2013 NBCA 58, 2013 NBCA 58

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 146-12-CA ACADIE-PRESSE LTÉE APPELLANT ACADIE-PRESSE LTÉE APPELANTE - and - - et - DARLENE BLANCHARD RESPONDENT DARLENE BLANCHARD INTIMÉE Acadie-Presse Ltée v. Blanchard, 2013 NBCA 58 Acadie-Presse Ltée c.

Blanchard, 2013 NBCA 58 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Quigg CORAM : L’honorable juge en chef Drapeau L’honorable juge Larlee L’honorable juge Quigg Appeal from a decision of the Court of Queen’sBench: October 3, 2012 Appel d’une décision de la Cour du Banc de la Reine: Le 3 octobre 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBBR 323 , 2012 NBQB 323 Décision frappée d’appel : 2012 NBBR 323 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard and judgment rendered: June 19, 2013 Appel entendu et jugement rendu : le 19 juin 2013 Reasons delivered: October 17, 2013 Motifs déposés : le 17 octobre 2013

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Larlee The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Quigg Counsel at hearing: For the appellant: Jean-Marc Gauvin For the respondent: Euclide LeBouthillier, Q.C. Avocats à l’audience : Pour l’appelante : Jean-Marc Gauvin Pour l’intimée : Euclide LeBouthillier, c.r.

THE COURT At the trial of the underlying action, which was litigated in accordance with the procedure set out in Rule 79 (“Simplified Procedure”), a judge of the Court of Queen’s Bench found the respondent was employed by the appellant, and not by another corporation, when she was dismissed. She also found the dismissal was without just cause. Since the employment contract between the parties was mute on the subject, the judge set the required notice of dismissal at 16 months.

In the result, she ordered the appellant pay the sum of $90,382.87 as compensation in lieu of reasonable notice, in addition to interest and costs. Finally, the judge fixed those costs at $7,000, an amount higher than what is provided in Scale 1 of Tariff “A” in Rule 59 of the Rules of Court ($4,425).

In the appellant’s submission, the judge committed the following procedural errors: (1) allowing the respondent’s direct examination to deal with matters that either had not been addressed at all or been referenced only in passing in her own affidavit of witness; and (2) awarding costs in excess of the amount set by Scale 1. The appeal was dismissed at the hearing with reasons to follow. Those reasons are detailed in the text that follows.

As will be seen, in discussing the procedural grounds for appeal, the Court: (1) notes Rule 79 was designed to reduce the cost of litigation and speed up the process for its resolution by, notably, shortening the timeframe between the commencement of proceedings and trial, and reducing the length of trials; (2) points out that the attainment of those objectives is compromised when the court allows evidence and hears arguments in relation to defences that have not been pleaded as required by the rules of pleading; (3) rejects a narrow

interpretation of the pertinent provisions of Rule 79; (4) confirms that Rule 79.10(3) does not confine direct examination, even though it must be brief, to matters targeted and detailed in the witness’ affidavit, but allows it to address any matter touched upon, whether directly, implicitly, exhaustively or simply in passing, in any of the affidavits of witnesses ; and (5) holds the court may, in exceptional circumstances, order a party to pay costs at variance with Scale 1.

LA COUR Au procès de l’action sous-jacente, qui a été plaidée selon la procédure prévue à la règle 79 (« Procédure simplifiée »), une juge de la Cour du Banc de la Reine a conclu que l’intimée était à l’emploi de l’appelante, et non d’une autre société, lorsqu’elle a été congédiée. Elle a également conclu que le congédiement avait été effectué sans motif valable. Puisque le contrat d’emploi entre les parties au litige était muet sur le sujet, la juge a établi à 16 mois le préavis de congédiement requis. Tout compte fait, elle a condamné l’appelante au paiement de la somme de 90 382,87 $ à

titre d’indemnité tenant lieu de préavis raisonnable, en plus des intérêts et des dépens. Enfin, la juge a établi ces dépens à 7 000 $, un montant plus élevé que ce qui est prévu à l’échelle 1 du tarif « A » de la règle 59 des Règles de procédure (4 425 $). L’appelante a fait valoir que la juge du procès avait commis les erreurs de procédure suivantes : (1) permettant que l’interrogatoire principal de l’intimée porte sur des questions qui n’avaient pas été abordées du tout ou qui n’avaient été qu’effleurées dans son affidavit de témoin; et (2) attribuant des dépens plus élevés que ce qui est prévu à l’échelle 1.

L’appel a été rejeté à l’audience, avec motifs à suivre. Ces motifs sont élaborés dans le texte qui suit.

Comme nous le verrons, au cours de la discussion portant sur les moyens d’appel d’ordre procédural, la Cour : (1) fait remarquer que la règle 79 a été conçue pour réduire les coûts afférents aux litiges et accélérer le processus de leur résolution, notamment en réduisant le délai entre l’introduction d’une instance et son instruction, et en abrégeant les procès; (2) souligne que la réalisation de ces objets est hypothéquée lorsque la cour accepte des éléments de preuve et permet des débats qui portent sur des moyens de défense qui n’ont pas été plaidés conformément aux règles de la plaidoirie; (3) rejette une interprétation étroite des dispositions pertinentes de la règle 79; (4) confirme que la règle 79.10(3) ne limite pas l’interrogatoire principal, même s’il doit être bref, aux questions qui ont été ciblées et développées dans l’affidavit du témoin, mais permet qu’il porte sur toute question qui a été abordée, que ce soit directement, implicitement, de façon exhaustive ou simplement en passant, dans les affidavits des témoins ; et (5) affirme que la cour peut, lorsque les circonstances sortent de l’ordinaire, condamner une

partie au paiement de dépens dont le montant diverge de celui prévu à l’échelle 1. English version of the Court’s reasons for judgment delivered by

DRAPEAU, C.J.N.B. I. Introduction [1] Every person employed for an indefinite period is entitled to reasonable notice of dismissal,unless the dismissal is for just cause or the parties previously settled upon a notice period, which is authorized by the EmploymentStandards Act, S.N.B. 1982, c. E-7.2.

Where the dismissal is without cause and the employment contract is mute on the length of noticerequired, or if the employment contract provides for a notice period that is short of the minimum prescribed by the EmploymentStandards Act, it falls to the court to fill the void and, where appropriate, to order the employer provide compensation in lieu ofreasonable notice. Of course, recoverable damages are limited to losses traceable to the failure of the employer to provide reasonablenotice, and no damages may be awarded for loss the employee could reasonably have avoided.

That said, the onus is on the employer toprove the employee did not make reasonable efforts to mitigate his or her losses. [2] This overview of the fundamental principles applicable to actions in damages for wrongfuldismissal would not be complete without a reference to the rules of pleading that parties are bound to follow.

In the case at hand, therules applicable to the defendant are of particular interest, notably the following: (1) where a defendant intends to prove a version of thefacts different from the one pleaded by the plaintiff, the defendant must provide his own version of the facts in the Statement of Defence.A mere denial of the plaintiff’s version is not sufficient; and (2) if the defence is based on the effect of a document, the defendant mustplead that effect in the Statement of Defence. [3] The respondent, Darlene Blanchard, commenced an action in contract for wrongful dismissalagainst the appellant, Acadie-Presse Ltée.

The action was litigated under Rule 79 of the Rules of Court. This rule provides a simplifiedprocedure for the resolution of certain types of litigation. Its objective is to facilitate access to justice, an objective which the rule seeksto attain through measures designed to keep legal costs at a minimum and to accelerate the dispute resolution process. These measuresinclude the elimination of certain pre-trial procedures and the option of proof by way of affidavits of witness and expert reports.

Wherethese documents and the pleadings deal with the matters in dispute in a clear and intelligent manner, the parties, their counsel, the courtand the justice system all benefit. [4] In the Statement of Claim, Ms. Blanchard states Acadie-Presse was her employer. In theStatement of Defence, Acadie-Presse agrees it hired Ms.

