Levy v. Ken-Wo Country Club

Levy v. Ken-Wo Country Club Court Supreme Court Date 2001-06-18 Citation 2001 NSSC 84 Docket SK 8704 Judge/Registrar/Adjudicator Boudreau, Allan (Honourable Justice) Document Type Decision Relations Library Sheet - Levy v. Ken-Wo Country Club - 2001 NSSC 84 - 2001-06-18 - Library Sheet Decision Content Docket No. S.K. 8704 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Levy v. Ken-Wo Country Club, 2001 NSSC 84] BETWEEN: ORVILLE LEVY PLAINTIFF - and - KEN-WO COUNTRY CLUB DEFENDANT D E C I S I O N HEARD: At Kentville, Nova Scotia, on March 12 and 13, 2001. BEFORE: The Honourable Justice Allan P. Boudreau. DECISION: March 13, 2001, Orally WRITTEN RELEASE OF DECISION June 18, 2001 COUNSEL: Siobhan Doyle, Counsel for the Plaintiff. R. Peter Muttart, Q.C., Counsel for the Defendant. Boudreau, J., (Orally) INTRODUCTION: [1] Orville Levy was a long time seasonal employee of the Ken-Wo Country Club when the Club decided it would no longer recall him as a full time grounds keeper from April to November each year. This case raises the question of what are the rights of long time seasonal employees. It also raises the question of whether Mr. Levy’s employment status changed at the end of the 1996 season when he turned 65 years of age. The trial was just heard yesterday and today and therefore the evidence is still fresh in our minds. I will now recite some of the more pertinent facts. FACTS: [2] Mr. Levy first became employed at Ken-Wo as a grounds keeper in the spring of 1969. This first period of employment lasted until the summer of 1971 when Mr. Levy left because of a difficult situation with a co-worker or co-workers. Mr. Levy again began to work for Ken-Wo as a grounds keeper in 1975. This continued until January of 1999 when he was first told he would not be recalled for the spring of 1999. [3] Mr. Levy worked full time from April to November of each year when he would be laid off and collect employment insurance until he was recalled the following spring. At the end of each season the grounds workers were told to have a good winter until they were recalled in the spring. On occasion the Grounds Superintendent had a Christmas dinner with his crew where these good wishes would be exchanged. From 1975 to 1999 Mr. Levy never looked for other full time seasonal work, however, he worked at many off hour jobs such as picking strawberries, blueberries, apples, mowing lawns, preparing firewood, etc. He was indeed very busy from spring to fall each year. Similarly, Ken-Wo did not look to replace Mr. Levy but simply telephoned him a few days prior to reporting to work each April and fully expected that he would return to work for Ken-Wo each spring. By all indications Mr. Levy was an excellent and loyal worker from 1975 until 1999, when he was told he would not be recalled. [4] In the fall of 1996 Mr. Levy was turning 65 years of age and he became concerned about his employment status beyond 1996. He wanted to continue working but he feared that he might be forced to retire at 65. There were some discussions taking place amongst some employees as to what would happen to an employee who turned 65. In fact the Board of Directors of Ken-Wo discussed the possibility or advisability of developing a mandatory retirement age policy, precipitated primarily by Mr. Levy’s age, but in the end they did not address such a policy nor was one ever put in place. In the same fall of 1996 Mr. Levy discussed this issue with his grounds crew supervisor, Mr. Phelan, who was also the golf course superintendent. Mr. Levy indicated he wanted to continue working and he phrased it by saying he wanted to come back another year. Mr. Levy did not say he was retiring after another year, but he also did not at that time say he wanted to continue beyond another year. Mr. Levy was eventually told he would be recalled as usual and he was. [5] In the fall of 1997 Mr. Levy again approached Mr. Phelan stating he wanted to come back another year. Again, there was no elaboration of what that meant and Mr. Levy was again eventually told he would be recalled as usual and he was. It certainly appears that Mr. Levy was and is a man of few words on such occasions. Similarly, Mr. Levy again approached Mr. Phelan in the fall of 1998, again seeking reassurance that he would be recalled in the spring