Bonsma v. Tesco Corporation, 2012 ABQB 413

Court of Queen ’ s Bench of Alberta Citation: Bonsma v. Tesco Corporation, 2012 ABQB 413 Date: 20120625 Docket: 0503 13423 Registry: Edmonton Between: Clarence Bonsma Plaintiff - and - Tesco Corporation Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling Sanderman _______________________________________________________ [ 1 ] Tesco Corporation (Tesco) is an Alberta corporation operating from the city of Calgary. It manufactures sophisticated oilfield equipment.

It sells and rents this equipment to drilling companies in Canada and around the world. Top drive drilling apparatus constitutes a significant portion of Tesco ’ s business. When Tesco rents this type of equipment to drilling companies, a top drive supervisor is provided with the equipment to maintain it and to ensure that it performs trouble-free on the job. [ 2 ] The top drive supervisor accompanies the equipment to the drilling site. He rigs up the equipment.

He trains drillers in the use of this sophisticated apparatus and he remains with it to service it and to address and solve any problems that might arise during its operation.

[ 3 ] Tesco has a sales division and a rental division. During the time relevant to this lawsuit, approximately 40 men were employed by the rental division to perform the tasks of a top drive supervisor in relation to leased equipment. [ 4 ] The top drive equipment manufactured and leased by Tesco took two forms. It was either electric or hydraulic. Some of the top drive supervisors were familiar with and comfortably operated both types. Others preferred to work with one type of equipment. On occasion, top drive supervisors would be required to engage in operating casing running equipment and push-pull equipment.

Not all of the top drive supervisors employed by Tesco possessed these skill sets. [ 5 ] Clarence Bonsma was hired by Tesco on August 25, 2000 as a top drive supervisor. Before his employment with Tesco, Mr. Bonsma had close to two decades of service in the oil patch. He had experience domestically and overseas on land rigs. He had considerable experience working offshore on drill ships and drilling platforms. His experience, credentials and references convinced Tesco that he would be a good worker. An employment contract was signed between Mr.

Bonsma and Tesco on August 25, 2000 that set his field day rate at $350.00 and his shop rate at $20.00/hour. He began his career with Tesco at that time. [ 6 ] Mr. Bonsma was a valued employee. His immediate supervisor for his years of employment, Mr. Brad Bullick, testified that Mr. Bonsma consistently got good performance reviews from the time of his hiring to the time he left Tesco ’ s employment. Annual reviews in 2001, 2002, and 2003 resulted in pay increases for Mr. Bonsma. His job performance was rated highly. He had good knowledge of Tesco ’ s products.

He was an excellent troubleshooter who was meticulous in his approach to the tasks assigned to him. [ 7 ] Not only did Mr. Bullick give this evidence, but a number of colleagues were called by Mr. Bonsma at the trial that confirmed his value as an employee. Tesco recognized this value by increasing Mr. Bonsma ’ s daily rate from $350.00 to $525.00 between the time of his hiring and the fall of 2003. [ 8 ] In 2004, Mr. Bonsma was employed as a top drive supervisor at the daily rate of $525.00. From the beginning of January until July 29 of that year, he worked 111 days and made slightly in excess of $67,000.00.

He finished a project in southern Alberta on July 29, 2004. After the drilling rig was taken down, Mr. Bonsma stopped in Tesco ’ s Calgary office on his way home to Edmonton to deliver paperwork in relation to the completed task. He let his immediate supervisor know that he was available for another assignment. [ 9 ] From July 29, 2004 until November 18, 2004, Mr. Bonsma worked four days. He worked in the Tesco shop in Calgary from September 7, 2004 to September 10, 2004. During this time, he received training in order to requalify for oilfield tickets. On November 18, 2004, Mr.

Bonsma quit his employment with Tesco. He was clearly frustrated with the lack of work assigned to him. His frustration was revealed by the notation he wrote on his calendar at home. The notation clearly indicated that he quit his job. [ 10 ] Mr. Bonsma asserts that he was constructively dismissed. He claims that the lack of work assigned to him when he was prepared to work, forced him to quit. He claims that Tesco followed a deliberate course of action in not assigning work to him that was available.

He contends that the course of action chosen by Tesco was punitive in nature and was directed toward him because he successfully advanced an Employment Standards complaint against Tesco with the provincial government. For this alleged deliberate action, Mr. Bonsma claims damages. [ 11 ] Tesco ’ s position is a complete denial of the suggestion made by Mr. Bonsma. Tesco takes the position that Mr. Bonsma has oversimplified the reason he received no work assignments. Tesco asserts that the lack of work during this period of time was indicative of the vagaries of the drilling industry in Canada.

Tesco takes the position that there were a number of reasons why Mr. Bonsma received no work assignments during this period. The overarching reason is that this is a slow period for the drilling industry in Canada. In addition to this, certain jobs that may have been made available to Mr. Bonsma could not be offered to him because he had indicated in the past that he was not prepared to accept them or he was not wanted by the supervisors in certain geographical areas. For some he lacked the required training. Tesco further asserts that Mr.

Bonsma turned down work that was offered to him or failed to respond in a timely fashion to accept other assignments. [ 12 ] Tesco ’ s position is that in applying the criteria that governed the assignment of personnel to ongoing drilling operations, better choices could be made than assigning Mr. Bonsma to the work. Tesco vehemently denies that the lack of work for Mr. Bonsma was motivated by a spirit of vindictiveness. Tesco maintains that the lack of work offered to Mr. Bonsma can be explained in a fashion that refutes his suggestion and asks that his claim be dismissed.

