader and Spinks v. Canada, [1987] 1 F.C. 41; 68 N.R. 143 (F.C.A.), refd to. [para. 21].

Ennis v. Canadian Imperial Bank of Com­merce (1986), 13 C.C.E.L. 25 (B.C.S.C.), refd to. [para. 23].

Lake Ontario Portland Cement Co. v. Groner, [1961] S.C.R. 553, refd to. [para. 32].

LeFurgey v. Royal Bank of Canada (1984), 56 N.B.R.(2d) 286; 146 A.P.R. 286 (T.D.), refd to. [para. 34].

Ivanore v. Canadian Imperial Bank of Commerce (1983), 3 C.C.E.L. 26 (Adjud.), refd to. [para. 34].

Bee Chemical Co. v. Plastic Paint & Fin­ish Specialties Ltd. (1978), 41 C.P.R.(2d) 175 (Ont. H.C.), refd to. [para. 45].

Hallingham v. Royal Bank (1995), 11 C.C.E.L.(2d) 214 (Adjud.), refd to. [para. 45].

Stock v. Bank of Nova Scotia (1988), 22 C.C.E.L. 217 (B.C.S.C.), refd to. [para. 45].

Rowe v. Royal Bank of Canada (1991), 38 C.C.E.L. 1 (B.C.S.C.), refd to. [para. 45].

Duguay v. Maritime Welding and Rentals Ltd. (1989), 100 N.B.R.(2d) 212; 252 A.P.R. 212; 28 C.C.E.L. 126 (T.D.), refd to. [para. 45].

Canada (Treasury Board) v. Spinks and Threader (1987), 79 N.R. 375 (F.C.A.), refd to. [para. 46].

Higginson v. Rocky Credit Union Ltd. (1995), 162 A.R. 369; 83 W.A.C. 369; 10 C.C.E.L.(2d) 1 (C.A.), dist. [para. 48].

Authors and Works Noticed:

Christie, England and Cotter, Employment Law in Canada (2nd Ed.), p. 637 [para. 44].

Levitt, Howard A., The Law of Dismissal in Canada (2nd Ed.), pp. 124 [para. 43]; 137 [para. 45].

Counsel:

W. Gary Rowe, Q.C., for the appellant;

Paul L. Coxworthy, for the respondent.

This appeal was heard on January 19, 1998, by O'Neill, Marshall and Cameron, JJ.A., of the Newfoundland Court of Appeal.

On September 29, 1998, the judgment of the Newfoundland Court of Appeal was delivered and the following opinions were filed:

Cameron, J.A. (Marshall, J.A., concur­ring) - see paragraphs 1 to 53;

O'Neill, J.A., dissenting - see paragraphs 54 to 68.