Wooldridge v. Nickerson (H.B.) & Sons Ltd. and Canso Seafoods Ltd., (1980) 40 N.S.R.(2d) 388 (CA)

• Judge: MacKeigan, C.J.N.S., Coffin and Hart, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 23, 1980
• Jurisdiction: Nova Scotia
• Citations: (1980), 40 N.S.R.(2d) 388 (CA)

Wooldridge v. Nickerson & Sons (1980), 40 N.S.R.(2d) 388 (CA);

    73 A.P.R. 388

MLB headnote and full text

Wooldridge v. H.B. Nickerson & Sons Ltd. and Canso Seafoods Ltd.

(S.C.A. 00556)

Indexed As: Wooldridge v. Nickerson (H.B.) & Sons Ltd. and Canso Seafoods Ltd.

Nova Scotia Supreme Court

Appeal Division

MacKeigan, C.J.N.S., Coffin and Hart, JJ.A.

July 23, 1980.

Summary:

This case arose out of the plaintiff's action against his employer for breach of his employment contract. The plaintiff, who was a qualified British master of fishing vessels, was hired by the defendant Nova Scotia company in September, 1977, on the understanding that his British credentials were transferrable and he would rapidly qualify as a master in Canada. In fact the Canadian regulations were changed in September, 1977, to the company's knowledge to require the plaintiff to log 1 year at sea with a Canadian mate's certificate before he would be eligible to qualify as a master. The company failed to inform the plaintiff, who worked for the next year as a mate on the company's boats without a Canadian mate's certificate. In September, 1978, he learned of the regulations and that his master's certificate was at least 2 years away. The company refused or was unable to assist him in his dilemma and he stopped working for it, but was subsequently unable to find employment in Canada or the U.K. The plaintiff brought an action against the employer for damages for breach of his employment contract, breach of collateral warranties given in connection with his hiring, negligent misrepresentation and wrongful dismissal.

The Nova Scotia Supreme Court, Trial Division, in a judgment reported 39 N.S.R.(2d) 45; 71 A.P.R. 45, allowed the plaintiff's action and held the employer liable for damages for wrongful dismissal and negligent misrepresentation. The Trial Division awarded the plaintiff $75,000.00 general damages. The company appealed.

The Nova Scotia Court of Appeal allowed the appeal in part, affirmed that the company was liable for negligent misrepresentation, but that the plaintiff was contributorily negligent and 40% at fault in relying on the misrepresentation and failing to check with the Canadian authorities himself. The Court of Appeal also reduced the assessment of general damages to $50,000.00.

Damage Awards - Topic 766

Torts - Misrepresentation - Negligent misrepresentation - The plaintiff, who was a qualified British master of fishing vessels, was hired by the defendant Nova Scotia company in September, 1977, on the understanding that his British credentials were transferrable and he would rapidly qualify as a master in Canada - In fact the Canadian regulations were changed in September, 1977, to the company's knowledge to require the plaintiff to log 1 year at sea with a Canadian mate's certificate before he would be eligible to qualify as a master - The company failed to inform the plaintiff, who worked for the next year as a mate on the company's boats without a Canadian mate's certificate - In September, 1978, he learned of the regulations and that his master's certificate was at least 2 years away - The company refused to assist him in his dilemma and he stopped working for it, but was unable to find employment in Canada or the U.K. - The Nova Scotia Supreme Court, Trial Division, allowed the plaintiff's action against the company for negligent misrepresentation and awarded him $75,000.00 general damages - The Nova Scotia Court of Appeal allowed the company's appeal in part, held that the company was liable for negligent misrepresentation, but that the plaintiff was contributorily negligent and 40% at fault - The Court of Appeal also reduced the assessment of the plaintiff's general damages to $50,000.00, of which he was awarded judgment for 60% - See paragraph 97.

Fraud and Misrepresentation - Topic 2705

Misrepresentation - What constitutes - Falsity by omission - The plaintiff, who was a qualified British master of fighting vessels, was hired by the defendant Nova Scotia company in September, 1977, on the understanding that his British credentials were transferrable and he would rapidly qualify as a master in Canada - In fact the Canadian regulations were changed in September, 1977, to the company's knowledge to require the plaintiff to log 1 year at sea with a Canadian mate's certificate before he would be eligible to qualify as a master - The company failed to inform the plaintiff, who worked for the next year as a mate on the company's boats without a Canadian mate's certificate - In September, 1978, he learned of the regulations and that his master's certificate was at least 2 years away - The company refused to assist him in his dilemma and he stopped working for it, but was unable to find employment in Canada or the U.K. - The Nova Scotia Supreme Court, Trial Division, allowed the plaintiff's action against the company for negligent misrepresentation - The Trial Division held that the failure of the company to inform the plaintiff of the regulations to which he was subject constituted a negligent misrepresentation - The Nova Scotia Court of Appeal allowed the company's appeal in part, but affirmed that the company was liable for negligent misrepresentation - See paragraphs 25 to 90.

Torts - Topic 6617

Defences - Contributory negligence - Reliance on negligent statement - The plaintiff, who was a qualified British master of fishing vessels, was hired by the defendant Nova Scotia company in September, 1977, on the understanding that his British credentials were transferrable and he would rapidly qualify as a master in Canada - In fact the Canadian regulations were changed in September, 1977, to the company's knowledge to require the plaintiff to log 1 year at sea with a Canadian mate's certificate before he would be eligible to qualify as a master - The company failed to inform the plaintiff, who worked for the next year as a mate on the company's boats without a Canadian mate's certificate - In September, 1978, he learned of the regulations and that his master's certificate was at least 2 years away - The company refused to assist him in his dilemma and he stopped working for it, but was unable to find employment in Canada or the U.K. - The Nova Scotia Supreme Court, Trial Division, allowed the plaintiff's action against the company for negligent misrepresentation - The Trial Division held that the failure of the company to inform the plaintiff of the regulations to which he was subject constituted a negligent misrepresentation - The Nova Scotia Court of Appeal allowed the company's appeal in part and held that the company was liable for negligent misrepresentation, but that the plaintiff was contributorily negligent in relying on the misrepresentation and in failing to check with the Canadian authorities himself - See paragraphs 94 to 96.

