Court of Appeal overturns lower court decision in allowing advance payment of $8,000 in damages
A New Brunswick woman who was fired without notice after 20 years on the job was awarded more than $8,000 in an advance payment in a summary judgment by the New Brunswick Court of Appeal.
As reported in the June 23, 2004, issue of Canadian Employment Law Today, Marilyn Morrow lost her attempt to have an advance payment before the New Brunswick Court of Queen’s Bench. At the time, the lower court judge pointed out it was the first time a claim had been made for advance damages for wrongful dismissal in New Brunswick.
(For more information on the previous ruling, click on the related articles link on the bottom of this page.)
The judge in that case said her attempt to collect advance payment was “audacious” and “very novel” but ruled it was not appropriate.
But the New Brunswick Court of Appeal overturned the lower court’s ruling and awarded the advance payment.
On Nov. 4, 2003, Aviva Canada Inc. summarily dismissed Morrow. Morrow, who had been with Aviva for almost 21 years, was given two months’ pay in lieu of notice. She later sued for wrongful dismissal.
Aviva admitted the dismissal was without cause and that it owed her compensation in lieu of reasonable notice.
The period covered by the payment made by Aviva ended on Dec. 30, 2003, and since that date Morrow has been without employment income of any kind.
Morrow was only seeking advance payment for the period from Dec. 31, 2003, and April 20, 2004 — a total of 16 weeks. The New Brunswick Court of Appeal agreed that it was appropriate and awarded her $8,708.48.
Why the court allowed advance payment
The Court of Appeal said summary judgments can be applied to all actions, and it is equally clear that summary judgments can be granted in respect of all or part of a claim.
In this case, Morrow was only seeking advance payment for a portion of what she believed was owed to her.
Aviva did not plead just cause, but did attempt to argue that Morrow had not mitigated her losses by finding alternate employment. But it had no evidence to backup that claim.
”Tellingly, counsel for Aviva, when given the opportunity to do so at the hearing in this court, was at a loss to articulate what Aviva’s defence is to the specific part of the claim for damages in lieu of reasonable notice for which summary judgment is sought,” the court said.
It said there was “no doubt” in its opinion that Morrow should recover damages in lieu of reasonable notice if the matter proceeded to trial.
The court said if it combined the two months’ severance Morrow received at time of termination and the 16 weeks it awarded her by way of summary judgment, the compensation was still “well below” what she would likely recover at trial given the facts of this case.