Blanchard in 1994 and that she [TRANSLATION] “was officially appointed tothe position of Printing Services Assistant for the Acadie Nouvelle daily newspaper and for the Acadie-Presse printing shop as of thedate she signed a Letter of Employment, January 5, 2009.” After referring to various parts of this document, including a provision thatany notice of termination of employment must be given in writing no less than 20 working days in advance, Acadie-Presse pleads itterminated Ms.

Blanchard’s employment [TRANSLATION] “due to her unsatisfactory performance in the context of a workplacerestructuring.” Acadie-Presse adds that, in any case, the severance payout (four weeks’ wages) provided to Ms. Blanchard satisfied itslegal obligations. No other defence is pleaded. [5] However, Acadie-Presse pursued two additional defences at trial:

(1) Ms. Blanchard was in theemploy of another entity, Les Éditions de l’Acadie Nouvelle

(1984) Ltée, at the time of her dismissal. According to Acadie-Presse’s pre-trial brief, a “novation” would have arisen from the Letter of Employment mentioned above and, as a result, [TRANSLATION] “theprovisions of the contract which had existed up to that time between [Ms. Blanchard] and [Acadie-Presse] were replaced [...] and thecontractual relationship was recreated with a third party [Les Éditions de l’Acadie Nouvelle]”; and

(2) Ms. Blanchard failed to mitigateher losses. [6] The trial unfolded over a period of five days (May 23-24, and June 26-28, 2012). In fulsomereasons for judgment, the trial judge found:

(1) Acadie-Presse had not established Ms. Blanchard was employed by Les Éditions del’Acadie Nouvelle at the time of her dismissal; (2) the dismissal was without just cause; (3) the Letter of Employment did not deal withthe required period of notice; (4) 16 months’ notice was appropriate; and

(5) Ms. Blanchard had taken reasonable steps to mitigate thelosses arising from her employer’s failure to provide 16 months’ notice. These findings prompted the judge to order that Acadie-Pressepay: (1) $90,382.87 as compensation in lieu of reasonable notice of dismissal; (2) interest at 6% per annum on this sum; and (3) costs of$7,000, an amount at variance with what Scale 1 in Tariff “A” of Rule 59 of the Rules of Court provides, which is $4,425 (see Blanchardv.

Acadie-Presse Ltée, 2012 NBBR 323 , 2012 NBQB 323, 397 N.B.R. (2d) 67). [7] In its Notice of Appeal and written submission, and at the hearing, Acadie-Presse formulatedtwo procedural objections. First, it contends the trial judge erred in law by allowing Ms. Blanchard to testify on direct examination inrespect of matters that either had not been raised at all or had been mentioned only in passing in her affidavit of witness. Acadie-Presse

complains the liberal approach taken in first instance “lengthened the trial”. In its submission, Rule 79.10(3) confines direct examination to matters that were targeted and detailed in the affidavit previously filed by the witness. Second, Acadie-Presse argues Rule 79.11 mandates the application of Scale 1 to all actions litigated under Rule 79, in effect stripping the Court of any discretion in the award of costs. [ 8 ] In addition, the Notice of Appeal raises two substantive grounds of appeal. First, the trial judge would have erred in law by considering evidence extrinsic to the Letter of Employment in the analysis that led her to find:

(1) Acadie- Presse, and not Les Éditions de l’Acadie Nouvelle, was Ms. Blanchard’s employer; and (2) the clause of the Letter of Employment allowing 20 working days’ notice of termination did not apply to a dismissal. Second, Acadie-Presse complains the trial judge [TRANSLATION] “failed to apply the principle of mitigation in determining the damages incurred.” [ 9 ] After hearing counsel for Acadie-Presse, we dismissed the appeal from the Bench. In the following text, I elaborate the reasons that, in my judgment, support this disposition.

As will be seen, I conclude the trial judge did not commit the errors attributed to her by the Notice of Appeal. In particular, I am of the view she did not fall into error in taking into account evidence extrinsic to the Letter of Employment since the provisions in play are ambiguous. In any event, Acadie-Presse could not prevail at trial on the basis that Les Éditions de l’Acadie Nouvelle replaced it as the employer, given that it had not pleaded this version of the facts and understanding of the effect of the Letter of Employment in the Statement of Defence.

The same holds true for the defence based on the alleged failure by the respondent to mitigate her losses. Lastly, even if I were to accede to the argument that the clause providing for 20 working days’ notice applies to a dismissal, I would have to conclude the provision in question is null and void. This is so because the Employment Standards Act requires the employer to give notice of termination no less than four weeks in advance, a period longer than “20 working days”. II. The Context [ 10 ] Three affidavits were filed at trial. Ms.

Blanchard tendered her own affidavit, while Acadie- Presse submitted two affidavits from Francis Sonier, its General Manager. Ms. Blanchard and Mr. Sonier also gave oral evidence. The following account reflects facts that were not contested, either in first instance or on appeal, as well as the trial judge’s findings of fact, none of which, in my view, result from a palpable and overriding error in her assessment of the evidence. [ 11 ] Acadie-Presse has operated a printing business in Caraquet, New Brunswick, since 1989.

Les Éditions de l’Acadie Nouvelle, the publisher of l’Acadie Nouvelle, is Acadie-Presse’s main client when Ms. Blanchard is hired in 1994. At the time, Ms. Blanchard holds a high school diploma and, although she lacks formal training in printing, she gained practical experience in the field while working for another company. [ 12 ] In 1997, Acadie-Presse and Les Éditions de l’Acadie Nouvelle combine operations and, thereafter, the same person fills the position of General Manager for both companies. However, each retains its distinct legal identity and Ms.

Blanchard continues to work in printing. [ 13 ] In 2006, Ms. Blanchard adds to her duties as Production Coordinator for Acadie-Presse the duties of Acting Production Manager. These duties include the supervision of approximately thirty employees (in seven departments) and the performance of tasks relating to the purchase of raw materials, production schedules for the various projects, inventory control, accounting, administration, personnel management, and shipping.

She reports directly to the General Manager of Acadie-Presse. [ 14 ] Mushrooming financial difficulties compel Acadie-Presse and Les Éditions de l’Acadie Nouvelle to adopt a restructuring plan. The implementation of this plan, which for the most part takes place in 2008, brings about changes to staff composition and assignments. Thus, some employees are assigned different duties while others are dismissed, quit their jobs, or retire.

Some employees are replaced, while others are not. [ 15 ] In the summer of 2008, Jacques LeBlanc is hired as Operations Manager for Acadie-Presse and Les Éditions de l’Acadie Nouvelle. Ms. Blanchard becomes Printing Services Assistant. Another employee is appointed Newspaper Services Assistant. Both report to Mr. LeBlanc. [ 16 ] In the fall of 2008, Mr. Sonier becomes Assistant General Manager of Acadie-Presse and Les Éditions de l’Acadie Nouvelle. He is charged with assessing the operations of both companies and, where appropriate, proposing changes to increase their profitability.

[ 17 ] Over the years, Ms. Blanchard worked with different General Managers at Acadie-Presse: Michel St-Onge (1995-1996), Lorio Roy (1996-2005), Armand Caron (2005-2009) and Mr. Sonier (2009). She got along well with all of the managers except Mr. Sonier. Ms. Blanchard testified Mr. Sonier was critical of her work and questioned her competence, without justification. There were also conflicts between Mr. Sonier and Mr. LeBlanc, Ms. Blanchard’s immediate supervisor. [ 18 ] At Mr. LeBlanc’s request and on the faith of the explanations he provides, Ms. Blanchard signs a document on January 5, 2009.

That document would occupy - wrongly in my view - center stage at trial. The document in question is the Letter of Employment mentioned above: [TRANSLATION] LETTER OF EMPLOYMENT THIS LETTER OF EMPLOYMENT, dated the 20th day of November 2008 (Revised on December 30, 2008/Additional Vacation for Middle Management) BETWEEN: Les Éditions de l’Acadie NOUVELLE

(1984) Ltée AND: Ms. Darlene Blanchard This letter confirms your appointment to the position of Printing Services Assistant at the Acadie NOUVELLE daily newspaper and at the Acadie-Presse printing company as per the following terms and conditions: [1] OFFICIAL DATE OF COMMENCEMENT OF EMPLOYMENT (

a) Your official appointment begins on the date of your signature of this contract. [2] COMPENSATION (

a) Your annual base salary is $56,000 over 26 pay periods. (

b) This salary will be adjusted retroactively to the date of signature of this contract, by the same percentage as that which will be awarded eventually to the rest of the staff. (

c) Your new salary will come into effect on November 23, 2008. [3] EMPLOYEE BENEFITS (

a) Your benefits and working conditions correspond to those accorded to current staff, including, among other conditions, sick days. (

b) You are entitled to twenty-five (25) working days of vacation, five (5) days of which reflect your occupation of a middle management position.

(

c) Your base salary has been established to take into account the fact that your position requires a normal work week of 40 to 45 hours. Any hours in excess of this

schedule must be approved in advance by your supervisor, who will determine fair compensation with you. (

d) You will participate in the pension plan as well as the insurance plan in accordance with the regulations of the respective plans. [4] OTHER CONDITIONS (

a) Your direct supervisor will be the Operations Manager. (

b) Your salary will be paid every two weeks by direct deposit into the account of your choice. (

c) Your job description is attached. (

d) The working conditions set out in the current contract will terminate all previous agreements. (

e) Notice of resignation or of termination must be provided in writing no less than twenty (20) working days in advance. Until this Letter of Employment has been signed by both parties, it remains an Offer of Employment by Les Éditions de l’Acadie NOUVELLE

(1984) Ltée. If this offer is accepted, it must be signed by the employee and returned to the Operations Manager on or before November 21, 2008. Failure to do so will render the offer null and void. IN WITNESS WHEREOF, Les Éditions de l’Acadie NOUVELLE

(1984) Ltée, per the Operations Manager, and the Printing Services Assistant, have signed below. For Les Éditions de l’Acadie NOUVELLE

(1984) Ltée [original signed by] Jacques LeBlanc Operations Manager Darlene Blanchard [dated January 5, 2009] [ 19 ] On February 18, 2009, Mr. LeBlanc is dismissed. As of that date, Ms. Blanchard must report directly to Mr. Sonier, who becomes Acting Operations Manager. [ 20 ] Mr. Sonier voices dissatisfaction with Ms. Blanchard’s work and informs her of his negative assessment of her performance. In April 2009, he shares his complaints via a memo. Ms. Blanchard agrees to make changes in the way she carries out her duties and Mr. Sonier undertakes to provide her with additional training. [ 21 ] Ms.

Blanchard continues working, but Mr. Sonier does not abandon his unfavourable view of her performance. On May 20, 2009, he meets with Mr. Caron, the General Manager, to discuss the option of dismissing Ms. Blanchard. The meeting ends without a decision on point.

[ 22 ] Ms. Blanchard is absent from work for medical reasons from June 12, 2009, until the beginning of December 2009. [ 23 ] Mr. Caron leaves his position, as planned, at the end of June 2009, and Mr. Sonier becomes the General Manager of Acadie-Presse and Les Éditions de l’Acadie Nouvelle. [ 24 ] At the end of November 2009, Ms. Blanchard notifies Mr. Sonier that she is ready to resume employment. A meeting is set for December 2, 2009. At that time, Mr. Sonier informs Ms.

Blanchard there is no longer a job for her and he hands her a letter (printed on Acadie-Presse letterhead) advising that Acadie-Presse was terminating her employment because [TRANSLATION] “[her] leadership abilities and [her] commitment to the organization were not at the level required to meet the current and future challenges arising from reorganization”. She is offered four weeks’ salary [TRANSLATION] “in compliance with s. 30(1) (

b) of the New Brunswick Employment Standards Act , although we are not obligated to do so.” [ 25 ] Ms. Blanchard, who began working at Acadie-Presse at the age of 29, is 44 years old at the time of her dismissal. [ 26 ] In January 2010, Acadie-Presse pays Ms. Blanchard a sum equivalent to her salary for the four weeks that followed her dismissal. In Acadie-Presse’s submission, that compensation satisfies Condition 4(

e) of the Letter of Employment. This is the second defence pleaded in the Statement of Defence, which the judge rejected for the following reasons: [TRANSLATION] The defendant argues that even if the Court does not acknowledge that the Letter of Employment creates a novation, the plaintiff is nonetheless bound by the terms of this agreement, which she believed to have contracted with her employer Acadie-Presse. The plaintiff [ sic ] submits that by signing the Letter of Employment, Ms. Blanchard accepted a notice of 20 working days; therefore, by giving her compensation equivalent to four weeks’ notice, the employer has fulfilled its obligations under the agreement. Paragraph 4(

e) of the Letter of Employment provides that “Notice of resignation or of termination must be given in writing no less than twenty (20) working days in advance.” According to the explanations Ms. Blanchard received from Mr. LeBlanc, this paragraph meant that if she decided to terminate her employment, she had to give her employer at least 20 days’ notice. The fact that her employer could dismiss her with 20 days’ notice was not discussed. Ms.

Blanchard would certainly not have knowingly agreed to such a condition in the circumstances, given that several employees had been dismissed and that she herself was afraid of being dismissed on a moment’s notice. An examination of the other conditions listed in paragraph 4 of the Letter of Employment reveals that these conditions apply to Ms. Blanchard. Paragraph 4(

e) can be interpreted in the context of the agreement as being Ms. Blanchard’s obligation towards her employer. The agreement does not specifically state that the “20 working days” apply to the notice to be given by the employer. If a clause is ambiguous, it must be interpreted contra proferentem , that is, to the detriment of the party who drafted it and in favour of the other party. Hence, the wording at issue must be given the meaning that is most favourable to Ms. Blanchard. The doctrine of contra proferentem would resolve any lingering ambiguity in Ms. Blanchard’s favor. The termination letter specifies that the four weeks’ notice offered is “in compliance with s. 30(1) (

b) of the New Brunswick Employment Standards Act , although we are not obligated to do so.” The termination letter does not make any reference to paragraph 4(

e) of the Letter of Employment, as we might expect if the employer believed it was applicable. I find paragraph 4(

e) applies only to the notice Ms. Blanchard had to give her employer if she decided to terminate her employment. It does not apply to the notice or compensation in lieu of notice that Acadie-Presse had to give Ms. Blanchard if the company dismissed her. [paras. 103-107] [ 27 ] On November 16, 2010, Ms. Blanchard commences an action in contract against Acadie-Presse for wrongful dismissal.

She claims [TRANSLATION] “special damages and interest equivalent to the amount she should have received in lieu of a proper and reasonable notice of dismissal.” She also claims general damages as well as punitive and exemplary damages for [TRANSLATION] “the abusive manner in which [her employer] behaved towards her”, a claim the trial judge dismissed. Ms. Blanchard did not appeal the dismissal of this claim. Hence, only the following parts of the Statement of Claim bear upon the issues on appeal: [TRANSLATION]

2. The defendant, Acadie-Presse Ltée, is a company duly incorporated under the laws of the province of New Brunswick, carrying on business as Acadie-Presse and having a place of business at 476 St-Pierre Blvd. West, P.O. Box 5536, Caraquet, NB, E1W 1B7, hereinafter called “the Employer". 3. The plaintiff, Darlene Blanchard, was hired by the Employer in July 1993. 4. Following her hiring, the plaintiff worked as Production Coordinator until 2004, and subsequently held the position of Production Manager while performing the duties of Production Coordinator. 5.

In 2008, the defendant hired an Operations Manager and the plaintiff was then appointed Printing Services Assistant, and as of that time the plaintiff worked 40 hours a week instead of 50 hours. 6. Prior to her dismissal, the plaintiff was provided a salary of $1,125.87 per week by the defendant, as well as employment benefits. 7. The plaintiff alleges that she was entitled to receive a minimum of 24 months’ notice from the defendant. […] 16. On December 2, 2009, the defendant terminated the plaintiff’s employment contract without legally recognized just cause. […] 18.

In the Record of Employment provided to Service Canada and to the plaintiff, the defendant indicated the plaintiff’s employment was terminated due to business reorganization. […] 20. The plaintiff submits that, given her contractual relationship with the defendant, she was entitled to reasonable notice of termination of employment or monetary compensation in lieu of reasonable notice. 21.

As a result of the unfair dismissal and dismissal without cause by the defendant, the plaintiff sustained a pecuniary loss as well as a loss of the fringe benefits that she would have otherwise received during the period equivalent to the reasonable notice of dismissal. […] 26. The plaintiff therefore claims the following from the defendant: a. A declaration from this Honourable Court that her dismissal by the defendant was without just cause. […] c. Special damages corresponding to the compensation she should have received in lieu of a proper and reasonable notice of dismissal.

[…] e. Costs, including HST. [ 28 ] As mentioned in my introductory remarks, Acadie-Presse pleads two defences in its Statement of Defence. The first, that Ms. Blanchard’s dismissal was founded upon just cause, was rejected at trial and the appeal does not in any way take issue with that decision. The debate on point is, therefore, closed. The only other defence pleaded in the Statement of Defence pertains to the adequacy of the compensation given to Ms. Blanchard as severance payout. Here are the pertinent parts of the Statement of Defence filed by Acadie-Presse in January 2010: [TRANSLATION] 1.

The defendant admits the allegations contained in paragraphs 1, 2 […] and 18 of the Statement of Claim. 2. The defendant denies the allegations contained in paragraphs 3, 4, 5, 6, 7, […], 16, […], 20, […] and 26 of the Statement of Claim. 3. The defendant has no knowledge of the facts alleged [in paragraph] 21 of the Statement of Claim. The defendant says that: 4. With respect to paragraph 3 of the Statement of Claim, the plaintiff was hired by the defendant on July 10, 1994, left the business in 1996, and held a full-time position starting on June 22, 1998. 5.

With respect to paragraph 4 of the Statement of Claim, it was on December 3, 2006, that the plaintiff started working as Acting Production Manager. 6. With respect to paragraphs 5 and 6 of the Statement of Claim, the plaintiff was officially appointed to the position of Printing Services Assistant at the Acadie Nouvelle daily newspaper and at the Acadie-Presse printing business on the date she signed the Letter of Employment, January 5, 2009. This Letter of Employment specified that the plaintiff: a. Would receive an annual base salary of $56,000 over 26 pay periods, retroactive to November 23, 2008; b.

Was entitled to the benefits and other conditions corresponding to those provided to the current staff; c. Was entitled to 25 working days of vacation; d. Was entitled to the pension plan as well as the insurance plan in accordance with the regulations of the respective plans; e. Would work under the direct supervision of the Operations Manager. 7.

With respect to paragraph 7 of the Statement of Claim, the plaintiff had agreed, by signing the Letter of Employment on January 5, 2009, that any notice of resignation or of termination would be provided in writing no less that 20 working days in advance and that the working conditions set out in this contract would [TRANSLATION] “terminate all previous agreements.”

[…] 10. With respect to the Statement of Claim as a whole, the defendant states that it terminated the plaintiff’s employment when shereturned to work after sick leave. The plaintiff received, as of that date, payment of four weeks’ notice, in addition to 75 hours ofvacation accumulated during her sick leave and of 2.5 hours of flexible leave. […] 12. The defendant pleads that it offered reasonable notice of termination of employment and puts the plaintiff to the proof of all herallegations, of all loss of wages or all other loss of fringe benefits that she would have otherwise received. [29] On May 9, 2011, Ms.

Blanchard files an affidavit of witness in which she focuses on the issuesraised in the pleadings: whether there was just cause for her dismissal, the factors that bear upon the quantification of the notice ofdismissal and the assessment of her pecuniary losses, as well as the circumstances that could conceivably justify an award of non-pecuniary general damages. In her affidavit, Ms.

Blanchard does not deal with the un-pleaded defences that formed part of the arsenal ofarguments Acadie-Presse would advance at trial in support of its plea for dismissal of the action. [30] Acadie-Presse files two affidavits of witness by Mr. Sonier. The first, dated May 10, 2011,relates in detail the history of Ms. Blanchard’s employment, establishes that her appointment to [TRANSLATION] “the position ofPrinting Services Assistant at the Acadie Nouvelle daily newspaper and Acadie-Presse printing company” was confirmed by the Letterof Employment, outlines the reasons leading to Ms.

Blanchard’s dismissal, and provides details about the severance payout she received.Mr. Sonier concludes by expressing the opinion that Ms. Blanchard [TRANSLATION] “had received all payments to which she wasentitled at the end of her employment and that she could not claim any additional sums.” In his second affidavit, dated June 4, 2011, Mr.Sonier states the restructuring plan mentioned above [TRANSLATION] “did not play a decisive role with respect to the dismissal.” Mr.Sonier does not claim in either of his affidavits that Ms.

Blanchard was not employed by Acadie-Presse at the time of her dismissal orthat she failed to mitigate her losses. [31] The trial judge allowed the claim for compensation in lieu of reasonable notice, which was setat 16 months. Her reasons for decision on point bear reproducing as they provide an impeccable inventory of the governing principles: [TRANSLATION] I must determine what constitutes reasonable notice in a particular situation by referring, at least in part, to previous decisions incomparable cases, and in particular to those made by the Supreme Court of Canada and by our Court of Appeal.

However, we also needto remember the general principle that each claim stands to be examined on its own merits. The definition of what constitutes reasonablenotice varies from one case to another depending on the particular circumstances of the case. There is no magic formula that applies toall situations. The parties concur that Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, of the Supreme Court of Canada, as well asBramble v. Medis Health and Pharmaceutical Services Inc., (NB CA), [1999] N.B.J. No. 307, and Jean v. PêcheriesRoger L.

Ltée, 2010 NBCA 10, of the Court of Appeal of New Brunswick, are the seminal cases in the matter. All of these casesrecognize the critical importance of the general principle of reasonable foreseeability in assessing damages for breach of contract. The applicable guiding principles were clarified by the Supreme Court of Canada in the reasons for the majority decision in HondaCanada Inc. and were reiterated by our court of Appeal in Jean.

It is now settled law that, in order to determine what constitutesreasonable notice, the courts must consider the character of the employment, the length of service, the age of the employee, and theavailability of similar employment having regard to the experience, training and qualifications of the employee. These factors can onlybe applied on a case-by-case basis, being cautious not to give one factor disproportionate weight. In terms of the character ofemployment, no presumptions about the role that an employee’s managerial level plays should be adopted in determining reasonablenotice.

See paras. 28 to 32 of Honda Canada Inc. In Bramble, [the Court of Appeal] stated that “...it behoves this Court to discard character of employment simpliciter as a relevant factor”(see para. 70) unless there is “evidence showing that the character of the terminated employee’s job has some relevance to the pursuit of

one or more of the objectives of notice...” (see para. 65). [paras. 108-111] IV. Analysis [32] The present appeal provides the Court a first opportunity to make some general observations onthe object and scope of Rule 79. This rule was designed to reduce the cost of litigation and to accelerate the dispute resolution processnotably by reducing the period between the commencement of proceedings and trial, and by shortening the trial.

These objects areindisputably in accord with the basic mission of the Rules of Court: “to secure the just, least expensive and most expeditiousdetermination of every proceeding on its merits” (emphasis added; see Rule 1.03(2)). Rules 79.07 and 79.10 play a leading role in thescheme. The former provides that, unless ordered otherwise, no examination for discovery under Rule 32, 33 or 34 is permitted in anaction proceeding under Rule 79.

The latter contemplates the use at trial of affidavits and expert reports without the authors having totestify viva voce. [33] That said, Rule 79 does not overlook the other feature of the fundamental objective of the Rulesof Court: to secure the just determination of every proceeding on its merits. Rule 79 strives to achieve such a determination through thefollowing means: (1) by specifying that the rules which are in play in an ordinary action have application, absent a provision of the Ruleto the contrary; (2) by obligating each party to serve: (

a) an Affidavit of Documents, as provided for under Rule 31, which must include alist of the names and addresses of any person who has knowledge of matters in issue; and (

b) copies of the documents listed in ScheduleA of the Affidavit of Documents; (3) by requiring each party to serve his or her “affidavits of witness” within 90 days after the close ofpleadings; (4) by limiting the pool of evidence to the admissible parts of the affidavits and expert reports; and (5) by compelling theparties to consult each other before the trial in order to determine if all relevant documents have been disclosed. [34] Of course, the rules of pleading set out in Rule 27.06 apply to any action processed under Rule79.

I would go further: given that the Affidavit of Documents must include the list of names and addresses of any person havingknowledge of matters in dispute, the affidavits of witnesses must deal with the matters in dispute and, because, the action proceedswithout the clarifications that examinations for discovery make possible in an ordinary action, it is of particular importance that thepleadings in a simplified proceeding comply with those rules.

They were crafted with a view to identifying the matters in issue andcircumscribing the debate, a result undeniably helpful in ensuring the just determination contemplated by Rule 1.03(2). A. Rule 79.10(3) [35] At the time of the trial, Rule 79.10(3) read as follows: 79.10(3) Except with leave of the court, directexamination at trial shall be confined tomatters covered in the affidavits of witnessesand expert reports. 79.10(3) Sauf permission de la cour,l’interrogatoire principal au procès doit selimiter aux questions qui ont été traitées dansles affidavits des témoins et les rapportsd’experts.

Acadie-Presse contends this version of Rule 79.10(3) did not allow the direct examination of Ms. Blanchard to deal with matters thatwere not targeted and detailed in her affidavit of witness. With respect, this contention cannot be squared with the application of theprinciples that inform the

interpretation of the Rules of Court. [36] Those principles are outlined in Davis v. MacKenzie, 2008 NBCA 85, [2008] N.B.J No. 457(QL), where the Court determined the meaning and scope of the term “based” in Rule 52: It is now well-settled that statutory

interpretation “cannot be founded on the wording of the legislation alone” and that “the words of anAct are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the objectof the Act, and the intention of Parliament” (see Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, [1998]S.C.J. No. 2 (QL), at para 21). Rule 1.03(1) prescribes that, unless a contrary intention appears, the

Interpretation Act, R.S.N.B. 1973, c.I-13, applies to the Rules of Court.

Section 17 of the

Interpretation Act provides as follows:

17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberalconstruction and

interpretation as best ensures the attainment of the object of the Act, regulation or provision. Perhaps even more importantly, the word “based” stands to be interpreted in accordance with the dictates of Rule 1.03(2). Thus, it mustbe “liberally construed to secure the just, least expensive and most expeditious determination of every proceeding on its merits”. [para.33] See as well Quinn v. Moncton Hospital (1989), (NB KB), 101 N.B.R. (2d) 86, [1989] N.B.J. No. 1059 (Q.B.) (QL), atpara. 7, Chief Justice Guy A.

Richard. [37] Rule 79.04 defines the expression “affidavit of witness” as the affidavit of a person whichcontains the evidence that he or she would give and be allowed to give orally. In other words, it is a document that sets out the admissibleevidence which this person would provide if he or she were called to testify orally at the trial. It follows that the affidavit must be draftedwith care and, it goes without saying, in a competent manner. [38] At trial, the parties offered conflicting views on the degree of factual detail required for theaffidavit to meet the requirements of Rule 79.

In my view, the expression “affidavit of witness” must be given a “rational and practicalinterpretation” (see Cosman v. Moore, 2011 NBQB 254, 382 N.B.R. (2d) 343, Justice Glennie, at paras. 61 and 63). In this regard, I cando no better than propose the following, admittedly general, guidelines: the affidavit of witness should provide the factual details which,in the deponent’s judgment, are relevant to the material issues, and useful, if not probative, in connection with the determination of thoseissues. The authors should also bear in mind that any direct examination of the deponent must be brief (see Cosman v.

Moore, at para.24). The affidavit of witness Ms. Blanchard filed in May 2011 sets out the testimony she anticipated giving with respect to the materialissues in the event she was called to testify at trial.

The real question we must answer is whether her direct examination could deal withmatters she had not addressed or had only mentioned in passing in her affidavit of witness. [39] Although an affidavit of witness must, in order to meet the requirements of Rule 79.04, set outthe deponent’s expected testimony at trial, Rule 79.10(3) does not limit direct examination to matters targeted and detailed in theaffidavit. It allows the direct examination, although it must be brief, to deal with matters covered in the affidavits of witnesses and expertreports.

The underlined terms must be given a meaning which reflects a liberal

interpretation rooted in the commitment to secure the just,least expensive and most expeditious determination of every proceeding on its merits. This means, among other things, that courts mustshy away from an

interpretation which “would have a significant adverse effect on the just determination of the litigation”, as envisagedby the simplified procedure scheme provided under Rule 79 (see Cosman v. Moore, at paras. 61-63). In my opinion, this interpretativeapproach leads inevitably to the conclusion that a matter has been “covered”, within the meaning of Rule 79.10(3), when it has beenreferenced, be it directly, implicitly, exhaustively or simply in passing, in one of the affidavits of witnesses. To my mind, a narrowermeaning would be at odds with the principles that inform the

interpretation of the rules of procedure. It follows that the trial judge didnot err in allowing the direct examination of Ms. Blanchard to deal with any matter referenced in her affidavit of witness or in theaffidavits of witness of Mr. Sonier. In fact, leave of the court was not required with respect to those matters. [40] A word or two about the current version of Rule 79.10(3).

It reads as follows: 79.10(3) Except with leave of the court, directexamination at trial shall be confined tomatters covered in the affidavits of witnessesand expert reports, but a party shall notexamine a witness to repeat the statements inhis or her affidavit. 79.10(3) Sauf permission de la cour,l’interrogatoire principal au procès doit selimiter aux questions qui ont été traitées dansles affidavits des témoins et les rapportsd’experts, mais une

partie ne peut interrogerun témoin en vue de répéter les déclarationsque renferme son affidavit. Nothing in the rule’s modified wording precludes a direct examination that briefly expands upon statements in the witness’ affidavit orbriefly addresses features of any other affidavit of witness or expert report. The amendment to the rule is designed to shorten the trial byprecluding repetition of the whole or part of the witness’ affidavit. B. Rule 79.11 [41] The trial judge fixed the costs at $7,000. She did so for the following reasons:

[TRANSLATION] Pursuant to Rule 79.05(4) of the Rules of Court , the plaintiff chose to proceed according to the simplified procedure of Rule 79, even though the total amount of her claim exceeded $75,000. The Court received affidavits filed by the parties, that is the two affidavits filed by Francis Sonier and one affidavit filed by Darlene Blanchard. Most of the documents submitted as evidence were appended to the affidavits of witnesses. The Court did not hear anyone other than these two witnesses.

However, each witness was examined at length by his or her own counsel and cross-examined by the other party’s counsel. The counsels’ submissions were also long. The trial took place over five days. The fact that the defendant raised the question of novation complicated matters even more and prolonged the proceedings. Rule 79.11 provides that “Scales 2 to 5 of Tariff ‘A’ of Rule 59 do not apply to the fixing of costs of an action that proceeded under this rule.” However, the other paragraphs of Rule 59 remain applicable to actions that proceed under Rule 79.

Rule 79 does not fetter the Court’s discretion to fix costs in this case without using the tariff. In the circumstances, I find that the amount payable according to Scale 1 of Tariff “A” is insufficient. Considering the amount recovered, the duration of the trial, and the complexity of the issues raised, I fix costs at $7,000. [paras. 150-152] [ 42 ] Acadie-Presse submits Rule 79.11, which provides that Scales 2 to 5 of Tariff “A” do not apply to the fixing of costs in an action to which Rule 79 applies, compelled the judge to set costs in accordance with Scale 1 of Tariff “A".

With respect, the principles that inform the

interpretation of the rules of procedure compel me to adopt the opposite view. [ 43 ] I readily accept that Scale 1 stands to be applied to fix costs in most actions to which Rule 79 applies. Those costs, which are relatively modest, reflect the simplicity of the procedures contemplated by the Rule. However, a derogation to the general rule is appropriate, indeed mandatory, where the interests of justice so require (see Megamark Inc. v. I3 International Inc. , 2011 NBQB 169 , 374 N.B.R (2d) 332, at paras. 24-27 ). Any other conclusion would reflect an

interpretation that overlooks the imperative of securing a just determination of the proceeding. [ 44 ] It bears remembering that Rule 79 does not exclude the possibility of applying Rule 59.01(2)(a), which reads: Nothing in this rule shall be construed so as to interfere with the authority of the court (

a) to fix the costs of a proceeding, or a step in a proceeding, with or without reference to a tariff, instead of requiring assessment of the costs[.] Rien dans la présente règle ne saurait s’interpréter comme portant atteinte au pouvoir de la cour

a) de fixer les dépens afférents à une instance ou à une étape de l’instance en ayant recours ou non à un tarif, plutôt que d’exiger leur calcul[.] The drafters of Rule 79 were alive to the fact that excluding the application of Rule 59.01(2)(

a) from the scheme they were implementing could open the door to injustice, especially in circumstances that fall out of the ordinary. Thus, it is not surprising that they eschewed providing for the exclusion of Rule 59.01(2)(

a) in the wording or general scheme of Rule 79. Furthermore, exclusion is not warranted by any other provision of the Rules of Court . [ 45 ] Moreover, the trial judge’s decision to make an exception to the general rule cannot be impeached on appeal unless it is unreasonable or the product of a palpable and overriding error in her assessment of the pertinent circumstances, an error of law or an error in principle: The Beaverbrook Canadian Foundation v. The Beaverbrook Art Gallery , 2006 NBCA 75 , 302 N.B.R. (2d) 161, at para. 4 , and Potter v.

New Brunswick Legal Aid Services Commission , 2013 NBCA 27 , 402 N.B.R. (2d) 41, at para. 103 . In my view, the trial judge could properly conclude the costs payable under Scale 1 would be inadequate and that their award would bring about an injustice. In addition, she was exercising a judicial discretion in fixing costs at an amount higher than what Scale 1 provides and it is well settled that costs are only “unreasonable” when they are “so inordinately high or so low as to be manifestly wrong”: Doucet and Dauphinee v.

Spielo Manufacturing Incorporated and Manship , 2011 NBCA 44 , 372 N.B.R. (2d) 1, Robertson J.A., at para. 115. In those circumstances, and given the standard of appellate review described hereinabove, the Court is duty bound to abstain from intervening. That said, I hasten to add that an exception to the general rule was entirely appropriate in the instant case.

C. Affirmative Defences: the Identity of the Employer and the Failure to Mitigate Losses

(1) Non-compliance with the Rules of Pleading [ 46 ] The trial lasted five days. It would have been much shorter and the cost of litigation far less burdensome if the evidence, both oral and written, and the debates had been limited to the questions in issue . More specifically, and with respect, the judge should not have allowed evidence and debates in relation to the theories that Acadie-Presse was not Ms. Blanchard’s employer at the time of her dismissal and that she failed to mitigate her losses. Neither defence is pleaded in the Statement of Defence, a clear breach of the rules of pleading prescribed by the following Rules of Court :

27.06 Rules of Pleading – Applicable to All Pleadings Material Facts

(1) Every pleading shall contain a concise statement of the material facts on which the party pleading relies for his […] defence, but not the evidence by which those facts are to be proved. […] Documents or Conversations

(8) The effect of a document […], if material, shall be pleaded as briefly as possible, but the precise words of the document […] shall not be pleaded unless those words are themselves material. […] 27.07 Rules of Pleading – Applicable to Defence and Reply […] Different Version of Facts

(3) Where it is intended to prove a version of the facts different from that pleaded by the opposite party, a mere denial of the version so pleaded is not sufficient, but the party, in his defence or reply, shall plead his own version of the facts. Affirmative Defences

(4) A party, in his defence or reply, shall plead every matter upon which he intends to rely to defeat the claim or defence of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue which has not been raised in a previous pleading. 27.06 Règles de la plaidoirie d’application commune Faits déterminants

(1) Chaque plaidoirie doit exposer de façon concise les faits déterminants sur lesquels repose […] la défense, mais non les moyens de preuve à l’appui. […] Documents et conversations

(8) L’effet d’un document [s’il constitue un fait déterminant, doit être plaidé] aussi brièvement que possible. La teneur même du document […] ne doit pas être plaidée à moins que les mots employés ne soient déterminants. […] 27.07 Règles de la plaidoirie applicables à la défense et à la réplique […] Version différente des faits

(3) Il ne suffit pas à celui qui a l’intention de prouver une version des faits différente de celle plaidée par son adversaire de nier cette version plaidée. Il doit donner sa propre version des faits dans sa défense ou dans sa réplique. Défenses affirmatives

(4) Une

partie doit plaider, dans sa défense ou dans sa réplique, toute question sur laquelle elle entend se fonder pour faire échouer la demande ou la défense de son adversaire et qui, si elle n’était pas spécifiquement plaidée, risquerait de prendre son adversaire par surprise ou de soulever une question qui n’a pas été soulevée dans une plaidoirie antérieure.

[47] In Local 772 of the United Association of Journeymen and Apprentices of the Plumbing andPipefitting Industry of the United States and Canada v.

The United Association of Journeymen and Apprentices of the Plumbing andPipefitting Industry of the United States and Canada and the United Association of Journeymen and Apprentices of the Plumbing andPipefitting Industry of the United States and Canada, Local 325, Hughes and Wood, 2013 NBCA 33, 404 N.B.R. (2d) 332, the Courtemphasized, for the umpteenth time, it seems to me, the key role pleadings play in the just determination of every proceeding on itsmerits: […] More generally, and as in all cases, the issues requiring adjudication are defined by the pleadings.

Courts must not “permit a civiltrial to lapse into a sort of free-ranging general inquiry” (see Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56,[2011] 3 S.C.R. 535, at para. 11). Civil litigation does not bring into play the “commission of inquiry” model in which one or morecommissioners embark on a “voyage of discovery armed only with very general terms of reference” (see Lax, at para. 40). […] Bydefining the issues, pleadings give the opposing parties and the court fair notice of the case they must deal with.

To borrow Binnie, J.’scolourful language in Lax “[t]he trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roamthe seas interminably with no set destination and no end in sight”. [para. 42] See, as well, Parlee v. McFarlane (1999), (NB CA), 210 N.B.R. (2d) 284, [1999] N.B.J. No. 88 (C.A.) (QL), at para.33, and 052987 N.B. Inc. v. ADI Ltd., 2000 NBCA 55, 232 N.B.R. (2d) 47 at para. 3, Turnbull, J.A. for the majority. [48] At the risk of wearing out the reader’s patience, I repeat: the only defences pleaded in theStatement of Defence were that Ms.

Blanchard was dismissed for cause and, alternatively, that the severance payout she was givencorresponded to a reasonable notice of dismissal. [49] According to the version of the facts pleaded in the Statement of Claim, Acadie-Presse was Ms.Blanchard’s employer. If Acadie-Presse wanted to argue at trial the Letter of Employment had the effect of terminating the employer-employee relationship alleged in the Statement of Claim, this effect and this alternative version of the facts had to be pleaded in theStatement of Defence. Acadie-Presse failed to do so.

And, had it applied for leave to amend the Statement of Defence to plead thisdefence, the trial judge would no doubt have denied the request given the prejudice which would have resulted from the amendment, aprejudice that could not have been dissipated by an award of costs or an adjournment (see Rule 27.10(1)). Indeed, Acadie-Presseacknowledges that, at the time of trial, an action for wrongful dismissal against Les Éditions de l’Acadie Nouvelle was barred under theLimitations of Actions Act, S.N.B. 2009, c.

L-8.5. [50] Additionally, the failure of a wrongfully dismissed employee to mitigate his or her losses is anaffirmative defence that must be pleaded in the Statement of Defence (see Rule 27.07(4) and Morrow v. Aviva Canada Inc., 2004 NBCA100, 279 N.B.R. (2d) 77, at para. 14). As mentioned, probably more often than necessary, this defence was not pleaded in the Statementof Defence. Moreover, leave to amend was not sought at trial or on appeal (see Rules 27.10(1) and 62.21(4), and Sivret v. BelairInsurance Company (1993), (NB CA), 136 N.B.R. (2d) 237, [1993] N.B.J. No. 139 (C.A.) (QL), at para. 4).

Inomitting to seek leave to amend, Acadie-Presse deprived Ms. Blanchard of the opportunity to exercise her right to be heard on the issueand effectively thumbed its nose at the court’s discretion in the matter. As Justice Larlee stated in Canadian Imperial Bank of Commercev.

Lush, Peddle and River Road Auto Sales, 2002 NBCA 58, 251 N.B.R. (2d) 291, at para. 8, “it should be only in rare cases that a trialjudge can raise an issue that has not been pleaded.” In my judgment, this is not one of those rare cases where the court is at liberty tooverlook the shortcomings of the Statement of Defence or deem it suitably amended (see Voye v. Hartley, 2002 NBCA 14, 247 N.B.R(2d) 128, at para. 14, and Estate of Michael Burke and 1021256 Ontario Inc. v.

Royal & Sun Alliance Insurance Company of Canada,2011 NBCA 98, 381 N.B.R. (2d) 81, at paras. 55-57). [51] Since neither the question of whether the Letter of Employment had the effect Acadie-Presseasserts, nor the question of whether Ms. Blanchard failed to mitigate her losses are matters in issue, I need not pass judgment on theground of appeal that challenges the trial judge’s related findings. That said, the Court raised proprio motu the shortcomings of theStatement of Defence and the written submissions on appeal deal exclusively with the sustainability of those findings.

In thosecircumstances, brief observations on point are in order.

(2) Novation [52] It is conceded that Ms. Blanchard was in the employ of Acadie-Presse prior to the execution ofthe Letter of Employment. Acadie-Presse argues that this document had the effect of replacing it, qua employer, by Les Éditions del’Acadie Nouvelle. In Acadie-Presse’s submission, the Letter of Employment gave rise to a novation that released it from any obligationtowards Ms. Blanchard. It follows, so goes the argument, that Ms. Blanchard’s action should have been dismissed at trial, given that itdoes not target her actual employer. As would be expected, Ms. Blanchard takes issue with this contention.

In her submission, the Letterof Employment did not change the situation in any way since it is an agreement between herself and Acadie-Presse, her longstanding

employer, one that Les Éditions de l’Acadie Nouvelle signed as agent of Acadie-Presse. [ 53 ] The trial judge rejected the novation hypothesis following an analysis based not only on the wording of the pertinent provisions of the Letter of Employment but also on evidence extrinsic to the Letter. Thus, in her reasons for decision, the judge accepts Ms. Blanchard’s testimony in respect of the following: (1) before signing the Letter of Employment, she feared Mr. Sonier wanted to get rid of her; (2) she signed it on the strength of the explanations and assurances Mr.

LeBlanc gave her, in particular that the Letter of Employment simply formalized her employment situation: she would continue to perform the tasks of Printing Services Assistant for Acadie-Presse;

(3) Mr. LeBlanc spent a fair amount of time describing the benefits flowing from the Letter of Employment (salary increase, increase in the number of vacation days, and reduction of working hours); (4) as he explained, the requirement to give 20 working days’ notice in the event of resignation was the only negative feature of the Letter of Employment;

(5) Mr. LeBlanc never suggested the Letter of Employment’s purpose and effect was to replace Acadie-Presse with Les Éditions de l’Acadie Nouvelle as employer; and (6) after signing the Letter of Employment, Ms. Blanchard’s duties remained basically unchanged. Since Ms. Blanchard and Mr. Sonier had no discussions regarding the Letter of Employment and Mr. LeBlanc did not testify at trial, Ms. Blanchard’s testimony regarding the circumstances surrounding her signing of the Letter of Employment was not contradicted. [ 54 ] Various documents support the view that Acadie-Presse remained Ms. Blanchard’s employer.

The trial judge provides the following inventory: [TRANSLATION] * Exhibit “B-D1”: A document entitled “Acadie-Presse – Details of wages from 01-01-09 to 29-07-09 - Darlene Blanchard”, which details Darlene Blanchard’s income and deductions during the period in question. * Exhibit “B-I”: The letter of dismissal given to Ms. Blanchard by Mr. Sonier on December 2, 2009, written on Acadie-Presse letterhead. [Les Éditions de l’Acadie Nouvelle] is not mentionned. It reads, in part, as follows: [TRANSLATION] ...

Acadie-Presse Ltée hereby confirms it is terminating your employment... [...] ... we thank you for the contribution you have made to Acadie-Presse Ltée during the term of your employment. [...] ... please return to Acadie-Presse Ltée, without keeping any copy for yourself, all tools, equipment, materials and documents which belong to the company, as well as any key, access code, credit card or any other property. [...] * Exhibit “B-J1”: A document entitled “Acadie-Presse - Darlene Blanchard - End of pay period 09-01-10” which provides the breakdown of amounts paid to Ms.

Blanchard at the beginning of January, 2010, following her dismissal, that is, the four weeks’ notice and accumulated leave. * Exhibit “B-J2”: A document entitled “Acadie-Presse - Employee

Summary for 2009 - Darlene Blanchard”. * Exhibit “B-J3”: A document entitled “Acadie-Presse - Employee

Summary for 2010 - Darlene Blanchard”. * Exhibit “B-K”: The Record of Employment given to Ms. Blanchard and sent to Service Canada, identifying Acadie-Presse Ltée as her employer. * Exhibit “B-L”: The ad published in order to fill the position resulting from the reorganization of the plaintiff’s work specifies that Acadie-Presse seeks candidates to fill the position, and is signed by “Francis Sonier, General Manager, Acadie-Presse”. When Mr. Sonier was acting as a representative of Acadie Nouvelle, he was generally identified as “Publisher and General Manager of Acadie

Nouvelle”. [paras. 34-41] [55] As mentioned, Acadie-Presse argues the judge should have limited herself to the text of theLetter of Employment in order to define its scope. This contention must be rejected for the following reasons. [56] Where the text of a contractual provision is unambiguous, the court must, as a general rule, giveeffect to it in accordance with the intention revealed by the words the parties chose to employ. However, this approach is inappropriate incases of genuine textual ambiguity.

