IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Awalt v. Dollar Thrifty Automotive Group Canada Inc., 2008 NSSM 12
2008 Claim No. 288418
Date: 20080226
BETWEEN:
Name: Jenna Ingrid Awalt
Claimant
- and -
Name: Dollar Thrifty Automotive Group Canada Inc. Defendants
and Susan Wesenhagen
Hearing Date: January 3, 2008
Revised Decision: The text of the original decision has been revised to remove addresses of the parties on February 27, 2008. This decision replaces the previously distributed decision
Appearances: Claimant - Jenna Awalt and Ingrid Awalt
Defendants - Ian Dunbar
DECISION
[1] This is a claim for the value of one of the first place prizes in a contest run by the Defendant, Dollar Thrifty Automotive Group Canada Inc. (“Dollar Thrifty”) in July and August 2007. The Claimant, who was employed by Dollar Thrifty until September 7, 2007, asserts that she was a winner of the contest and should be awarded the first place prize or the equivalent value thereof which she says is approximately $5,000.00.
[2] Dollar Thrifty, is a car rental company. It denies the claim and relies on the official contest rules which require the employee to have been employed by Dollar Thrifty on September 21, 2007, to be eligible to win. The Defendant states that the Claimant’s last day of employment was September 7, 2007, and, as a result, was ineligible to win the contest.
[3] There is no dispute that the Claimant did have the highest Incremental Dollar Average and, but for the fact that her last day of employment of September 7, 2007, would have been a first place prize winner. There were two grand prizes awarded nationally. Each received a Sony 40" flat panel LCD tv, a Sony DVD player, weekly rental of a luxury car and $1,000.00 cash.
[4] It is not disputed that the Claimant’s last day of work was September 7, 2007.
[5] It is also not disputed that the official contest rules and regulations contained the following in the first paragraph thereof:
Winners must be employed by DTG Canada Inc., or be employed with a DTG Canada Agent Operator, or be a DTG Canada Agent Operator in good standing during the contest period and until the winners are announced September 21, 2007, to be eligible to win.
[6] The Claimant’s primary submission is that she did not know of the existence of this rule and, that she should have been advised of this, particularly given that she tendered her resignation on or about August 24, 2007, to take effect on September 7, 2007. She asserts that it was unfair and in bad faith for the Defendant to not have advised her upon receiving notice of her resignation. In the attachment to the Claimant’s Statement of Claim she refers to the actions of the Defendant as being “...deceitful and duplicitous” (paragraph 2) and further, that the “...company wilfully, and with malicious intent chose not to inform [her] that the ‘official rules’ stated that [she] must still be an employee on September 21, 2007”.
[7] The Claimant also named Susan Wesenhagen as a an additional Defendant. Ms. Wesenhagen is the Director of Sales and Marketing for Dollar Thrifty.
[8] The essential legal issue here is whether the requirement that the employee be employed by the Defendant on September 21, 2007, is properly seen as a term of this contract which can be fairly characterized as an amendment to the subsisting employer-employee relationship.
[9] The law on this issue can be analogized to the law that has arisen in respect of the so-called “ticket cases”. I refer to the excellent text “The Law of Contracts”, John D. McCamus 2005, Irwin Law Inc., and the following passages at page 184:
“...In the more difficult case, where the recipient does not have actual knowledge of the nature of the document, the question is whether the person issuing the document can reasonably assume that the other party is aware that the document contains conditions either because of the nature of the transaction or because reasonable steps have been taken to give the other party notice of this fact... In cases where it is not obvious that the document is contractual in nature, however, the test to be met is whether the party relying on the document has given sufficient notice to the other party that the document or ticket contains conditions. Thus, if the railway company ‘did what was reasonably sufficient to give the plaintiff notice of the condition,’ the plaintiff would be bound by the condition, whether or not the plaintiff had troubled to read the ticket.
The determination of whether reasonable notice of terms has been provided rests on the circumstance of the particular case.”
[Emphasis Supplied]
[10] It is this last statement of the principle which I believe governs the answer to this present case.