[ 13 ] The issues raised by Mr. Bonsma ’ s Statement of Claim and joined by the Statement of Defence can be summarized in the following fashion: (

a) Was Mr. Bonsma constructively dismissed by Tesco? (

b) If so, what damages arise from such an action, if any? (

c) Has Mr. Bonsma mitigated his damages in an appropriate fashion? [ 14 ] Central to Mr. Bonsma ’ s lawsuit is the complaint he made to the provincial government in relation to employment practices of Tesco. Mr. Bonsma claims that the complaint and subsequent investigation that supported his position caused Tesco to react in a fashion that was detrimental to his welfare. He claims that a conscious decision was made by his employer to deny him the ability to work and that Tesco followed a course of action designed to force him to leave his employment. [ 15 ] Mr.

Bonsma initiated his complaint on January 8, 2004 when he sent a letter to the payroll department of Tesco questioning Tesco ’ s underpayment of employees for working on statutory holidays. He attempted to resolve this issue internally with Tesco ’ s Administration. The response he received was not satisfactory. Consequently, Mr. Bonsma launched a formal complaint with Alberta Human Resources and Employment on March 8, 2004. He alleged that Tesco was in violation of the Employment Standards Code in place in the province of Alberta. Mr. Bonsma was relentless in his approach.

As he indicated at this trial, his personality and makeup cause him to embrace challenges of this sort with a passion. Mr. Bonsma was extremely active in communicating with the Employment Standards officer assigned to investigate this matter. He provided him with information. It took a considerable period of time before this matter was resolved. [ 16 ] There is no doubt that Mr. Bonsma ’ s attitude toward his employer was shaped by this complaint and the length of time it took to resolve it. The complaint was received by Alberta Human Resources and Employment on March 10, 2004.

It was not resolved to the satisfaction of Mr. Bonsma until October 28, 2004. At that time, he signed a release indicating that the matter had been successfully concluded and that he had received all of his entitlements in relation to pay for working statutory holidays. [ 17 ] The process was prolonged because Mr. Bonsma ’ s calculations were different from the calculations of his employer. The employer also denied any responsibility for paying holiday pay. Tesco took the position that certain exemptions should apply to an oilfield company.

When Tesco realized its position was untenable, Tesco settled the matter with Mr. Bonsma. In excess of nine months passed from the time that Mr. Bonsma launched his inquiry with his employer until he signed the release in late October of 2004. [ 18 ] Mr. Bonsma was vindicated in the position he took. His complaint was valid and the position taken by his employer was not sustainable. Mr. Bonsma ’ s complaint was successful in every aspect. Tesco was forced to reevaluate its position and to change its procedures in relation to the payment of holiday pay and to pay Mr.

Bonsma a lump sum for the holiday pay he was owed. There was no need for Mr. Bonsma to relitigate this matter as he continuously attempted to do at this trial. [ 19 ] From Mr. Bonsma ’ s perspective, this was a fairly simple matter that should have been resolved without difficulty. The result of this dispute was to sour the relationship between Mr. Bonsma and his employer, at least from his perspective. He became suspicious about anything his employer said. He became suspicious about information provided to him by representatives of his employer at the administrative level.

He began to believe that he was being singled out for harsh treatment by Tesco for this complaint. In fact, he asked his immediate supervisor, Mr. Bullick, whether he was being “ blackballed ” by Tesco for launching this complaint. Tesco consistently denies engaging in retaliatory behaviour. [ 20 ] A number of witnesses testified at this trial. The Plaintiff and the Defendant called individuals who are still employed by Tesco or were former employees of Tesco who had some knowledge of what took place during the calendar year 2004. Mr.

Bonsma called a number of top drive supervisors who had employment similar to him who testified about their relationship with Tesco and what they expected from the contract of employment they had with Tesco. It was the same standard contract that Mr. Bonsma signed. Mr.

Bonsma and Tesco called present and former office personnel and former and present managers of Tesco who gave evidence in relationto how work was assigned and by whom. All of these individuals were able to refer to documents that had come into existence because ofMr. Bonsma’s employment relationship with Tesco. They also referred to documents that were prepared for the litigation from recordskept by Tesco.

The documents that were prepared for litigation indicated the type of assignments other top drive supervisors receivedduring the calendar year 2004 and for other years. [21] The cumulative affect of all of this evidence was to provide the court with insight into the type of work Tesco did and howpeople were assigned to drilling sites in order to fulfil Tesco’s obligations to those companies leasing Tesco’s equipment.

The nature ofthe work and the factors that determined when work was available were canvassed extensively. [22] All of the witnesses who testified at this trial were honest individuals who were attempting to reconstruct the past asaccurately as they could. The reliability of some of the evidence could not be discounted because the witnesses were not credible, but itwas affected to some degree by the compromised memories of many of these individuals. The passage of time dims one’s recollectionand without notes or records made contemporaneously with the event to refresh recollections, memories can remain foggy.

Every witnesswho testified in this trial attempted to the best of their ability to recall with precision events that took place almost eight years ago.Greater confidence can be placed on the recollection of those who have the ability to refresh their memories from records that confirmwhat they recall. [23] In essence, this is a lawsuit advanced without any direct evidence of alleged wrongdoing that supports Mr. Bonsma’scontention. He could call no witness to offer any direct evidence of a causal connection between his Employment Standards complaintand the lack of work assigned to him.

He was unable to provide any admissions made by any members of the management team of Tescoor utterances from them that would support his suggestion. No threats, direct or implied, were made to him by anyone in a position toassign work to him. [24] His is a circumstantial case. He basically asserts the following position. I was a good worker whose services should havebeen valued by my employer. Others, with similar or lesser abilities worked. I did not. The reason must be retaliatory behaviour on thepart of Tesco as a result of the Employment Standards complaint I launched.

