Chevalier v. Sunshine Village Corporation, 2011 ABQB 544

Court of Queen ’ s Bench of Alberta Citation: Chevalier v. Sunshine Village Corporation, 2011 ABQB 544 Date: 20110906 Docket: 1101 01193 Registry: Calgary Between: Chris Chevalier, Ben Chevalier, Rowan Harper and Christopher Conway Plaintiffs - and - Sunshine Village Corporation and Thomas Taylor Scurfield Defendants _______________________________________________________ Memorandum of Decision of K.R. Laycock, Master in Chambers _______________________________________________________ [ 1 ] The defendant Sunshine Village Corporation (Sunshine) operates a ski area outside the Town of Banff, Alberta.

The defendant Thomas Taylor Scurfield (Thomas) is the son of Ralph Scurfield, the President and Chief Executive Officer of Sunshine. [ 2 ] The plaintiffs are former employees of Sunshine whose employment was terminated on December 29, 2010. The plaintiffs are suing Sunshine for wrongful dismissal and have claimed against Thomas for inducing a breach of contract.

[3] It is alleged in the statement of claim that on December 17, 2010, Thomas was discovered skiing in a closed area withseveral friends by a ski patroller. Subsequently the plaintiff Christopher Conway (Conway) and another ski patroller arrived at the scene.The plaintiffs allege that the patrollers, following standard protocol, obtained identification from the out-of-bounds skiers and escortedthem to the ski patrol headquarters.

At the ski patrol headquarters Thomas had discussions with the plaintiff Chris Chevalier (Chevalier). [4] On December 29, 2010, the plaintiffs were summoned to attend separate meetings with various management personnel ofSunshine and were each terminated. Motion to Strike [5] Thomas applies for an order striking the plaintiff’s pleadings as they do not disclose a reasonable claim of inducing a breachof contract pursuant to rule 3.68(2)(b). The test set out by the Supreme Court of Canada for an application to strike pleadings is whetherit is plain and obvious that the claim cannot succeed: Hunt v.

Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959. [6] Assuming that the allegations contained in the statement of claim are true, do the pleadings disclose a cause of action againstTaylor? 369413 Alberta Ltd. v. Pocklington, 2000 ABCA 307 , 2000ABCA 307 at para. 13, the court states that in order tosucceed in an action for inducing a breach of contract, the plaintiffs must establish seven elements: a. The existence of a contract; b. Knowledge or awareness by the defendant of the contract; c. A breach of the contract by contracting parties; d. The defendant induced the breach; e.

The defendant, by his conduct, intended to cause the breach; f. The defendant acted without justification; and g. The plaintiff suffered damages. [7] Thomas argues that the plaintiffs failed to pleadings sufficient facts to satisfy conditions b, d, e, and f. I will review theplaintiff’s position with respect to these deficiencies. Knowledge or Awareness of the Contract [8] It is argued that Thomas did not have knowledge or awareness of the plaintiffs employment contracts. Counsel argues itmust be alleged in the statement of claim that Taylor knew the material terms of the plaintiffs’ contract.

In Ed Miller Sales & Rentals v.Caterpillar Tractor Co. 1996 CarswellAlta 661 (Alta C.A.) the court concluded at paragraph 47 that the defendants knowledge that theplaintiff merely has some contract or other does not suffice. I note that this decision deals with the evidence required to succeed at trialand does not deal with pleading deficiencies. [9] The plaintiffs argue that it is sufficient that Taylor had knowledge of the existence of an employment contract.

They arguethat the knowledge need not be of the precise or specific terms of the contract but only that their acts would probably interfere with theperformance of the plaintiff’s contract: Ed Miller Sales & Rental Ltd. v. Caterpillar Tractor Co., (1996), 1996 ABCA 275 , 41Alta. L.R. (3d) 217 at para 48. For pleading purposes it is enough that the statement of claim allege that Taylor knew that the plaintiffswere employees of Sunshine Village Corporation.

