Palmer v. Gallery 1 Enterprises, 2003 NSCA 37

NOVA SCOTIA COURT OF APPEAL Citation: Palmer v. Gallery 1 Enterprises , 2003 NSCA 37 Date: 20030321 Docket: CA 186385 Registry: Halifax Between: Gallery 1 Enterprises Inc. Appellant v. Robert Palmer Respondent Judges: Glube, C.J.N.S.; Freeman and Hamilton, JJ.A. Appeal Heard: March 21, 2003 in Halifax, Nova Scotia Written Judgment: April 2, 2003 Held: Appeal and cross-appeal dismissed per oral reasons for judgment of Freeman, J.A.; Glube, C.J.N.S. and Hamilton, J.A. concurring.

Counsel: David Coles and Nicole Godbout, for the appellant Deborah Gillis, Q.C. and Barbara Dorby, for the respondent Reasons for judgment : (Orally) [ 1 ] The respondent Robert Palmer accepted termination of his employment as a commission furniture salesman, to be followed by rehiring with reduced vacation benefits, as a penalty for time off he required during a busy sales season when vacations were not permitted.

He agreed with his employer, the appellant, to sign a letter to that effect on his return and left on a three-week trip to Africa for a family reunion. [ 2 ] On his return he was presented with a letter that the trial judge found changed the terms which had been agreed to and broke the deal between the company and himself. When he asked for additional time to discuss it with a lawyer, he was told he was fired and

to leave the premises. [ 3 ] The trial judge found as a fact that he would have signed the letter if it had not changed the terms to which he had agreed; he was fired for wanting to talk to counsel. His employment was therefore terminated without just cause, entitling him to six months’ notice, which the trial judge calculated to be $15,000 damages plus $2,500 special damages for a retraining program. [ 4 ] The employer has appealed, asserting that the employment was terminated, either by Mr. Palmer or by the company for just cause, when Mr. Palmer left on his vacation during the Christmas sales rush.

A failure to rehire him did not entitle him to damages in lieu of notice. [ 5 ] We reject this argument. Mr. Palmer agreed to the termination of his employment upon terms he and his employer had negotiated before he left. The employer could not alter those terms unilaterally, as the trial judge found it had done. The trial judge did not err in finding that in these circumstances the respondent’s employment was not terminated for just cause. In the absence of error, which we do not find, this court will interfere neither with findings of fact nor the assessment of damages by a trial judge. See Barakett v.

Levesque Beaubien Geoffrion Inc . [2001] N.S.J. No. 426 (N.S.C.A.) [application for leave to appeal at the SCC dismissed without reasons, [2001] S.C.C.A. No. 641] at paras. 9-10. [ 6 ] The appeal is dismissed with costs, which we fix at $1,500 plus disbursements. The respondent cross-appealed for increased general damages, aggravated damages and punitive damages. We find no error in the assessment of damages by the trial judge, nor in his refusal of aggravated or punitive damages in the present circumstances. The cross-appeal is dismissed with costs of $500 inclusive of disbursements. Freeman, J.A.

Concurred in: Glube, C.J.N.S. Hamilton, J.A.