New Brunswick court awards employee advance payment in wrongful dismissal case
Can a plaintiff get an “advance payment” for damages arising out of the termination out of their employment?
The case of Morrow v. Aviva Canada Inc. was a fairly typical, run of the mill wrongful dismissal action. There are no facts to make it unusual or particularly interesting.
But a procedural manoeuvre by counsel for the employee has made it noteworthy and has set a precedent that might prove to be quite valuable for terminated plaintiffs.
Marilyn Morrow was employed by Aviva Canada almost 21 years. When her employment was terminated, effective immediately, on Nov. 4, 2003, Aviva provided two months’ pay in lieu of notice.
Morrow started an action in which she alleged, among other things, breach of contract, and sought damages for the failure to provide reasonable notice of termination or pay in lieu.
Aviva, in its defence, did not allege just cause. Morrow then brought a motion for summary judgment with respect to the breach of contract claim. As part of this motion, she sought advance payment of damages arising out of the breach of contract claim.
By way of background, summary judgment is a mechanism that can be used to seek judgment, in whole or in part, prior to trial.
It is to be granted where there is “no reason for doubt as to what the judgment of the court would be if the matter proceeds to trial.” Essentially, where the court concludes that the responding party cannot succeed at trial, it can award judgment.
In this case, the judge that initially heard the motion denied Morrow’s request. But the Court of Appeal overturned this decision. It considered the fact that there was no allegation of just cause, and no evidence to support the allegation that Morrow had failed to make reasonable efforts to mitigate her damages.
In essence, it found Aviva did not have a defence to the allegation of breach of contract. As a result, the Court of Appeal granted summary judgment on that portion of the claim.
The Court of Appeal then went on to consider the issue of an advance payment, which is available pursuant to the New Brunswick Rules of Court where liability is established before the quantum of damages is assessed.
Morrow was provided with two months’ pay in lieu of notice. She was seeking a further 15.5 months. The Court of Appeal found that “if her request is granted she will have received (by way of voluntary payment from her employer and a court-ordered advance payment) compensation well below that which, having regard to the record as it now stands, she will likely recover at trial.”
Although the court did not set out Morrow’s position at Aviva or salary, the pay in lieu of 15.5 months amounted to $8,708.48.
The remedy relied upon by Morrow to obtain an advance payment is not available in all jurisdictions.
But employers should be aware that crafty plaintiffs, or their counsel, may be able to take advantage of these provisions to obtain a “down payment” on damages. This is particularly advantageous to plaintiffs who would otherwise struggle to fund litigation through to trial.
For more information about this case, see the April 5, 2005, issue of Canadian Employment Law Today or click here.
For more information see:
• Morrow v. Aviva Canada Inc., 2004 CarswellNB 616, 39 C.C.E.L. (3d) 214 (N.B. C.A.)
The case of Morrow v. Aviva Canada Inc. was a fairly typical, run of the mill wrongful dismissal action. There are no facts to make it unusual or particularly interesting.
But a procedural manoeuvre by counsel for the employee has made it noteworthy and has set a precedent that might prove to be quite valuable for terminated plaintiffs.
Marilyn Morrow was employed by Aviva Canada almost 21 years. When her employment was terminated, effective immediately, on Nov. 4, 2003, Aviva provided two months’ pay in lieu of notice.
Morrow started an action in which she alleged, among other things, breach of contract, and sought damages for the failure to provide reasonable notice of termination or pay in lieu.
Aviva, in its defence, did not allege just cause. Morrow then brought a motion for summary judgment with respect to the breach of contract claim. As part of this motion, she sought advance payment of damages arising out of the breach of contract claim.
By way of background, summary judgment is a mechanism that can be used to seek judgment, in whole or in part, prior to trial.
It is to be granted where there is “no reason for doubt as to what the judgment of the court would be if the matter proceeds to trial.” Essentially, where the court concludes that the responding party cannot succeed at trial, it can award judgment.
In this case, the judge that initially heard the motion denied Morrow’s request. But the Court of Appeal overturned this decision. It considered the fact that there was no allegation of just cause, and no evidence to support the allegation that Morrow had failed to make reasonable efforts to mitigate her damages.
In essence, it found Aviva did not have a defence to the allegation of breach of contract. As a result, the Court of Appeal granted summary judgment on that portion of the claim.
The Court of Appeal then went on to consider the issue of an advance payment, which is available pursuant to the New Brunswick Rules of Court where liability is established before the quantum of damages is assessed.
Morrow was provided with two months’ pay in lieu of notice. She was seeking a further 15.5 months. The Court of Appeal found that “if her request is granted she will have received (by way of voluntary payment from her employer and a court-ordered advance payment) compensation well below that which, having regard to the record as it now stands, she will likely recover at trial.”
Although the court did not set out Morrow’s position at Aviva or salary, the pay in lieu of 15.5 months amounted to $8,708.48.
The remedy relied upon by Morrow to obtain an advance payment is not available in all jurisdictions.
But employers should be aware that crafty plaintiffs, or their counsel, may be able to take advantage of these provisions to obtain a “down payment” on damages. This is particularly advantageous to plaintiffs who would otherwise struggle to fund litigation through to trial.
For more information about this case, see the April 5, 2005, issue of Canadian Employment Law Today or click here.
For more information see:
• Morrow v. Aviva Canada Inc., 2004 CarswellNB 616, 39 C.C.E.L. (3d) 214 (N.B. C.A.)