The Defendant Induced the Breach [10] There must be a causal connection between Taylor’s actions and the termination of the plaintiffs’ employment. The defendantargues that there are insufficient facts contained in the statement of claim to reasonably support the conclusion that this element can besatisfied. [11] The pleadings do not allege that Taylor induced Sunshine Village Corporation to terminate the plaintiffs employment. Theplaintiffs argue that it is sufficient if you read the pleadings broadly to be able to infer that fact into the pleadings. The plaintiffs referredto Guccione v.

Bell (1999), 1999 ABQB 219 , 239 A.R. 277, and Peterson v. Atlas Concrete Inc., 1998 ABCA 105, whichstates that the court should be generous in assessing the pleadings. It is not always necessary to plead specific words provided that theessence of the action is outlined. Reading the pleadings generously, I could only determine that the actions of Thomas, with respect toConway, could be interpreted as threats to his employment status.

There is nothing in the statement of claim that alleges Taylor didanything or said anything to induce Sunshine Village Corporation to improperly terminate the other plaintiffs’ employment. The Defendant, by His Conduct, Intended to Cause the Breach [12] The plaintiffs must establish that Thomas intended to bring about, induce or procure the breach of their employmentcontracts. It must be established that he acted with a desire to cause a breach of their employment contracts. Mere criticism of someone isnot sufficient: Ahmad v.

Athabasca Tribal Council Ltd. 2010 CarswellAlta 818 (Alta C.A.) at para 8. [13] The plaintiffs argue that intent to cause a breach of contract is established where the breach of contract is the result of willful,deliberate and direct conduct on the part of Taylor. They argue that intent may also be inferred where the consequences of such conductwas a necessary or reasonably foreseeable result of such conduct. They further argue that intention may also be established where thedefendant is reckless or willfully blind as to whether a breach of contract will occur: Indutech Canada Ltd. v.

Gibbs Pipe DistributionsLtd., 2011 ABQB 38 at para 442-444. [14] Reading the pleadings generously, it can be said that paragraph 34 of their statement of claim describes Taylor’s conduct andstatements to be intentional and done to sever the plaintiffs employment relationship. However the conduct that is described relates onlyto the plaintiff Conway. There is no similar statement or allegation with respect to the balance of the plaintiffs. The Defendant Acted without Justification [15] It is argued that the plaintiffs failed to plead any facts that would establish the absence of justification. In Johnson v.

BFICanada Inc. 2010 CarsewellMan 627 justification was held to constitute a proper defence. However unless this defence is raised it is notan issue at trial and would not be grounds to strike a statement of claim. Taylor has not yet defended so it is premature to considerjustification until it is raised as an issue by the pleadings. The Plaintiffs General Response [16] The plaintiffs respond that there are sufficient particulars contained in the statement of claim that identify an action forinducing a breach of contract.

In the alternative, they argue that they should be allowed an opportunity to amend their pleadings to betterdescribe the basis for their action of inducing a breach of contract. Conclusion [17] Paragraphs 27 to 35 deal with the plaintiffs’ action against Taylor for inducing a breach of contract. This portion of thestatement of claim describes the encounter between Taylor and the plaintiff Conway. The claim alleges that this encounter between thetwo parties led to the termination of all the plaintiffs’ employment.

Since three of the four plaintiffs were not present during theencounter, there is no connectivity between Taylor’s comments and the termination of three of the four plaintiffs.

[18] However pleading deficiencies do not necessarily result in an action being struck. An action may be struck if no amount of amendment could save the action. A pleading will not be struck if the flaws in it are capable of amendment: Hunt v T.& N (Carey Can.) (SCC), [1990] 2 S.C.R. 959. [19] Pursuant to rule 3.68 (2)(b), Taylor argues that the commencement document discloses no reasonable claim. Pursuant tosubsection 1, the court may order the claim be struck or the commencement document be amended.

The remedies that the parties areentitled to will be discussed later after considering the plaintiffs’ second argument. Frivolous Pleading [20] The defendant next applies to strike the statement of claim pursuant to rule 3.8 (2)(

c) on the basis that the commencingdocument is frivolous. A pleading that is frivolous is one that is indicative of bad faith or is hopeless factually: Haljan v. Serdahely Estate (2008), 2008 ABQB 472 , 93 Alta. L.R. (4th) 151; Estrin v. Law Society (Alberta) (1995), 1995 ABCA 429 , 35Alta L.R. (3d) 153; J.A. Industries (Canada) Ltd. v. Highfield Development Ltd., (1998), 1998 ABQB 817 , 67 Alta. L.R. (3d)349; Cardinal (Chief Alvin) v.