of 1999. At the 1998 Christmas party Mr. Phelan told Mr. Levy that he would be on the recall list for 1999, but that the final decision would be up to the Board. The Board of Directors budget meeting was to be in January of 1999. There is some disagreement on whether Mr. Levy wanted reassurance of two years until he reached the age of 69 so he could then turn his RRSPs into a RRIF but, in my opinion, nothing turns on this disagreement. One thing is clear, that Mr. Phelan was not by then under any illusion that Mr. Levy wanted to retire at the end of 1998 or at the end of 1999. [6] As it turned out the Board rejected the continued employment of Mr. Levy at its January 12, 1999, meeting. The prime consideration was apparently budgetary finances. The Club was attempting to cut back certain expenses, guided to some extent by a comparison which had been made of other golf clubs in the area. The minutes of that meeting indicate that, and I quote, “Orville Levy will retire with nobody being hired to replace him”. Also the minutes indicate a two percent reduction of weekly hours for the rest of the grounds crew. Mr. Phelan then telephoned Mr. Levy and asked to meet him to give him the news. He went to Mr. Levy’s home and told him the Board had rejected his continued employment but that there would probably be some part time work available. Mr. Phelan also said that the Club wanted to recognize Mr. Levy’s twenty-five plus years contribution, whereupon Mr. Levy told Mr. Phelan that he was not retiring. I accept that Mr. Levy also said that he would not be able to accept part time work if he was by then working at other jobs. [7] Mr. Phelan then told Mr. Levy that there was another Board meeting in February and that the decision could be reconsidered. That meeting was held on February 9, 1999 and the minutes indicate as follows: “Orville Levy has reluctantly agreed to retirement. All agreed that Mr. Levy’s twenty-seven years of service be recognized at this year’s opening social on Friday, April 30th.” [8] I find that Mr. Levy had not reluctantly or otherwise agreed to retire although he may have resigned himself to the fact that he could do nothing about the Board’s decision. It appears that the Board was making a decision with incomplete and inaccurate information about Mr. Levy. Mr. Levy called Mr. Phelan to inquire what the Board had decided at its February meeting and he was told there was no change. It is unclear why the intention to recognize Mr. Levy’s service at the April 30th, 1999, Club opening did not materialize but, again in my view, nothing turns on that. [9] In April or May of 1999 Mr. Levy began to search for his usual kind of employment to replace the job he had lost at Ken-Wo. Mr. Levy testified to his efforts in this regard. He eventually ended up obtaining and replacing almost half of the 1999 income he had lost from Ken-Wo. He increased his extra job income by some $6,000.00 for the year 1999. In the end his 1999 total income from all sources was some $7,700.00 less than his 1998 total income. As a result of losing his 1999 insurable earnings employment with Ken-Wo Mr. Levy’s year 2000 E.I. income suffered to the extent of approximately $1,800.00. With this drop in E.I. income for the year 2000, Mr. Levy earned approximately $21,000.00 for the year 2000. POSITION OF THE DEFENDANT: [10] The defendant contends that Mr. Levy was a seasonal employee only, with no right of recall each year and employed totally at the discretion of Ken-Wo. It relies primarily on the New Brunswick case of Brown v. Crabmountain Winter Park for that proposition. The defendant also argues that the circumstances of this case do not place Mr. Levy in a class of employees which fall into a category of exceptions to the general principle enunciated in the Brown case and it distinguishes the Saunders and MacDonald cases referred to by the plaintiff. ANALYSIS: [11] With all due disrespect I do not agree. Mr. Levy was an employee who had been a full time grounds keeper with Ken-Wo from April to November each year, uninterrupted for approximately twenty-four years. He was laid off each in late October or early November so that he could collect E.I. benefits until his recall each spring. This was by no means haphazard, but it occurred like clock work in the middle of April each year and it went to