Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation:  Wilmot v. Ulnooweg Development Group Inc., 2007 NSCA 49

Date: 20070427

Docket:   CA 271651

Registry: Halifax

Between:

Ulnooweg Development Group Incorporated

Appellant

v.

Terry Ann Wilmot

Respondent

Judge:                   The Honourable Justice Jamie W. S. Saunders

Appeal Heard:      April 3, 2007                  

Subject:         Employment law.  Incapacity from illness.  Defence of frustration.  Setting an acceptable range for damages.  Standard of review.      

Summary:      The respondent, a long time and highly respected employee, sued her employer for wrongful dismissal. She also claimed Wallace-type damages as a consequence of her employer’s actions. At trial the appellant pleaded the defence of frustration, arguing that the worker’s illness was so enduring as to defeat the object of the employment contract. 

After a three day trial the judge held that the respondent’s employment had not been frustrated by her prolonged absenteeism, and that there was no just cause for her termination.  He awarded damages of $33,000 for wrongful dismissal.  In doing so he found that the worker was not entitled to augmented Wallace-type damages after concluding that the appellant’s conduct was not tortious and fell far short of bad faith. The employer appealed.

Held: Appeal dismissed.  Extensive analysis of the defence of frustration in the context of employment law.  Here, the judge was correct in limiting his review of the permanency of the respondent’s disability and absence from the workplace, to the circumstances that existed at the time she was terminated.  On this record, it was certainly open to the judge to find that the respondent’s mental illness was not sufficiently long term or permanent as to constitute just cause for her dismissal.  Such a conclusion was not the result of any palpable and overriding error of fact, or mistaken interpretation and application of the law.

Neither did the judge misapply the law or the evidence in concluding that a period of one year was not too long for the appellant to await the return of this valuable employee.