Torts - Topic 8981

Duty of care - Negligent words - General principles - The Nova Scotia Court of Appeal thoroughly discussed the law of the liability in tort for negligent advice, particularly with regard to a negligent misrepresentation which induces a person to enter a contract - See paragraphs 41 to 87 - The Court of Appeal summarized the law in paragraphs 86 to 87.

Cases Noticed:

Esso Petroleum Co. Ltd. v. Mardon, [1976] 2 All E.R. 5; [1976] 1 Q.B. 801, appld. [para. 26].

J. Nunes Diamonds Ltd. v. Dominion Electric Protection Company (1972), 26 D.L.R.(3d) 699, dist. [para. 34].

Elder, Dempster and Company, Limited v. Paterson, Zochonis and Company, Limited, [1924] A.C. 522, dist. [para. 36].

Sodd Corporation v. Tessis (1977), 17 O.R.(2d) 158, appld. [para. 38].

Derry v. Peek (1889), 14 App. Cas. 337, refd to. [para. 45].

Nocton v. Ashburton, [1914] A.C. 932, consd. [para. 47].

Donoghue v. Stevenson, [1932] A.C. 562, consd. [para. 48].

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465, appld. [para. 49].

Robinson v. National Bank of Scotland (1916), S.C. (H.L.) 154, consd. [para. 50].

Rivtow Marine Ltd. v. Washington Iron Works et al. (1973), 40 D.L.R.(3d) 530, appld. [para. 59].

Gertsen v. Municipality of Metropolitan Toronto, [1974] 2 O.R.(2d) 1, consd. [para. 61].

West Coast Finance Ltd. v. Gunderson, [1974] 2 W.W.R. 428, consd. [para. 62].

Walter Cabott Construction Ltd. v. The Queen (1974), 44 D.L.R.(ad) 82, consd. [para. 63].

Northwestern Mutual Insurance v. O'Bryan, [1974] 5 W.W.R. 322, consd. [para. 64].

Cari-Van Hotel Limited v. Globe Estates Limited, [1974] 6 W.W.R. 707, consd. [para. 65].

Burman's Beauty Supplies Ltd. v. Kempster (1975), 4 0.R.(2d) 626, consd. [para. 66].

Fine's Flowers v. General Accident (1975), 5 O.R.(2d) 13], consd. [para. 67].

Farish v. National Trust, [1975] 3 W.W.R. 499, consd. [para. 68].

Hodgins v. Hydro Electric Commission (1975), 6 N.R. 451, consd. [para. 69].

Tower Equipment Rental v. Joint Venture Equipment Sales (1976), 9 O.R.(2d) 453, consd. [para. 70].

Porky Packers Ltd. v. Town of the Pas (1976), 7 N.R. 569, consd. [para. 71].

Haig v. Bamford, [1976] 3 W.W.R. 331; 9 N.R. 43, consd. [para. 72].

Elderkin v. Merrill Lynch (1978), 22 N.S.R.(2d) 218; 31 A.P.R. 218, consd. [para. 74].

Manitoba Sausage Manufacturing Co. Ltd. v. City of Winnipeg (1976-77), 1 C.C.L.T. 221, consd. [para. 75].

Anns v. London Borough of Merton, [1977] 2 All E.R. 492, consd. [para. 76].

Koch v. Handford, [1977] 6 W.W.R. 25, consd. [para. 77].

Tracy v. Atkins (1978), 83 D.L.R.(3d) 46, consd. [para. 78].

Whittingham v. Crease & Company, [1978] 5 W.W.R. 45, refd to. [para. 78].

Beebe v. Robb (1978), 81 D.L.R.(3d) 349, consd. [para. 79].

G.M.A.C. v. Fulton Insurance Agencies (1978), 24 N.S.R.(2d) 114; 35 A.P.R. 114, consd. [para. 80].

Tynan v. Dextraze, [1978] 4 W.W.R. 135, consd. [para. 80].

Sodd Corporation v. Tessis (1977), 17 0.R.(2d) 158, consd. [para. 81].

Trident Construction v. Wardrop, [1979] 6 W.W.R. 481; 1 Man.R.(2d) 268, consd. [para. 82].

Sharadan Builders v. Mahler et al.; Town of Milton et al. (1978), 79 D.L.R.(3d) 439, consd. [para. 83].

Northrup v. City of Fredericton (1980), 27 N.B.R.(2d) 373; 60 A.P.R. 373, consd. [para. 83].

Nicholgon v. Dunlop (1980), 40 N.S.R.(2d) 446; 73 A.P.R. 446, consd. [para. 84].

Authors and Works Noticed:

Anson, The Law of Contract (11th Ed.), p. 173 [para. 46].

Counsel:

C. Merlin Nunn, Q.C., and Douglas C. Campbell, for the appellants;

G.I. Smith, Q.C., and R. Malcolm MacLeod, for the respondent.

This case was heard on May 13, 1980, at Halifax, Nova Scotia, before MacKEIGAN, C.J.N.S., COFFIN and HART, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On July 23, 1980, HART, J.A., delivered the following judgment for the Appeal Division: