2020 NBCA 57, 2020 NBCA 57

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 79-19-CA JAMES ABRAMS APPELLANT JAMES ABRAMS APPELANT - and - - et - RTO ASSET MANAGEMENT RESPONDENT RTO ASSET MANAGEMENT INTIMÉE Abrams v. RTO Asset Management, 2020 NBCA 57 Abrams c.

RTO Asset Management, 2020 NBCA 57 CORAM: The Honourable Justice Drapeau The Honourable Justice Quigg The Honourable Justice Green CORAM : l’honorable juge Drapeau l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Court of Queen’sBench: June 20, 2019 Appel d’une décision de la Cour du Banc de la Reine: le 20 juin 2019 History of Case: Historique de la cause : Decision under appeal: 2019 NBQB 129 Décision frappée d’appel : 2019 NBQB 129 , 2019 NBBR 129 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: June 18, 2020 Appel entendu : le 18 juin 2020 Judgment rendered: September 3, 2020 Jugement rendu : le 3 septembre 2020

Reasons for judgment by: The Honourable Justice Drapeau Motifs de jugement : l’honorable juge Drapeau Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Counsel at hearing: For the appellant: Daniel P. Leger For the respondent: Jessica Bungay Avocats à l’audience : Pour l’appelant : Daniel P. Leger Pour l’intimée : Jessica Bungay THE COURT The appeal is allowed. The

summary judgment dismissing the appellant’s action in damages for losses associated with the termination of his employment is set aside. The appellant’s motion for

summary judgment is allowed. He was dismissed on a without cause basis, and the respondent breached the employment contract by failing to provide reasonable notice of termination. The record is more than sufficient to allow this Court to determine the length of notice required in the circumstances and to quantify the appellant’s damages, rather than refer those issues back to the Court of Queen’s Bench. The Court concludes the appellant was entitled to 24 months’ notice and awards him corresponding damages, as well as interest and costs throughout. LA COUR L’appel est accueilli. Le jugement

sommaire rejetant la poursuite de l’appelant en dommages-intérêts pour les pertes résultant de la cessation de son emploi est annulé. La motion de l’appelant en jugement

sommaire est accueillie. L’appelant a été congédié sans motif valable et l’intimée a violé le contrat d’emploi en omettant de lui fournir un préavis raisonnable de cessation d’emploi. Le dossier est amplement suffisant pour permettre à notre Cour de fixer la durée du préavis requis dans les circonstances et d’établir le montant des dommages intérêts auxquels l’appelant a droit, plutôt que de renvoyer ces questions à la Cour du Banc de la Reine.

La Cour conclut que l’appelant avait droit à un préavis de 24 mois et elle lui accorde les dommages intérêts qui correspondent à ce préavis, ainsi que les intérêts et les dépens dans toutes les cours. The judgment of the Court was delivered by DRAPEAU, J.A.

I. Introduction, overview of the case and preview of disposition [ 1 ] Unionized employees can depend on their union, collective agreements typically negotiated from a position of strength and a largely sympathetic body of arbitral jurisprudence to vindicate their rights and achieve a satisfactory resolution for any termination-related dispute. Non-unionized employees, like the appellant, commonly lack leverage in setting the terms of their individual contracts of employment.

At termination, they often find themselves scouring employment standards legislation and the common law to circumvent terms raised by the employer to deny their previously assumed entitlement to fair exit compensation. Happily for the appellant, the Employment Standards Act, S.N.B. 1982, c. E-7.2 (“ Act ”) and recent court decisions tilt the scales of justice in his favor and command reversal of a

summary judgment dismissing his action for damages attributable to the respondent’s failure to provide reasonable notice of termination. [ 2 ] The respondent is in the business of leasing furniture, appliances, home electronics and computers in corporate and franchise stores throughout Canada. At the time of his dismissal on May 29, 2017, the appellant was the respondent’s Regional Manager for New Brunswick. He was 55 years of age, held a high school diploma and had been in the respondent’s sole employ for nearly three decades. His annual work-related compensation package was worth in excess of $150,000.

The last Contract of Employment between the parties featured a very restrictive Non-Competition Clause. It also included a Termination of Employment Clause that, as interpreted by the respondent, limited the appellant’s notice entitlement for a termination effected without cause to four weeks, the minimum prescribed under the Act . Following termination, which the respondent asserts was with cause, the appellant was given four weeks wages in lieu of notice.

The respondent claims the payment was made “gratuitously”, while the appellant says it is one of several indicia of a termination without cause. [ 3 ] The judge dismissed the action on the ground there was cause for termination (see Abrams v. RTO Asset Management , 2019 NBQB 129 , [2019] N.B.J. No. 151 (QL) ). However, she did not find, at least explicitly, the termination was made on a with cause basis.

Needless to say, termination on a with cause basis and cause for termination are two different concepts that require distinct lines of inquiry. [ 4 ] The case for the appellant, as articulated in his written submission and at the hearing, may be summarized as follows. If the dismissal of his action can be understood as resting on an implicit finding by the motion judge that his employment was terminated on a with cause basis, the judgment under appeal cannot stand for three reasons.

First, that finding is the product of a palpable and overriding error in the assessment of both the testimonial evidence and the documents generated by the respondent in connection with the termination. In the appellant’s view, there is only one logically permissible

interpretation of the record: he was dismissed on a without cause basis. The Termination of Employment Clause being void by reason of either its unconscionability or inconsistency with the Act , he is entitled to reasonable notice at common law. Second, s. 30(2) of the Act renders legally invalid the alleged termination with cause since it was not made in writing and with written justificatory reasons. As a result of that invalidation, the existence of cause for dismissal loses all relevance, a point overlooked by the motion judge.

Third, the finding of cause is the result of reversible error in assessing the record. [ 5 ] For its part, the respondent contends there was cause for dismissal and that it dismissed the appellant on this basis. It argues the dismissal with cause is valid under s. 30(2) because it was made by means of a May 29, 2017 letter that sets out the justificatory reasons.

The respondent puts forward the following alternative submission: if the Court finds the appellant was entitled to reasonable notice of termination, it should find “the appellant has been provided with all of the notice, or pay in lieu thereof, he is entitled to”. That would be the case because sub-Clause 10.1(

b) of the Termination of Employment Clause is valid and enforceable, and the respondent provided pay in lieu of the four weeks’ notice it imposes. In a further alternative submission, the respondent acknowledges that, in the event the Court finds the appellant was not terminated for just cause and sub-Clause 10.1(

b) is void, the appellant would be entitled to reasonable notice of termination, or pay in lieu thereof, pursuant to the common law.

With a view to limiting its financial exposure under this scenario, the respondent contends: (1) there is no evidence it was the appellant’s employer before his hire in August 2002 as Regional Manager for New Brunswick; (2) in any event, he resigned in May 2002 from his position as Regional Manager for the Atlantic Provinces, and his subsequent hiring as Regional Manager for New Brunswick was as a new employee, a state of affairs that would exclude any consideration of his prior 15 years of service in setting reasonable notice; (3) there is no evidence “with respect to the availability of similar employment”; and (4) the appellant failed to properly mitigate his losses. [ 6 ] I agree the judge did not err in finding there was cause for the appellant’s dismissal.

Both sides accept this finding must be upheld unless it is shown to be the product of a palpable and overriding error in the assessment of the record. No such error has been identified and, as a result, the finding must stand. However, and critically, the finding is inconsequential, no matter which termination scenario is accepted. If the appellant’s dismissal was effected on a without cause basis, cause is evidently not part of the equation.

If the dismissal was made on a with cause basis, it was not effected in writing and is therefore legally invalid by virtue of s. 30(2) , notwithstanding the existence of cause. [ 7 ] I am of the view the record permits only one reasonable conclusion: the appellant’s dismissal was made on a without cause basis. Moreover, sub-Clause 10.1(

b) is void because it purports to deny benefits guaranteed under the Act , specifically

accrued wages and vacation pay. It follows the appellant was entitled to reasonable notice, the length of which is not dictated by sub-Clause 10.1(b). [8] The appellant’s motion for

summary judgment ought to have been allowed, and I would so order. The nextquestion is whether this Court should determine the quantum of reasonable notice and damages. Under Rule 62.21 of the Rules of Court,the Court may draw inferences of fact and render any decision and make any order which ought to have been made in first instance. Rule1.02.1 (“Proportionality”) enjoins the Court to make orders […] that are proportionate to what is at stake in the proceeding and theimportance and complexity of the issues”.