Calliou (Norman) et al., 1999 ABQB 98. [21] Firstly, Thomas does not argue that the lawsuit is motivated by bad faith. [22] Secondly, an action for inducing a breach of contract in the context of wrongful termination of employment is not, per se,hopeless. Such an action has been dealt with by Canadian courts in the past: see Drouillard v. Cogeco Cable Inc., 2007 ONCA 322; TreeSavers International Ltd. v. Savoy (AB CA), 1992 CarswellAlta 220, 84 Alta. L.R. (2d) 384, 39 C.C.E.L. 253, [1992] 2 W.W.R. 470, 87 D.L.R. (4th) 202, 40 C.P.R. (3d) 173, 120 A.R. 368, 8 W.A.C. 368; Ahmad v.

Athabaska Tribal Council Ltd.2008 CarswellAlta 1778, 2008 ABQB 699, [2009] A.W.L.D. 100, [2009] A.W.L.D. 134, [2009] A.W.L.D. 135, [2009] A.W.L.D. 51,459 A.R. 366. [23] The defendant instead argues that it is factually hopeless because the evidence produced by the plaintiffs on this applicationdoes not provide any facts to establish that Taylor introduced a breach of contract. The defendant argues that the evidence fails todiscloses that Taylor knew, or had even spoke to Harper and Ben Chevalier and therefore could not have formed an intention to induce abreach of their employment contracts.

Secondly, there is no evidence to prove that Taylor did, or said, anything that could be construedas inducing a breach of Chris Chevalier’s contract.

Thirdly, there is no evidence that Taylor did anything to induce management todismiss any of the plaintiffs. [24] The plaintiffs argue that the defendant has filed no evidence in support of this application and it is not incumbent on theplaintiffs to file any evidence to support the facts alleged in their pleadings. [25] I agree with the plaintiffs’ submission that it is not incumbent upon them to file affidavit evidence to support the allegationscontained in the statement of claim. The onus remains on the applicant to prove that the plaintiffs’ action is factually hopeless.

With noaffidavit evidence filed by the defendant, the defendant can only argue that the facts alleged in the statement of claim, if proven at trial,could not support their cause of action. In other words their claim is hopeless. But this is the same argument that was made abovepursuant to rule 3.68 (2)(

b) and therefore the remedy is the same. Conclusion [26] The pleading deficiencies in the statement of claim could result in the action being dismissed in relation to the claim ofChevalier, Chevalier and Harper. The plaintiffs ask leave to correct these deficiencies by making amendments to the statement of claim.The foundation rule 1.2(1) speaks of resolving claims fairly and justly in a timely and cost-effective way.

A timely and cost effectiveprocedure would have been for the plaintiffs to have filed a cross application for leave to amend its pleadings, so both the proposedamendments and the application to strike could be heard at the same time. Applying for leave to amend during an application to strike isthe least timely and cost-effective approach.

[27] A new application must be filed, supported by an affidavit and a draft of the proposed amended pleading. The defendantwould have a right to cross examine the deponent of the affidavit before the application could be heard. [28] Notwithstanding the plaintiffs’ belated request for an opportunity to amend the pleadings, the prejudice to the defendant maybe dealt with by a costs order. There would be substantially more prejudice to the plaintiffs in denying their request to amend. I will,therefore, allow an adjournment to amend.

The plaintiffs’ application must be filed and served within 30 days of the release of thisdecision and arrangements be made to have the matter heard by me as soon thereafter as possible. I would then consider the applicationfor amendment and its impact on this application. Misjoinder [29] Rule 3.70 states that:

(1) Two or more parties may join to bring an action, and a plaintiff or originating applicant may make a claim against 2 or more personsas defendants or respondents in an action, if (

a) the claim arises out of the same transaction or occurrence or series of transactions or occurrences, (

b) a question of law or fact common to the parties is likely to arise, or (

c) the Court permits. [30] The defendants argue that it is essential that the plaintiffs’claim must arise out of the same transaction, or series oftransactions, or questions of law or fact common to the parties. The defendants argue that the plaintiffs have join four separate causes ofaction into the within proceeding which results in a case of misjoinder. They argue that the plaintiff’s claims did not arise out of the sametransaction or occurrence or series of transactions or occurrences.

