Angeltvedt v. Flint Field Services Ltd., 2010 ABQB 749

Court of Queen ’ s Bench of Alberta Citation: Angeltvedt v. Flint Field Services Ltd., 2010 ABQB 749 Date: 20101126 Docket: 0403 23112 Registry: Edmonton Between: Kelvin Angeltvedt Plaintiff - and - Flint Field Services Ltd. Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.E. Topolniski _______________________________________________________ I.

Introduction [ 1 ] The Plaintiff Kelvin Angeltvedt is the founder and principal of Angel Steam Services Ltd., a limited partnership that engaged in oilfield servicing in and around Provost, Alberta ("Angel Steam"). Angel Steam was active as a business until June 2002, when its assets were sold to Conex Rentals Corporation ("Conex"), a company related to the Defendant Flint Field Services Ltd. ("Flint"). As part of the sale transaction, Mr. Angeltvedt contracted to provide consulting services to Flint for two years and agreed not to compete with Conex for the same period of time.

The central issue in this dispute is whether Flint's direction that he perform certain work, said by Mr. Angeltvedt to have been a unilateral and material change to his duties and responsibilities, constitutes a repudiation by Flint of the consulting contract.

[ 2 ] Liability, damages and mitigation all are in issue and will be discussed under separate headings. II. The Events [ 3 ] Mr. Angeltvedt founded Angel Steam in 1979. At the time, he owned and operated one steam truck used for work in the oil patch. The fleet expanded over time to include twenty-six trucks used for a variety of oilfield servicing jobs; vacuum trucks for cleaning debris, large volume trailer vacuum trucks, hydrovac trucks for soil reclamation, water trucks, and pressure trucks that were mainly owned by lease operators who contracted with Angel Steam.

As the Chief Executive Officer, President, and Manager of Angel Steam, Mr. Angeltvedt's focus was on building up the business. His brother, Mike, was his Assistant Manager and right-hand-man. [ 4 ] Mr. Angeltvedt also started another venture, a land reclamation business that he sold to his brothers in 2002. That entity has relevance to the present dispute only insofar as mitigation is concerned. [ 5 ] In the Spring of 2002, Conex's President, Richard Klinger, approached Mr. Angeltvedt with a view to acquiring Angel Steam. Mr. Angeltvedt knew Mr.

Klinger, who had sold his business, Klinger Oilfield Services, to Conex several years earlier. Mr. Klinger told Mr. Angeltvedt that he was happy with his decision to sell his business and also with his position at Conex. Mr. Angeltvedt considered the timing ripe to sell Angel Steam. [ 6 ] After two months of negotiations, the sale was concluded with the execution of an asset purchase agreement on June 10, 2002 between Angel Steam and its limited partners, and Conex ("Asset Purchase Agreement"); a consulting services agreement between Mr.

Angeltvedt and Flint, effective June 10, 2002 ("Consulting Agreement"); and a confidentiality and non-competition agreement between Mr. Angeltvedt and Conex, also effective June 10, 2002 ("Non-Competition Agreement"). [ 7 ] In the Consulting Agreement, Mr. Angeltved is referred to as the “Consultant.” The “Consulting Services” contracted for are described as project management, scheduling and other related duties and responsibilities as set out in

Schedule “B” (Article 1). Clearly, this is a typographical error as it is

Schedule “A” which contains the “Position Description.”

Schedule “A” reads in part as follows: Primary Function : Reporting to the Regional Manager. Assigned to the Provost Production Services Operations Center in a “hands on” management position involved directly in the “day to day” functions of the business unit... Specific Responsibilities : Organization - Ensures effective alignment and coordination of internal and external input and resources by implementing formal planning strategies. Analyses previous performance to identify areas of opportunity and continuous improvement. Provides reporting to District Management on budget compliances and variances. . . .

Communication - Clearly defines Flint business strategy and initiatives. Clarify accountabilities, responsibilities and expectations of operations staff. Will address issues and concerns of support service staff and initiate corrective measures if required. Key contact with vendors and clients to administer and clarify contract issues. Leadership - Ensures Flint policy and procedures are adhered to in contributing to safe and productive work environment. Provides coaching/mentoring to subordinate staff to maintain focus.

Monitors - Employee performance. Interfaces with HR on development/training issues. Interfaces with accounting staff to track and report on “money in/money out.” Ensures that company procedures meet reporting and delivery of service expectations. Observe workload and staffing level effectiveness. Supervisory Responsibilities : Field Coordinator(

s) Office Administrator(

s) Dispatcher(

s) Budgetary Responsibilities : Responsible for P & L performance of the Operations Center. [ 8 ]

Article 3.1 of the Consulting Agreement, reproduced below, speaks to the locale for the provision of services and contains a warranty by Mr. Angeltvedt as to his skill. 3.1 The Consultant shall be responsible for providing Consulting Services to the Corporation, as defined herein, at locations to be mutually determined between the Corporation and the Consultant. The Consultant represents, and warrants to the Corporation that the Consultant has the required skills and experience to perform the duties and exercise the responsibilities required of the Consultant. [ 9 ]

Article 3.2 states the following about Mr. Angeltvedt’s duties and responsibilities: 3.2 The Consultant shall perform all of the duties that the Corporation shall, from time to time reasonably assign or delegate to the Consultant, including, without limitation those duties set forth in

Schedule “A” attached hereto. Without limiting the generality of the foregoing, but subject to

Article 3.3 below, the Consultant will be in charge of overall management and operations and shall be responsible for all means and methods of carrying out the Consulting Services. In providing the Consulting Services the Consultant shall comply with all lawful and reasonable instructions as may from time to time be given by superiors representing the Corporation and it is understood and agreed by the Consultant that the Corporation reserves the right to change the Consultant’s assignments, duties and reporting relationships from time to time as may be required. [ 10 ]

Article 4.2, located under the heading “Payment for Consulting Services,” provides in part that while the Corporation may instruct or advise the Consultant as to the objectives, timing and results required, the Consultant will have control over the manner of achieving the stated objectives. [ 11 ]

Article 7.3.5 deals with termination for cause for failing to follow reasonable instructions. It reads: 7.3 The Corporation reserves the right to terminate this agreement forthwith and without notice or payment of compensation either by way of anticipated earnings or damages in lieu of notice or of any kind whatsoever, if the consultant at any time: . . .