Since there is no suggestion either side has failed to comply with their respective discoveryobligations and both surely put their best foot forward at the hearing in first instance (see Martin v. Girouard, 2019 NBCA 90, [2019]N.B.J. No. 366 (QL), per LaVigne, J.A., at para. 16), it can be safely supposed the record provides the data required for a settlement ofall outstanding issues.

That understanding of the record and the Proportionality rule combine to render inappropriate referring thedetermination of those issues to the Court of Queen’s Bench. [9] For the reasons fleshed out in the text that follows, I find the appellant has been in the deemed or actualemploy of the respondent for 29.5 years, and that this is the length of service to be considered in determining reasonable notice. I alsofind the respondent has not substantiated its allegation that the appellant failed to mitigate his losses.

I accept the appellant’s un-contradicted evidence that the “pool of comparable jobs with a comparable salary” is extremely shallow in New Brunswick and that,despite best efforts, he has been unable to secure such a job. Although there are no identical cases and determining reasonable notice ishardly a science, case law does assist in setting an admittedly broad range, 17-28 months in this case. Having regard to that range, theprimary factors of influence recognized in Bramble et al. v. Medis Health and Pharmaceutical Services Inc. (1999), (NB CA), 214 N.B.R. (2d) 111, [1999] N.B.J.

No. 307 (C.A.) (QL) (age, length of service and availability of alternate employment), aswell as the Non-Competition Clause, I conclude the appellant was entitled to 24 months’ notice of termination. [10] I would reverse, allow the appellant’s motion for

summary judgment and award him damages in lieu of 24months’ notice, together with interest at the rate of 1% per annum from May 29, 2017 to May 29, 2019 and interest on the resultingproduct at the rate of 2% per annum from May 29, 2019 to the date of judgment herein, and costs throughout. II. Context [11] The record consists of the appellant’s Rules-compliant Notice of Motion for

summary judgment, his initialsupporting affidavit dated June 26, 2018, his supplementary affidavit of October 10, 2018, and five affidavits filed by the respondent.Two of the last-mentioned affidavits, the first on October 2, 2018, the second on January 2, 2019, were by Steven Poole, the Senior VicePresident of Operations and Merchandising for the respondent’s parent company. Another was sworn by David Ingram, CEO of theparent company, on October 1, 2018.

One of the remaining two affidavits was by the employee with whom the appellant developed theromantic/sexual relationship that was instrumental in his dismissal, the other by a Human Resources Analyst with the respondent’sparent company. The latter affidavit was designed to explain that, contrary to the appellant’s understanding, his group insurancecoverage was not cancelled during the four weeks following termination and that any denial of claims he submitted during thattimeframe was based on the group policy’s terms.

That explanation is both reasonable and unchallenged, and I readily accept it. [12] The record does not include a formal motion for

summary judgment by the respondent. In fact, four of itsaffidavits end with the statement that it was made “in opposition” to the appellant’s motion for

summary judgment. The other is mute onthe subject. In its main pre-motion Brief, the respondent did not seek

summary judgment dismissing the action. Rather, it requested: (1)an order declaring the appellant was terminated for just cause, which would have left unresolved at least one critical issue, namely itslegal validity under s. 30(2); and (2) an order confirming the “Employment contract [specifically sub-Clause 10.1(b)] is enforceable”,which would have left outstanding its proper

interpretation. Had this been the record before the motion judge, her decision to grantsummary judgment to the respondent would have been unsustainable on procedural grounds. [13] At the hearing on appeal, the Court expressed skepticism regarding the propriety of granting

summaryjudgment to a responding party who has not made a cross-motion for that relief. We were subsequently provided a copy of therespondent’s supplementary pre-motion Brief dealing with the issue of the enforceability of sub-Clause 10.1(b). In that Brief, which wasfiled a few days before the hearing, the respondent requested an order “[dismissing] the claim in its entirety”. Evidently, the motionjudge viewed that request as a motion for

summary judgment (see para. 1 of her decision), and the hearing proceeded on thatunderstanding, without objection or a request for adjournment by the appellant. I will return to this topic in short order. [14] The appellant was born on December 17, 1961 and, as noted, holds a high school diploma.

[ 15 ] He worked for Rentown Enterprises Inc. in Edmonton, Alberta from October 15, 1987 to April 30, 1991, first as a driver, then as a store manager. In May 1991, his employer filed a Record of Employment, advising the federal government the “company [was] sold”. [ 16 ] The transition from Rentown Enterprises Inc. to the respondent as employer was seamless. The appellant began working for the respondent on May 1, 1991, and did so continuously until May 20, 2002, at which time he took a two-month leave of absence for medical reasons.

He was employed as Regional Manager for the Atlantic Provinces at that time. [ 17 ] In his June 26, 2018 affidavit, the appellant explains that, in early 2002, he was suffering from disabling job- related stress and anxiety. He informed the respondent of his disability and that he “could no longer perform [his] employment functions without change ” (emphasis added). The appellant states he stayed home and collected employment insurance benefits for two months.

The respondent contends he “quit” his job as Regional Manager for the Atlantic Provinces on May 20, 2002, which is the reason indicated in the May 22, 2002 Record of Employment for its preparation. In July 2002, Mr. Ingram contacted the appellant and invited him to return to work in an “accommodated position”, namely Regional Manager for only New Brunswick. The appellant accepted the offer. [ 18 ] In his second affidavit, Mr.

Poole points out the appellant signed a Contract of Employment, on August 2, 2002, for the position of Regional Manager for New Brunswick that prescribed a 90-day probationary period and notice of termination in accordance with s. 30(1) of the Act . Under this provision, an employee is only entitled to notice of termination if he or she “has been employed by the employer for a continuous period of employment of six months or more”. “Period of employment” is defined in s. 1 as “the period of time from the last hiring of an employee by an employer to the termination of his employment”.

The 2002 Contract of Employment dealt with notice of termination in the following Clause: You understand and acknowledge that your employment may be terminated without cause at the sole discretion of the employer upon providing you with proper written notice of termination, or pay in lieu thereof, as required by the applicable provincial employment Standards legislation.

You agree and acknowledge that upon complying with the notice and severance obligations prescribed by the provincial employment Standards legislation (including the payment to you of accrued amounts), the Employer is released from all claims arising from your employment, or the termination thereof. The respondent submits this Clause excludes consideration of the previous 15 years of service in fixing reasonable notice. [ 19 ] In 2008, the appellant was promoted to the position of Vice-President for Division 3 (Atlantic Provinces, Quebec and part of Ontario).

He executed a new Contract of Employment, which included the following Clause: 10. Termination of Employment 10.1 Either you or the Company may terminate your employment at any time and for any reason, with or without cause, in accordance with the following: (

a) The Company may terminate your employment for cause without notice, pay in lieu of notice or severance pay. (

b) The Company may terminate your employment at any time without cause by prior written notice or pay in lieu of such notice. If the Company terminates your employment pursuant to this paragraph 10.1(b), the Company shall not be obliged to make any further payments to you, except for any amounts which may be due and remaining unpaid at the time of termination of your employment. The payments and notice provided for in this paragraph 10.1(

b) are inclusive of your entitlements to notice, pay in lieu of notice, severance pay and benefits pursuant to the New Brunswick employment standards legislation. Like its counterpart in the 2002 Contract of Employment, the 2008 Termination of Employment Clause expressly preserved the appellant’s entitlement to accrued wages and vacation pay. [ 20 ] By 2012, the appellant had become acutely aware the position of Divisional Vice-President was too stressful, given his coping skills, and quite harmful to his health.

He advised the respondent “the situation in [his] workplace was impacting [his] health and wellness” and he went on medical leave for three months, during which time he collected employment insurance benefits. Mr.

Ingram considered the appellant “a valued employee”. He “wanted his employment to continue, even if that meant in a different capacity”. [ 21 ] On May 1, 2012, the appellant returned to work as Regional Manager for New Brunswick. The change in position occasioned a significant reduction in duties and responsibilities; only the managers of the 10 stores in the Province reported to the appellant and his oversight was limited to another 44 or so employees.

Despite this reduction in duties and responsibilities, the respondent agreed to maintain the appellant’s salary and car allowance, both of which were higher than what was provided to other Regional Managers. I pause to note the record is mute on whether the other Regional Managers had seniority and a track record comparable to the appellant’s. At any rate, the appellant executed a new Contract of Employment that expressly superseded all previous contracts. It also included the following Clauses: 7.

Non-competition 7.1 You shall not, without the prior written consent of easyhome, either directly or indirectly, individually or in partnership, jointly or in conjunction with any other natural or legal person including a partnership, association, syndicate, company or corporation, in any capacity whatsoever, including as agent, shareholder, employee, or consultant, except upon the request and on behalf of easyhome, during your employment and for the longer of (

a) the number of weeks corresponding to the total notice/pay in lieu of notice and severance payment to which you would be entitled if your employment was terminated without cause (as detailed [below]), irrespective how your employment ends, calculated from your last day of active employment, and (

b) the period of one year following the date that you cease to be an employee of easyhome, regardless of who initiated the end of the employment relationship, do the following: (

a) at any time, in any way which is competitive with the business carried on by easyhome or which could have a detrimental effect on that business, solicit or accept any business from, or the patronage of, or render any service to, sell to or contract or attempt to contract with any natural or legal person including a partnership, association, syndicate, company or corporation with whom you dealt directly as a representative of easyhome and who is then either a customer of easyhome or a prospective customer of easyhome with whom easyhome then has business dealings or has had any business dealings during the one year period immediately preceding the date upon which you cease to be an employee of easyhome ; or (

b) offer employment to, endeavour to entice away from easyhome , or in any manner employ or engage any person employed or engaged by easyhome on the last day of your active employment, or interfere in any way with the employment or engagement between such person and easyhome . […] 10. Termination of Employment 10.1 Either you or the Company may terminate your employment at any time and for any reason, with or without cause, in accordance with the following: (

a) The Company may terminate your employment for cause without notice, pay in lieu of notice or severance pay. (

b) The Company may terminate your employment at any time without cause by providing you with written notice or pay in lieu of notice equivalent to your statutory entitlement under the province of New Brunswick employment standards legislation. If the Company terminates your employment pursuant to this paragraph, the Company shall not be obliged to make any further payments to you and you will not be entitled to any additional payments under the common law as a result of the termination.

In addition, the payments and notice provided for in this paragraph are inclusive of your entitlements to notice, pay in lieu of notice or other severance pay pursuant to the province of New Brunswick employment standards legislation. Clauses 7 and 10 formed part of the Contract of Employment in effect when the appellant was dismissed on May 29, 2017. [ 22 ] Aside from the terms of the 2012 Contract of Employment, the appellant was subject to corporate policies and procedures that, in the respondent’s submission, were breached when he engaged in the following conduct.

In early May 2017, a store manager informed the respondent she was involved in a romantic/sexual affair with the appellant, her immediate hierarchical superior. She had been hired by him in January of 2016 and promoted by him to the position of store manager in July 2016. As such, she reported directly to the appellant. Following an investigation, the respondent learned the affair had been ongoing for approximately 12 months,

beginning in June 2016, and prompted recommendations by the appellant that led to decisions the respondent suggested were inimical to its financial interests. The appellant denied the affair when questioned by the respondent at a meeting on May 24, 2017. It was only when confronted with the subordinate employee’s disclosure that the appellant admitted to the affair. [ 23 ] On May 29, 2017, the respondent terminated the appellant’s employment at a meeting that involved the appellant, Mr. Poole and the respondent’s manager of human resources. At that time, Mr.

Poole mentioned the respondent considered there was cause to terminate the appellant’s employment, which, according to the motion judge, consisted of the following: - engaging in a relationship with an employee whom he was obliged to supervise; - giving advice to the Company based on his desire to benefit the employee; - giving advice to the employee based on inside information about future events; - failing to report the situation to the Company as he was required to do; - continuing to supervise the employee for more than a year while engaged in the relationship; and - lying to the Company when questioned about the relationship. [para. 7] To my mind, “giving advice to the Company based on his desire to benefit the employee” insulates the finding of just cause against principled reversal.

Nevertheless, it is noteworthy that the judge did not find, as the respondent urged her to do, that its business was impacted to the extent that it suffered financially as a result of this advice and related decisions. I advert to this circumstance later in these reasons, in connection with the issue of bonus compensability. [ 24 ] It is the appellant’s un-contradicted evidence that he was told at the May 29, 2017 meeting that the termination of his employment was without cause. As the meeting was coming to a close, Mr.

Poole handed the appellant a letter dated May 29, 2017 that, given its importance, is reproduced in full and deconstructed under Analysis and Decision. Suffice it to say that the letter (“Letter” or “Termination Letter”) effectuates, in explicit terms, a termination without cause. [ 25 ] Nevertheless, the respondent asserted in first instance and on appeal that it terminated the appellant’s employment for cause and only offered to dismiss the appellant without cause if he accepted its offer of a Transition Package under which he would have been provided pay in lieu of 3 months’ notice.

As will be seen, this assertion is not borne out by the Termination Letter. [ 26 ] The appellant rejected the Transition Package on May 30 , 2017. [ 27 ] On June 10, 2017, the appellant was paid $10,876 in lieu of four weeks’ notice. [ 28 ] On June 14, 2017, the respondent caused a Record of Employment to be issued to the federal government in which it represented the appellant had been in its employ since May 1, 2002 and that his employment as Regional Manager for New Brunswick had been terminated ‘‘without cause” on May 29, 2017. [ 29 ] An action in damages for wrongful dismissal was commenced in November 2017.

In the Statement of Claim, the appellant contends he was dismissed without cause and without reasonable notice, and in violation of his human rights. The alleged violation of human rights would relate to the respondent’s supposed failure to accommodate his “medical condition” in May 2017, which violation would have caused “emotional suffering and injury to dignity”. There is no evidence to substantiate the alleged violation of

human rights, and I will say no more on the subject. [ 30 ] In the Statement of Claim, the appellant submits he is entitled to 28 months’ notice and claims the following special damages: (

a) lost wages in lieu of Notice totaling $326,666.34; (

b) lost Employer RRSP contributions for 28 months; (

c) lost EI and CPP contributions for 28 months; and (

d) lost Health and Dental co-payment plan for 28 months; (

e) lost annual bonus of $2,000; (

f) lost car allowance of $9,599.98 annually. [ 31 ] The respondent filed a Statement of Defence, in April 2018, in which it submitted the action should be dismissed because the appellant’s employment was properly terminated on a with cause basis and, alternatively, the appellant received the pay in lieu of notice prescribed by sub-Clause 10.1(b), namely four weeks. [ 32 ] In a Reply, the appellant submitted, among other things, that, since his dismissal was effected on a without cause basis, the respondent was estopped from raising just cause as a defence.

It also featured, for the first time, a claim for aggravated and punitive damages. [ 33 ] The parties have exchanged Affidavits of Documents. Neither side complains the other has failed to provide full documentary disclosure and production. [ 34 ] The appellant filed a Rules -compliant Notice of Motion for

summary judgment in late June 2018. [ 35 ] In its pre-motion Brief, the respondent describes the “broad issues raised by the present Motion [as] whether

summary judgment should be granted in favor of the Plaintiff [Applicant on Motion] […] and whether the other

summary disposition remedies sought by the Plaintiff should be granted”. The respondent frames the key questions as whether “the Plaintiff was terminated for cause and, if he was not, the amount of notice, or pay in lieu thereof, the Plaintiff is entitled to”. The respondent then states: “the Plaintiff was terminated for cause”. It reiterates this statement on at least two occasions (paras. 21 and 35), before asking the Court declare “the Plaintiff was terminated for just cause” (para. 124).