In that situation, the court must determine the intention of the parties and the scope of the provisionby taking into account a much wider context (see Eli Lilly & Co. v. Novopharm Ltd., (SCC), [1998] 2 S.C.R. 129,[1998] S.C.J. No. 59 (QL). [57] No provision of the Letter of Employment brings to an end, at least in clear and explicit terms,the employer/employee relationship that existed between Acadie-Presse and Ms. Blanchard for over a decade. In fact, the provisionswhich, directly or indirectly, bear upon the relationship give rise to doubt regarding the intention of the parties on the subject.

Someprovisions suggest the existing relationship was being replaced, while others point in the opposite direction. This lack of clarity openedthe door to a consideration of evidence extrinsic to the Letter of Employment. The ground of appeal positing the contrary view musttherefore fail.

(3) Failure to Mitigate Losses [58] Ms. Blanchard acknowledged in her testimony that she did not actively seek other employmentuntil August 2010. Her explanation: she took the dismissal badly, and her health deteriorated afterwards. Be that as it may,Ms. Blanchard did not find a job until October 2011, at which time she accepted a three-month temporary position. At trial, Acadie-Presse argued Ms.

Blanchard did not make the necessary efforts to find substitute employment and that, as a consequence, any award ofdamages should be reduced, if not denied, to reflect this failure to abide by her duty to mitigate losses. [59] The judge rejected this contention because, in her view, no matter what efforts she might havemade, Ms. Blanchard would not have secured suitable employment in the 16 months post-dismissal. The judge added that, in any case,Acadie-Presse had not established Ms. Blanchard failed to make reasonable efforts to mitigate her losses.

In my judgment, Acadie-Pressehas not shown the judge’s findings on this question are the result of a palpable and overriding error in her assessment of the evidence.Accordingly, the ground for appeal that challenges those findings must fail. D. Notice of Termination [60] As mentioned on a number of occasions, one of the clauses of the Letter of Employmentprovides that any [TRANSLATION] “[n]otice of resignation or of termination” must be provided in writing no less than 20 working daysin advance. Having regard to the wording of this clause and related clauses, and considering the explanations Mr.

LeBlanc gave Ms.Blanchard at the time the Letter of Employment was signed, the trial judge determined the expression [TRANSLATION] “notice ofresignation or of termination” referred to a voluntary departure or a consensual termination of employment. Acadie-Presse contends theterm [TRANSLATION] “termination” is explicit and provides for the application of the authorized notice to a dismissal.

In my view,that debate need not be settled for the following reasons. [61] Under s. 30(1) of the Employment Standards Act, absent cause for dismissal, an employer isprohibited from terminating an employee without giving “four weeks” notice in writing where the employee, as is the case here, has beenemployed for a continuous period of employment of five years or more. The word “weeks” is not defined in the Act. However, it describes the notice in terms of “weeks”, not “working weeks”. Black’s Law Dictionary (8th ed.) defines “week” as: “1. A period ofseven consecutive days beginning on either Sunday or Monday. 2.

Any consecutive seven-day period.” See, as well, Rickey v.Marlborough (Township), [1907] O.J. No. 179 (H. Ct. J. (Div. Ct.)) (QL); Rogers v. Fredericton (City) (1931), (NBKB), 3 M.P.R. 161 at 170 (N.B.S.C.); and Falconbridge Nickel Mines Ltd. v. Egan (1983), (ON CA), 148 D.L.R. (3d)474 (Ont. C.A.), at 495, per Houlden, J.A. [62] Regardless of the definition one settles upon, the notice period authorized by the Letter of

Employment, as interpreted by Acadie-Presse, would fall short of the minimum prescribed by s. 30(1) of the Act. That being so, and ifAcadie-Presse’s

interpretation were accepted, it would behoove the Court to declare “null and void” the enabling provision of the Letterof Employment (see Machtinger v. HOJ Industries Ltd., (SCC), [1992] 1 S.C.R. 986, [1992] S.C.J.

No. 41 (QL)).Significantly, that decision stands for the proposition that such a declaration precludes the use of the impugned provision as evidence ofthe intention of the parties regarding the length of reasonable notice: In argument, the respondent accepted that the attempt to contract out of the provisions of the Act was “null and void”, but argued that thedocuments should be considered as evidence “that contracts were entered into which expressed clearly the intention of the parties withrespect to notice of termination.” I cannot accept this argument. [...] In this case we are not faced with an entirely void contract, but a contract of which one clause is null and void by operation of statute.

Iwould nonetheless apply the reasoning of Kerr L.J.: if a term is null and void, then it is null and void for all purposes, and cannot be usedas evidence of the parties’ intention. If the intention of the parties is to make an unlawful contract, no lawful contractual term can bederived from their intention. [paras. 27-28] [Emphasis added.] V.

Conclusion [63] Following the trial of the underlying action in damages for wrongful dismissal, which waslitigated in accordance with the procedure set out in Rule 79 ("Simplified Procedure"), a judge of the Court of Queen’s Bench rejectedthe appellant’s contention that the respondent was actually in the employ of another corporation when she was dismissed. She also foundthe dismissal was effected without just cause. Since the employment contract between the parties ("Letter of Employment") was mute onthe subject, the judge set the required notice of dismissal at 16 months.

In the result, she ordered the appellant pay the sum of $90,382.87as compensation in lieu of reasonable notice, in addition to interest and costs.

The judge fixed those costs at $7,000, an amount higherthan what is prescribed in Scale 1 of Tariff “A” in Rule 59 of the Rules of Court. [64] The appellant endeavoured to persuade us that the trial judge committed reversible error by: (1)allowing the direct examination of the respondent to deal with matters that either had not been addressed at all or been referenced only inpassing in her own affidavit of witness; (2) awarding costs in excess of the amount set by Scale 1; (3) taking into account evidenceextrinsic to the Letter of Employment in the analysis that led her to find the appellant was in fact the respondent’s employer at the timeof dismissal and that the Letter of Employment did not authorize the compensation in lieu of notice voluntarily provided to therespondent; and (4) failing to apply the “the principle of mitigation in determining the losses incurred”. [65] The Court dismissed the appeal at the hearing, with reasons to follow.

I flesh out in thepreceding text the reasons that prompted me to join my colleagues in dismissing the appeal from the Bench. Those reasons may besummarized as follows: (1) the judge did not commit any of the errors attributed to her in the Notice of Appeal;

(2) Rule 79.10(3) doesnot confine direct examination, even though it must be brief, to matters targeted and detailed in the witness’ affidavit, but allows it toaddress any matter touched upon, whether directly, implicitly, exhaustively or simply in passing, in any of the affidavits of witnesses; (3)in simplified proceedings, the court may, in exceptional circumstances, order a party to pay costs at variance with Scale 1; (4) theappellant could not succeed at trial on the basis that the Letter of Employment operated to replace it as the respondent’s employer, giventhat it did not plead in the Statement of Defence that version of the facts and understanding of the effect of the Letter; (5) that is likewisethe case for the alleged failure to mitigate, an affirmative defence that must be pleaded in the Statement of Defence; and (6) lastly, evenif, contrary to the trial judge’s opinion, the clause of the Letter of Employment providing for notice of “20 working days” covers adismissal, the provision in question would be null and void because it allows for a notice period shorter than the four week minimumprescribed by the Employment Standards Act. [66] The only outstanding question is the matter of costs on appeal.

In her written submission, therespondent simply asks that [TRANSLATION] “costs and disbursements be awarded to her”, without suggesting any specific amount ofcosts or any particular method for their assessment. Having regard to the record, the nature of the underlying action, the stakes involved,the level of complexity of the issues raised, and the fact that the appeal was heard by videoconference, I conclude $5,000 would be a fairaward of costs, and I would order the appellant pay that sum.

________________________________________ J. Ernest Drapeau, juge en chef du Nouveau-Brunswick NOUS SOUSCRIVONS À L’AVIS ____________________________________ M.E.L. Larlee, j.c.a. ____________________________________ Kathleen A. Quigg, j.c.a.