7.3.5 fails to comply with reasonable instructions, orders, and directions of the Board of Directors of the Corporation, as long as those instructions, orders, and directions are legal and in compliance with all laws and regulations of the applicable regulatory authorities and are consistent with the duties set out in

Schedule “B” [should read

Schedule “A”]. [ 12 ] For ten months, Mr. Angeltvedt managed Flint’s newly acquired Provost pressure and vacuum operation ("Provost Centre"), reporting to Darrel Howell, Flint's Regional District Manager in Lloydminster. Mr. Angeltvedt's work appears to have continued on as it had before the sale, seemingly without interference from Flint and mainly within a sixty mile radius of Provost.

The exception was that now he was required to travel to Lloydminster for monthly regional meetings and quarterly financial meetings during which, among other matters, the Provost Centre's losses were a topic of discussion. [ 13 ] In March 2003, Mr. Angeltvedt was asked by Blair Goertzen, a Flint Vice-President, to assume a new assignment assessing Flint's hydroexcavating division ("Hydroexcavating Assignment"). Mr. Goertzen said that Flint would look at a new contract and compensation package when Mr. Angeltvedt returned from vacation. Mr.

Angeltvedt accepted the Hydroexcavating Assignment, something later described by Flint in an internal email as a "leadership role in upgrading the delivery of our hydroexcavating services across the country." For the next two months, in fulfilling his new mandate, Mr. Angeltvedt travelled from his Provost home and office to Lloydminster, Bonnyville and Sherwood Park in Alberta as well as to Fort St. John in British Columbia. He now reported to a company Vice-President, Tim O'Brien, rather than to Mr. Howell, who coincidentally also reported to Mr. O'Brien. Mr.

Angeltvedt no longer attended monthly management or quarterly financial meetings. Contrary to what he had been told by Mr. Goertzen, who since had been laid off, no new contract or compensation package was forthcoming. In late May 2003, Mr. Angeltvedt provided the company with a report on his findings in relation to the hydroexcavating division. [ 14 ] While he was working on the Hydroexcavating Assignment and for a period following the completion of his report, Mr. Angeltvedt was asked to and gave periodic advice to his successor at the Provost Centre, Dewayne McConnell. Mr.

McConnell was an electrician by trade, who had been transferred from Flint's electrical and installation division in Hardisty, Alberta and had no prior experience with the vacuum and pressure truck operation. When Flint later elected to close the Provost Centre, Mr. Angeltvedt also helped Mr. McConnell with the shut down. [ 15 ] After closure of the Provost Centre had been completed in early July 2003, Mr. Angeltvedt contacted Mr. Howell to enquire about his next task, observing that he had eleven months remaining under his Consulting Agreement. According to Mr. Angeltvedt, Mr.

Howell made a comment to the effect that he could sweep the floor at Provost. Mr. Angeltvedt interpreted the comment as an attempted joke or smart remark and asked in a serious manner about what he was to do next. Mr. Howell then said words to this effect: "[y]ou and Blair Goertzen are entrepreneurs. We do not need entrepreneurs. So, go home." Mr. Howell testified that he had no recollection of making these comments and they simply were not the kind of things that he would say. I accept Mr. Angeltvedt's evidence on this point.

He appeared to have a clear recollection of the conversation, which he recounted in a forthright manner. [ 16 ] Later, and apparently after some communication between counsel, Mr. Angeltvedt again enquired about his fate. He was told to meet on July 14, 2003 at the Lloydminster office with Dion Walsh, the Operations Manager for Lloydminster and two other operations centers. During that meeting, Mr. Walsh advised Mr. Angeltvedt that Mr. Howell had directed that his next assignment was to review and propose changes to Flint’s safety and operations manuals for its vacuum and pressure trucks (“Manual Review”). Mr.

Walsh also informed Mr. Angeltvedt of Mr. Howell’s instructions that: 1. the Manual Review was expected to take two to three weeks; 2. the Manual Review had to be performed at the Lloydminster office during fixed business hours, with one hour for lunch; 3. Mr. Angeltvedt would now report to Mr. Walsh; and 4. when the Manual Review was finished, Mr. Angeltvedt was to do “paper and office work” for the remainder of the term of the Consulting Agreement.

[ 17 ] Mr. Angeltvedt’s query as to why the Manual Review had to be conducted at Lloydminster was met with the response that, “[t]his is what Howell wants.” He requested a meeting with Mr. Howell to discuss the proposed assignment and other potential assignments, like helping with operations and management at other busy and/or newly developed centers, jobs which he believed would help Flint build its business. He was told that Mr.

Howell was too busy, and his request for a meeting with him was declined, as was his request for a written description of the Manual Review assignment. [ 18 ] After spending two hours looking at the manuals in the windowless office that had been assigned to him, Mr. Angeltvedt went home to consider his options, advising Mr. Walsh that he would get back to him after speaking with his counsel. The next day, he phoned Mr.

Walsh and advised him that he considered the Manual Review to fall outside the scope of services he had agreed to provide under the Consulting Agreement and he declined to perform the assignment. [ 19 ] It is undisputed that Flint, at the time, had a formal safety division at its Sherwood Park, Alberta office, in addition to a corporate safety manager and others who reported to him. It is also undisputed that the Manual Review was not urgent. Mr. Howell was looking for something for Mr. Angeltvedt to do and, in his view, there were no other options available. After Mr.

Angeltvedt declined the task, the Manual Review was contracted out to another company, R2 Support Services. The principal of that company is Ross Richards. [ 20 ] There were some negotiations between the parties’ lawyers, but in the end Flint did not ask Mr. Angeltvedt to undertake any further work. Mr. Angeltvedt sent the company invoices for his consulting fees for the months of July and August 2003. Half the value of the July invoice was paid. Mr. Angeltvedt did not seek out alternate employment.

He took a month long vacation at his cabin and devoted more time to helping his family with their elk ranching operation. In the Spring of 2004, he pursued an investment opportunity in a Red Deer, Alberta company that was concluded in about two months. On June 1, 2004, he assumed the presidency of that company. III. Arguments of the Parties [ 21 ] Mr. Angeltvedt submits that he neither had the skills nor was he required under the Consulting Agreement to conduct the Manual Review.

It was outside the scope of services that he had agreed to, was irrelevant to developing Flint’s business, and was a task that he was simply unqualified for in any event. He indicates that preparation and updating of safety and operations manuals were in his brother’s bailiwick at Angel Steam and that his brother had always retained outside consultants to prepare the initial product.