As noted, that left to be determined the validity of the alleged termination with cause in light of s. 30(2) . [ 36 ] The upshot of these observations is this: the respondent’s case rested on a with cause termination and, up to this point in the process, it had not requested

summary judgment dismissing the action. However, in a supplementary pre-motion Brief filed a few days before the hearing, the respondent requested an order “dismissing the claim in its entirety”. [ 37 ] The judge found there was just cause for termination. In her view, there was no issue requiring a trial. She refrained from examining and determining any other issue. As the appellant underscores, critical issues remained unresolved, including the effect of s. 30(2) on the validity of the alleged dismissal for cause and a host of other issues in the event it was found invalid. [ 38 ] In the result, the respondent was granted

summary judgment dismissing the action, with costs of $2,500. [ 39 ] In his Supplementary Notice of Appeal, the appellant complains the motion judge failed to address key issues. That failure would constitute “cogent evidence that a reasonable person, apprised of all the relevant circumstances would conclude that she failed to come to grips with the issues and decide them impartially and independently”.

Relatedly, the appellant contends the judge ignored binding case law that compels compliance with the Act with respect to “just cause” terminations and made palpable and overriding errors in determining there was just cause. Finally, the appellant submits the judge erred in failing to make a provisional

assessment of damages, which would have involved determining the validity of sub-Clause 10.1(

b) in the last Contract of Employment,and findings of fact on a variety of issues, including the length of his service to the respondent. [40] In his written submission to this Court, the appellant requested the assessment of damages be referred back tothe Court of Queen’s Bench. However, at the hearing, counsel for the appellant urged the Court to make the orders that should have beenmade in first instance: (1) allow his motion for

summary judgment; (2) set the appropriate length of notice; and (3) award damages inlieu thereof. The respondent objects, arguing the record is inadequate and the Court should direct a trial for the issues of notice anddamages. With respect, I disagree. In this case, which concerns a three-year-old dismissal with just four weeks’ pay in lieu of notice,justice delayed would indeed be justice denied. III. Analysis and Decision [41] I wade into the discussion with a few observations regarding the availability of

summary judgment to adefendant responding to a motion for

summary judgment who did not make a Rules-complaint motion for that relief. I then grapple withthe merits of the case. A. Procedural considerations [42] Rule 22 prescribes when

summary judgment is available. At the hearing, the Court raised motu proprio thefollowing questions: was

summary judgment in favor of the respondent available under Rule 22 despite the lack of a cross-motion to thatend and, more generally, are “Boomerang”

summary judgments permissible under the Rules of Court? A motion is simply a formalrequest for judicial relief. As is well-known, informal requests for relief are commonplace at hearings and trials. As for the term“Boomerang”, it is a label jurists have attached to

summary judgments granted to a party responding to a Rules-compliant motion underRule 22 without making a cross-motion, formal or informal. In the result, the initial motion “boomerangs” back and unfolds with thedismissal of the moving party’s claim or defence. [43] I begin an elaboration of the answers to the Court’s questions by emphasizing the Rules of Court stand to beapplied on the premise that compliance with their dictates is not optional. After all, they form part of the Judicature Act, R.S.N.B. 1973,c. J-2, and have “the force and effect of a legislative enactment”: s. 76.

As the Court observed in Smith v. Human Rights Commission(N.B.) et al. (1999), (NB CA), 217 N.B.R. (2d) 336, [1999] N.B.J. No. 392 (C.A.) (QL): […] Experience has shown that respect for the jurisdictional framework created by the Rules of Court and compliance with its proceduraldictates serve the best interests of justice. Indeed, conformity with the Rules of Court invariably produces a winnowing of the chaff fromthe grain and, in turn, helpful clarity is brought to the questions submitted to the court for resolution. Focused and insightful decisionsinvariably follow.

The end product is better justice for all. [para. 19] [44] Rule 22 (“Summary Judgment”), Rule 37 (“Procedure on Motions”) and Rule 2 (“Non-Compliance with theRules”) are in play, as is the overarching principle that all rules stand to be liberally construed with a view to securing the just, leastexpensive and most expeditious determination of every proceeding on its merits. A corollary of this principle is that adjudication byambush is unacceptable. [45] The principles that inform the

interpretation of the Rules of Court are set out in Davis v. MacKenzie, 2008NBCA 85, 338 N.B.R. (2d) 232: 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), (CSC), [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” [in Rule 52.01(4)] stands to be interpreted in accordance with the dictates of Rule1.03(2). Thus, it must be “liberally construed to secure the just, least expensive and most expeditious determination of every proceedingon its merits”. [para. 33] [46] Moreover, headings may be used for interpretative purposes: Rule 1.03(3). [47] The conclusion that a motion for

summary judgment is required of a defendant is inescapable having regard toRule 22 as a whole, and in particular Rule 22.01(3) under the heading “Where available […] To Defendant”. Rule 22.01(3) allows adefendant to “move”, after service of the Statement of Defence, for

summary judgment dismissing all or part of the claim in theStatement of Claim. Where there is no cross-motion for

summary judgment dismissing the claim or a part thereof, the defendant whowishes to oppose the relief sought by an adverse party must lead evidence of specific facts tending to show “there is a genuine issuerequiring a trial”: Rule 22.02(2). Evidence of that nature is inconsistent with a

summary judgment in the defendant’s favor. [48] More generally, if

summary judgment could be obtained by a responding party without the moving party beingprovided fair case-specific notice of this risk, litigants might well shy away from resorting to Rule 22. This outcome would not beharmonious with its principal purpose: reduction of the cost of litigation by fostering early adjudication on the merits (see Hryniak v.Mauldin, 2014 SCC 7, [2014] 1 SCR 87). The purpose of a legislative provision is key to its

interpretation (see Alexander v. Province ofNew Brunswick as represented by the Director of Safer Communities and Neighborhoods, 2020 NBCA 55, LeBlond, J.A. for the Court). [49] Admittedly, the wording of Rule 22.04 provides fodder for an argument in favor of “Boomerang”

summaryjudgments. It states the court must grant

summary judgment in certain circumstances, without explicitly requiring a motion. However,that

interpretation cannot prevail on a contextual reading of Rule 22.04, with particular regard for its heading “Disposition of Motion”(emphasis added). [50] Unless compliance with the motion requirement under Rule 22 is dispensed with by an order under Rule 2.01, a“Boomerang”

summary judgment is not an adjudicative option. A motion, formal or informal, is a condition precedent to a

summaryjudgment under Rule 22, and an order dispensing with that requirement, which is not a matter of form, will be appropriate only inexceptional circumstances, such as those that percolate from the record in Manulife Bank of Canada v. Conlin, (CSC),[1996] 3 S.C.R. 415, [1996] S.C.J. No. 101 (QL), or where Rule 22.04(1)(

b) is engaged. That Rule directs the court to grant

summaryjudgment where the parties agree and it is appropriate to do so. [51] After all, subject to the requirement that each side put their best foot forward, proceedings under Rule 22unspool within the adversary system where the court is expected to rule on motions for relief put forward by the parties (see O’Toole v.Peterson, 2018 NBCA 8, [2018] N.B.J. No. 58 (QL)). To the extent that the thought-provoking obiter dicta in Stéphane Volpé v. NewBrunswick, 2017 NBQB 109, [2017] N.B.J. No. 127 (QL), at para. 33, and Vienneau v. Joy Global (Canada) Ltd., 2020 NBQB 76,[2020] N.B.J.

