Thompson v Cardel Homes Limited Partnership, 2013 ABQB 353

Court of Queen ’ s Bench of Alberta Citation: Thompson v Cardel Homes Limited Partnership, 2013 ABQB 353 Date: 20130702 Docket: 1101 16525 Registry: Calgary Between: Geoffrey Thompson Plaintiff - and - Cardel Homes Limited Partnership and Cardel Construction Ltd. Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice K.D. Nixon _______________________________________________________ I. Introduction [ 1 ] This matter came before the court on April 4, 2013 as a

summary trial pursuant to Rule 7.5 of the Alberta Rules of Court . The evidence was by way of the Affidavit of Geoffrey Thompson (“Thompson”), the Plaintiff, sworn December 29, 2011 and the Affidavit of Ryan Ockey (“Ockey”), the President and CEO of the Defendants, sworn February 13, 2013. [ 2 ] Thompson was employed full-time as Regional President of Cardel Homes Limited Partnership (“Cardel”) pursuant to a written fixed term contract entered into in September 2010 between himself and Cardel.

The issue in this case is whether Cardel terminated Thompson’s employment during the term of his employment contract or whether Cardel simply gave Thompson advance notice that his employment contract would not be renewed. The parties agree that if Thompson was terminated he is entitled to the 12 month base salary severance payment provided for in the September 2010 employment contract. If he was not terminated, he is not entitled to any further payments.

II. Facts [ 3 ] Thompson was first employed as Regional President, Calgary with Cardel in September 2008 pursuant to a two year written contract. The parties entered into a new written agreement in September 2010. The initial contract provided as follows with respect to termination: Termination of Employment ... (

c) The Employer may terminate the Executive’s employment at any time without just cause by paying out the remaining salary owing to the end of the contract term, plus one year’s salary, earned but unpaid shares and profit shares, as well as any outstanding vacation pay, paid as a lump sum payment.

This severance is also payable if this agreement is not renewed after its initial two (2) years term. [ 4 ] Under the initial contract, failure to renew or termination without cause required the employer to pay a year’s salary. [ 5 ] The agreement entered into in September 2010 (“the September 2010 Agreement”) was for a term of 13 months from September 22, 2010 to October 22, 2011 and re-appointed Thompson to the full time position of Regional President, Calgary. [ 6 ] Under the September 2010 Agreement, Thompson’s compensation had two components: firstly, a fixed yearly salary in the amount of $285,000 and, secondly, participation in a profit sharing plan.

The September 2010 Agreement no longer provided for payment of one year’s salary in the event of non-renewal but did provide for such severance in the event of termination by the employer without cause. The September 2010 Agreement provides as follows with respect to termination: Termination Your employment pursuant to this Agreement may be terminated as follows: ...

(3) By Cardel in its absolute discretion for any reason other than cause, at any time by providing you with written notice to that effect, which notice shall provide for a termination date which is effective as of the date of the said notice, and without further obligation to you other than those obligations of Cardel set out in clause (4) below. [ 7 ] Clause 4 provides as follows:

(4) Where your employment under this Agreement has been terminated by Cardel under clause (3), you agree and acknowledge that you shall be entitled to receive from Cardel, in addition to outstanding entitlements to unpaid Yearly Salary and outstanding vacation pay to the effective date of termination, as well as any pro-rated share of profit sharing that you are entitled to (see Profit Sharing

section of the contract), your entitlements under the Alberta Employment Standards Code (“ESC”) for notice and or compensation in lieu of notice. Your entitlements under the ESC will be based strictly on the calculation of your “Yearly Salary” and will not include any further remuneration or quantification for benefits.

Additionally, you shall be entitled to receive a lump sum payment the (“Severance Payment”), of twelve (12) months base salary earnings. The “Severance Payment” will be calculated based on your “Yearly Salary” exclusively, and will not include any other remuneration or quantification for benefits. The total statutory notice and “Severance Payment” payable under this paragraph shall not exceed 12 months of “Yearly Salary” at the date notice of termination is provided. [ 8 ] On September 21, 2011, Ockey meet with Thompson and provided him with a letter as follows: Dear Mr.

