Case information
Conduct a refined search of the Supreme Court of Canada database to obtain details on the status of a matter before the Court.
35422
David M. Potter v. New Brunswick Legal Aid Services Commission, a statutory body corporate pursuant to a special act of the Province of New Brunswick
(New Brunswick) (Civil) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2015-03-10 | Appeal closed | |
| 2015-03-09 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2015-03-09 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2015-03-06 |
Judgment on the appeal rendered, CJ Abe Ro Cro Mo Ka Wa, The appeal from the judgment of the Court of Appeal of New Brunswick, Number 161-11-CA, 2013 NBCA 27, dated April 25, 2013, heard on May 12, 2014, is allowed with costs throughout, the Court of Appeal’s judgment is set aside and Mr. Potter’s action for constructive dismissal is allowed. Mr. Potter is entitled to damages for wrongful dismissal as assessed by the trial judge, with the exception that the pension benefits Mr. Potter has already received are not to be deducted from those damages. Allowed, with costs |
|
| 2014-05-27 | Transcript received, (84 pages) | |
| 2014-05-12 | Judgment reserved OR rendered with reasons to follow | |
| 2014-05-12 | Respondent's condensed book, Submitted in Court (14 copies) | New Brunswick Legal Aid Services Commission, a statutory body corporate pursuant to a special act of the Province of New Brunswick |
| 2014-05-12 | Appellant's condensed book, (Book Form), Submitted in Court (14 copies) | David M. Potter |
| 2014-05-12 |
Hearing of the appeal, 2014-05-12, CJ Abe Ro Cro Mo Ka Wa Judgment reserved |
|
| 2014-05-02 | Supplemental document, Supplementary Record - Revised table of contents filed on 2014-05 -07(Sent to the Court on 2014-05-07) - pages 33.1 & 33.2 were added on 2014-05-05 (Submitted to the Court on 2014-05-05), Completed on: 2014-05-02 | David M. Potter |
| 2014-05-01 | Correspondence received from, 5 reserved seats requested | David M. Potter |
| 2014-05-01 | Notice of appearance, Eugene Mockler and Perri Ravon will be present at the hearing. | David M. Potter |
| 2014-04-25 | Notice of appearance, Clarence Bennett and Josie Marks will be present at the hearing. | New Brunswick Legal Aid Services Commission, a statutory body corporate pursuant to a special act of the Province of New Brunswick |
| 2014-04-08 | Appeal perfected for hearing | |
| 2014-04-08 | Order on motion to extend time, (by ROTHSTEIN J.). | |
| 2014-04-08 |
Decision on motion to extend time, Ro, UPON APPLICATION by the respondent for an order extending the time to serve and file the respondent’s record, factum and book of authorities to April 2, 2014 and for permission to present oral argument at the hearing of the appeal pursuant to Rule 71(3); AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion is granted. Granted |
|
| 2014-04-08 | Submission of motion to extend time, Ro | |
| 2014-04-07 | Response to motion to extend time, (Letter Form), response to amdended notice, Completed on: 2014-04-07, (Printed version filed on 2014-04-07) | David M. Potter |
| 2014-04-04 | Response to motion to extend time, (Letter Form), Completed on: 2014-04-04, (Printed version filed on 2014-04-04) | David M. Potter |
| 2014-04-03 | Motion to extend time, to serve and file Respondent's factum (amended notice filed on 2014-04-04), Completed on: 2014-04-04, (Printed version due on 2014-04-10) | New Brunswick Legal Aid Services Commission, a statutory body corporate pursuant to a special act of the Province of New Brunswick |
| 2014-04-02 | Respondent's book of authorities, (Book Form), Completed on: 2014-04-02, (Electronic version filed on 2014-04-02) | New Brunswick Legal Aid Services Commission, a statutory body corporate pursuant to a special act of the Province of New Brunswick |
| 2014-04-02 | Respondent's record, (Book Form), Completed on: 2014-04-02, (Electronic version filed on 2014-04-02) | New Brunswick Legal Aid Services Commission, a statutory body corporate pursuant to a special act of the Province of New Brunswick |
| 2014-04-02 | Respondent's factum, (Book Form), Motion for extension of time, service missing (both rec'd 2014-04-04), Completed on: 2014-04-28, (Electronic version filed on 2014-04-04) | New Brunswick Legal Aid Services Commission, a statutory body corporate pursuant to a special act of the Province of New Brunswick |
| 2014-04-02 | Correspondence received from, (Letter Form), Appellant, re.: in the Appellant's Record page 29 of the NB Court of Appeal decision is missing. | David M. Potter |
| 2014-04-02 |
Correspondence received from, (Letter Form), Counsel for the Appellant, email dated 04-02-2014, re.: Ms Perri Ravon, who is currently agent, is now acting as co-counsel on this matter. |
David M. Potter |
| 2014-03-18 | Notice of hearing sent to parties | |
| 2014-03-04 |
Appeal hearing scheduled, 2014-05-12 Judgment reserved |
|
| 2014-02-04 | Appellant's book of authorities, (Book Form), Completed on: 2014-02-04 | David M. Potter |
| 2014-02-04 | Appellant's record, (Book Form), Completed on: 2014-02-04 | David M. Potter |
| 2014-02-04 | Appellant's factum, (Book Form), Completed on: 2014-02-04 | David M. Potter |
