Wilson v. BMO Nesbitt Burns Inc., (2011) 309 N.S.R.(2d) 52 (SC)

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 13, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 309 N.S.R.(2d) 52 (SC);2011 NSSC 373

Wilson v. BMO Nesbitt Burns Inc. (2011), 309 N.S.R.(2d) 52 (SC);

    979 A.P.R. 52

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. OC.028

Christine Wilson (plaintiff) v. BMO Nesbitt Burns Inc. (defendant)

(Hfx. No. 321705; 2011 NSSC 373)

Indexed As: Wilson v. BMO Nesbitt Burns Inc.

Nova Scotia Supreme Court

MacAdam, J.

October 17, 2011.

Summary:

The plaintiff was employed as an investment advisor with the defendant from February 1, 2008, until her employment was terminated on November 30, 2009. The plaintiff sued seeking, inter alia, pay in lieu of notice, together with increased damages for bad faith and unfair dealing by the defendant. The defendant filed a defence and counterclaim. In the counterclaim the defendant sought repayment of monies it said were advanced to the plaintiff and were now repayable. In her defence to the counterclaim, the plaintiff raised three defences: (i) estoppel; (ii) the fact she did not obtain legal advice before signing the letter of employment, a promissory note and loan agreement at the time she joined the defendant; and (iii) set-off. The defendant moved for summary judgment on its counterclaim.

The Nova Scotia Supreme Court allowed the motion and granted summary judgment to the defendant on its counterclaim.

Contracts - Topic 1583

Formation of contract - Consent - Independent legal advice - The plaintiff was employed as an investment advisor with the defendant from February 1, 2008, until her employment was terminated on November 30, 2009 - The plaintiff sued seeking, inter alia, pay in lieu of notice, together with increased damages for bad faith and unfair dealing by the defendant - The defendant counterclaimed, seeking repayment of monies it said were advanced to the plaintiff when she signed the letter of employment, promissory note and loan agreement and were now repayable - In her defence to the counterclaim, the plaintiff raised the defence of lack of independent legal advice - The Nova Scotia Supreme Court granted summary judgment to the defendant on its counterclaim - There was no evidence that the plaintiff was under any disability or was unable, if she chose, to read and understand the document she was being asked to sign - She never asked for an opportunity to take the documents to a lawyer, or any other professional, of her choosing - It was her decision to resign from her previous employment, before finalizing the documents relating to her future employment with the defendant - She chose to join the defendant of her own free will - Consequently, there was no evidence that she would not have understood the contents of the documents had she chosen to read them, or that she was not acting on her own free will in signing them - There was no evidence of any undue influence - Although it was never suggested to her that she obtain independent legal advice, she never asked - There was no coercion - See paragraphs 41 to 48.

Estoppel - Topic 1101

Estoppel in pais (by conduct) - Representation - By statement - General - The plaintiff was employed as an investment advisor with the defendant from February 1, 2008, until her employment was terminated on November 30, 2009 - The plaintiff sued seeking, inter alia, pay in lieu of notice, together with increased damages for bad faith and unfair dealing by the defendant - The defendant counterclaimed, seeking repayment of monies it said were advanced to the plaintiff when she signed the letter of employment, promissory note and loan agreement and were now repayable - In her defence to the counterclaim, the plaintiff raised the defence of estoppel by representation - The Nova Scotia Supreme Court granted summary judgment to the defendant on its counterclaim - The representation relied upon by the plaintiff appeared to be the terms of the verbal offer of employment - There was nothing in the evidence, nor the submission of counsel, to suggest any untrue representation - The offer might have lacked many details and they were not provided to the plaintiff prior to her signing the documents - However, she never asked for the details prior to signing and she never read the terms of the instruments that she signed - It was not suggested that the terms of the instruments contradicted the verbal offer, only that they provided terms and conditions that were not known to the plaintiff - There was no "real chance of success" in respect to the suggested defence of estoppel - See paragraphs 35 to 40.

Negotiable Instruments - Topic 6065

Promissory notes - Requirement of promissory notes - Independent legal advice - [See Contracts - Topic 1583 ].

