Cardinal v. Sucker Creek First Nation, 2012 ABQB 490

Court of Queen ’ s Bench of Alberta Citation: Cardinal v. Sucker Creek First Nation, 2012 ABQB 490 Date: 20120730 Docket: 1003 18582 Registry: Edmonton Between: Sheldon Cardinal Plaintiff - and - Sucker Creek First Nation Defendant _______________________________________________________ Memorandum of Decision of W.S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This lawsuit is about Sheldon Cardinal ’ s unhappy employment relationship with Sucker Creek First Nation. He is seeking

summary judgment for wrongful dismissal. [ 2 ] Mr. Cardinal obtained his law degree from UBC after undergraduate studies in Political Science and Commerce. He went on to obtain an LLM from the University of Saskatchewan.

[3] Mr. Cardinal was employed by the Assembly of First Nations as a Senior Policy Analyst until he was persuaded to leavethat job and become Program Manager for the Sucker Creek Band. He began in the summer of 2007. [4] Most of the first year seems to have passed without incident, but in July 2008, four counsellors attempted to remove himfrom office.

Two of the counsellors had themselves removed from counsel at the time, though they were subsequently restored after asuccessful application for Judicial Review. [5] In October of 2008 they tried to fire him again, effective the preceding July, pursuant to the earlier invalid motion. [6] There followed a number of attempts to change locks, stop paying salary and to advise his staff that he had been removedfrom office. Despite all of this, his employment continued. The main effect seems to have been on Mr. Cardinal’s mental health.

Hisemployment circumstances ultimately obliged him to take stress leave. [7] In June 2009 he sued four counsellors for having purported to fire him. This prompted the (then) financial manager to firehim for suing the counsellors. This termination appears to have been without authority as well. [8] Mr. Cardinal was not paid for a period of time leading up to June 2009. He was fired for the last time on June 15. [9] Mr. Cardinal wants

summary judgment. The Defendant pleads the Limitations Act and cause. The Defendant says, in thealternative, that it gave Mr. Cardinal proper notice and, in the further alternative, that Mr. Cardinal failed to mitigate. There is acounterclaim. [10] If the facts are reasonably clear, there is no reason that

summary judgment should not be available in a wrongful dismissalaction. Given the time and cost involved in proceeding to trial, the relative imbalance of employee and employer, and the vulnerability ofa jobless employee, there is an incentive for

summary determination, Espey v. Chapters Inc. (1998) (AB KB), 225A.R. 68 per Fruman, J (as she then was). [11] However, I regret that I am not able to grant

Summary Judgment in this case. [12] There is conflicting evidence about cause. I am unable to say on the evidence before me that it is plain and obvious orbeyond doubt that the Defendant has no arguable case with respect to dismissal for cause. The Plaintiff argues that much of theDefendant’s evidence on this point is hearsay. However, hearsay can be used to satisfy the evidentiary burden that shifts to a respondentto demonstrate that they have an arguable case or defence.

It is not subject to Rule 13.18. [13] Constructive dismissal is also a live issue on these somewhat unique facts. [14] The liquidated damages claimed in this case also seem to create an obstacle. Madam Justice Fruman in the Chapter’s caseobserved: “A master has no jurisdiction to determine unliquidated damages. Master Funduk said as much in Smith v. Crain, [1990] A.J. No. 309.He even volunteered his serious doubt that a judge would grant

summary judgment for an unliquidated claim; an interesting comment byMaster Funduk, but by no means persuasive.” [15] The governing case on this point is S.B.I. Management v. 109014 Holdings Alta, 1981 ABCA 235 , [1981] 5W.W.R. 714 at 737 (C.A.). With respect, that case tells us that it is weighing of evidence, not the nature of the damages that creates the

impediment. Though the damages claimed in a wrongful dismissal action are technically unliquidated damages, the calculation may well amount to no more than a mechanical application of essentially liquidated pay amounts to an appropriate number of months notice. Determination of reasonable notice is a question of fact which may not truly be in issue. In this sense, it could be no different than the determination of damages for breach of a lease as in the S.B.I. Management case.

In an appropriate case, a Master could perform the exercise of applying ‘ settled law ’ to undisputed facts, even though the damages are unliquidated. [ 16 ] Unfortunately, this case is not so straightforward and I would be doing Mr. Cardinal a disservice by attempting to make findings that would be vulnerable on Appeal. [ 17 ] The Plaintiff ’ s application is dismissed with costs in the cause. [ 18 ] This is an appropriate case for a Litigation Plan keep things moving along. Heard on the 27 th day of June, 2012. Dated at Edmonton, Alberta this 27 th day of July, 2012. W.S. Schlosser M.C.C.Q.B.A.

Appearances: Priscilla Kennedy for the Plaintiff James A. Duke, QC for the Defendant