In his view, Flint’s request to undertake the Manual Review was a fundamental breach and repudiation of the Consulting Agreement, entitling him to damages for the unexpired portion of the term. [ 22 ] Flint contends that the Manual Review was a management level task and claims it was Mr. Angeltvedt who repudiated the contract by refusing to undertake a reasonably requested assignment. Flint contends that the following evidence of Messrs. Klinger, Howell and Walsh about their work on safety and operations manuals supports its position on this issue: 1. Mr.

Howell testified that it was his responsibility to establish the process for updating safety and operations manuals and to review the final product. The coordination of the project was given to his former colleague, Ross Richards, who had been Klinger Oilfield Services’ safety manager. Mr. Howell also said that he had personally written manuals at Klinger Oilfield Services, commenting that although that may seem unusual, it was what he had done. 2. Mr. Klinger spoke of his role with Klinger Oilfield Services in reviewing revisions to manuals prepared by others.

Ross Richards had been tasked with going “into the field,” where he would ride alongside truck operators and review procedures with them. Mr. Richards wrote or amended the manuals and gave them for review to Mr. Klinger or his brother, a Vice-President of Klinger Oilfield Services. Mr. Klinger said that his “grass roots” knowledge as a truck operator made him well suited for determining whether a procedure was sensible or required further review. 3. Like Mr. Klinger and Mr. Angeltvedt, Mr. Walsh had been a truck operator before joining Klinger Oilfield Services in a supervisory capacity.

He explained that reviewing safety and operations manuals was a three-step process, involving: (

a) Ross Richards or someone like him writing the manual or making suggested changes after discussions with relevant operators;

(

b) a management person with “experienced eyes,” such as himself, reviewing the product; (

c) the manual being sent to the corporate safety division if it passed muster. [ 23 ] Flint contends that this was the process ultimately followed for the Manual Review undertaken by R2 Support Services after Mr. Angeltvedt declined the assignment. R2 Support Services suggested proposed changes to the manual. Mr. Walsh reviewed them in his capacity as Operations Manager and the proposed changes were sent to the corporate safety group. IV. Analysis A. Liability 1. Employee or independent contractor [ 24 ] The outcome of this case hinges on its particular facts and

interpretation of the Consulting Agreement. [ 25 ] According to the Alberta Court of Appeal in Pivotal Capital Advisory Group Ltd. v. NorAmera BioEnergy Corp. , 2010 ABCA 199 at para. 20 , 26 Alta. L.R. (5th) 13 , quoting from the Supreme Court of Canada in Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co. , 1979 CanLII 10 (SCC) , [1980] 1 S.C.R. 888 at 901, the following principals should guide the Court’s

interpretation of contracts: ... [t]he normal rules of construction lead a court to search for an

interpretation which, from the whole of the contract, would appear to promote or advance the true intent of the parties at the time of entry into the contract. Consequently, literal meaning should not be applied where to do so would bring about an unrealistic result or a result which would not be contemplated in the commercial atmosphere in which the insurance was contracted. Where words may bear two constructions, the more reasonable one, that which produces a fair result, must certainly be taken as the

interpretation which would promote the intention of the parties. Similarly, an

interpretation which defeats the intentions of the parties and their objective in entering into the commercial transaction in the first place should be discarded in favour of an

interpretation of the policy which promotes a sensible commercial result. [ 26 ] Since the Consulting Agreement arose as part of and in the context of the Asset Purchase Agreement, evidence surrounding the commercial transaction as a whole may also be relevant ( Alberta Permit Pro v. Booth , 2009 ABCA 146 at para.42, 460 A.R. 129). [ 27 ] As in the present case, Alberta Permit Pro concerned a consulting agreement made collateral to the sale of a business.

The trial judge ( 2007 ABQB 562 ) identified the central issue in the case as being whether the consulting agreement had been repudiated by the purchasers or terminated by the vendors. While constructive dismissal had not been pleaded, the defendants nevertheless sought to introduce legal principles derived from constructive dismissal cases.

The vendor, Booth, urged that his consulting agreement had been “constructively terminated” when, eight days into its term, he was instructed to return his keys and was requested not to attend at the office "in order that the transition to new management can proceed without conflict." The trial judge took the approach (at para. 123) that the nature of the contract and the parties’ relationship must first be determined so that the appropriate legal test could be applied. If the relationship was one of employer-employee, the issue would be whether the employee had been constructively dismissed.

If it was one of company-independent contractor, the issue would be whether the company had repudiated the consulting agreement. She concluded that the professional corporation was an employee and, therefore, the law on constructive dismissal applied. She cited (at para. 122) the following passage from the Supreme Court of Canada’s decision in Farber v.

Royal Trust Co. , 1997 CanLII 387 (SCC) , [1997] 1 S.C.R. 846 at para. 33 , 145 D.L.R. (4th) 1 as defining “constructive dismissal:” [I]t has been established in a number of Canadian common law decisions that where an employer unilaterally makes a fundamental or substantial change to an employee's contract of employment -- a change that violates the contract's terms -- the employer is committing a

fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herself constructively dismissed. [ 28 ] On appeal, the appellants argued that the trial judge erred in characterizing the relevant relationship between the parties as being that of employer/employee rather than purchaser/vendor and focusing her analysis on whether there had been a fundamental breach of the purchase agreement. The Court of Appeal held (at para. 42) that the trial judge had not erred in finding that the employer/employee relationship was the most relevant.

The appellants also argued that the trial judge erred in articulating the test for constructive dismissal as being whether the employer unilaterally made a substantial change to an essential term of employment. The Court of Appeal agreed (at para. 44) that this was the correct test. [ 29 ] The key question in determining whether a person supplying services to another is an independent contractor or an employee is whether he performs those services as a person in business on his own account ( Market Investigations, Ltd. v. Minister of Social Security , [1968] 3 All E.R. 732 at pp. 737-738 (Q.B.D.) .

In making that determination, the Court is to consider several factors, not all of which are necessarily relevant or attributed the same weight in all cases. [ 30 ] Major J., who delivered the judgment in 671122 Ontario Ltd. v.

Sagaz Industries Canada Inc ., 2001 SCC 59 , [2001] 2 S.C.R. 983 at para 47 , identified the following factors as being significant: (1) the level of control the employer has over the worker's activities; (2) whether the worker provides his or her own equipment; (3) whether the worker hires his or her own helpers; (4) the degree of financial risk taken by the worker; (5) the degree of responsibility for investment and management held by the worker; and (6) the worker's opportunity for profit in the performance of his or her tasks. [ 31 ] In terms of control, the Consulting Agreement says that while Flint can instruct or advise Mr.

