chapter 12 case study

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Case

Tremblett v. Tremblett,2012 CanLII 67443 (NL SC (TD))

Read the following scenario and click "Next" to work through the case.

The parties are two brothers, Doug and Bill Tremblett, who operated a fishing business together for nearly two decades. Their dispute arose over a disagreement about the ownership of the fishing enterprise's assets. One brother claimed that they operated the business as equal partners; the other brother denied it. At the centre of the dispute was the fact that the parties disagreed about the ownership of a lucrative crab fishing licence used in the business.

Doug claimed that his role in the business made him a partner and that he was entitled to half of the business's assets, including the crab licence.

Cases and Discussion Questions

Case

Tremblett v. Tremblett,2012 CanLII 67443 (NL SC (TD))

What Is a Partnership?

Which of the following options best characterizes what a partnership is?

1.Evans v. Teamsters Local Union No. 31,2008 SCC 20 (CanLII)

Evans worked for the union in Whitehorse for 23 years. He was dismissed by a letter faxed to him by the newly elected president. Evans offered to accept 24 months' notice: 12 months of employment, followed by 12 months' salary. Negotiations continued, during which Evans continued to be paid. Four months later the union asked Evans to return to his employment for the balance of the 24-month notice period. Evans refused and the union treated his refusal as just cause. The trial judge awarded Evans 22 months' pay for wrongful dismissal. The Court of Appeal set aside the award, ruling that Evans' refusal to accept the union's offer meant that he failed to mitigate his damages.

The Supreme Court found in favour of the union, holding that a dismissed employee may have to mitigate his damages by returning to work for the same employer. Is this fair to the employee? What factors should a court consider when deciding whether an employee should return to work for the employer who dismissed him?

2.Menagh v. Hamilton (City), 2005 36268 (ON SC)

[Note: Your instructor may assign this case as a Shared Writing activity.]

Menagh, a lawyer, was employed by the City of Hamilton as its Director of Labour Relations & Employee Wellness Health and Safety. After 13 years of service, he was terminated for just cause. The evidence established that Mr. Menagh had engaged in a romantic relationship with another city employee, but when that relationship ended, Menagh engaged in a long run of sexual harassment. Menagh even went so far as to approach the Mayor in an attempt to have his former girlfriend, the Mayor's Chief of Staff, fired.

The employer had numerous workplace policies, including one stating that all employees have a right to a working environment free from sexual harassment and personal harassment in the workplace. Menagh sued for wrongful dismissalchallenging whether there was cause and whether the discipline imposed was proportionate to any wrong committed.

List the factors that will be considered as relevant to the court's decision. Do you think that his position will be relevant?

3.Emerald Foods Ltd. (c.o.b. Bird's Hill Garden Market IGA) v. United Food and Commercial Workers' Union, Local 832,2003 MBCA 83 (CanLII)

In Manitoba, the employees of Emerald were in the process of applying for certification when, on the day before the certification vote was to be taken, the president of the company wrote a threatening letter to the employees, hinting that unionization would prevent the implementation of planned wage increases. Only 60 of the 83 employees voted, and they split 30/30 as to supporting certification. The union claimed that the letter intimidated the employees so that the vote actually taken wasn't a true reflection of the employees' feelings. The union made application to the Labour Board.

Indicate the arguments available to both sides, the likely outcome, and what the union could expect if it was successful. Note the restrictions put on an employer in the collective bargaining process and consider whether the statutes in place have allowed unions to become too powerful, placing unfair restrictions on the employers in dealings with such unionized employees.

Will their claim succeed? Or is this a matter dealing with the collective agreement, demanding that the grievance process be used and the matter arbitrated?