Stewart v. Manitoba Opera Association Inc., (1994) 93 Man.R.(2d) 243 (QB)

• Judge: Beard, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: April 14, 1994
• Jurisdiction: Manitoba
• Citations: (1994), 93 Man.R.(2d) 243 (QB)

Stewart v. Opera Assoc. Inc. (1994), 93 Man.R.(2d) 243 (QB)

MLB headnote and full text

William Smith Stewart (plaintiff) v. Manitoba Opera Association Inc. (defendant)

(File No. CI 93-01-69104)

Indexed As: Stewart v. Manitoba Opera Association Inc.

Manitoba Court of Queen's Bench

Winnipeg Centre

Beard, J.

April 14, 1994.

Summary:

The plaintiff sued his former employer for damages for wrongful dismissal. The employer admitted wrongful dismissal, but asserted that the termination allowance (two months' salary) accepted by the plaintiff completed its obligation to compensate, because it was accepted in final settlement or, alternatively, was a fair settlement in lieu of notice.

The Manitoba Court of Queen's Bench allowed the plaintiff's claim, holding that he was entitled to a further two months' salary in lieu of notice.

Master and Servant - Topic 7607

Dismissal of employees - Defences - Release, accord and satisfaction - An opera company dismissed its Director of Development when the position was elimi­nated for financial reasons - The company offered two months' salary in lieu of notice - The Director requested the two months' salary in a lump sum - Later, the company wrote to the Director, referring to the payment as a final settlement - The Manitoba Court of Queen's Bench held that the company may have intended the offer in final settlement, but there was no evidence that the matter was discussed and agreed upon - For the Director to be bound, the issue of final settlement must be clearly agreed upon - See paragraphs to 6 to 8.

Master and Servant - Topic 7998

Dismissal without cause - Notice of dis­missal - When required - The Manitoba Court of Queen's Bench stated that, in a case of indefinite hiring, there is an implied term of the employment contract that, absent just cause, the employee is entitled to reasonable notice of termination - Where the employer elects not to con­tinue the employment through the notice period, the employee is entitled to damages equivalent to what his or her full salary would have been throughout that period of reasonable notice - The majority of cases support the proposition that reasonable notice is that period of time which will allow the employee to look for or obtain other employment - See paragraphs 9 to 10.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dis­missal - Reasonable notice - What consti­tutes - [See Master and Servant - Topic 7998 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dis­missal - Reasonable notice - What consti­tutes - An opera company hired a Director of Development, a new position created to help expand the audience and raise funds - Two and a half years later, the company terminated the position for financial rea­sons - The company offered the Director two months' notice - Similar positions were scarce - The Director, a long-time volunteer in arts groups, knew of the pre­carious financial situation of the company - The Director had a varied employment background - He became self-employed in financial planning for clients and the sale of investments - The Manitoba Court of Queen's Bench determined that reason­able notice would have been four months - See paragraphs 9 to 11.

Master and Servant - Topic 8061

Dismissal without cause - Damages - General - [See Master and Servant - Topic 7998 ].

Master and Servant - Topic 8062

Dismissal without cause - Damages - Elements - The Director of Development at an opera company was dismissed when his position was terminated for financial reasons - He was given two months' salary in lieu of notice - He was entitled to four months' notice - The Manitoba Court of Queen's Bench stated that his damages were to be equivalent to the value of the salary and benefits that he would have received had he continued working for the four months, excluding the termination allowance already paid and excluding any sums intended to reimburse him for expenses which he did not actually incur subsequent to the termination, such as parking and car expenses - See paragraph 12.

Cases Noticed:

Ballard v. Alberni Valley Chamber of Commerce (1992), 39 C.C.E.L. 225 (B.C.S.C.), refd to. [para. 10].

Valentini v. Monarch Broadcasting Ltd. (1992), 41 C.C.E.L. 243 (B.C.S.C.), refd to. [para. 10].

Suleman v. British Columbia Research Council (1989), 27 C.C.E.L. 23 (B.C.S.C.), refd to. [para. 10].

Visentin v. Shell Canada Ltd. (1989), 100 A.R. 155; 29 C.C.E.L. 65 (Q.B.), refd to. [para. 10].

MacIntosh v. Pepperfram Ltd. (1988), 68 Sask.R. 308; 10 A.C.W.S.(3d) 177 (Q.B.), refd to. [para. 10].

Zutter v. Stuart Nassim Developments Ltd. (1988), 23 C.C.E.L. 8 (B.C.S.C.), refd to. [para. 10].

Thomas v. Surveyer, Nenniger & Chêne­vert Inc. (1989), 34 Q.A.C. 61 (C.A.), refd to. [para. 10].

Authors and Works Noticed:

Harris, Wrongful Dismissal, pp. 4-1, 4-8 [para. 10].

Mole, Wrongful Dismissal Practice Man­ual, chap. 7, paras. 7.1 to 7.4 [para. 9]; 7.6 [para. 10].

Counsel:

Paul Walsh, Q.C., for the plaintiff;

J.F. Reeh Taylor, Q.C., for the defendant.

This case was heard before Beard, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the follow­ing judgment on April 14, 1994.