No. 102 (QL), at paras. 38-41, suggest a different understanding of the Rules of Court, they should not be followed. [52] That said, I acknowledge the dissenting opinion of Iacobucci J. in Manulife Bank of Canada v. Conlin fuelsarguments to the contrary. The procedural question in that case was whether the Ontario Court of Appeal had jurisdiction to grantjudgment in favor of Mr. Conlin dismissing Manulife’s action on his guarantee, even though he had not responded to Manulife’s motionfor

summary judgment with a cross-motion for judgment in his favor. As I understand Justice Iacobucci’s opinion, on a motion forsummary judgment under the Ontario Rules of Civil Procedure then in effect, the court had jurisdiction to grant judgment in favor of theresponding party, despite the lack of any cross-motion, where the dismissal of the original motion, on the facts and as a matter of law,meant the responding party would be entitled to judgment in his or her favor either at a follow-up motion for

summary judgment or attrial. In coming to that conclusion, Justice Iacobucci relied on the Ontario equivalent of our Rules 1.03(2), 22.04(1)(

a) and 22.04(5). [53] However, the majority expressed agreement with the finding “that the Court of Appeal had jurisdiction to makethe order dismissing the action” against Mr. Conlin, without expressly endorsing Justice Iacobucci’s

interpretation of the Ontariosummary judgment Rule (para. 1). It may have had in mind this feature of the proceedings in the Ontario Court of Appeal: Manulifeabandoned its motion to quash Mr. Conlin’s appeal on the grounds it was frivolous and vexatious and both parties agreed “to argue theappeal on its merit” (Manulife Bank of Canada v. Conlin, (ON CA), [1994] O.J. No. 2560 (C.A.) (QL), at para. 17).As a result of that re-cast, dismissal of the action against Mr. Conlin became an adjudicative option for the Ontario Court of Appeal,even though he had not made a cross-motion for

summary judgment in first instance. That appears to have been the understanding of thethree judges sitting on the appeal.

[ 54 ] In my respectful view, the procedure-related circumstances in Manulife Bank of Canada v. Conlin were exceptional. In that regard, the following bear spotlighting: (1) the parties’ agreement in the Court of Appeal, as understood by the panel;

(2) Manulife was on notice that the dismissal of its action against Mr. Conlin was a foregone conclusion if its motion for

summary judgment failed on the merits; and (3) the majority’s conclusion that, on the facts and as a matter of law, Manulife could not obtain judgment against Mr. Conlin. In the result, a follow-up motion by him for

summary judgment dismissing Manulife’s action, or a trial, would have served no useful purpose. [ 55 ] Under Rule 37.01, a motion must be made by Notice of Motion (Form 37A), or Notice of Preliminary Motion. Rule 37.01 prescribes the form of a motion. Under Rule 2.01, a judge may dispense with this formal requirement by applying the test that governs run-of-the-mill situations (see Trifidus Inc. v. Samgo Innovations Inc. et al. , 2011 NBCA 59 , 375 N.B.R. (2d) 141 , at para. 37 , Quigg J.A. for the Court).

This test is less exacting than the one that applies where no cross-motion has been made (see para. 49 hereinabove). [ 56 ] In his Notice of Motion, the appellant sought orders: (1) confirming there was no genuine issue requiring a trial; (2) determining reasonable notice of termination; and (3) specifying “the wages and benefits which are comprised in reasonable notice”. While the respondent requested relief tantamount to

summary judgment in its supplementary pre-motion Brief, it did not seek, let alone secure, a Rule 2.01 order dispensing with the formal requirements of a motion under Rule 37.01. The issue is whether the failure of the respondent to file and serve a formal cross-motion for

summary judgment or to secure an appropriate dispensation order under Rule 2.01 can be overlooked. [ 57 ] Pursuant to Rule 2.02, the failure to comply with Rule 37.01 is to be treated as an irregularity that does not render the proceeding a nullity. Rule 2.02 enjoins courts to grant relief, upon proper terms, to secure the just determination of the matters in dispute between the parties. As for Rule 2.03, it precludes a challenge to a proceeding for irregularity where the party objecting has taken a further step in the proceedings after having knowledge of the irregularity.

Where timely objection is raised to a cross-motion that is not Rules -compliant, the issue is simply whether its insertion into the mix would “secure the just, least expensive and most expeditious determination of [the] proceeding on its merits”: Rule 1.03(2) and Trifidus Inc. v. Samgo Innovations Inc. et al. , at para. 37 . [ 58 ] The appellant neither objected to the respondent’s informal request for

summary judgment, nor sought an adjournment of the hearing. Moreover, he does not contend the procedure followed in first instance occasioned a denial of justice. In those circumstances, the

summary judgment in the respondent’s favor is procedurally unassailable (see King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215 , [2014] O.J. No. 1333 (QL) ) . [ 59 ] I now turn to the merits of the appeal, bearing in mind the following bundle of guidelines, observations and principles. First, the Act is designed to protect the interests of employees and its remedial nature should lead courts to select among reasonable

interpretations the one that encourages employers to comply with its minimum requirements, thereby extending “its protection to as many employees as possible” (see Machtinger v. HOJ Industries Ltd ., [1992] 1 S.C.R. 9 , at paras. 31-32 ). Second, courts generally “interpret employment agreements differently from other commercial agreements […] mainly because of the importance of employment in a person’s life” (see Wood v. Fred Deeley Imports Ltd ., 2017 ONCA 158 , [2017] O.J. No. 899 (QL) , at para . 26 , Laskin J.A. for the Court).

Third, because employees are usually quite vulnerable at hiring and on dismissal, clauses that purport to deny them fair exit compensation are scrutinized with great care and, where they give rise to more than one reasonable

interpretation, courts should settle on the one “that gives the greater benefit to the employee” ( ibid , at para. 28). B. Termination on a without cause basis or on a with cause basis [ 60 ] As noted, the motion judge did not expressly find the appellant had been dismissed with cause. However, I am satisfied she did so implicitly, given the nature of the debate between the parties and her focus on just cause, to the exclusion of all other issues. The question for this Court is whether the judge committed a palpable and overriding error in finding the dismissal was on a with cause basis.

I respectfully conclude she did for the following reasons. [ 61 ] First, the appellant’s sworn evidence is that he was told at the May 29, 2017 meeting he was being dismissed without cause. This evidence is not contradicted. [ 62 ] Second, the respondent provided the appellant with pay in lieu of four weeks’ notice. No such payment would have been made if the dismissal was with cause. To be plain, I do not accept for one moment the respondent’s suggestion it was made gratuitously.

[ 63 ] Third, the respondent issued a Record of Employment that confirms the termination was made on a without cause basis. [ 64 ] Fourth, and most importantly, the Termination Letter effectuates a dismissal without cause. It reads as follows: Further to our discussion today, this letter confirms the decision made by Goeasy Ltd. (the “Company”) to terminate your employment, effective immediately . As discussed, the Company takes the position that there is just cause for the termination of your employment.

This position is based upon your conduct related to the issues discussed during our meeting on May 24, 2017, which conduct constitutes a breach of trust and has resulted in the Company losing confidence in your ability to perform the responsibilities of your role. Nonetheless, without prejudice to our ability to take the position that your employment has been terminated for just cause, the Company has decided to terminate your employment, effective immediately, on a without cause basis . We regret having to make this decision, but believe it to be in the best interests of the Company.

We also hope that upon reading this letter you will feel that we are being fair in the circumstances. You will be paid all amounts earned and payable to you up to May 29, 2017, including any accrued but unused vacation pay. Given the disruption that this termination may cause you, we are prepared to enhance our contractual notice obligation pursuant to your employment agreement and our statutory notice obligation pursuant to the New Brunswick Employment Standards Act (“ ESA ”) of four (4) weeks’ pay in lieu of notice by offering you a transition package as set out below (the “Transition Package”): 1.

Notice of Termination: You will receive three (3) months’ pay in lieu of notice, to be paid on a salary continuance basis (the “Transition Notice Period”). These payments are offered to you in full satisfaction of your entitlements, including those pursuant to the ESA , and are subject to all applicable statutory deductions and withholdings. 2. Car Allowance: Your car allowance payments will be continued during the four (4) week statutory notice period. 3. Vacation Pay: You will receive vacation pay on amounts paid during the four (4) week statutory notice period. 4.

Benefits: Your group Insurance benefits will be continued during the four (4) week statutory notice period. Thereafter, your life insurance, AD&D and disability insurance coverage will be discontinued. However, your health and dental insurance benefits will be continued during the three (3) month Transition Notice Period. 5. Career Transition: The Company will provide you with access to a three (3) month career transition package, offered through Optimum Talent. The details of this package will be provided upon your acceptance of this Transition Package. 6.

Characterization of Cessation of Employment: The Company is prepared to consider characterizing the cessation of your employment, for internal and external communication purposes only, in a manner other than termination without cause. However, the ultimate characteration and communication decision will be determined in the Company’s sole discretion. 7. You will execute a full and final Release in favour of the Company in the form attached (the “Release”).