There is no other logical conclusion that can be reachedafter a review of the evidence. That is the position advanced by Mr. Bonsma that he asks the court to accept. This is his claim and he hasthe onus to prove it on a balance of probabilities. He has called the witnesses mentioned above to support his theory. [25] This theory is met with a stern denial by Tesco. [26] In Farber v. Royal Trust Co. (SCC), [1997] 1 S.C.R. 846, Gonthier J. dealt with the concept of constructivedismissal.

Speaking for the court, he stated at paragraphs 24 and 25 the following: 24 Where an employer decides unilaterally to make substantial changes to the essential terms of an employee's contract of employmentand the employee does not agree to the changes and leaves his or her job, the employee has not resigned, but has been dismissed. Sincethe employer has not formally dismissed the employee, this is referred to as "constructive dismissal".

By unilaterally seeking to makesubstantial changes to the essential terms of the employment contract, the employer is ceasing to meet its obligations and is thereforeterminating the contract. The employee can then treat the contract as resiliated for breach and can leave. In such circumstances, theemployee is entitled to compensation in lieu of notice and, where appropriate, damages. 25 On the other hand, an employer can make any changes to an employee's position that are allowed by the contract, inter alia as part ofthe employer's managerial authority.

Such changes to the employee's position will not be changes to the employment contract, but ratherapplications thereof. The extent of the employer's discretion to make changes will depend on what the parties agreed when they enteredinto the contract. [27] This statement of the law remains unchanged. Continuing at paragraphs 26 and 27, Gonthier J. set out the type of analysisthat must be employed by trial judges.

He stated: 26 To reach the conclusion that an employee has been constructively dismissed, the court must therefore determine whether theunilateral changes imposed by the employer substantially altered the essential terms of the employee's contract of employment. For thispurpose, the judge must ask whether, at the time the offer was made, a reasonable person in the same situation as the employee would

have felt that the essential terms of the employment contract were being substantially changed. The fact that the employee may have been prepared to accept some of the changes is not conclusive, because there might be other reasons for the employee's willingness to accept less than what he or she was entitled to have. 27 Moreover, for the employment contract to be resiliated, it is not necessary for the employer to have intended to force the employee to leave his or her employment or to have been acting in bad faith when making substantial changes to the contract's essential terms.

However, if the employer was acting in bad faith, this would have an impact on the damages awarded to the employee. It goes without saying that each case must be decided on its unique factual circumstances. [ 28 ] In order to decide whether there has been a constructive dismissal of an employee, the terms of the original employment contract between the parties must be ascertained. The court must then determine whether the actions of the employer during the course of employment are sufficient to constitute a repudiation of the fundamental terms of the contract.

In this case, an employment agreement was reached on August 25, 2000 when Mr. Bonsma accepted employment with Tesco. The terms found in that employment agreement are straightforward. In addition to this, Mr. Bonsma has given evidence in relation to his perception of the employment agreement and it has been supported by the evidence of many coworkers and by individuals employed in management positions with Tesco. [ 29 ] Mr. Bonsma ’ s employment agreement covered two types of work. When he worked in the field as a top drive supervisor, he would be paid a daily rate.

When the equipment he was responsible for was being used by a drilling company, Mr. Bonsma received the day rate. Because of his good work record and performance in the field, his daily rate increased considerably over the first three years of his employment. [ 30 ] When he was not in the field supervising the use of the top drive equipment, he might be assigned to do work in Tesco ’ s shop. If this was the case, he would receive an hourly rate. This rate was paid by Tesco for functions performed in the shop.

The cost of the daily rate was passed on to the drilling company employing Tesco ’ s equipment. [ 31 ] If Mr. Bonsma was not working in the field or in the shop, he would not be paid. The benefits he received as an employee of Tesco remained in effect during these periods. All of these were implied terms of his employment contract. All of the top drive supervisors who worked for Tesco from 2000 to 2004 accepted this arrangement. [ 32 ] Work was not available all the time.

Field work was only available if customers of Tesco leased their equipment or purchased it and required top drive supervisors to rig up the equipment, train the drilling company ’ s staff and to supervise its continued use. The availability of work in the field for top drive supervisors was customer-driven. If Tesco ’ s sophisticated equipment was not leased, then top drive supervisors did not work. [ 33 ] There was no guarantee on the part of Tesco to any top drive supervisor to provide any minimum amount of work in the field.

The nature of the drilling business, domestically and internationally, determined the amount of work that could be distributed to the approximate 40 top drive supervisors employed by Tesco. All of these implied terms were accepted by Tesco ’ s employees. [ 34 ] The nature of the drilling business was cyclical and was dependent upon the needs of Tesco ’ s customers. Mr. Bonsma and his colleagues accepted the work assignments that came their way.

It appears as if most top drive supervisors appreciated some of the slower times and were able to pursue individual interests when they were not required to perform field work. Most top drive supervisors did not book regular vacation, but used the time in which they were not assigned field work to travel, hunt, fish or pursue other business endeavours. [ 35 ] Tesco ’ s employees expected fair treatment from Tesco. Tesco retained the right to assign work to its top drive supervisors and did so on the basis of a fairly consistent criteria. Mr.

Bonsma and his colleagues were at liberty to refuse any assignments that were offered to them for whatever reason. Evidence was given by a number of individuals that a refusal would not result in a negative repercussion. Still, there was an expectation that Tesco would treat its employees in a fair fashion. It is against this backdrop of the employment agreement that the evidence of Mr. Bonsma, his witnesses and the witnesses called by Tesco must be analysed.

[ 36 ] What does the evidence of Mr. Bonsma establish standing by itself without comparing it to Mr. Bullick ’ s reasons for assigning work to various top drive supervisors in the summer and fall of 2004? [ 37 ] Mr. Bonsma worked consistently from the beginning of the month of January until July 29, 2004. His last assignment was in the southern part of the province. When he personally delivered documentation in relation to this assignment at the Calgary office on July 29 th , he was offered work in the Czech Republic.

That was an international assignment that would have required him to travel to the Czech Republic. Although offered this work, Mr. Bonsma declined. He did so because he felt uncomfortable accepting the assignment. The evidence led at this trial establishes that Mr. Bonsma was a very meticulous worker. He was safety conscious and he was known to pay particular attention to small details. He worked out of the rental division of Tesco. Equipment that was leased by oil companies was supervised by Mr.

Bonsma onsite. [ 38 ] The equipment that was going to the Czech Republic had been sold by Tesco to a drilling company operating there. Tesco wanted Mr. Bonsma to travel to the Czech Republic to rig up this equipment and to instruct the purchaser ’ s staff in the operation of it. This was an electric top drive apparatus. Mr. Bonsma worked with hydraulic top drives. Because the equipment was not leased and he lacked familiarity with it, he refused this assignment unless he could be accompanied by a trades person who could overcome his perceived deficiencies.

If he had accepted it, he would have been employed in the Czech Republic for a number of weeks during the fall of 2004. [ 39 ] Mr. Bonsma was not offered any work in the month of August other than this assignment. The next time he worked was in the shop in Calgary for four days during the month of September. He was asked to come there to upgrade his proficiency in certain areas so he could maintain certification to continue to work for his employer. No other work was offered to him. [ 40 ] Mr. Bonsma claims that no work was offered to him during the month of October.

Because of a freak storm that occurred in Edmonton during the summer of 2004, Mr. Bonsma was required to do some repairs in relation to the foundation of his home. He developed a certain proficiency in this regard. He started his own company, Mr. Can-Do Handyman, that was designed to make repairs to residences in his neighbourhood damaged by the storm. This was a relatively successful venture for Mr. Bonsma. As Tesco was not offering him any work, he requested three weeks of vacation starting on October 25, 2004. He was to be off until November 14, 2004.

During this period he did repairs for neighbours in his subdivision. This generated an income. [ 41 ] Mr. Bonsma returned from his vacation on November 14, 2004. Work was not available for him. He felt he was being punished for his complaint. He quit his job four days later because of the lack of work. [ 42 ] Mr. Bonsma ’ s position can be summarized in the following fashion. His evidence establishes that he received no meaningful work from Tesco after he completed the assignment in southern Alberta on July 29, 2004.

Except for four days of training in the shop in Calgary in September, he received no remuneration from Tesco for work assigned to him and performed by him. He continued to receive the benefits any Tesco employee received. He concedes that he was offered an assignment in Europe in the Czech Republic that he declined because he felt uncomfortable in performing the tasks that would have been required of him if he accepted this work. This particular assignment was assumed by other top drive supervisors who spent a number of weeks in the Czech Republic during the fall of 2004. [ 43 ] After Mr.

Bonsma declined this assignment, he was not assigned to work as a top drive supervisor until he quit his job on November 18, 2004. Three weeks of this time included a scheduled three-week vacation in which he performed work for the business he started that year. [ 44 ] Mr. Bonsma asserts that his employer made no meaningful attempts to find work for him after he declined to go to the Czech Republic. He claims that he was treated unfairly by his employer. He claims he was treated differently than many other top drive supervisors who received work assignments during the August to November period.

They worked; he did not. He claims that his lack of work can be attributed to the Employment Standards complaint that he began earlier in 2004. He claims that his employer embarked on a course of retribution for this complaint and by failing to provide him with work fundamentally changed the employment contract that existed between them. He claims to have been constructively dismissed. [ 45 ] Mr. Bonsma concedes that there were limitations to the type of work that could be assigned to him. Although, by all

accounts, he was a diligent and conscientious employee who was meticulous in his approach to tasks assigned to him, he could not operate all of Tesco ’ s equipment. This was a limitation resulting from his lack of expertise. [ 46 ] Mr. Bonsma readily conceded that he would not work certain jobs that were assigned to him because of concerns he had about the attitude of the customer leasing Tesco ’ s equipment. Because of difficulties he had experienced with certain customers in the past, Mr. Bonsma made it abundantly clear that he preferred not to work for them.

He felt that the approach taken by this customer put employees at risk. [ 47 ] Mr. Bonsma further conceded that there were certain areas he could not be assigned overseas. While working in the middle east, Mr. Bonsma had difficulties with a defective flow meter that created problems for the drilling operation. Although his approach in dealing with this emergency was exemplary and this was acknowledged by Tesco, the immediate supervisor in that geographical area took a narrow-minded view and refused to accept Mr. Bonsma for assignment in this region. [ 48 ] Even though Mr.

Bonsma concedes that there were some limitations to where he could be assigned, he insists that his employer made little accommodation for him within the overall assignment regime. He insists that this was a conscious decision to punish him. [ 49 ] Mr. Bonsma called a number of top drive supervisors who confirmed the nature of employment they had. These were individuals who performed similar functions for Tesco. They described the working arrangement that they collectively had with Tesco. They agreed that the type of work they did was cyclical. It was weather dependent in Canada and in other regions of the world.

Because of this factor, they were not guaranteed a minimum amount of work for any given year. It varied from year to year depending upon the activity of drilling companies and the need for Tesco equipment. [ 50 ] The employment contract called for top drive supervisors to go to work when they were assigned to do so. They would be assigned to jobs of varying lengths. The length of the job was determined by the type of drilling operation.

They would be relieved from time to time by other top driver supervisors. [ 51 ] Because of the cyclical nature of the work, most top drive supervisors did not book scheduled vacations. They took their vacations during those periods in which they were not assigned to a drilling location. During the periods in which they were not working, they continued to be employees and received all of the benefits that that position guaranteed. [ 52 ] Most of the top drive supervisors liked and accepted this relationship. It allowed them to engage in numerous and varied activities when not working.

Some pursued other business interests, some farmed and others engaged in recreational activities that brought them pleasure. [ 53 ] When working, these men were assigned to work sites for considerable periods of time during which they worked long hours. They worked hard and enjoyed the times they were not assigned to a field position. [ 54 ] Brad Bullick gave evidence on behalf of Tesco in relation to the job opportunities available to Mr. Bonsma during the fall of 2004. During that year, Mr. Bullick was the Canadian Operations Manager for Tesco and assigned personnel to fulfil Tesco ’ s obligations to customers.

He was Mr. Bonsma ’ s supervisor throughout his entire employment. He confirmed that he was never concerned about Mr. Bonsma ’ s ability to perform any task assigned to him. From his perspective, he was an exemplary worker who approached his tasks with a fine attention to detail. [ 55 ] Mr. Bullick testified extensively about the work that was available for top drive supervisors during the fall of 2004. It was his responsibility to ensure that the equipment that Tesco leased to drilling companies was operated and maintained by individuals capable of doing so.

He testified comprehensively about the criteria that he applied before assigning individuals to certain tasks. There were five broad categories that he looked at before sending a top drive supervisor to a drilling location. In the first instance, the individual had to be ready, willing and able to accept the assignment. Sometimes, men were required on short notice and had to be able to go to the job site and stay there for the required time or until relief could be arranged.

[ 56 ] Secondly, the skill set possessed by the employee had to match what was required by the customer. Thirdly, the employee had to have the requisite experience to perform any tasks that might be expected of him when he arrived at the drilling location. Fourthly, geography played a role in certain assignments. If an employee lived closer to the drilling location, he would be given preference over another individual who had a similar skill set and experience.

Tesco looked to cut costs in the assignment of individuals if this could be done. [ 57 ] The last factor that had to be considered before assigning someone was whether the client requested a certain individual. In this industry, the establishment of a previous relationship between a drilling company and a top drive supervisor often guaranteed future assignments of that individual to a certain customer. If a drilling company requested a certain individual to be assigned to the job site, Mr. Bullick would attempt to honour this request. In this industry, this type of request was common.

A prior positive working relationship carried considerable weight. Mr. Bullick felt it was a good business practice to honour a customer ’ s request. [ 58 ] These were the five general areas that were considered by Mr. Bullick when he assigned individuals to the field. As Mr. Bonsma conceded, there were certain types of equipment that he would not have been well suited to operate. For example, he preferred to work hydraulic top drive equipment as opposed to electric top drive equipment. It was known to Mr. Bullick that Mr.

Bonsma would not accept assignments to work in the Wabasca area because of concerns he had about practices of an individual customer. [ 59 ] The assignment of top drive supervisors to job sites in the fall of 2004 by Mr. Bullick became more difficult because he had an abundance of workers to place. In 2004 Tesco closed its Algerian operation. It was no longer economically feasible to continue it. Those who had been working in this area returned to Canada and work had to be found for them. The winter of 2004-2005 promised to be busy.

Work would have been available in abundance once the winter drilling season began in full force in the Fort St. John area, the Rainbow Lake area and the Wabasca area. Mr. Bonsma would not work in Wabasca but would have been assigned to work in these other regions according to Mr. Bullick. In fact, when Mr. Bonsma called Mr. Bullick on a number of occasions in September and October of 2004, he was told by Mr. Bullick that although there was no work presently available, the winter drilling season looked very promising. He reassured Mr. Bonsma that work would be forthcoming. Mr.

Bonsma ’ s evidence is supportive of these conversations. [ 60 ] In fact, Mr. Bullick testified that work was offered to Mr. Bonsma during the fall of 2004. He was called at his residence and offered an assignment for work. Mr. Bonsma could not be reached but a message was left for him to contact Mr. Bullick about an assignment. According to Mr. Bullick, these assignments required a quick response as somebody had to travel to the drilling site immediately. When Mr. Bonsma did not return the call asking him to accept the assignment within 24 hours, the work was offered to another top drive supervisor. Mr.

Bullick testified that he offered work to Mr. Bonsma on two separate occasions and that he did not receive the quick response required in order to insure that Mr. Bonsma was assigned. [ 61 ] Mr. Bullick refuted Mr. Bonsma ’ s assertion that he was being punished by his employer for filing the Employment Standards complaint. Mr. Bullick vehemently denied that he took this into consideration in making any of the work assignments between the beginning of the month of August and the latter part of the month of November in 2004. Mr. Bullick stated there were a number of reasons why Mr.

Bonsma did not work during this period. Mr. Bullick testified that there was not that much work available for top drive supervisors during this period. Work had been offered to Mr. Bonsma that he refused. He did not respond to other offers of work. Other opportunities for employment were not well suited for assignment to Mr. Bonsma after Mr. Bullick applied the general criteria for work placement. In addition to this, Mr. Bullick had a glut of top drive supervisors available for employment after the Algerian operation was terminated. [ 62 ] Mr.

Bullick attempted to spread the work between as many individuals as he possibly could during this period. He testified that he could have covered the domestic top drive work available to Tesco employees with four or five individuals. He divided the work available between eleven or twelve individuals. Many of these individuals were assigned to tasks because the customer requested them because of a prior relationship. Mr. Bullick was firm in his position that Mr. Bonsma was never requested by a particular drilling company during the time that he assigned Mr. Bonsma ’ s work over a number of years. [ 63 ] Mr.

Bullick testified that he was aware in a general fashion that Mr. Bonsma had lodged a complaint about Tesco ’ s practices in relation to paying holiday pay. He did not deal with this complaint in any fashion. He knew of it because of talk about it around the office. This was a matter to be dealt with by Tesco ’ s Payroll Department, Human Resources Department and Legal Department. Individuals working in those departments dealt with the investigator who was charged with the responsibility of processing Mr. Bonsma ’ s complaint.

[ 64 ] Mr. Bullick denied that the complaint had any affect upon the assignments of work offered to Mr. Bonsma in 2004. Mr. Bullick took many factors into account in deciding who was to be assigned to certain tasks. According to him, Mr. Bonsma ’ s complaint had no role to play in any decision he made in relation to offering assignments to any Tesco employees. [ 65 ] Mr. Bullick suggested that the period of inactivity for Mr. Bonsma between August and November of 2004 was not as unique as Mr. Bonsma claimed. Mr. Bullick pointed to Mr.

Bonsma ’ s own records in relation to his employment in other years and to Tesco ’ s records in relation to the employment of other top drive supervisors during the calendar year 2004 in coming to this conclusion. [ 66 ] Mr. Bonsma kept records of where he worked on calendars in his home. He wrote where he was working, on what piece of equipment and where it was located. These calendars were entered as an exhibit at this trial by agreement. By examining them, one can see the patterns of work in existence in the three years previous to 2004. [ 67 ] In each of those years, Mr.

Bonsma experienced significant periods of not being assigned to work each fall. It appears as if he either preferred to not work in August or work was not available. In any event, he never complained about this inactivity. Mr. Bonsma had rental property in Edmonton, Alberta that he leased to students and he used this time in order to insure that his tenants were in the property and understood the rules. [ 68 ] An examination of his calendars revealed that in the fall of 2003, Mr. Bonsma experienced a 55-day period in which there was no employment other than two one-day assignments.

One of these assignments was in the month of August and the other in the month of September. [ 69 ] In the fall of 2002, Mr. Bonsma had an 87-day period in which there was no work assigned to him other than a 5-day course in relation to electric top drives. [ 70 ] In 2001, there was a period of 47 consecutive days without any work being assigned to Mr. Bonsma. During these years which included significant periods without work being assigned to him, Mr. Bonsma did not claim that there had been a substantial alteration to any fundamental term of the employment agreement. [ 71 ] Mr.

Bonsma was not the only top drive supervisor that experienced long periods without work being assigned to him. Tesco employed approximately 40 field personnel that were active during the calendar year 2004. They accepted field assignments from Tesco. A significant number of them had breaks between work assignments of at least 50 days during this calendar year. Many of these periods of inactivity occurred during the fall. Many were of similar duration to Mr. Bonsma ’ s. The pattern of work being assigned to these individuals is indicative of the nature of the drilling business.

It could not be predicted with certainty that equipment would be leased and which top drive technician from the pool would be assigned to it. This degree of uncertainty was further complicated by other factors beyond Tesco ’ s control. [ 72 ] A review of Tesco ’ s Canadian Business Unit Man Schedule, which was entered as an exhibit, reveals that Manny daSilva had an 81-day break from assigned employment from June 25 to September 18, 2004. Dan Milmine was off for 53 days from October 16 to December 7, 2004. Robin Porter had a 103-day break from August 7 to November 17, 2004.

Troy Romane had a 66-day break from September 7 to November 11, 2004. Others had significant breaks ranging from 51 to 96 days of interrupted employment earlier in the same year. Certain individuals took much longer breaks. They did so by design in order to pursue other interests. Their situations were unique and are not properly compared to Mr. Bonsma ’ s schedule. The records clearly indicate that many individuals had comparable periods to Mr. Bonsma when they were not assigned work. [ 73 ] From July 29 to November 18, Mr. Bonsma had 88 days of unassigned work.

He had a four-day period in which he received training in Calgary and he took three weeks of arranged vacation. This 88 days without work has to be viewed against the backdrop of Mr. Bonsma ’ s usual inactivity in the month of August. If one takes that into account, the 88 days without work that he complains about is reduced considerably. I accept the evidence of Mr. Bullick that two assignments, in addition to the Czech Republic job, were offered to Mr. Bonsma. He received a phone call in the month of September and another phone call during the month of October that offered him work.

These assignments were given to other individuals because Mr. Bonsma did not return the call quickly enough for Mr. Bullick to make a quick decision. Circumstances warranted assigning someone in an expeditious manner. One of these assignments went to Manny daSilva who had not worked for 81 days from June 25 to September 18, 2004. He was a second

choice after Mr. Bonsma. Acceptance of these assignments within the time requested would have assured Mr. Bonsma of a number of weeks of work. [ 74 ] It seems incongruous that Tesco would bring Mr. Bonsma to Calgary in September to have him maintain his certification at Tesco ’ s expense if Tesco was not interested in continuing to employ him as a top drive supervisor. It seems incongruous that Tesco would offer him a significant work assignment in the Czech Republic in August of 2004 if Tesco was not interested in continuing to employ him as a top drive supervisor.

It seems incongruous that Tesco would attempt to assign Mr. Bonsma to work in September and October of 2004, albeit unsuccessfully, if Tesco was not interested in continuing to employ him as a top drive supervisor. All of these efforts were made to assign Mr. Bonsma to work sites while his Employment Standards complaint was still outstanding. It was not finally settled until October of 2004. [ 75 ] An examination of the evidence presented by Mr. Bonsma and by Tesco at this trial leads to the inescapable conclusion that it does not differ significantly. Many of the witnesses called by Mr.

Bonsma confirmed the relation that existed between the employer and the top drive supervisors. The evidence only differs in the conclusion reached by Mr. Bonsma and by Tesco. Mr. Bonsma concludes that Tesco was punishing him for initiating an Employment Standards complaint. In coming to this conclusion, he ignores any of the legitimate and logical explanations for his inactivity. His position is conclusory without any supporting evidentiary background. As indicated earlier, he is unable to present any direct evidence to support his contention.

His case is a very shaky circumstantial case that fails to meet the standard of proof required to be successful. There is no doubt that Mr. Bonsma fervently believes in his case. Unfortunately, he is unable to present any evidence to the Court that is convincing. He has not been able to establish a causal connection between his Employment Standards complaint and his lack of work assignments. [ 76 ] Passionately believing in something does not make it so. During the course of this trial, while testifying and while cross- examining witnesses, it became obvious that Mr.

Bonsma has compulsively and obsessively pursued this law suit. The fervour with which he advances his “ just ” cause is remarkable. He wears his heart on his sleeve and was emotional in the extreme when he presented his case. Even he conceded at times that his passion may have been misdirected. He acknowledged that his personality would not let it go away. [ 77 ] Misdirected passion can cause one to lose the ability to view matters objectively and adopt beliefs that support wishes and hopes unreasonably held. Wishing does not make it so. That is what has happened to Mr. Bonsma.

There is no evidentiary basis to support his case. [ 78 ] I accept the evidence of Mr. Bullick in relation to how and why he assigned individuals to tasks during the period of August to November in 2004. His evidence is supported by Tesco ’ s records, in part by Mr. Bonsma ’ s records, by many of the witnesses called by Mr. Bonsma to advance his case and by other witnesses who were employed by Tesco in its Calgary office in the fall of 2004. The cumulative effect of all of these witnesses confirms the evidence given by Mr. Bullick in relation to the inactivity of Mr.

Bonsma. [ 79 ] The evidence led by Tesco establishes that the Defendant did not engage in any pattern of retribution against Mr. Bonsma for his Employment Standards complaint. The vagaries of this industry and the circumstances in existence in the fall of 2004 compelled Mr. Bullick to assign work in a certain fashion. These assignments were made within the terms of the employment contract. Tesco did not fundamentally and unilaterally alter the terms and conditions of Mr. Bonsma ’ s employment. There is no evidentiary basis to conclude that Mr. Bonsma was constructively dismissed by Tesco. Mr.

Bonsma ’ s claim is dismissed. [ 80 ] Assuming that I am wrong in relation to this conclusion, it is necessary for me to assess the damages that Mr. Bonsma would be entitled to if he had been successful. His claim calls for: (

a) General damages in the sum of $100,000.00; (

b) Aggravated damages in the sum of $50,000.00; (

c) Punitive damages in the sum of $50,000.00;

(

d) Special damages in the sum of $10,000.00; and (

e) Judgment interest and costs. [81] In Machtinger v. H.O.J. Industries, (SCC), [1992] 1 SCR 986, Justice Iacobucci reviewed the history ofthe common law principle that a contract for employment for an indefinite period is terminable only if reasonable notice is given. Heconcluded: In Canada, it has been established since at least 1936 that employment contracts for an indefinite period require the employer, absentexpress contractual language to the contrary, to give reasonable notice of an intention to terminate the contract if the dismissal is withoutcause: Carter v.

Bell & Sons (Canada) Ltd., (ON CA), [1936] O.R. 290 (C.A.). [82] Justice Iacobucci gave guidance in relation to what constitutes reasonable notice. He continued: What constitutes reasonable notice will vary with the circumstances of any particular case. The most frequently cited enumeration offactors relevant to the assessment of reasonable notice is from the judgment of McRuer C.J.H.C. in Bardal, supra, at p. 145: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases.

The reasonableness of the notice mustbe decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant,the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of theservant. [83] In Wallace v. United Grain Growers Ltd., (SCC), [1997] 3 SCR 701, Justice Iacobucci writing for themajority held that the factors listed in Bardal is not an exhaustive list.

Any factor that has relevance in determining the period ofreasonable notice should be considered. [84] The factors that have to be considered in this case are not extensive. Mr. Bonsma was employed by Tesco for four-and-a-quarter years. He held a responsible position with Tesco and was a valued employee. At the time that he left Tesco’s employment he was46 years of age. At the time of the trial he was 54 years of age. When he left Tesco’s employment, Mr. Bullick offered him a continuedassociation with Tesco as an independent contractor.

He would have continued to do the same type of work with Tesco and would havebeen paid a daily rate higher than that of an employee. This higher daily rate was designed to compensate the independent contractor forthe additional costs of carrying benefits that normally would have been provided by Tesco. [85] Two of the witnesses called by Mr. Bonsma at this trial left Tesco’s employment to become independent contractors. Theygave evidence that they continued to work significant days for Tesco although the nature of their employment changed.

Somewhatcontradictory evidence was given in relation to how independent contractors were assigned work by Tesco. One witness felt they weregiven preferential treatment while another believed that employees were extended greater consideration. [86] Considering the factors that are applicable to this case, I determine that the appropriate reasonable notice that would have tobe given to Mr. Bonsma would be eight months.

Any damages for failure to give the reasonable notice should be based on a projected2004 income of approximately $100,000.00 plus $800.00 representing Tesco’s cost to maintain a benefit package for Mr. Bonsma. Mr.Bonsma is entitled to $67,200.00 based upon an eight-month reasonable notice period and a monthly salary and benefit package of$8,400.00. [87] Mr. Bonsma has a claim for aggravated and punitive damages. This concept was dealt with by the Supreme Court of Canadain Keays v. Honda Canada, 2008 SCC 39 , [2008] 2 SCR 362.

Justice Bastarache writing for the majority stated at para. 68: Another important thing to be considered is that conduct meriting punitive damages awards must be “harsh, vindictive, reprehensible and

Another important thing to be considered is that conduct meriting punitive damages awards must be “harsh, vindictive, reprehensible andmalicious”, as well as “extreme in its nature and such that by any reasonable standard it is deserving of full condemnation andpunishment” (Vorvis, at p. 1108). The facts of this case demonstrate no such conduct.

Creating a disability program such as the oneunder review in this case cannot be equated with a malicious intent to discriminate against persons with a particular affliction. [88] He continued at para. 69: This stems from the important principle that courts, when allocating punitive damages, must focus on the defendant’s misconduct, not onthe plaintiff’s loss (Whiten, at para. 73). In this case, the same conduct underlays the awards of damages for conduct in dismissal andpunitive damages.

The lower courts erred by not questioning whether the allocation of punitive damages was necessary for the purposesof denunciation, deterrence and retribution, once the damages for conduct in dismissal were awarded. [89] Mr. Bonsma has not been able to lead any evidence that would begin to approach this high threshold. Aggravated andpunitive damages could not be considered in this case. [90] Mr. Bonsma offered no evidence at trial which supports his claim for special damages. Therefore, a finding in his favourwould result in a judgment of $67,200.00 and the applicable judgment interest. [91] Mr.

Bonsma clearly had a duty to mitigate his damages. It is necessary to examine what type of employment he sought orobtained after he quit his position with Tesco. The onus of proof in relation to this aspect of a constructive dismissal case is borne by theDefendant. Tesco is required to show on a balance of probabilities that Mr. Bonsma failed to find work when it could have been found.(see Red Deer College v. Michaels, (SCC), [1976] 2 SCR 324.) [92] After leaving Tesco, Mr. Bonsma continued to operate his small business, Mr. Can-Do Handyman. After 2004, this businessproduced very little income for Mr. Bonsma.

He withdrew funds from his RRSP’s in order to generate funds. In 2006, the handymanbusiness earned a net income of slightly under $1,000.00. After performing repairs for his neighbours, the demand for his servicesseemed to diminish. [93] More importantly, it appears as if Mr. Bonsma became fixated with advancing his claim against Tesco. It became the focalpoint of his life. He testified that he could not accept the type of employment he pursued for 25 years before leaving Tesco because hehad to take steps to advance his litigation. Mr. Bonsma was represented by counsel from March of 2005 until July of 2008.

From thatpoint, he represented himself. [94] It appears as if Mr. Bonsma’s fascination with the litigation dictated that he would not attempt to find employment that wascommensurate with his abilities. [95] Mr. Bonsma was a highly competent and skilled oilfield worker. The resume he presented to Tesco in order to obtainemployment in the fall of 2000 confirms this. His four years of employment with Tesco only enhanced his skills. He would have been anattractive employee to any employer if he had sought work. He declined to do so. [96] In Mifsud v.

MacMillan Bathurst Inc., (ON CA), 63 DLR (4th) 714 the Ontario Court of Appeal stated atpara 28: There is no doubt that the duty of the Plaintiff to take steps to mitigate his damages applies in all wrongful dismissal cases. The questionis simply whether or not the steps taken by the Plaintiff were reasonable. [97] In this case, Mr. Bonsma has taken no steps to mitigate his damages beyond the handyman work he performed in 2004 and2005. This type of self employment may constitute an appropriate duty to mitigate. In this case, I can make that finding but it covers thelimited period of time until the end of 2005.

Since then, Mr. Bonsma has refused to mitigate his damages. He has not sought any

employment in an industry where he was highly qualified to work. The reason offered by him does not absolve him from the dutyimposed by the law. [98] He certainly is not required to take a substantially lesser position in order to fulfil this duty, nor is he required to take ademeaning position (see Evans v. Teamsters Local Union No. 31, 2008 SCC 20 , [2008] 1 SCR 661). The case law supportsthe notion that in individual cases, the facts may ameliorate the need to mitigate damages. In this case, no valid reason for the failure todo so has been offered by Mr.

Bonsma. [99] The failure to mitigate his damages is compounded by the fact that Tesco offered to maintain a relationship with Mr. Bonsmaas an independent contractor. He did not want to accept this relationship. He rejected it without hesitation. Two former top drivesupervisors testified that they accepted this changed status and did not notice an appreciable difference in their incomes. They continuedto receive work assignments from Tesco on a regular basis. Although they lost the employee benefits, their daily rate was increased whenthey became independent contractors. Mr.

Bonsma refused to explore such a possibility. He chose to pursue his lawsuit rather than seekany type of work that he was well qualified to perform. [100] I am satisfied that Tesco has established that Mr. Bonsma could have and should have taken some steps to mitigate hisfinancial loss. With his experience and abilities he should have been employable in the oil patch. He could have explored the possibilityof continuing to work with Tesco as an independent contractor.

Normally, I would reduce the notice to be required to be paid by Tesco asa result of this failure to mitigate, but in this case the self-employment arranged by Mr. Bonsma satisfies his duty to mitigate for theeight-month period that I have determined is the appropriate reasonable notice in this case. [101] In

summary, I have found: 1. Mr. Bonsma was not constructively dismissed. He quit his job. 2. If he had been constructively dismissed, the reasonable notice period would be eight months. 3. The pursuit of endeavours by Mr. Bonsma through his small business Can-Do Handyman is sufficient to mitigate his damages. [102] Costs may be spoken to by arranging to do so within 60 days of the release of this decision. Heard on the 16th to the 20th days of April, 2012 inclusive, the 23rd to the 26th days of April, 2012 inclusive, the 30th day of April, 2012 and the 1st to the 3rd days of May, 2012 inclusive. Dated at the City of Edmonton, Alberta this 25th day of June, 2012. Sterling Sanderman J.C.Q.B.A.

Appearances: Clarence Bonsma on his own behalf David Corry, Q.C. Ethan Sinclair Gowling Lafleur Henderson LLP for the Defendant