Angeltvedt as to the “objectives, timing, and the results required,” Mr. Angeltvedt has control over the manner of achieving the objectives. This is consistent with Mr. Angeltvedt being an independent contractor. Except for the requirement that he attend management and financial meetings, Mr. Angeltvedt controlled his own schedule. While managing the Provost Centre, he did many of the same tasks as he did before the sale of Angel Steam, without any substantial interference or direction from Flint. He determined how and when to perform the Hydoexcavating Assignment.

It was only on July 14, 2003 that Flint purported to exercise significant control over the timing and manner in which Mr. Angeltvedt performed his work. The parties’ original pattern of dealing with one another also favours the finding of an independent contractor relationship, as in Crowe v. Saskatchewan Indian Gaming Authority Inc. , 2006 SKQB 27 , 276 Sask. R. 217 . [ 32 ] On the other hand, the ownership of tools factor suggests an employment relationship. Typically, employees have tools supplied by the employer, while independent contractors supply their own.

Offices and items like office equipment, stationery and other office supplies have been considered the modern equivalent of the hand tools used by tradespeople ( Alberta Permit Pro , 2007 ABQB 562 at para. 142 , citing Te'mexw Treaty Ass. v. Canada (Minister of National Revenue - M.N.R.) , [2000] T.C.J. No. 447 at para. 21(T.C.C.) (QL) ). Other than using his own vehicle, for which he was compensated, Mr.

Angeltvedt did not use any of his own equipment in carrying out the Consulting Agreement. [ 33 ] An independent contractor typically can subcontract to third parties, something which employees generally cannot do ( Alberta Permit Pro , 2007 ABQB 562 at para 141 ). The Consulting Agreement in the present case expressly refers to the possibility of Mr. Angeltvedt hiring employees and agents. This weighs in favour of an independent contractor relationship. [ 34 ] Mr. Angeltvedt did not invest in Flint’s business. His assignment, as described in

Schedule “A” to the Consulting Agreement, was to be a “hands on” day to-day manager. If the business was profitable, he improved his chance of receiving a bonus or bigger bonus. If it was not, the worst case scenario for him was that he would not receive a bonus at all or would receive a smaller bonus. This factor weighs in favour of the employment relationship. [ 35 ] The Consulting Agreement contains an exclusivity clause. This favours a finding that Mr. Angeltvedt was in an employment relationship. Given the Non-Competition Agreement, the inclusion of the exclusivity clause is not surprising.

It is a neutral factor. [ 36 ] Without diminishing the importance of his duties, the evidence does not show that Mr. Angeltvedt was crucial to Flint’s overall operation. He was not a member of Flint’s executive. Indeed, there is no evidence to show that he was named on any organizational chart or that Flint ever held him out to be an employee ( Oil & Rubber Specialties Inc. v. Canada (Minister of National Revenue - M.N.R.) , [1999] T.C.J. No. 480 (T.C.C.) (QL) ; Alberta Care-A-Child Ltd. v. Payne , 2005 ABQB 561 at para. 40 ; Alberta

Permit Pro v. Booth , 2007 ABQB 562 at para. 134 ). This factor favours an independent contractor relationship. [ 37 ] A consideration of these factors, not all of which merit even weight, when viewed in the context of the commercial sale transaction as a whole, tips the balance in favour of my finding that Mr. Angeltvedt was an independent contractor. In this regard, the agreement that Mr. Angeltvedt effectively would control the manner and timing of his work and the initial lack of control exerted by Flint warrant significant weight. [ 38 ] I note that Mr.

Angeltvedt was referred to in the Consulting Agreement as the “Consultant” and that he declared himself to be an independent contractor for income tax purposes. While of less significance than the well recognized factors discussed above, this is a feature that has nevertheless been recognized as being consistent with an independent contractor and principal relationship ( Aqwa v. Centennial Home Renovations Ltd. (c.o.b. as Centenniel Windows ) (2001), 12 C.C.E.L. (3d) 97 at para. 14 (Ont. S.C.J.) , reversed on other grounds (2003), 2003 CanLII 20878 (ON CA) , 24 C.C.E.L. (3d) 16 (Ont.

C.A.) ). [ 39 ] Accordingly, the next question is whether Flint repudiated (or terminated) the Consulting Agreement. 2. Termination or repudiation [ 40 ] The Supreme Court of Canada in Keneric Tractor Sales Ltd. v. Langille , 1987 CanLII 29 (SCC) , [1987] 2 S.C.R. 440 stated at para. 24 that: If a party to a contract breaches a term of sufficient importance the other party has the right to treat the contract as terminated and consider himself discharged from any future obligations under it...

An identical right arises where one party to a contract by words or conduct indicates to the other party that he does not intend to perform his contractual obligations.

In the latter instance the first party is said to have repudiated the contract... [ 41 ] The court determined (at para. 27) that the assessment of damages in a case of termination based on breach of a term of the contract is no different from the assessment of damages in a case of termination based on repudiation, as the breach and repudiation are just subdivisions within a general category of conduct that gives the innocent party the right to treat the contract as terminated. The court clarified (at para. 28), however, that when a repudiation is accepted, the contract is not rescinded.

While the parties, from the date of termination, are discharged from their prospective obligations under the contract, those prospective obligations are relevant to the assessment of damages. [ 42 ] The principles governing repudiation may be summarized as follows: 1. Repudiation occurs where one party to a contract, either by express words or conduct, indicates to the other contracting party that he no longer wishes to be bound by the obligations under the contract ( Guarantee Co. of North America v. Gordon Capital Corp ., 1999 CanLII 664 (SCC) , [1999] 3 S. C. R. 423 at para. 40 ). 2.

Fundamental breach of a contract giving rise to repudiation has been described in many ways: (

a) A breach which goes to the root of the contract ( First City Trust Co. v. Triple Five Corp. (1989), 1989 ABCA 28 (CanLII) , 65 Alta. L.R. (2d) 193 at para. 36 ); (

b) A breach which frustrates the object of the contract ( First City Trust Co. at para. 36 ); (

c) A substantial failure of performance. ( First City Trust Co. at para. 36 );

(

d) A breach that deprives a party of substantially the whole benefit which it was the parties’ intention that he should obtain from the contract. The foundation of the contract must be undermined or the very thing bargained for not be provided ( Hunter Engineering Co. v. Syncrude Canada Ltd. , 1989 CanLII 129 (SCC) , [1989] 1 S.C.R. 426 at para. 137 ); and (

e) In the context of employment law it is described as a unilaterally imposed fundamental or substantial change to an employee’s contract of employment that results in its termination and entitles the employee to consider that he is constructively dismissed ( Farber at para. 33 ). 3. The conduct and circumstances of the parties must be considered as a whole to ascertain whether repudiation is established ( Delcor Painting & Flooring Ltd. v. 20/20 Properties Inc. , 2009 ABQB 670 at para. 24 ).

