SUPREME COURT OF NOVA SCOTIA
Citation: Wilson v. BMO Nesbitt Burns Inc., 2011 NSSC 373
Date: 20111017
Docket: Hfx. No. 321705
Registry: Halifax
Between:
Christine Wilson
Plaintiff
- and -
BMO Nesbitt Burns Inc.
Respondent
LIBRARY HEADING
Judge: The Honourable Justice A. David MacAdam
Heard: September 13, 2011, in Halifax, Nova Scotia
Subject: dismissal, reasonable notice, summary judgment on evidence
Summary: The plaintiff was employed as an investment advisor with the defendant until the defendant terminated her employment. The defendant pleaded in its defence that it had offered payment in lieu of notice. In its counterclaim the defendant sought recovery of money advanced pursuant to a loan and promissory note and referenced in the plaintiff's employment contract. In her defence to the counterclaim, the plaintiff raised defences of estoppel, lack of independent legal advice and set‑off. The defendant moved for summary judgment on the counterclaim.
Issue: Was the defendant entitled to summary judgment on its counterclaim.
Result: The plaintiff claimed that the loan agreement and promissory note raised several issues of fact, all but one of which the court held to be issues of interpretation of the documents, while the third, that being the length of the reasonable notice period, was an issue of fact. There was also a claim of bad faith related to the defendant's payment of an "asset gathering bonus", which also raised issues of fact. The plaintiff was not able to establish a real chance of success on the defence of estoppel or lack of independent legal advice. However, the court found that the amount of damages could not be determined without a determination of the reasonable notice period. It was also held that the determination of the amount due on the loan was so closely connected with the question of whether the defendant was entitled to recovery of a bonus payment that it would be unjust to enforce payment. Finally, there was nothing in the evidence to support a finding of unconscionability in relation to the execution of the documents.
The defendant was entitled to summary judgment in respect of its claims for monies owed to it by the plaintiff. However, the amount owing could not be determined until the factual issues for trial had been determined.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.