Tort Law Saves the Day: Supreme Court of British Columbia Rules in Favour of Employee in Negligent Misrepresentation Action
The decision in this case relied largely on the relevant weight given to the parties’ testimonies, which were inconsistent on more than one central issue. Mr. Feldstein claimed that two agents of 364, a Mr. Nizker and Mr. Dykman, informed him that his pre-existing condition would not preclude his access to LTD benefits. Upon applying for LTD benefits, however, Mr. Feldstein was told by Sun Life that he was not eligible for coverage in excess of $1,000 because he failed to fill out a health questionnaire when initially enrolling in the program. The court found that Mr. Feldstein’s testimony was more consistent with the circumstances surrounding the case and was therefore more credible, leading the court to find in his favour.
The analysis in this case rested largely on the ‘correct’ version of events taken by the Court. The Court gave more weight to Mr. Feldstein’s version of events and he won the case. The Court found it more believable that, given the importance of a suitable LTD plan for Mr. Feldstein, it made more sense that he would inquire about it before entering into an employment contract. The defendants almost wholly rejected any discussions between themselves and Mr. Feldstein on the topic of LTD benefits. Their blanket denial in this instance actually likely operated against their favour, as the judge found it skeptical that Mr. Feldstein would have failed to discuss this topic at all with the defendants. Nevertheless, it is interesting to note the weight given to Mr. Feldstein’s testimony in relation to the written employment contract. Courts will typically be very cautious when accepting parol evidence—or verbal evidence—to inform the terms of a written contract. In a cause of action in tort, however, the parol evidence rule is avoided. Based on these facts, if Mr. Feldstein brought an action for breach of contract, his action would likely fail in large part due to the parol evidence rule. The terms of the employment contract are in writing and it would be unfair to allow Mr. Feldstein to rely on terms outside of that contract. This case highlights the importance of considering the challenges presented by a given set of circumstances and shaping your cause(s) of action accordingly.
See: Feldstein v 364 Northern Development Corp., 2016 CarswellBC 159 (B.C.S.C.)
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