Hynes v. Qulliq, 2012 NUCJ 15

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Hynes v. Qulliq, 2012 NUCJ 15 Date: 20120824 Docket: 08-10-290-CVC Registry: Iqaluit Plaintiff: Amy Hynes -and- Defendant: Qulliq Energy Corporation ________________________________________________________________________ Before: The Honourable Mr. Justice Johnson Counsel (Plaintiff): P. Hunt Counsel (Defendant): R.M. Beamish Location Heard: Iqaluit, Nunavut Date Heard: June 29, 2102 Matters: Nunavut Rules of Court, R.N.W.T. R-010-96, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 , Rules 632, 633(1)(

a) and (2), 635,636,641,643,648(4) and 649. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION

[ 1 ] The plaintiff (respondent) commenced an action for wrongful dismissal in April 2010, and the defendant (applicant) filed a statement of Defence and Counterclaim in July 2010. Examinations for discovery were completed in June 2011. [ 2 ] On February 14, 2012, the applicant filed a motion for security for costs and on May 4, the respondent filed a cross motion seeking an order that the applicant provide answers to undertakings and questions objected to at discovery. [ 3 ] Both parties filed affidavits in support of the motions. Neither party conducted a cross-examination on the affidavits.

Judgment was reserved. [ 4 ] Counsel for the plaintiff also represents the plaintiff Sarah Kucera in the companion judgment issued at the same time as this judgment. Both motions were argued together but contain different facts. II.

FACTS [ 5 ] The respondent was employed by the applicant from February 23, 2003 to January 19, 2010, in the position of corporate secretary reporting to the Board of Directors. [ 6 ] Following the hiring of Peter Mackey as president and chief executive officer in May of 2009, the respondent perceived that she was progressively being marginalized when her core responsibilities were removed from her without her knowledge and consent.

She began to experience a rapid deterioration in her health. [ 7 ] The respondent retained legal counsel to represent her and on December 8, 2009, he wrote a letter to the applicant indicating that, although she was in a position to pursue a claim for constructive dismissal, she was willing to enter into negotiations for a termination package. [ 8 ] The applicant confirmed that she would continue to perform her duties pending the conclusion of negotiations.

However, the applicant was unwilling to enter into negotiations and on January 19, terminated the respondent’s access to her corporate email while she was on medical leave. [ 9 ] The respondent believed she had been constructively dismissed and ceased her duties on January 21, 2010. [ 10 ] The respondent obtained new employment in July 2010, as coordinator of project management with the Canadian Nurses Association and later as a governance analyst with the Royal college of Physicians and Surgeons at an annual salary of $64,000. [ 11 ] The respondent owns a home at Gatineau that was purchased in December 2009.

The purchase price was $186,500 and as of April 2012, the mortgage amount outstanding was $175,346.76 [ 12 ] The respondent deposes that she has limited assets in Quebec as “my personal debt exceeds the value of those assets that I do own.” She also deposed that “it would be unjust to order security for costs where the likelihood is that my lawsuit will be stopped in its tracks by such an order”. III. Argument A. Security for costs (i). Applicant

[ 13 ] The applicant raised the similar arguments as set out in the Kucera judgment. However, unlike Kucera, the respondent resides in Quebec and owns real estate there. Since there is no reciprocal enforcement of judgments between Nunavut and Quebec, the respondent is in a different position than Kucera. [ 14 ] In addition, the applicant argues that the respondent was not constructively dismissed but quit of her own volition. The applicant asserted it had a good defence to the action in that it did nothing to fundamentally breach the terms of the employment contract.

Relying on Brown v Pronghorn Controls Ltd, 2011 ABCA 328 , [2012] AWLD 562 , the applicant argues that the respondent’s discovery evidence fails to establish that there was a fundamental breach of the employment contract so as to render continued employment in an objective sense to be outside the scope of what was contemplated by the parties. (ii). Respondent [ 15 ] The respondent advanced similar arguments as well.

In addition, she argues that the lack of reciprocal legislation with Quebec is not determinative because Articles 3155 , 3157 and 3158 of the Quebec Civil Code provide that foreign decisions are recognized and enforceable in the Province of Quebec. [ 16 ] The second difference between the two cases is that the applicant filed a counterclaim against the respondent for approximately $250,000. As held in ICC International Computer Consulting & Leasing v ICC Internationale, [1989] 33 CPC (2d) 40 , no party should have to give security for costs as a condition of defending itself.

As noted in Axentra Corp v Inxtron Inc, 2012 ONSC 977 , 211 ACWS (3d) 286 , the purpose of security for costs is to ensure that the defendant is not prejudiced by a plaintiff’s inability to pay costs to the defendant should its claim fail and the defendant is ordered to pay costs. Security for costs is not to assist the defendant in the prosecution of its claim, particularly where the claim is founded on the same matrix as the defence.

Finally, as held in Specialty Steels v Suncor Inc, [1998] OJ No 889 , 25 CPC (4th) 217 , a court should not order a plaintiff, who is also a defendant by counterclaim, to post security for costs, particularly where the counterclaim arises from the same transaction as the original claim. IV. Analysis [ 17 ] I am satisfied that the reasoning of Kucera is also applicable to this case. The respondent is a struggling middle class person without a spouse. She has minimal equity in the Gatineau real estate.

However, she would have a larger damage claim because she was employed for a much longer period. [ 18 ] The lack of reciprocal legislation with Quebec will not prevent the applicant from enforcing a judgment for costs because of the Civil Code sections noted by the respondent. In addition, there is merit in the respondent’s argument about the existence of the counterclaim. [ 19 ] Taking all these factors into account I decline to order security for costs. The application is therefore dismissed and the costs of the application will be costs in the cause. V. Conclusion A.

Answers to Undertakings and Refusals [ 20 ] All of these issues were resolved subsequent to the first hearing except for Question 402 at page 89. The question was “To advise whether Cal Clark received a response to his email dated October 20, 2009”. Counsel for the applicant objected to the question on the grounds that it was irrelevant and immaterial. [ 21 ] After reviewing the transcript of the examination for discovery, I am satisfied that the question was relevant and must be answered.

Dated at the City of Iqaluit this 24th day of August, 2012 ___________________ Justice E. Johnson Nunavut Court of Justice