Taggart v. K.D.N. Distribution & Warehousing Ltd., (1997) 160 N.S.R.(2d) 192 (SC)

• Judge: J. Michael MacDonald, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 25, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 160 N.S.R.(2d) 192 (SC)

Taggart v. KDN Distr. (1997), 160 N.S.R.(2d) 192 (SC);

    473 A.P.R. 192

MLB headnote and full text

Temp. Cite: [1997] N.S.R.(2d) TBEd. MY.007

H.W. Taggart (plaintiff) v. K.D.N. Distribution & Warehousing Ltd. (defendant)

(S.H. No. 119621)

Indexed As: Taggart v. K.D.N. Distribution & Warehousing Ltd.

Nova Scotia Supreme Court

J. Michael MacDonald, J.

April 25, 1997.

Summary:

The plaintiff's employment was terminated after three months. The plaintiff sued for damages for wrongful dismissal. The de­fendant employer claimed that the plaintiff was a probationary employee who performed his job unsatisfactorily, accordingly, the employer was entitled to terminate his em­ployment at the end of the probationary period.

The Nova Scotia Supreme Court allowed the action, found the plaintiff dismissed without cause and awarded him six months' salary in lieu of notice. The court held that the defendant failed to prove that the plain­tiff was a probationary employee. Alterna­tively, if the plaintiff had been a probation­ary employee, the defendant failed to meet the requirements for terminating a proba­tionary employee.

Master and Servant - Topic 1203

Contract of hiring (employment contract) - Duration of contract - Probationary employee - The defendant proposed to start a warehousing business in Halifax - It sought out the plaintiff, who had 25 years' experience, to manage the operation - It was hoped that the business would imme­diately prosper, but it did not - The defen­dant bought out its only major com­petitor, terminated the plaintiff after three months and hired the competitor's manager - The plaintiff was told he was no longer needed - The plaintiff sued for damages for wrongful dismissal - The defendant claimed the plaintiff was a probationary employee, who was dismissed at the end of the probationary period for unsatisfac­tory performance - The Nova Scotia Supreme Court held that the de­fendant failed to prove the plaintiff was a proba­tionary employee - See paragraphs 17 to 19.

Master and Servant - Topic 7515

Dismissal of employees - General prin­ciples - Probationary employees - The Nova Scotia Supreme Court stated that an employer faced a lower standard when justifying dismissal of a probationary employee - However, a probationary employee was not retained "at the will" of the employer - The court stated that the employer must establish that (1) the pro­bationary employee was given a reasonable opportunity to establish his suitability for the job; (2) the employer determined that he was unsuitable; and (3) the decision to terminate was based on "an honest, fair and reasonable assessment of the suitabil­ity of the employee, including not only job skills and performance but character, judg­ment, compatibility, reliability and future with the company" - See paragraphs 29 to 30.

Master and Servant - Topic 7515

Dismissal of employees - General prin­ciples - Probationary employees - The Nova Scotia Supreme Court stated that a probationary employee dismissed without cause would ordinarily be entitled to less notice of dismissal than a regular employee dismissed without cause - A senior level employee dismissed without cause after three months was awarded six months' salary in lieu of notice - The court stated that had it accepted the em­ployer's claim that the employee was a probationary employee, the court would have reduced the period of reasonable notice to four months - See paragraphs 39 to 41.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dis­missal - Reasonable notice - What consti­tutes - The plaintiff operated his own woodcrafting business - He had 25 years' experience in the warehousing field - The defendant warehouser sought out the plaintiff to manage its new facility - The defendant terminated the plaintiff without cause after three months - The plaintiff was a senior level employee - The Nova Scotia Supreme Court held that the plain­tiff was entitled to six months' salary in lieu of reasonable notice, plus medical expenses incurred during that period - See paragraph 36.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dis­missal - Reasonable notice - Consider­ations affecting - An employee was dis­missed without cause - The Nova Scotia Supreme Court stated that the "near cause or moder­ated damages" doctrine (which justified a reduced damage award due to the employ­ee's blameworthy conduct fall­ing short of cause) applied in Nova Scotia - However, absent any blameworthy con­duct or incom­petence, the court declined to use the doctrine to reduce an employee's damage award based on six months' rea­sonable notice - See paragraphs 37 to 39.

Cases Noticed:

Miller v. Goldfan Holdings Ltd. (1992), 44 C.C.E.L. 224 (Ont. Gen. Div.), refd to. [para. 18].

Brown v. Sears Ltd. (1988), 88 N.S.R.(2d) 426; 225 A.P.R. 426 (T.D.), refd to. [para. 26].

Babcock v. Weickert (C. & R.) Enterprises Ltd. (1993), 126 N.S.R.(2d) 170; 352 A.P.R. 170 (C.A.), refd to. [para. 26].

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.), refd to. [para. 29].

Goyer v. Castle Motor Inn Holdings Ltd. (1990), 96 N.S.R.(2d) 28; 253 A.P.R. 28 (T.D.), refd to. [para. 34].

Shulman v. Xerox Canada Inc. (1986), 75 N.S.R.(2d) 7; 186 A.P.R. 7; 15 C.C.E.L. 200 (T.D.), refd to. [para. 35].

Kirby v. Motor Coach Industries Ltd. (1981), 10 Man.R.(2d) 36; 1 C.C.E.L. 260 (C.A.), refd to. [para. 39].

Benson v. Co-Op Atlantic (1987), 62 Nfld. & P.E.I.R. 243; 190 A.P.R. 243; 15 C.C.E.L. 239 (Nfld. C.A.), refd to. [para. 40].

Authors and Works Noticed:

Harris, David, Wrongful Dismissal (1990 Looseleaf Ed.), pp. 3-176 [para. 18]; 4-43, 4-44 [para. 32].

Counsel:

S. Bruce Outhouse, Q.C., and Lester Jesu­dason (articled clerk), for the plaintiff;

John C. MacPherson and Leslie MacLeod (articled clerk), for the defendant.

This action was heard on February 25-26, 1997, at Halifax, N.S., before J. Michael MacDonald, J., of the Nova Scotia Supreme Court, who delivered the following judgment on April 25, 1997.