Where there is no express and absolute refusal by one party to perform his obligations under the contract, the test is whether the defaulting party’s actions could lead a reasonable person to conclude that he no longer intends to be bound by the provisions of the contract ( Delcor Painting & Flooring Ltd. at para. 24 , citing WCI Waste Conversion Inc. v. ADI International Inc. , 2008 PESCTD 40 at paras. 330-334 , 283 Nfld. & P.E.I.R. 254 ). 4. An innocent party faced with a repudiation can either affirm the contract or accept the repudiation, making it plain that he considers the contract to be at an end (H.G.

Beale, ed., Chitty on Contracts , vol. 2 (Toronto: Carswell, 2004) at p. 729). 5. There is no distinction between the considerations in assessing if there has been repudiation of an employment contract or a commercial contract ( Farber at para. 33 ); Alberta Permit Pro , 2009 ABCA 146 at para. 44 ). [ 43 ] In my view, Mr. Angeltvedt has established that Flint repudiated the Consulting Agreement. [ 44 ] The agreement, which was entered into as part of a larger commercial transaction, sets out the parties’ mutual intention that Mr. Angeltvedt be responsible for managerial level duties.

He was to carry out those duties in the manner he saw fit, without interference from Flint. While his initial duties were to provide transitional managerial services, it is clear from the language of the Consulting Agreement that if a change to his duties was required, the new duties would be reasonably consistent with those specifically described. The corporation reserved the right in clause 3.2 to change Mr. Angeltvedt’s assignments, duties and reporting relationships from time to time as might be required.

It also reserved the right in clause 7.3.5 to terminate the agreement without notice or compensation if Mr. Angeltveldt failed to comply with reasonable instructions of the Board of Directors of the corporation, but only as long as those instructions were consistent with the duties set out in the Schedule. Those duties were managerial. [ 45 ] The Hydroexcavating Assignment, a mutually agreed on assignment, fit that criterion. It involved, as Flint described it, a “leadership role.” Indeed, it was more likely than not a step up the corporate ladder from the defined services. Mr.

Angeltvedt was asked to make use of his expertise in something akin to a project management role. Moreover, he reported to a Vice-President, who coincidentally was the same person to whom his previous immediate superior, Mr. Howell, reported. [ 46 ] Assisting Dewayne McConnell to transition into his new role and later to shut down the Provost Centre also were management-related functions as contemplated by the Consulting Agreement. Like the Hydroexcavating Assignment, this too was a mutually agreed on assignment.

Although it might be viewed from a narrow lens as providing a supporting role, essentially it involved a manager with de facto knowledge and expertise being called on to do what he knew best to further Flint’s business objectives – coaching and mentoring an inexperienced person transition into a new role and then assisting with closing of the Provost Centre. These tasks related to Mr. Angeltvedt’s initial assignment as described in the Consulting Agreement. It was not, as Flint suggests, a low level assignment demonstrating that Mr.

Angeltvedt would perform services beyond the scope of the Consulting Agreement and estopping him from enforcing his contractual rights on the basis of condonation. [ 47 ] Mr. Angeltvedt’s duties were substantially altered when he was told that he would have to undertake work typically performed by non-managerial or otherwise subordinate personnel or consultants. While management personnel would be expected to review the work of such individuals, that is not what Mr. Angeltvedt was told to do.

Rather, he was instructed to conduct an initial review of the safety and operations manuals, obtain input from truck operators in the field, obtain input from clients, and prepare any proposed amendments. That is exactly what Mr. Walsh, who was a most forthright and credible witness, described as the first step in Flint’s and Klinger Oilfield’s typical process for reviewing safety and operations manuals. It was not step two, in which management

level personnel became involved. No wonder then that this non-urgent project subsequently was given to an outside consultant, who previously had worked for Klinger Oilfield Services and Conex as safety coordinator. Clearly, Mr. Howell was looking for something for Mr. Angeltvedt to do when he assigned him the Manual Review. However, that does not aide Flint in defending against the assertion that it repudiated the Consulting Agreement. [ 48 ] The nature of the Manual Review alone is sufficient to constitute repudiation of the Consulting Agreement by Flint. When coupled with the restrictions on Mr.

Angeltvedt as to when and where he was to perform the mandated task, repudiation is clearly established. Even if the Manual Review was within the four corners of the Consulting Agreement, there is no rational basis for Flint seeking to exert the degree of control it attempted to establish over Mr. Angeltvedt’s

schedule and manner in which he was to conduct the work. There is no acceptable evidence as to why this work had to be performed from the Lloydminster office and why Mr. Angeltvedt could not have conducted much, if not all, of the work from his Provost home or office. [ 49 ] Viewed objectively, a reasonable person would conclude from Flint’s actions in assigning Mr.

Angeltvedt the Manual Review and directing that he undertake it out of the Lloydminister office that Flint no longer intended to be bound by the Consulting Agreement - the very foundation of the Consulting Agreement was undermined by Flint’s actions. [ 50 ] Acceptance of repudiation requires the aggrieved party to make it plain that he considers the contract to be at an end. There is no magic formula or method for acceptance of repudiation. What is required is that the acceptance be made clear. Mr.

Angeltvedt advised Flint that he was ready, willing and able to perform the duties contemplated by the Consulting Agreement, but nothing was forthcoming. [ 51 ] On July 22, 2003 Flint notified Mr. Angeltvedt, through counsel, of its view that he had repudiated the Consulting Agreement by failing to report for duty, that it accepted his repudiation, and that no payments for the period after July 14, 2003 would be made. Mr. Angeltvedt later delivered invoices for July and August 2003 and suggested that an invoice for September would be sent later.

After being paid one-quarter of the two invoiced amounts, he opted against further invoicing. Mr. Angeltvedt’s actions sufficiently signalled his acceptance of the repudiation once it was made clear that a suitable alternative assignment would not be forthcoming. [ 52 ] Mr. Angeltvedt is entitled to damages from Flint. The question is the appropriate quantum of damages. B. Damages [ 53 ] Mr.