If you choose to accept the Transition Package set out above, we require that you sign this letter in the space indicated below and the enclosed Release indicating your acceptance by June 5, 2017 and return them to the undersigned. If you do not return the signed letter and Release by that time, the Company will provide you only with your contractual and statutory termination entitlements. Those amounts shall be paid to you as a lump sum on the next regularly scheduled pay day.

We take this opportunity to remind you of your obligations regarding the confidential information that you acquired during your employment by the Company. You have an obligation not to use or disclose any of this confidential information at any time in the future. This obligation survives the termination of your employment. We also require that you immediately return to the Company all of the Company’s property and passwords presently in your possession or control. James, we thank you for your service and contributions to the Company, and wish you all the best in your future endeavors.

If you require clarification or further information concerning the Transition Package, please contact me. [Emphasis added.] [ 65 ] The Letter is free of ambiguity. It confirms the respondent’s decision to terminate the appellant’s employment, effective immediately . Thus, the termination is not held in abeyance pending the appellant’s acceptance or rejection of the Transition Package. Although the Letter underscores the respondent considers there is just cause for termination, it unequivocally states the appellant’s employment is terminated, effective immediately, on a without cause basis .

Admittedly, the respondent subsequently cautions it maintains its ability to “take the position your employment has been terminated for just cause”.

However, this caution, which was indisputably tactical and designed to exert pressure on the appellant to accept the Transition Package, did not accord with reality: the appellant had already been dismissed without cause before the caution was formulated. [ 66 ] The Letter advises the respondent is “prepared to enhance [its] contractual notice obligation pursuant to your employment agreement and our statutory notice obligation pursuant to the New Brunswick Employment Standards Act […] of four (4) weeks’ pay in lieu of notice by offering you a Transition Package”.

The core elements of the Transition Package are three months’ pay in lieu of notice, continuation of some benefits during that period and “access to a three-month career transition package, offered through Optimum Talent”. The details of this “career transition package” were to be provided upon the appellant’s acceptance of the full Transition Package. In exchange, the appellant was required to execute a full and final release in the respondent’s favor.

If he failed to do so, the respondent would provide the appellant with a reduced notice of termination: the notice and pay in lieu thereof would be in accordance with his “contractual and statutory termination entitlements” as perceived by the respondent, namely four weeks. Needless to say, notice, no matter its length, and payment in lieu thereof, are not required in connection with a firing for cause. [ 67 ] The Termination Letter does not effectuate a termination with cause. Yet, it is the only document relied on by the respondent to meet the writing requirement under s. 30(2) of the Act .

Had I concluded the motion judge did not err in finding the appellant’s termination was on a with cause basis, I would have unhesitatingly declared the termination invalid by reason of s. 30(2) . I now turn to the respondent’s submission that sub-Clause 10.1(

b) in the 2012 Contract of Employment sets the appellant’s notice entitlement at four weeks. C. The validity of sub-Clause 10.1(b) [ 68 ] On May 1, 2012, the appellant returned to work as Regional Manager for New Brunswick. He executed a new Contract of Employment that confirmed the details of his employment with the respondent and its parent company, easyhome Ltd. [ 69 ] The Contract expressly superseded all previous employment contracts. [ 70 ] It also included a Non-Competition Clause (Clause 7.1), which, arguably, contradicts the respondent’s submission that sub-Clause 10.1(

b) capped its notice obligation at a mere four weeks, notwithstanding the appellant’s lengthy service. The Non-Competition Clause may be summarized as prohibiting any involvement, by employment or otherwise, with any entity competing, in any way, with the employer. Interestingly for our present purposes, the prohibition was to continue after cessation of employment for the longer of : 7.1 […] (

a) the number of weeks corresponding to the total notice/pay in lieu of notice and severance payment to which you would be entitled if your employment was terminated without cause (as detailed [below]), irrespective how your employment ends, calculated from your last day of active employment, and (

b) the period of one year following the date that you cease to be an employee of easyhome, regardless of who initiated the end of the employment relationship […],

[ 71 ] The Act does not provide for a “severance payment” distinct from “pay in lieu of notice”. Thus, Clause 7.1 may arguably be viewed as an agreement by the parties that notice of termination could exceed one year, which would be disharmonious with the respondent’s argument that the phrase “statutory entitlement” in sub-Clause 10.1(

b) limited its notice obligation to just four weeks. That sub-Clause bears repeating for ease of reference: 10. Termination of Employment 10.1 Either you or the Company may terminate your employment at any time and for any reason, with or without cause, in accordance with the following: (

a) The Company may terminate your employment for cause without notice, pay in lieu of notice or severance pay. (

b) The Company may terminate your employment at any time without cause by providing you with written notice or pay in lieu of notice equivalent to your statutory entitlement under the province of New Brunswick employment standards legislation. If the Company terminates your employment pursuant to this paragraph, the Company shall not be obliged to make any further payments to you and you will not be entitled to any additional payments under the common law as a result of the termination.

In addition, the payments and notice provided for in this paragraph are inclusive of your entitlements to notice, pay in lieu of notice or other severance pay pursuant to the province of New Brunswick employment standards legislation. [ 72 ] Under sub-Clause 10.1(b), two consequences follow where the employer provides written notice or pay in lieu of notice equivalent to the employee’s entitlement under the Act : (1) the employer is absolved from making any further payments to the appellant; and (2) the appellant is disentitled from any additional payments under the common law. [ 73 ] As mentioned, the respondent contends sub-Clause 10.1(

b) freezes the appellant’s notice entitlement to the four weeks mentioned in s. 30(1) (

b) of the Act . In my respectful view, the sub-Clause does no such thing. It sets notice at the level of the appellant’s “entitlement” under the Act . That entitlement has yet to be settled by this Court. I note that, in Cybulski v. Adecco Employment Services Ltd. , 2011 NBQB 181 , 375 N.B.R. (2d) 307 , Justice Glennie emphasized the Act states an employee’s notice entitlement is “at least” four weeks, which he interpreted as meaning entitlement could exceed four weeks.

At any rate, in this case, it is arguable the parties agreed in the Non-Competition Clause that the appellant’s notice entitlement was not limited to four weeks; indeed, it could be more than one year. However, the effect of the Non-Competition Clause on notice entitlement under sub-Clause 10.1(

b) was neither raised by the parties, nor put to them by the Court. Accordingly, I approach the impact of the sub-Clause from another perspective: its enforceability. [ 74 ] In my view, sub-Clause 10.1(

b) is void because it offends the Act . It does so by freeing the respondent from making “any further payments” to the appellant once it has provided written notice or pay in lieu of notice equivalent to his entitlement under the Act . [ 75 ] The respondent was bound by the Act : s. 2 . Additionally, the wording of s. 4(1) is unambiguous and unequivocal: the Act applies notwithstanding any agreement to the contrary between an employer and an employee.

That said, I am alive to s. 4(1)’s heading “ Act prevails over collective agreement”, but see no reason to disregard the wording of the provision itself and to confine its ambit to collective agreements. First, the heading does not form part of the Act and was inserted “for convenience of reference only”: s. 16 of the

Interpretation Act , R.S.N.B. 1973, c. I-13 . Second, the heading is accurate: the Act prevails over a collective agreement. Third, the heading does not purport to exclude individual contracts of employment from the Act ’s protective umbrella. Accordingly, the Act prevails over the 2012 Contract of Employment and, more specifically, sub-Clause 10.1(b). [ 76 ] If a part of a termination clause purports to contract out of a benefit under the Act , the entire clause is void, not just the offending part (see North v. Metaswitch Networks Corporation , 2017 ONCA 790 , [2017] O.J.

No. 5327 (QL) , at para. 24 , Feldman J.A. for the Court). That is so, even if the employer actually complied with the Act at termination by providing the employee with all statutory entitlements, because “the enforceability of a termination clause is determined by the wording of the clause alone, not by the employer’s conduct after termination”: Andros v. Colliers Macaulay Nicolls Inc. , 2019 ONCA 678 , [2019] O.J. No. 4434 (QL) , Fairburn J.A., for the Court. [ 77 ] Two statutory benefits are in play here.

First, on cessation of employment, employees are entitled to vacation pay equivalent to either 4% or 6% of their wages for the vacation pay year, depending on length of continuous employment: s. 26.

