DATE: 20040121

DOCKET: C40077

COURT OF APPEAL FOR ONTARIO

RE:

CHRISTINE MARSHALL (Plaintiff/Appellant/Respondent by way of Cross-appeal) – and – NEWMAN, OLIVER & McCARTEN INSURANCE BROKERS LTD. (Defendant/ Respondent/Appellant by way of Cross-appeal)

BEFORE:

O’CONNOR A.C.J.O., WEILER and GOUDGE JJ.A.

COUNSEL:

Patrick E. Hurley

for Christine Marshall

R. Steven Baldwin

for Newman, Oliver & McCarten Insurance Brokers Ltd,

HEARD:

January 13, 2004

On appeal from the order of the Superior Court of Justice Ottawa (Divisional Court) (Justice Jeffrey Flinn, Justice Ellen MacDonald and Justice Patrick Smith) dated November 15, 2002.

E N D O R S E M E N T

Released orally: January 13, 2004

[1] After a day and a half trial the trial judge found that the appellant had been constructively dismissed and awarded damages of $22,425.25. The Divisional Court overturned the trial judge’s finding that the appellant had been constructively dismissed. The appellant obtained leave to appeal and appeals to this court.

[2] For eighteen years the 52-year old appellant worked in a small insurance brokerage in Belleville, Ontario as a customer service representative. It was a twenty-minute drive to the office from her home in Prince Edward County. She was a reliable and trusted employee who basically ran the office. The only other persons employed there were the broker and a receptionist. The plaintiff’s annual salary was $26,200.

[3] In March 1999 the appellant’s employer was bought by the respondent, a large insurance broker with a number of offices in different communities. The respondent decided to offer the appellant employment in the same position at the same salary. The respondent told the appellant that it proposed to close the small insurance office located just north of Belleville and open a larger one in Belleville. She agreed to this.

[4] In October 1999, the respondent (without consulting the appellant) advised her that she was being transferred to a branch office in Colborne, Ontario. Another person had been hired to perform her job in the Belleville office. The Colborne office was a one-hour drive from the appellant’s home.

[5] When the appellant objected to the transfer, the respondent wrote her a letter impugning the quality of her work. The respondent wrote:

I no longer have a position for you in the Belleville office, since I want your work and work habits closely monitored. Your work has been done slowly and you have a higher than normal error rate in entry. You fail to recall previous events and conversations. Your ability to learn and use the computer has progressed by an abnormally slow rate for someone with 20 years of insurance experience and previous computer experience.

Therefore, you have a position in Colborne. Your job there awaits you on Monday, November 1, 1999 at 9:00 a.m. Failing to arrive there on Monday will be interpreted as abandonment of your job, and interpreted as resigning your position.

[6] The appellant was greatly upset by this letter. She did not report to her new job in Colborne. Instead, she launched an action against the defendant, seeking $25,000 in damages for constructive dismissal on the basis that it was a term of her earlier employment contract that she would be employed in Belleville. Prior to trial, the respondent withdrew the allegation that the appellant was incompetent. The trial judge found in the appellant’s favour.

[7] The Divisional Court allowed an appeal from that judgment. The Divisional Court held, at paragraph 16 of its reasons, that “There was no evidence before the trial judge that it was a term of the employee’s contract, either express or implied, that she would work only in the Belleville office. It was wrong for the trial judge to conclude as such. “

[8] In our opinion the Divisional Court ought not to have overturned the trial judge’s decision. In his reasons, the trial judge adverted to the fact that when the respondent purchased the business it told other prospective employees that they could be required to work at other locations. It did not tell the appellant this. In addition the trial judge found that when the insurance business was sold to the respondent, and the respondent made an offer of employment to the appellant, it was that the appellant’s employment would be on the same terms as her previous employment, including working in Belleville. Had the appellant known that she would be transferred to Colborne, she could have refused the offer of employment and received severance from her previous employer. The trial judge was sensitive to this. It was open to the trial judge to conclude that it was implicit that an essential term of the respondent’s offer of employment was the location of the workplace and that an essential term of her employment contract was altered by the transfer to Colborne.

[9] The appeal is therefore allowed. We would also dismiss the cross-appeal. It is not necessary to refer to the statutory deductions. The statutory obligations remain and both parties acknowledge that.

[10] Costs to the appellant of the proceedings in the Divisional Court and in this Court are fixed in the amount of $10,000 including GST.

“Dennis O’Connor A.C.J.O.”

“Karen M. Weiler J.A.”

“S.T. Goudge J.A.”