Furthermore, while there may be like set of facts in some of the claims,questions of law and fact common to all the parties do not arise. [31] In Risler v. Alberta Newspaper Ltd., (AB KB), 1919 CarswellAlta 92 the Alberta Supreme Court held that anumber of employees having distinct claims against the defendant for distinct work done by each of them as individuals, althoughcontemporaneously and at the same workshop, cannot be joined in one action to recover wages. [32] In Hale v. Cdn.

American Financial Corp. (Canada) Ltd., (AB KB), 1987 CarswellAlta 549, 86 A.R.244, [1987] A.W.L.D. 1671 Master Funduk granted an application to strike the statement of claim of three plaintiffs who had joined theirclaims based on their employers misrepresentations. At page 3 of the decision, Master Funduk stated: It is clear that the Plaintiffs are not alleging one contract of employment between themselves, on the one hand, and one or more of theDefendants on the other hand.

If there are contracts of employment they are unconnected contracts of employment. [33] The defendants argue that each of the plaintiffs had a separate and distinct employment contract and they were terminated inseparate termination meetings attended by different members of Sunshine management. They further argue that the reasons stated fortermination were different. Accordingly there are no common issues of fact or law between the plaintiff’s claims.

[34] Furthermore, they argue that some claims are less complex than others and could be dealt with more quickly. Thedetermination of whether each plaintiff’s termination was for just cause will involve the examination of facts unique to each plaintiff.The calculation of damages for each party will be different. The only common fact is that each was terminated on the same day. [35] The defendants argue that an order striking one or more of the claims based on misjoinder or a direction that the claims betried separately meets the goals of the foundation rule 1.2 (2)(

b) and (c). Such an order would facilitate the quickest means of resolving aclaim at the least expense or would encourage the parties to resolve the claim themselves, by agreement, with or without assistance, asearly in the process as practicable. [36] The plaintiffs respond that where the common question of law or fact bear sufficient importance in proportion to the rest ofthe claim, and the expense and delay caused by compelling the plaintiffs to bring separate actions is out of proportion to theinconvenience and expense caused the defendant if the claims were heard together, the claim should be joined.

The plaintiffs refer toEdmonton (City) v. Dominion Stores Ltd., (1960), (AB CA), 23 D.L.R. (2d) 677 and Encana Corporation v. DevonCanada Corporation, 2008 ABQB 232. Conclusion [37] I agree with the defendants that there would be a misjoinder if the plaintiffs’ action was for wrongful termination againstSunshine Village Corporation. The plaintiffs each had separate employment contracts and were terminated by different members of theSunshine management committee. The reasoning in the Hale decision would apply. [38] However, the action includes a claim against Taylor for inducing a breach of contract.

The plaintiffs allege, or are attemptingto allege, that the reason for their termination was the intervention of Taylor and his influence upon his father which resulted in their lossof employment. There would be a common question of fact in relation to such a claim. The legal issue would be the same. The problemfor the plaintiffs is that the pleadings in their current form do not allege what their counsel argues they allege.

As previously noted, thepleadings do not connect Taylor’s action or comments with the termination of the plaintiffs Chevalier, Chevalier and Harper. [39] The defendants would be successful with their application for misjoinder based on the present pleadings.

However, I havegiven the plaintiffs an opportunity to amend their pleadings and the amended pleadings may affect the results of this application.Regrettably, I am unable to grant any order until after the application for amendment has been heard. [40] In anticipation of the plaintiffs filing the necessary application to amend their pleadings, no further order will be made at thistime. Counsel must appear before me to

schedule further hearings. Heard on the 04th day of July, 2011. Dated at the City of Calgary, Alberta this 6th day of September, 2011.

K.R. Laycock M.C.C.Q.B.A. Appearances: L. Frank Molnar Field LLP for the Defendants Andrew R. Robertson MacLeod Dixon LLP for the Plaintiffs