| 2014-02-04 | Certificate (on limitations to public access), (Letter Form) | David M. Potter |
| 2013-11-15 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2013-10-31 | Notice of appeal, Completed on: 2013-11-01 | David M. Potter |
| 2013-10-31 | Correspondence received from, Perri Ravon, letter dated 2013-10-29, re.: Mr. Eugene Mockler will act as counsel for the Appellant, replacing Mr. E. Thomas Christie. | David M. Potter |
| 2013-10-21 | Correspondence received from, Mr. Bennett re: appointing Stewart McKelvey as agent. | New Brunswick Legal Aid Services Commission, a statutory body corporate pursuant to a special act of the Province of New Brunswick |
| 2013-10-11 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2013-10-11 | Judgment on leave sent to the parties | |
| 2013-10-10 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal of New Brunswick, Number 161-11-CA, 2013 NBCA 27, dated April 25, 2013, is granted with costs in the cause. Granted, with costs in the cause |
|
| 2013-09-03 | All materials on application for leave submitted to the Judges, CJ Cro Wa | |
| 2013-08-23 | Applicant's reply to respondent's argument, (Book Form), Completed on: 2013-08-23 | David M. Potter |
| 2013-08-15 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2013-08-15 | New Brunswick Legal Aid Services Commission, a statutory body corporate pursuant to a special act of the Province of New Brunswick |
| 2013-06-26 | Letter acknowledging receipt of a complete application for leave to appeal | |
| 2013-06-21 | Application for leave to appeal, Completed on: 2013-06-21 | David M. Potter |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Potter, David M. | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| New Brunswick Legal Aid Services Commission, a statutory body corporate pursuant to a special act of the Province of New Brunswick | Respondent | Active |
Counsel
Party: Potter, David M.
Counsel
495C Prospect Street
Fredericton, New Brunswick
E3B 9M4
Telephone: (506) 454-8200
FAX: (506) 454-7300
Email: pete@ejmockler.ca
Agent
130 Albert Street
Suite 1103
Ottawa, Ontario
K1P 5G4
Telephone: (613) 702-5567
Email: pravon@juristespower.ca
Party: New Brunswick Legal Aid Services Commission, a statutory body corporate pursuant to a special act of the Province of New Brunswick
Counsel
Josie H. Marks
Suite 600, Frederick Square
77 Westmorland Street, P.O. Box 730
Fredericton, New Brunswick
E3B 5B4
Telephone: (506) 458-1970
FAX: (506) 444-8974
Email: cbennett@stewartmckelvey.com
Agent
Suite 700
1 Rideau Street
Ottawa, Ontario
K1N 8S7
Telephone: (613) 670-5830
FAX: (613) 670-5831
Email: jmacdonell@stewartmckelvey.com
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Employment law - Constructive dismissal - Repudiation of employment contract - Appellant holding public office pursuant to appointment by Lieutenant-Governor in Council - Parties in discussions seeking to bring employment contract to end when appellant suspended with pay for indefinite period - Appellant initiating action for constructive dismissal - Commission stopping his pay and benefits, arguing that appellant effectively resigned when he initiated action - Whether administrative suspension which the employer intends will end with termination of employment contract constitutes constructive dismissal - Whether employee necessarily resigns by bringing action for constructive dismissal - Whether amounts received under a pension should be deducted from damages for constructive dismissal
In 2006, the appellant was appointed as the Executive Director of the New Brunswick Legal Aid Services Commission by the Lieutenant-Governor in Council of New Brunswick. His appointment was for a seven-year term.
A few years into the appellant’s term, relations with the Commission’s Board of Directors deteriorated and discussions about finding a mutually acceptable method of bringing his contract to an end began. In January 2010 and while he was on sick leave, the appellant was advised that he was not to return to work until further direction from the Commission and that his salary would continue to be paid in the meantime. Unbeknownst to the appellant, that same day, the Commission had sent a letter to the Minister of Justice recommending that the Lieutenant-Governor in Council revoke the appellant’s appointment.
In March 2010, the appellant filed an action against the Commission, claiming that he had been constructively dismissed. The Commission took the position that, by claiming constructive dismissal, the appellant had effectively resigned his position. The Commission immediately stopped his salary and benefits.
Lower court rulings
Court of Queen’s Bench of New Brunswick
F/C/68/10, 2011 NBQB 296
Action for damages for wrongful dismissal, dismissed; Orders issued to the effect that (i) the applicant was not constructively dismissed and that, by commencing this legal action, the applicant effectively resigned, and (ii) the Commission shall pay the applicant regular and special retirement allowances, plus vacation pay
Court of Appeal of New Brunswick
161-11-CA, 2013 NBCA 27
Appeal dismissed
Memorandums of argument on application for leave to appeal
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
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