[11] In evidence was a full copy of the poster which was at the workplace at the Halifax Stanfield International Airport where the Claimant worked for Dollar Thrifty in the relevant period. It is approximately 28" x 22" in size and at the top has the title of the contest: “Drive Away a Winner!” and then goes on to give the basic details of the contest. At the bottom there is smaller print, although, in fairness, certainly of a size that is readable. There are six lines of type including:
“This contest is subject to the complete and official rules. Complete and official rules are available by contacting DTAG Canada Inc. susan.wesenhagen@dtag.com”
[12] In evidence, it was made clear that this poster was prominently displayed in the workplace. Indeed, the Claimant acknowledged seeing this poster and, given the other evidence, it would have been difficult for her to assert otherwise.
[13] It may be observed that, objectively viewed the requirement to be an employee on September 21, 2007, is not a particular onerous or unreasonable rule. Further, it could reasonably be contemplated that such a rule or something similar thereto, would be part of the official rules. In this regard, I again refer to the McCamus text “The Law of Contracts”, at page 189 as follows:
“...it is well established that the requirements for notice will escalate with the increasing harshness of the terms. Denning, L.J. made the point in the Spurling case in the following terms: ‘I agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in writing on the face of a document with a red hand pointing to it before notice could be held to be sufficient’.”
[14] As I have said, the clause in question here does not strike me as being particularly unreasonable. Indeed, in my view, it would not be unanticipated that the employee be required to continue to be an employee following the end of the contest period, at least for some period of time.
[15] In my view, the statement on the bottom of the poster that “this contest is subject to the complete and official rules” was sufficient notice to the employee that there were official rules and that they were available by sending an email request to Susan Wesenhagen.
[16] The Claimant takes the position that the Defendant had a positive duty to advise her of the existence of the term and, had that been done, she would have further delayed her trip to China where she had entered into an arrangement to teach English. Leaving aside the factual issue of whether or not the Claimant realistically had the ability to further delay that date, I reject the submission as a matter of law. While, I do accept that in some circumstances silence can constitute a misrepresentation, I do not feel that this is one of those situations. No law was cited to me in support of the particular position put forward by the Claimant.
[17] Further, it seems to me that had the Defendant in fact made a specific communication to the Claimant that may well be seen as a breach of its duty to the other employees. I mentioned previously that this case is to be analyzed as a type of contract, and therefore there would have been a separate contract between Dollar Thrifty as employer and each of the employees across Canada. An overriding consideration is that the official contract rules be applied evenly to each and every employee and that no single employee be given special consideration or preference. Communicating with an individual employee to advise of the specific rules that might disentitle her could well be seen as giving that employee a preference which has not been accorded to another employee.
[18] There is an analogy here between this present type of case and cases in the law of tendering where a number of tenderors submit bids strictly in accordance with detailed specifications. There is a significant body of case law on this subject and, as will be seen, generally the courts will require that the successful tenderor comply in all regards to the tender specification. As I have stated, it is my view that a similar type of consideration can appropriately be applied here and that official contest rules are to be applied uniformly to all of the employees.
[19] A further consideration flows from the preceding comments. Had the employer here awarded one of the two grand prizes to the Claimant, it would obviously have had the result that one of the individuals that won the grand prize would then have not had been awarded a grand prize. That individual could, it seems to me, legitimately complain that the rules had not been properly applied and that he or she had complied in all respect with the rules and ought to be awarded the prize. I would think such a complaint would have merit.
[20] For all of the above reasons the claim is dismissed.
[21] That leaves the question of costs. The Court has authority to award reasonable travel expenses and the Defendant has claimed $650.00 for travel and accommodations of Ms. Wesenhagen to come from Ontario to Halifax to attend the hearing. I consider those travel expenses appropriate and reasonable in the circumstances and I will order that costs be awarded against the Claimant. Some comment was made about the Claimant having to give up employment to attend the hearing and that might normally be considered as a mitigating factor with respect to costs. However, I weigh that against the rather serious allegations that were made in the Statement of Claim as to the “deceitful and duplicitous actions” of the Defendant and that the Defendant had “malicious intent”, all of which I find absolutely no basis for and, the fact that Susan Wesenhagen was joined personally, again which I find absolutely no basis for, it seems to me that that outweighs any mitigating factor on the other side and I will order the costs as requested as against the Claimant.
Disposition and Order
[22] It is hereby ordered that the Claimant’s claim be dismissed.
[23] It is further ordered that the Claimant pay to the Defendants costs in the amount of $650.00.
DATED at Halifax, Halifax Regional Municipality, Nova Scotia on February 26, 2008.
Michael J. O’Hara
Adjudicator
Original Court File
Copy Claimant(s)
Copy Defendant(s)