Having regard to the appellant’s years of continuous employment, he was entitled to 6% at termination. Second, on cessation of employment, the employer is required to “pay to the employee all outstanding pay not later than at the time the employee would have been paid had he continued to be employed”: s. 37.

The record includes three written Contracts of Employment that bear on this topic. [ 78 ] The August 2, 2002 Contract of Employment as Regional Manager for New Brunswick stipulated the appellant could be dismissed upon “proper written notice of termination, or pay in lieu thereof as required by the [ Act ]” and, in that event and upon payment of accrued amounts , the employer would be released from all employment- or termination-related claims.

Evidently, the wording of this Termination of Employment Clause did not provide for a contracting out of the employer’s statutory obligations in respect of accrued wages and vacation pay. [ 79 ] That was also the case for sub-Clause 10.1(

b) in the 2008 Contract of Employment for the position of Divisional Vice-President. It preserved the employer’s obligation to pay “any amounts which may be due and remaining unpaid at the time of termination of employment”. [ 80 ] However, sub-Clause 10.1(

b) in the 2012 Contract of Employment as Regional Manager for New Brunswick purported to exclude any such obligation once the appellant was given notice or pay in lieu thereof. The sub-Clause states the appellant’s employment may be terminated without cause upon written notice or pay in lieu of notice equivalent to his statutory entitlement. In the event this is done, the employer “shall not be obliged to make any further payments” to the appellant. By so providing, the sub-Clause purports to contract out of s. 26 (vacation pay at termination) and s. 37 (accrued wages). As a result, that part of sub-Clause 10.1(

b) is void, which renders unenforceable all of the sub-Clause unless any arguably valid part, such as the exclusion of “any additional payments under the common law”, is saved by the severability provision, Clause 12.6. It reads as follows: 12.6 In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions and portions of this Agreement shall not be affected by such determination and shall remain in full force and effect to the fullest extent permitted by law. [ 81 ] In my view, Clause 12.6 is inoperative with respect to sub-Clause 10.1(

b) of the Termination of Employment Clause. That is so because the entirety of the sub-Clause is void. As noted in North v. Metaswitch Networks Corp. , a severability clause “cannot have any effect on clauses of the contract that have been made void by statute. Those terms are null and void for all purposes […]”: para. 44. [ 82 ] Since sub-Clause 10.1(

b) is void, the presumption that the 2012 Contract of Employment includes, as an implied term, a requirement of reasonable notice of termination stands un-rebutted. Four weeks’ notice does not remotely come close to reasonable notice. D. Reasonable notice [ 83 ] In setting reasonable notice of termination, courts are primarily concerned with affording the dismissed employee a fair opportunity to obtain suitable alternate employment: Dick v. Canadian Pacific Ltd ., 2000 NBCA 10 , 230 N.B.R. (2d) 39 .

Fairness involves taking into account both the employee’s and the employer’s perspective so that, although it is unlikely the appellant will ever secure employment comparable to what he had with the respondent, he is not entitled to notice that would carry him to his anticipated retirement date. [ 84 ] Reasonable notice in any given case is arrived at by considering all pertinent circumstances, chief among which are the age of the employee at the time of dismissal, the length of his service to the employer and the availability of suitable alternate employment, having regard to the employee’s experience, training and qualifications: Covered Bridge Golf and Country Club v.

Schurman, 2009 NBCA 1 , 340 N.B.R. (2d) 168 . As would be expected, a non-competition clause may justify an increase in the notice period: Howard A. Levitt, The Law of Dismissal in Canada , 3 rd ed. (Aurora: Canada Law Book, 2003) (loose-leaf updated 2020), Vol. 2 at para. 8:70, p. 8-19.

(1) Age

[85] In Bramble v. Medis Health and Pharmaceutical Services, the Court made the following observationsregarding the significance of this factor: As well, the connection between the terminated employee’s age and the attainment of notice’s primary objective is indisputable.Iacobucci J., writing for a unanimous Supreme Court, in Law v. Canada, supra, at pp. 31-32, para. 101, acknowledges that judicial noticeprovides the juristic basis for the role played by that factor in determining what constitutes reasonable notice: ...

It seems to me that the increasing difficulty with which one can find and maintain employment as one grows older is a matter of whicha court may appropriately take judicial notice. Indeed, this Court has often recognized age as a factor in the context of labour forceattachment and detachment. For example, writing for the majority in McKinney, (CSC), [1990] 3 S.C.R. 229, supra, LaForest J. stated as follows, at p. 299: Barring specific skills, it is generally known that persons over 45 have more difficulty finding work than others.

They do not have theflexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the moremodern skills. Similar thoughts were expressed in Machtinger v. HOJ Industries Ltd., (CSC), [1992] 1 S.C.R. 986, at pp. 998-99, perIacobucci J., and at pp. 1008-09, per McLachlin J., regarding the relevance of increase age to a determination of what constitutesreasonable notice of employment termination. ... [para. 63] [86] The appellant was 55 when he was dismissed. This circumstance argues in favor of a notice period at the highend of the range.

(2) Length of service [87] In Bramble v. Medis Health and Pharmaceutical Services, the Court acknowledged the importance of thisfactor: As for length of service, its relevance to the objectives of notice is two-fold: first, where the service to the employer has been long, thenotice set by the court will give legal expression to the employee’s moral claim to a longer notice period; and, second, the court will takejudicial notice of the difficulties encountered by long-term employees in finding alternate suitable employment. Bastarache J.A., as hethen was, alludes to some of these difficulties in Bishop v.

Carleton Co-operative Ltd., supra, at pp. 217-18, para. 10. [para. 62] [88] The respondent submits the appellant’s length of service for purposes of calculating reasonable notice is 15years, beginning with his employment as Regional Manager for New Brunswick in August 2002.

That would be so for two reasons: (1)lack of any proof the respondent was the appellant’s employer prior to this time; and (2) he resigned in May 2002 and was hired inAugust as a new employee under a Contract of Employment that rendered irrelevant his prior service. [89] In his first affidavit, the appellant states he was in the respondent’s employ for 30 years, beginning on October15, 1987, when he was first hired. This statement is borne out by the three Records of Employment issued since that time.

They establishthe respondent was the appellant’s actual or deemed employer from October 15, 1987 to his dismissal on May 29, 2017. [90] The first Record of Employment is dated May 24, 1991. It shows that from October 15, 1987 to April 30,1991, the appellant’s employer was Rentown Enterprises Inc. and that, on the last-mentioned date, the appellant worked as a storemanager in Edmonton, Alberta. The sale of the “company” is the explanation proffered for the preparation of the Record.

The secondRecord of Employment, which is dated May 22, 2002, was prepared when the appellant took a medical leave of absence on May 20,2002 from his job as Regional Manager for the Atlantic Provinces. It shows the appellant’s employer was the respondent and that hisfirst day at work was May 1, 1991, the day after he ceased working for Rentown Enterprises, following its sale. Had the sale occurred inNew Brunswick, it would not have entailed a break of employment and the respondent would be deemed the appellant’s employer fromOctober 15, 1987 to April 30, 1991: s. 89 of the Act.

There being no evidence to the contrary, it must be assumed the applicablecorresponding Alberta provision matched s. 89. In the last Record of Employment, the respondent is identified as the employer fromAugust 1, 2002 to May 29, 2017.

[91] Based on the foregoing, I find the respondent was the appellant’s employer from October 15, 1987 to May 29,2017, a period of nearly 30 years. The next issue is whether the circumstances surrounding the appellant’s leave in May 2002 from hisjob as Regional Manager for the Atlantic Provinces and hire in August 2002 as Regional Manager for New Brunswick operate to excludehis prior 15 years of service from the calculation of reasonable notice.

Recall the respondent contends that is the effect of the following:the appellant’s resignation from and cessation of employment in May 2002, and his execution, on August 2, 2002, of a Contract ofEmployment as a new employee. [92] There is no legally-effective resignation unless the employer establishes the employee subjectively intended toquit and the employee’s conduct is objectively inconsistent with further employment: The Law of Dismissal in Canada, para. 2:70, p. 2-16.

