2015 MBCA 117, 2015 MBCA 117

Citation: Halischuk v Color Ad Packaging Ltd, Date: 20151208 2015 MBCA 117 Docket: AI15-30-08400 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : KIMBERLEY HALISCHUK ) T. C. Andres and ) J. W. A. Enns ) for the Appellant (Plaintiff) Respondent ) - and - ) L. M. Smordin ) for the Respondent COLOR AD PACKAGING LTD. ) ) Appeal heard and ) Decision pronounced: (Defendant) Appellant ) December 8, 2015 Appeal from 2015 MBQB 4 , 313 ManR (2d) 57 CAMERON JA (for the Court): [ 1 ] This appeal concerns the

interpretation of an employment contract. Absent an extricable question of law, the

interpretation of a contract is a question of mixed fact and law and, therefore, reviewable on appeal only for palpable and overriding error. See Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 at paras 50-55 , [2014] 2 SCR 633 . [ 2 ] The plaintiff employee originally agreed to a contract of employment that had a clause providing for a 90-day probation period where she could be terminated without cause and without notice.

A second clause (clause 26) of the contract provided for minimum termination notice as required by law. [ 3 ] After the plaintiff started her employment, the defendant employer unilaterally decided to revise clause 26 to read as follows: In the event the Employer gives the Employee termination without cause, the Employer agree they will provide the Employee with 90 days salary and full company benefits as pay in lieu. [ 4 ] The trial judge held that the revision was done in good faith.

She rejected the defendant’s argument that the plaintiff and the former CEO of the defendant colluded to adjust the contract to the benefit of the plaintiff because the CEO knew he was about to be fired. She rejected the defendant’s argument that the plaintiff had sufficient knowledge to conclude that the former CEO of the defendant had no authority to make the revision to the employment contract (see section 18(2) of the

Canada Business Corporations Act , RSC 1985, c C-44). Accepting the undisputed fact that the plaintiff was terminated within the probationary period, but without cause, the trial judge interpreted the contract in a manner that recognized an obligation on the defendant to pay the plaintiff 90 days’ wages in accordance with the revised clause 26. [ 5 ] In our view, what occurred here is an unusual and fact-specific situation. The employer unilaterally amended an employment contract, already entered into, to its detriment and to the benefit of the plaintiff. That said, we see no palpable and overriding errors in the trial judge’s findings regarding how the contract was revised or her

interpretation of the contract.

[ 6 ] Accordingly, we would dismiss the appeal with costs. JA JA JA