Sunshine Driveway Sealers v. Gosbee

Sunshine Driveway Sealers v. Gosbee

The Defendant deliberately diverted fill contrary to direct instructions; although not shown to be dishonest, this was a deliberate breach of the implied terms of his employment and rendered him liable to indemnify the employer for losses causally resulting from that misconduct; damages were quantified with a 15% contingency and set-off for withheld paycheque, producing a net judgment of $528.35.

Citation
2011 NSSM 10
Parties
Claimant: Sunshine Driveway Sealers; Defendant: Grant Gosbee
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
24 January 2011
Procedural Posture
Small Claims Court / Decision (judgment Rendered)
Outcome
Judgment for Claimant in part
Legal Topics
Employee Liability, Breach of Implied Duty, Indemnity for Employer Loss, Damages Assessment, Summary Dismissal (not Determined)
Source Language
English
Employment Law Contract Law Damages Employee Liability Breach of Implied Duty Indemnity for Employer Loss Damages Assessment Summary Dismissal (not Determined)

Case Brief

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Parties

Sunshine Driveway Sealers

Claimant

Grant Gosbee

Defendant

Procedural Posture

Small Claims Court / Decision (judgment Rendered)

Legal Issues

  1. 1 Whether an employee is personally liable to indemnify the employer for losses caused by unauthorized diversion of work resources
  2. 2 Whether the employee acted dishonestly or with gross negligence such that personal liability attaches
  3. 3 How to quantify the employer's loss and apply set-offs/contingencies

Ratio Decidendi

The Defendant deliberately diverted fill contrary to direct instructions; although not shown to be dishonest, this was a deliberate breach of the implied terms of his employment and rendered him liable to indemnify the employer for losses causally resulting from that misconduct; damages were quantified with a 15% contingency and set-off for withheld paycheque, producing a net judgment of $528.35.

Court Disposition

Judgment for Claimant in part

Orders

  • Claimant entitled to retain the withheld paycheque of $920.22
  • Judgment against Defendant for $528.35 in favour of Claimant