In my view, the respondent has not established the appellant intended to put an end to their employment relationship when he took aleave of absence for medical reasons (job-related stress and anxiety) in May 2002. His aim in taking the leave was to secure a “change”in employment with the respondent that would accommodate his medical condition. The appellant’s conduct is not objectivelyinconsistent with further employment with the respondent. He was 40 years of age and had nowhere else to go for suitable alternateemployment.

Be that as it may, even if the appellant’s absence from work amounted to a legally-recognizable “resignation”, it would notstand in the way of a consideration of the previous 15 years of service at common law.

While the respondent correctly underlines noticeof termination under the Act is calculated on the basis of continuous employment from the last hire, the common law is far more flexible:separate periods of employment may be considered in the right circumstances. [93] Generally speaking, in determining length of service, a relatively brief work absence for health reasons, with noemployment elsewhere, and a return to employment at the urging of the employer on terms that accommodate the employee’s condition,as was the case here, will not render irrelevant the first period of employment.

In those circumstances, courts may rightly consider thefull length of service. In Swamy v. O’Bryan Hotels Ltd., [1997] B.C.J. No. 2114 (S.C.) (QL), the employee quit due to health reasons fora period of three months and collected employment insurance benefits during that time. He was encouraged to come back by theemployer. The Court held the interruption was inconsequential and used the whole period of employment in calculating length of service.In Gordon v. Saint John Shipbuilding & Dry Dock Co. Ltd. (1983), (NB BR), 47 N.B.R. (2d) 150, [1983] N.B.J.

No.187 (Q.B.) (QL), the Court found a year-long interruption in service did not result in the exclusion of the previous 30 years ofemployment from the calculation of length of service. In that case, the employee was rehired in the same position and given an increasein salary. In Roscoe v. McGavin Foods Ltd., [1983] B.C.J. No. 1249 (S.C.) (QL), the Court determined an eight-month voluntaryinterruption of service to work elsewhere should not count against the employee where he was induced to come back by his employerand given holiday time as though he never left. In Cronk v.

Canadian General Insurance Co., (ON CA), [1995] O.J.No. 2751 (C.A.) (QL), the employee resigned to raise a family. Six years later the employer invited her to come back to work. The Courtrejected the argument that the pre-resignation employment should not be included in the employee’s length of service for reasonablenotice purposes. [94] There remains the respondent’s submission that the Contract of Employment executed by the appellant, onAugust 2, 2002, deprives him of the benefit of his previous 15 years of service in determining reasonable notice of termination.

Thatwould be so because, under that Contract of Employment, notice was to be set in accordance with the Act. The Act specified notice stoodto be determined on the basis of the employee’s “period of employment”, which was defined as beginning on the date of the last hire.Although the 2002 Contract of Employment might well have thus rendered irrelevant the preceding 15 years of service, they mustnonetheless be counted in computing the appellant’s length of service for common law notice purposes. That is so because the 2002Contract of Employment was no longer operative at the time of termination on May 29, 2017.

Recall, the last Contract of Employmentwith the respondent (in 2012) “supersedes” all previous agreements. That Contract of Employment does not preclude consideration of theappellant’s service for the 15 years from 1987 to 2002. [95] I find the appellant’s length of service for reasonable notice purposes is 29.5 years, which means he spentbasically his whole working life with the respondent. This state of affairs also militates in favor of a notice period at the high end of therange (see Bishop v. Carleton Co-Operative Ltd. (1996), (NB CA), 176 N.B.R. (2d) 206, [1996] N.B.J.

No. 171(C.A.) (QL) and the majority judgment (Ryan and Turnbull JJ.A.) in Donovan v. New Brunswick Publishing Co. (1996), (NB CA), 184 N.B.R. (2d) 40, [1996] N.B.J. No. 601 (C.A.) (QL)).

(3) Availability of suitable alternate employment [96] In Bramble v. Medis Health and Pharmaceutical Services, the Court confirmed the relevance of this factor: Availability of similar employment is, on its face, germane to the attainment of notice’s primary objective and, as such, theappropriateness of its consideration by the court in fixing notice is beyond debate. [para. 61] [97] It is the appellant’s evidence that the “pool of comparable jobs with a comparable salary” is extremely shallow

in New Brunswick. I would be surprised if it were otherwise. He also testified in his June 2018 affidavit, 13 months after termination,that, despite best efforts, he had been unable to secure such a job. That is likewise hardly surprising given his education and workexperience, which has been confined to the respondent’s leasing business for basically all of his working life. [98] There is simply no evidence to substantiate the respondent’s pleaded allegation of failure to mitigate.

In thatregard, it bears underscoring that the Transition Package included “access to a three (3) month career transition package, offered throughOptimum Talent”. Evidently, the respondent considered the appellant needed professional assistance to secure comparable alternateemployment. However, it did not provide professional assistance to the appellant after he rejected the Transition Package.

(4) Non-Competition Clause [99] The Non-Competition Clause in the last Contract of Employment is highly restrictive. Comparableemployment with a competitor during the Clause’s currency would have placed the appellant in potentially very costly legal jeopardy.

(5) A jurisprudence-driven range of reasonable notice [100] While determining reasonable notice is hardly a science, case law provides helpful guidance in setting a workingrange of reasonable notice. In light of the following cases, I accept a range of 17 to 28 months for long-term employees in their 50s, withupward movement within that range traceable to a combination of more advanced age and longer service: Corbin v. Standard LifeAssurance Co. et al. (1995), (NB CA), 167 N.B.R. (2d) 355, [1995] N.B.J.

No. 461 (C.A.) (QL), Ryan, J.A. for theCourt, (notice set at trial upheld on appeal: 18 months for an insurance salesperson, 53, with 18 years of service); Dey v. Valley ForestProducts Ltd. (1995), (NB CA), 162 N.B.R. (2d) 207, [1995] N.B.J. No. 240 (C.A.) (QL) (notice set at trial upheld onappeal: 17 months for a 51-year-old manager of operations for wood harvesting, who was second in command at the company after 15years in its service), Bishop v. Carleton Co-Operative Ltd., (notice increased on appeal from 18 months to 24 months for a 51-year-oldoffice manager with 27 years of service); Donovan v.

New Brunswick Publishing Co. (notice increased on appeal from 18 to 28 monthsfor a 57-year-old senior employee who had worked for the company for 36 years, essentially his whole working life); Bramble v. MedisHealth and Pharmaceutical Services, where the Court upheld a finding of 24 months’ notice for a 53-year-old warehouse employee with34 years of service; and UPM-Kymmene Miramichi Inc. v.

Walsh and DeWolfe, 2003 NBCA 32, 257 N.B.R. (2d) 331 (28 months’ noticeupheld on appeal for mill employees in their 50s who had been in the employ of the defendant employer for over 30 years). [101] Given a range of 17 to 28 months, the factors of influence discussed in Bramble v. Medis Health andPharmaceutical Services, age, length of service and availability of suitable alternate employment, as well as the Non-CompetitionClause, I conclude the appellant was entitled to 24 months’ notice of termination. E.

Damages in lieu of notice [102] In Covered Bridge Golf and Country Club, the Court applied Honda Canada Inc. v. Keays, 2008 SCC 39, [2008]2 S.C.R. 362, to determine the dismissed employee’s entitlement to damages. In that case, the Supreme Court of Canada held the test fordamages in wrongful dismissal cases was formulated in Hadley v. Baxendale (1854), 156 E.R. 145 (Exch.): its centrepiece is the generalprinciple of foreseeability.

Subject to that principle, an award of compensation for the employer’s failure to give reasonable notice oftermination is designed to put the aggrieved employee in the position he or she would have been but for that failure. As the Courtexplained in Covered Bridge Golf and Country Club, “[t]o be successful in an action for wrongful dismissal, the employee must havesuffered an ‘injury’ as a result of the employer’s breach of contract” (para. 27). [103] In Jean v. Pêcheries Roger L.

Ltée, 2010 NBCA 10, 354 N.B.R. (2d) 300, the Court revisited this issue in findingthe dismissed employee’s loss of employment insurance benefits was a compensable “injury” as it was caused by the wrongfultermination and was reasonably foreseeable on the facts. In the course of its reasons, the Court made the following observations on theprinciples that inform

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