Case information

Employment law — Unjust dismissal — Judgments and orders — Summary judgments —“Boomerang” summary judgments — Employer dismissing employee without cause — Employee refusing termination package and suing for wrongful dismissal — Employer later invoking just cause for dismissal as defence before the courts — Employee bringing motion for summary judgment of action — Court of first instance granting summary judgment in employer’s favour, even though it brought no formal motion for that relief — Whether provisions in employment contracts that address only termination notice and severance pay entitlements in the event of a termination without cause, but are silent with respect to statutory entitlements under employment standards legislation, are legally enforceable — Whether providing a gratuitous payment to an employee upon termination precludes an employer from relying on just cause for termination — Whether a respondent can be granted summary judgment in its favour if it has not filed a cross-motion formally seeking that relief — Rules of Court, NB Reg 82 73, R. 22.04 — Employment Standards Act, S.N.B. 1982, c. E 7.2, s. 30(2).

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The respondent, Mr. Abrams, was employed by the applicant, RTO Asset Management (“RTO”), for approximately 30 years. In 2017, it came to light that Mr. Abrams had been engaging in a romantic relationship with an employee whom he was obliged to supervise, among others. He failed to report the situation to RTO, as he was required to do, and his employment was accordingly terminated. Mr. Abrams was told that his dismissal was being effected on a without cause basis. The letter given to Mr. Abrams in support of his termination confirmed that he was being let go without cause. However, in that same letter, RTO reserved its right to take the position that it had cause for terminating Mr. Abrams. Mr. Abrams refused the termination package, brought a wrongful dismissal suit, and moved to have the action decided on a summary basis. The Court of Queen’s Bench granted summary judgment in RTO’s favour, and dismissed Mr. Abrams’ action. The court found that RTO had cause for dismissing Mr. Abrams, and that there were no issues requiring a trial. The Court of Appeal allowed Mr. Abrams’ appeal, set aside the judgment of the Court of Queen’s Bench, and granted summary judgment in Mr. Abrams’ favour. It found that the letter clearly terminated Mr. Abrams on a without cause basis, and declared the without cause termination provision in the employment contract to be null and void. It awarded Mr. Abrams 24 months’ notice, having regard to his age and length of service, along with other factors.