Practice - Topic 1841

Pleadings - Counterclaim and set-off - Set-off - General - The plaintiff was employed as an investment advisor with the defendant from February 1, 2008, until her employment was terminated on November 30, 2009 - The plaintiff sued seeking, inter alia, pay in lieu of notice, together with increased damages for bad faith and unfair dealing by the defendant - The defendant counterclaimed, seeking repayment of monies it said were advanced to the plaintiff when she signed the letter of employment, promissory note and loan agreement and were now repayable - In her defence to the counterclaim, the plaintiff raised the defence of set-off - She referenced clause 11 of the promissory note, which provided that the right to assert in any action or proceeding, in regard to the note, any set-off or counterclaim was waived - The Nova Scotia Supreme Court granted summary judgment to the defendant on its counterclaim - The determination of the amount due on the loan was so closely connected with the defendant's demands that it would be manifestly unjust to allow the plaintiff to enforce payment before a decision was made on whether the defendant was entitled to an additional $20,000 credit - This credit, or suggested credit, was not so much an issue of set-off as it was a factor in determining what was owed - Certainly, the defendant did not give the plaintiff the first $20,000 bonus - Rather, it applied it against the loan - This, as testified to by the plaintiff in her discovery was what she understood was how the loan and annual bonuses worked, because of her having "one of these similar deals at a previous employer." - This was not a question of set-off - See paragraphs 51 to 54.

Cases Noticed:

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 15].

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) et al. (2007), 253 N.S.R.(2d) 144; 807 A.P.R. 144; 2007 NSCA 38, refd to. [para. 16].

Selig v. Cook's Oil Co. et al. (2005), 230 N.S.R.(2d) 198; 729 A.P.R. 198; 2005 NSCA 36, refd to. [para. 17].

Cook's Oil Co. v. Parkhill Construction - see Selig v. Cook's Oil Co. et al.

Eikelenboom v. Holstein Association of Canada (2004), 226 N.S.R.(2d) 235; 714 A.P.R. 235; 2004 NSCA 103, refd to. [para. 18].

Cormier v. Universal Property Management Ltd. et al. (2011), 300 N.S.R.(2d) 217; 950 A.P.R. 217; 2011 NSSC 16, refd to. [para. 19].

AGC Flat Glass North America Ltd. v. CCP Atlantic Specialty Products Inc. (2010), 289 N.S.R.(2d) 290; 916 A.P.R. 290; 2010 NSSC 108, refd to. [para. 20].

AFG Glass Centre v. Roofing Connection - see AGC Flat Glass North America Ltd. v. CCP Atlantic Specialty Products Inc.

Ford et al. v. Kennie et al. (2002), 210 N.S.R.(2d) 50; 659 A.P.R. 50; 2002 NSCA 140, refd to. [para. 35].

Canada & Dominion Sugar Co. v. Canadian National (West Indies) Steamships Ltd., [1947] A.C. 46, refd to. [para. 36].

Bank of Montreal v. Courtney (2005), 239 N.S.R.(2d) 80; 760 A.P.R. 80; 2005 NSCA 153, refd to. [para. 41].

Levesque Beaubien Geoffrion Inc. v. Jones, [1993] O.J. No. 2057; 1993 CarswellOnt 4295 (S.C.), refd to. [para. 47].

Purdy v. Fulton Ins. Agencies (1991), 105 N.S.R.(2d) 421; 284 A.P.R. 421 (C.A.), refd to. [para. 52].

Lienaux et al. v. Toronto-Dominion Bank (1995), 140 N.S.R.(2d) 156; 399 A.P.R. 156 (C.A.), refd to. [para. 56].

Counsel:

Nancy F. Barteaux and Isabelle French, for the plaintiff;

Michelle C. Awad and Ryan Conrod, for the defendant.

This motion was heard on September 13, 2011, at Halifax, Nova Scotia, by MacAdam, J., of the Nova Scotia Supreme Court, who delivered the following decision on October 17, 2011.