Angeltvedt seeks damages for 11 months’ worth of his base compensation ($77,916.67), being what he claims is the unexpired portion of the term of the Consulting Agreement, one week of vacation pay ($1,634.62), and his vehicle allowance ($9,900). He also seeks benefits’ coverage for 10 months ($2,898.80), retirement plan compensation for two years ($8,500) and a bonus payment ($15,937.50). 1. Base compensation [ 54 ] The base compensation is set out in

Schedule “B.” It specifies that the Consultant is to receive $85,000.00 per year. Mr. Angeltvedt mitigated his damages by obtaining a higher paying position on June 1, 2004. Therefore, he is entitled to damages for base compensation of $74,374.97 ($7083.33 per month x 10.5 months.) 2. Vacation pay [ 55 ]

Schedule "B" of the Consulting Agreement provides that the $85,000.00 annual compensation is inclusive of four weeks of annual vacation pay. Accordingly, the damages for base compensation include that amount and Mr. Angeltvedt is not entitled to further damages in this regard. 3. Bonus

[ 56 ]

Schedule "B" of the Consulting Agreement provides that there is eligibility for a bonus of up to 50 percent of base salary based on the company's financial results (75 percent) and individual goals and objectives (25 percent). On March 28, 2003, after Mr. Angeltvedt had been a consultant for less than nine months, Flint paid him a $4,024.00 bonus based on his individual performance. Mr.

Angeltvedt testified that he did not understand how it was calculated or why it was paid, while Flint’s witnesses were not questioned on the payment. [ 57 ] The law requires that if a plaintiff establishes that a loss probably has been suffered, the difficulty of determining the amount of it does not excuse the wrongdoer from paying damages. If the amount is difficult to estimate, the tribunal must simply do its best on the material available (S.M. Waddams, The Law of Damages , looseleaf (Toronto: Canada Law Book, 2008) at para. 13.30). Here, it is not a matter of mere difficulty in assessing the damages.

Rather, there is no evidence to show that Mr. Angeltvedt would have received a bonus based on either corporate or personal objectives and his claim in this regard fails. 4. Vehicle allowance [ 58 ] The Consulting Agreement provides in

Article 4.4 that Mr. Angeltvedt is required to supply an insured vehicle for the purpose of providing the consulting services and that Flint will reimburse him for fuel and reasonable maintenance costs to the extent that it is used in the`` conduct of its business and if expenses are submitted monthly.

Schedule "C" provides that the monthly automobile allowance is $900.00 and a fuel card will be supplied, but that all other costs are the responsibility of the owner. [ 59 ] A literal and commercially reasonable

interpretation of the Consulting Agreement results in this claim for damages failing. Cases concerning constructive dismissal are instructive by analogy. They indicate that if a vehicle allowance is intended to be part of the employee's compensation package, damages may be granted as with any other lost benefit. However, if the allowance is to offset the expense incurred by an employee in using their own vehicle on company business, it is not recoverable ( McDonald v. GBC Canada Inc ., 2004 BCSC 1029 at paras. 20-22 ; Chambers v. Axia Netmedia Corp. , 2004 NSSC 24 at para. 107 , 30 C.C.E.L. (3d) 243 ). 5. Benefits [ 60 ]

Schedule "B" of the Consulting Agreement provides that Mr. Angeltvedt is entitled to participate in Flint's benefits plan. He paid $126.25 per month for this. There is no evidence of what costs the plan covered, whether Flint paid anything towards these benefits, or the cost of replacement benefits. The only evidence of the value of the benefits plan to Mr. Angeltvedt is that it cost him $126.25 per month. Mr. Angeltvedt is entitled to $1,325.63 ($126.25 x 10.5). 6.

Retirement contributions [ 61 ] The parties dispute how retirement benefits were addressed in the Consulting Agreement. [ 62 ] Two versions of the Consulting Agreement were entered into evidence for the truth of their contents by agreement of counsel. Both versions are copies. There was no explanation of why the original documents were not produced. [ 63 ] Attached to Version 1, which is signed by both parties, are blank versions of Schedules "B" and "C" relating to compensation and vehicle allowance respectively. [ 64 ] Attached to Version 2, which is signed only by Mr.

Angeltvedt, are completed Schedules "B" and "C" and a sheet of paper with two undated handwritten notations. The first note is from Wayne to Richard, both Flint staffers, in which Wayne asks Richard to confirm whether Mr. Angeltvedt is to participate in the pension plan and advising that, if not, this provision is to be deleted from

Schedule "B." Wayne also asks that the contract be delivered by a third person to Mr. Angeltvedt in Provost. Neither Wayne nor Richard gave evidence at the trial. The second note is from Mr. Angeltvedt to Richard in which he says that he has signed the consulting

agreement and enclosed the vehicle information, which was requested by Flint. [ 65 ] Also in Version 2, the portion of

Schedule "B" concerning pension contribution is scratched out with the notation "[p]er note from Jon G. Per T. Freeman" and there is an undated post-it note that says that Mr. Angeltvedt is not able to participate in the pension plan and his compensation was increased by five percent to reflect that. Jon G., T.

Freeman and the author of the post-it note did not give evidence at the trial. [ 66 ] Flint argues that since both Version 1 and Version 2 were admitted for the truth of their contents by agreement, I must find that the compensation of $85,000 per annum includes a five percent adjustment for this “lost benefit.” [ 67 ] Although both documents were admitted for the truth of their contents, that does not mean that they do not require

interpretation. Version 1, as it stands, does not constitute a contract as salary or other consideration is not addressed. Version 2 is not signed by a Flint representative. There is no indication whether the handwritten notes were added before or after Mr. Angeltvedt signed the agreement. Mr. Angeltvedt claims that the handwritten notes and deletions were not a part of the document he signed. They are not initialled by him or by an officer of the company. The parties do not dispute that there was a binding agreement between them or that for all but the retirement contributions Version2 reflects their agreement.

They both agree that Mr. Angeltvedt could not participate in the pension plan and was to receive five percent of his base salary to compensate him for this. The only issue is whether the base salary identified in

Schedule “B” of Version 2 does or does not reflect that five percent. Given the ambiguity in the document in relation to the retirement contribution issue, parole evidence is admissible. [ 68 ] Mr. Angeltvedt testified that it was agreed that since he could not participate in Flint’s retirement plan, he was to be paid an additional five percent, which he understood would be paid into a non-taxable plan on his behalf. He did not know if that contribution had been made.

His uncontradicated evidence is that he signed only one agreement and it had no handwriting, deletions or post-it notes attached. [ 69 ] I accept Mr. Angeltvedt’s evidence on this issue and conclude that the parties agreed he would receive an annual base salary of $85,000 (inclusive of vacation pay) and an additional five percent of $85,000 as being equivalent to the company’s contribution to a pension. The post-it note and deletion on

Schedule “B” support that an adjustment was to be made. Accepting Mr. Angeltvedt’s undisputed testimony as I do, that

Schedule “B” was changed after he signed it. There is no evidence to establish that the base compensation was later increased or that there was a “new deal. Similarly, there is no evidence to refute Mr. Angeltvedt’s undisputed testimony that he expected to receive an adjustment to top up his base compensation. [ 70 ] In the result, Mr. Angeltvedt is entitled to $3,718.75 (five percent of $74,374.97). 7. Goods and services tax (“GST”) [ 71 ] Mr. Angeltvedt invoiced Flint for GST throughout the duration of the relationship. It was paid. Mr.

Angeltvedt is no longer a GST registrant, but his evidence is that, nevertheless, he will have to account for GST on the damages. In essence, his argument is that without payment for this potential liability, the damages will not put him in the position he ought to have been in but for Flint's repudiation of the Consulting Agreement. Flint's view is that awarding GST would result in Mr. Angeltvedt receiving a windfall. [ 72 ] The question of whether GST is payable on damages (pursuant to s. 182 of the Excise Tax Act , R.S.C. 1985 c.

E-15) is dependant on whether the party receiving the damage award is a "registrant" and whether the services compensated for were "taxable services" ( Klemke Mining Corp. v. Shell Canada Ltd. , 2007 ABQB 427 at para 11 ; see also the detailed discussion in Alberta Newspapers Group Inc. v. AVI Communications , 2004 ABPC 71 at paras 70-83 ). [ 73 ] As in the present case, Klemke Mining Corp. concerned damages for breach of a consulting agreement, recovery of GST was not pleaded, there was no definitive evidence that the plaintiff was a GST "registrant," and there was an allegation of windfall.

Smith J.’s view was that failure to plead for the recovery of GST until after the decision had been rendered was not a fatal flaw, and that the nature

of the services involved in that case and the evidence supported an adjustment for GST (at paras. 12-19). [ 74 ] In Northland Fleet Services Ltd. v. Quintette Operating Corp. , 2001 BCSC 866 , 16 B.L.R. (3d) 58 , the plaintiff was a GST registrant and invoiced the defendant for GST during the contract period, but it was not established that he would be liable for GST on the damages awarded at trial.

The court's solution was to permit an amendment to the statement of claim and to invite affidavit evidence and submissions to address the issue. [ 75 ] In the present case, the question of GST was not raised until the trial. Flint did not oppose the claim on the grounds of prejudice. Rather, it opposed it on a substantive basis. In this circumstance, it is appropriate to allow an amendment to the Statement of Claim to seek recovery of GST. However, I reserve my decision on Mr.

Angeltvedt’s entitlement to GST for 60 days to afford the parties an opportunity to consult with Canada Revenue Agency concerning the impact of Mr. Angeltvedt’s lapsed “registrant”status. The parties may submit affidavit evidence and any written submissions to address this concern within 45 days. C. Mitigation 1. Requirement to mitigate [ 76 ] Flint contends that Mr. Angeltvedt had a duty to mitigate, that he had the opportunity to mitigate, and that he failed to do so. It led no evidence to show that appropriate jobs or contracts actually were available to him at the time.

Rather, it says that he could have done more than he did to search for work. What he did do was take a month long vacation, helped with his family's elk farm, honed his computer skills and, in the spring of 2004, engaged in negotiations to invest in a business of which he ultimately became the President. Flint strenuously urges that Mr. Angeltvedt's first and best step towards mitigation would have been to perform the Manual Review, since there was no hostility between him and Flint personnel and the job was available to him.

Flint submits that his next best alternative would have been to drive truck, work for a former client in a capacity that would not be precluded by the Non-Competition Agreement or to work as a plumber or as a rod person. [ 77 ] Mr. Angeltvedt's argues that where a repudiated contract arises in the context of a larger commercial transaction, the aggrieved party is not obliged to mitigate and, even if it is otherwise, the Non-Competition Agreement precluded his finding a suitable alternative position. [ 78 ] The following principles concerning mitigation were identified in Viper Concrete 2000 Inc. v.

Agon Developments Ltd. , 2009 ABQB 91 at paras 73-75 , 470 A.R. 341 and Costello v. Calgary (City) (1997), 1997 ABCA 281 (CanLII) , 209 A.R. 1 at paras. 69-73 (C.A.) : 1. The burden of proof rests with the defendant to show that the plaintiff failed to mitigate his damages. The court will not allow the defendant, in discharging that onus, to be overly critical of the plaintiff. Having committed a wrong, the defendant should not be heard to point out his victim's shortcomings in avoiding resulting losses. The benefit of doubt generally will be given to the plaintiff. 2.

The duty to mitigate does not invariably require action to be taken immediately on breach. As all that the plaintiff must do is act reasonably in the circumstances, considerable delay may be permitted in some cases. 3. In determining the reasonableness of mitigation efforts, the court will not impose an exacting standard but rather a practical perspective in line with business realities. Stated otherwise, a defendant is not entitled to have the aggrieved party act perfectly. 4.

The plaintiff need not incur great expense or inconvenience in an attempt to stem the flow of losses resulting from the defendant's breach. Nor need the plaintiff incur an unreasonable risk, or embark on a speculative venture in an attempt to mitigate his losses.

5. The court considers the individual facts of each case in determining whether mitigation efforts are reasonable. 2. Relief from mitigation [ 79 ] In Eady v. Treklogic Technologies Inc. , 2009 ONCA 710 , the Ontario Court of Appeal held (at para. 7) that there was no duty to mitigate in a scenario similar to this one. There, the consulting agreement was part of a package deal whereby the consultant sold his shares in a company he had developed, receiving in return the consulting agreement, shares and warrants in the company.

The consulting agreement provided for termination without cause on the payment of 12 months of compensation in lieu of notice. The trial judge found that since the parties had agreed to a minimum entitlement in the case of the relationship breaking down (absent resignation or dismissal with cause), it was implicit the agreement was not subject to mitigation ( David Eady v. Treklogic Technologies Inc . , 2008 CanLII 19785 (ON SC) , [2008] O.J. No. 1693 at para.133 (S.C.J.) (QL)). [ 80 ] Similarly, in Mills v. Alberta (1986), 1986 ABCA 162 (CanLII) , 46 Alta.

L.R. (2d) 157 (C.A.) , the Alberta Court of Appeal ruled that there was no duty on a constructively dismissed employee to mitigate where there was an agreed on severance provision. [ 81 ] There is no agreed on termination provision in the present case. Accordingly, neither Eady nor Mills are helpful. [ 82 ] An innocent party may be relieved from mitigating when he has "a substantial and legitimate interest in seeking performance as opposed to damages” ( Costello at para. 65 ), but clearly that does not apply here. [ 83 ] Mr.

Angeltvedt is not relieved from the duty to mitigate or, better stated, to have acted reasonably in all the circumstances. 3.

Reasonableness of actions [ 84 ] The Non-Competition Agreement reads as follows: 2.1 From the Closing Date (as defined in the Purchase Agreement noted above) until the end of the third year following the Closing Date (the Non-Competition Period), the Vendor shall not individually or collectively, directly or indirectly, jointly or individually, unless acting for the Purchaser, own, manage, operate, finance, join, control, or participate in the ownership, management, operation, financing or control of or be connected as an officer, director, employee, principal, agent, representative, consultant, investor (except in a publicly traded company), owner, partner, manager, joint venturer, or otherwise with, or permit his name to be used in connection with, any business or enterprise engaged in the Business currently performed by the Corporation, with the following exceptions: 2.1.1 The Vendor shall have the right to own or invest in any vehicle or equipment that are leased or otherwise used by the Purchaser or a company related to the Purchaser; 2.1.2 The Vendor shall have the right to invest in, loan money to or guarantee the obligations of Bozco Enterprises Ltd. and Angel Contracting. [ 85 ] An innocent party is not obliged to perform any job offered when his contract is breached.

He must act reasonably in all of the circumstances. He is under no obligation to accept a position or contract of a different character and of a lesser status (Henley v. Peeters Textile Mills Ltd. , [1979] O.J. No. 460 (H.C.J.) (QL) ). Mr. Angeltvedt was not obliged to turn back the clock 23 years and drive truck or work as a plumber again. He was required to act reasonably by seeking comparable work to that which he had performed for Flint and as a businessperson in the many years preceding Flint's acquisition of Angel Steam. [ 86 ] As to the reasonableness of Mr.

Angeltvedt's mitigation efforts generally, I am satisfied that he was first entitled to take a reasonable period of time to consider his options. Mr. Angeltvedt was not obliged to leave the Provost area nor was he required to change

career paths. The Non-Compensation Agreement limited his opportunities. He was not entitled to work in the only field that he had known for the past 23 years. Given his circumstance, he cannot be criticized for having spent time doing more work than he might otherwise have done for the family elk ranch and upgrading his computer skills. [ 87 ] Mr. Angeltvedt acted reasonably in seeking out a new and unrelated business venture in the Spring of 2004. The time it took to negotiate and close the transaction was not excessive.

Indeed, it took about the same time as the Angel Steam deal. [ 88 ] I reject the suggestion that Mr. Angeltvedt could have found work with his brothers’ land reclamation business. There is no evidence to show that his brothers had comparable or indeed any level of work available for him. [ 89 ] I also reject the notion that Mr. Angeltvedt was obliged to assume the Manual Review assignment as a means of mitigating his losses. [ 90 ] Bastarache J., writing for the majority in Evans v.

Teamsters Local Union No. 31 , 2008 SCC 20 , [2008] 1 S.C.R. 661 , discussed the duty of mitigation in the wrongful dismissal context, stating at para. 30: I do not mean to suggest with the above analysis that an employee should always be required to return to work for the dismissing employer and my qualification that this should only occur where there are no barriers to re-employment is significant. This Court has held that the employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found...

Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity.

In 1989, the Ontario Court of Appeal held that a reasonable person should be expected to do so "[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious"... the British Columbia Court of Appeal held that other relevant factors include the history and nature of the employment, whether or not the employee has commenced litigation, and whether the offer of re-employment was made while the employee was still working for the employer or only after he or she had already left (paras. 12-18).

In my view, the foregoing elements all underline the importance of a multi-factored and contextual analysis. The critical element is that an employee "not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation"..., and it is that factor which must be at the forefront of the inquiry into what is reasonable.

Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee's position would have accepted the employer's offer..., it is extremely important that the non-tangible elements of the situation - including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements - be included in the evaluation. [ 91 ] Given I have found Mr. Angeltvedt was an independent contractor rather than an employee, the same reasoning would not necessarily apply. Even if it did, although there was no apparent hostility between Mr.

Angeltvedt and Flint personnel, it would be unreasonable to have expected him to perform the Manual Review as a means of mitigating his losses. To find otherwise would legitimize Flint's wrongful actions. It would permit a wrongdoer to say to a person in Mr. Angeltvedt's shoes: “[d]o the exact work that I demanded in breach of our agreement or you will pay the price for refusing to do so.” The Manual Review involved a change in the nature and conditions of the work Mr. Angeltvedt had agreed to perform and may have entailed a loss of dignity.

That is not what the law intends by requiring the innocent party to act reasonably. [ 92 ] Mr. Angeltvedt acted reasonably in all of the circumstances. Accordingly, Flint has not established that he failed to mitigate his damages. V. Conclusion [ 93 ] Flint repudiated the Consulting Agreement and Mr. Angeltvedt is entitled to damages in the sum of $85,767.90, comprised as follows: (

a) Base compensation: $74,374.97

(

c) Benefits: $1,325.63 (

d) Retirement contribution:$3,718.75 [ 94 ] The adjustment, if any, for GST on the damages is reserved for 60 days and the parties may submit affidavit evidence and any written submissions to address this concern within 45 days. [ 95 ] If the parties cannot agree on costs and pre-judgment interest, they may speak to me within 90 days. Heard on the 1 st to 4th days of November, 2010. Dated at the City of Edmonton, Alberta this 26 th day of November, 2010. J.E. Topolniski J.C.Q.B.A. Appearances: Mr. Robert P. James and Ms. Lynn M. Agnotti Parlee McLaws for the Plaintiff Mr. Chris Fix for the Defendant