Wilcox and Marshall v. G.W.G. Ltd., (1984) 53 A.R. 161 (QB)

• Judge: Feehan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 16, 1984
• Citations: (1984), 53 A.R. 161 (QB)

Wilcox v. GWG Ltd. (1984), 53 A.R. 161 (QB)

MLB headnote and full text

Wilcox and Marshall v. G.W.G. Ltd.

(No. 8003 - 17952)

Indexed As: Wilcox and Marshall v. G.W.G. Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Feehan, J.

March 16, 1984.

Summary:

The plaintiffs, who were long-time executive employees of the defendant, were dismissed after the defendant discovered that they were negotiating to purchase a competitor. The plaintiffs brought an action for damages for wrongful dismissal.

The Alberta Court of Queen's Bench allowed the action. The court held that the defendant was entitled to dismiss the plaintiffs, but not summarily. The court considered the conduct of the plaintiffs in reducing the period of reasonable notice to which they were entitled.

Damages - Topic 6742

Contracts - Employment contracts - Measure of damages for breach by employer - Loss of benefits - General - The Alberta Court of Queen's Bench held that two wrongfully dismissed executives were entitled to damages for loss of stock options, annual bonus and other benefits, which were an integral part of the wage structure and were not merely made ex gratia - See paragraphs 42 to 43.

Equity - Topic 3606

Fiduciary or confidential relationships - What constitutes - The Alberta Court of Queen's Bench held that the director of operations and the general production manager of a garment manufacturing company were fiduciaries - See paragraphs 13 to 16.

Equity - Topic 3608

Fiduciary or confidential relationships - Standard of conduct - The Alberta Court of Queen's Bench generally discussed the standard of conduct of executives owing a fiduciary duty to their employer, stating that they owe the employer high standards of loyalty, good faith and avoidance of a conflict of duty and self-interest - See paragraphs 13 to 21.

Equity - Topic 3649

Fiduciary or confidential relationships - Breach of fiduciary relationship by employee -Conflict of interest - Two company executives negotiated to purchase a competitor of the company on their own account - They were dismissed, when the negotiations were discovered - The Alberta Court of Queen's Bench held that an actual conflict of interest and not a mere potential one was required for dismissal and that the executives' activities did not constitute an actual conflict of interest - See paragraphs 17 to 27.

Master and Servant - Topic 7502

Dismissal of employees - Dismissal - What constitutes - An executive offered to resign, when his employer confronted him with its knowledge that he was negotiating to purchase a competitor - The employer refused the offer of resignation and unsuccessfully tried to settle the matter - It then fired the executive before he could re-tender his resignation - The Alberta Court of Queen's Bench held that the executive was dismissed - See paragraph 12.

Master and Servant - Topic 7561

Dismissal of employees - Grounds - Conflict of interest - Two company executives negotiated to buy a competitor on their own account - Both used company facilities and time to conduct the negotiations - One made long distance calls on company telephones - No harm was done to the company's interests - The Alberta Court of Queen's Bench held that there was no actual conflict of interest and the company was not entitled to dismiss them summarily - See paragraphs 22 to 27.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - Reasonable notice - What constitutes -A director of operations in his fifties was dismissed after four years employment, when his employer learned that he was negotiating to buy a competitor on his own account - The Alberta Court of Queen's Bench held that the employer was wrong in dismissing him summarily and held that he was entitled to two months notice of dismissal - The court stated that such a person was normally entitled to 10 to 12 months notice, but reduced the notice period because of his conduct - See paragraphs 33 to 44.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - Reasonable notice - What constitutes -A general production manager in his fifties was dismissed, when his employer learned that he was negotiating to buy a competitor on his own account - The Alberta Court of Queen's Bench held that the employer was wrong in dismissing him summarily and held that he was entitled to four months notice of dismissal - The court stated that such a person was normally entitled to 10 to 12 months notice, but reduced the notice period because of his conduct - See paragraphs 33 to 36, 45 to 47.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dismissal - Reasonable notice - Considerations affecting - Two executives were dismissed summarily after their employer learned that they were negotiating to buy a competitor on their own account - The Alberta Court of Queen's Bench held that the employer was entitled to dismiss them for their conduct, but not summarily - The court held that the period of notice to which they were entitled should be reduced because of their conduct - See paragraphs 28 to 33.

Cases Noticed:

Canadian Aero Service v. O'Malley (1973), 40 D.L.R.(3d) 311 (S.C.C.), appld. [paras. 14, 21].

Hawboldt Industries v. Chester Basin (1983), 57 N.S.R.(2d) 413; 120 A.P.R. 413; 22 B.L.R. 215 (N.S.S.C.T.D.), consd. [paras. 14, 21].

White Oaks Welding Supplies v. Tapp (1983), 42 O.R.(2d) 446 (H.C.J.), consd. [paras. 14, 21].

309925 Ontario Ltd. v. Tyrrell (1981), 127 D.L.R.(3d) 99 (Ont. H.C.J.), consd. [paras. 14, 21].

Sheather v. Associates Financial Services (1979), 15 B.C.L.R. 263 (S.C.), consd. [paras. 14, 18, 19].

Fabian v. Arm Industries (1982), 16 Man.R.(2d) 9 (Q.B.), consd. [paras. 18, 20].

Tozer v. Hutchison (1869), 12 N.B.R. 548 (S.C.), consd. [para. 19].

Bendix Home Systems v. Clayton, [1977] 5 W.W.R. 10 (B.C.S.C.), consd. [para. 19].

Boettcher v. Stremecki (1980), 25 A.R. 372 (Q.B.), consd. [para. 19].

Empey v. Coastal Towing, [1977] 1 W.W.R. 673 (B.C.S.C.), consd. [paras. 20, 26].

Chevron Standard Ltd. v. Home Oil, [1982] 3 W.W.R. 427; 35 N.R. 550 (Alta. C.A.), consd. [paras. 21, 23].

Mack v. Link Hardware (1978), 14 A.R. 347; 92 D.L.R.(3d) 757 (Alta. D.C.), consd. [para. 27].

Smith v. Dawson Memorial Hospital, [1978] 3 A.C.W.S. 222; 29 N.S.R.(2d) 277; 45 A.P.R. 277 (N.S.S.C.T.D.), consd. [paras. 29, 40].

Housepian v. Work Wear Corp. (1981), 33 O.R.(2d) 575 (C.C.), consd. [paras. 29, 40].

Page v. Jim Pattison Industries, [1982] 5 W.W.R. 97; 18 Sask.R. 125 (Sask. Q.B.), consd. [paras. 29, 40].

Bagby v. Gustavson Drilling (1980), 24 A.R. 181 (C.A.), appld. [paras. 34, 37, 38].

Hardie v. Trans-Canada Resources (1976), 2 A.R. 289 (C.A.), appld. [paras. 36, 38].

McGuire v. Wardair (1969), 71 W.W.R.(N.S.) 705 (Alta. S.C.T.D.), consd. [para. 37].

Authors and Works Noticed:

Canadian Encyclopedic Digest (Western), vol. 15, para. 12 [para. 13].

Harris, David, Wrongful Dismissal (1978), pp. 46 [para. 34]; 51-52 [para. 37]; 58 [para. 42]; 66 [para. 38].

Harris, David, Wrongful Dismissal - Some Recent Developments (1979-81), 2 Advocates Q. 149, 151-152 [para. 30].

Counsel:

M. O'Byrne, for the plaintiffs;

G.A. Verville, for the defendant.

This case was heard at Edmonton, Alberta, before Feehan, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 16, 1984: