‘Very novel’ claim for advance payment rejected

Morrow v. Aviva Canada Inc., 2004 CarswellNB 193 (N.B. Q.B.)

Marilyn Morrow worked for more than 20 years for Aviva Canada Inc. until she was summarily dismissed on Nov. 4, 2003. She was given a severance package that amounted to eight weeks’ wages and claimed for damages.

Aviva Canada did not plead just cause in Morrow’s dismissal and the court hearing the case concluded early in its deliberations that “it is clear the plaintiff has a substantial claim for damages in lieu of reasonable notice, subject to whatever issues about mitigation may arise.”

Morrow then sought a summary judgment and an advance payment of special damages, under Rule 47.03(3) of the Rules of Court of New Brunswick, which states that “where liability is established before damages are assessed, the court may direct advance payments of special damages.”

In dismissing the claim for summary judgment, Justice McLellan of the New Brunswick Court of Queen’s Bench pointed out this was the first time such a claim had been made in a wrongful dismissal suit in the province. The court said it should follow the usual pattern on these kinds of cases, and deal with it within one year – Morrow was probably eligible for Employment Insurance benefits of 55 per cent of her gross pay for one year, which would impact on her ultimate settlement, ruled the court.

“With the Employment Insurance benefits to which she is entitled and our practice of having these actions tried within a year, there is a reasonable safety net for the plaintiff to allow some compensation until this matter can be fully resolved,” said Justice McLellan.

The court commented the motion was “audacious” and “very novel” but added it was not inappropriate. It “may be without merit in my view but that does not mean that it is not the way the law will evolve and perhaps become fairer to everybody involved”. Justice McLellan declined to rule on whether damages for breach of contract in lieu of reasonable notice can constitute special damages.

“The great advantage of resolving these disputes after trial and all the evidence is that the court can act fully and fairly once rather than by stages and phases as the case unfolds,” said Justice McLellan.

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