the same time each fall. Not only did Mr. Levy have the expectation of being recalled but he received assurances each fall that this would occur. Not only did Mr. Levy have those expectations but Ken-Wo had the full expectation that Mr. Levy would be waiting and willing to come to work each April upon a few days notice. It is difficult to imagine more mutuality than that. CONCLUSIONS: [12] I, therefore, find that Mr. Levy was not simply a seasonal employee who could be dismissed or not recalled at any time. In all the circumstances of this case, including his years of repetitive service, his being recalled in the same way by mutual expectation, the fact that many of the staff and grounds crew were in fact recalled each year, I find that Mr. Levy was an employee for an indefinite term who could not be terminated without reasonable notice. In this reasoning I follow the cases of Saunders v. Fredericton Golf Club and MacDonald v. Dyke Farms. [13] I also find that Mr. Levy’s employment status did not change with his turning 65. The Club did not have any mandatory retirement policy and Mr. Levy made it clear he did not wish to retire then or at any definite time thereafter. The fact that Mr. Levy kept asking for one more year does not change that. He was simply attempting to work for as long as he could. That should have been obvious to Mr. Phelan and the Club by the fall of 1997 when Mr. Levy asked again to come back and again in the fall of 1998. The Club never attempted to clarify Mr. Levy’s position on retirement. They never wrote to Mr. Levy or attempted to put anything in writing. If there are any ambiguities in what was said by Mr. Levy and Mr. Phelan, those should be resolved in favour of Mr. Levy. As I said before, the Club Board of Directors appeared to be operating on incomplete and inaccurate information. I find that the Club breached its legal obligation to Mr. Levy in terminating his continued employment in the manner in which it did. Mr. Levy was entitled to reasonable notice that the Club would not be recalling him for the 1999 season in order that he could make efforts to replace that lost employment. [14] On the question of reasonable notice what then is reasonable notice in the circumstances considering Mr. Levy’s age, his length of service and his exemplary service record. I find, as in the Saunders case, that a season’s notice was reasonable to terminate Mr. Levy’s yearly employment with Ken-Wo. This would have given Mr. Levy a reasonable opportunity to find alternate sources of income to replace his lost annual income from Ken-Wo and E.I. benefits [15] In calculating Mr. Levy’s damages, I find that Mr. Levy’s loss, because of the wrongful termination of his employment with Ken-Wo, is his lost income from that source for the year 1999, less the amount replaced by Mr. Levy from obtaining alternate work and I find that amount is, as I said earlier, $7,700.00 and I award Mr. Levy that amount. I also award Mr. Levy the lost annual RRSP contribution by the Club in the amount of $400.00. In addition, Mr. Levy lost insurable earnings from 1999 and as a direct result suffered an E.I. income loss of $1,800.00 and I award him that amount as well. In summary, I, therefore, award Mr. Levy the following damages: Lost wages for employment at Ken-Wo $ 7,700.00 Lost E.I. Earnings 1,800.00 Lost RRSP Contribution 400.00 Total $ 9,900.00 [16] I reject the defence’s allegation of a lack of mitigation. I find that Mr. Levy conducted himself most reasonably in the circumstances and he did everything that he could to find employment and replacement employment considering his experience and training, etc. The defendant has not proven lack of mitigation on a balance of probabilities. [17] I also reject the claim for aggravated damages. I find that there has been no reason established to grant a claim for aggravated damages. Therefore, the total award is $9,900.00 in favour of Mr. Levy. [18] Having heard presentations from both parties on the issue of costs, I am not convinced that I should deviate from the basic Scale 3 and I am not going to. I am going to award costs on Scale 3 on the amount of $10,000.00. I therefore award costs to Mr. Levy in the amount of $1,750.00. I set pre-judgment interest, as agreed, at six percent from November 1, 1999, to the date of payment. Boudreau, J.