Thompson: As set out in your Offer of Continued Employment dated September 7, 2010 (the “Agreement”), your employment as per the Agreement is set to expire on October 22, 2011. We regret to advise you that Cardel Homes Limited Partnership (“Cardel”) will not be entering into a new Agreement with you at that time. In addition, as of today’s date, we will not require you to attend work for the remainder of the term of the Agreement. You will be paid your regular earned salary, plus vacation accrued and not taken, less statutory deductions, until October 22, 2011.

In addition, you will receive your full profit share earned, if at all, up to October 22, 2011. Please immediately return all Cardel effects in your possession including your card key, building keys and computer password. Please advise as to a mutually convenient time for you to gather your personal effects. Your insurance benefits will terminate upon the cessation of the term of the Agreement, again being October 22, 2011. You may have the right to convert some of those benefits; further details in that regard are available by contacting Chris Morris of Morris Financial Ltd. at (403) 279-7372.

Please be advised that Cardel holds you in a fiduciary capacity concerning all confidential information obtained by you during your employment with Cardel. I thank you for your contribution to Cardel Custom Homes and we wish you well. Sincerely, Cardel Homes Limited Partnership. Per: ______________________ Ryan Ockey President & CEO [ 9 ] Ockey advised Thompson that effective immediately Thompson no longer had any responsibilities at Cardel; Ockey would assume all of his duties.

Thompson was asked to clean out his office and advised that his service with Cardel ended at the end of that day and that his contract would not be renewed. Thompson inquired of Ockey whether he would honour the terms of their agreement and Ockey confirmed that he would do so. [ 10 ] Cardel withdrew Thompson’s access to email, retained his personal computer, and immediately advised others outside the company that Thompson was no longer with Cardel. Thompson left Cardel’s premises as requested and has performed no further services

for Cardel since that date. [ 11 ] Prior to September 21, 2011, Cardel had provided no notice of any intention to terminate Thompson’s services. Although there were no discussions between the parties about extending or renewing Thompson’s contract before the September 21, 2011 meeting, Thompson nonetheless had expected to continue his employment with Cardel beyond October 2011. [ 12 ] Cardel continued to pay Thompson his wages, provide his benefits and continued his profit sharing to October 22, 2011.

Cardel did not pay Thompson the contracted for severance payment of one year’s salary, taking the position that it did not terminate Thompson’s employment but merely gave him notice that it was not renewing his contract of employment. [ 13 ] Ockey stated that Cardel sought, by not requiring Thompson to continue to physically attend work, to assist Thompson in his transition to new employment. The alterative, Ockey stated, would have been simply to let the contract expire and not forewarn Thompson at all.

Ockey stated that such approach was determined to be callous, insensitive and not the preferred business practice of Cardel. III. Positions of the Parties [ 14 ] Thompson takes the position that the parties, by providing for termination in the employment contract contemplated the possibility that the September 2010 Agreement might be terminated before its expiry and provided for damages.

He submits that Cardel’s actions of relieving him of his duties on September 21, 2011 constituted termination of his employment. [ 15 ] Thompson asserts that there was a fundamental breach of an implied term of the September 2010 Agreement that Cardel would not make a substantial change to his duties and status. Cardel’s actions, he asserts, constituted repudiation of an essential obligation imposed by the September 2010 Agreement resulting in constructive dismissal. [ 16 ] Cardel submits that it did not terminate Thompson.

It did not completely sever its relationship with Thompson, as he continued to receive his regular pay, his profit sharing and his benefits until the expiry date of the contract on October 22, 2011. Nor, Cardel argues, was it under an obligation to provide work. Cardel takes the position that it did Thompson a favour by giving him a month’s notice that there would be no contract renewal, relieving him of his duties and giving him time to prepare for his next phase of employment. [ 17 ] Further, Cardel submits that the September 2010 Agreement requires that notice of termination must be in writing.

The only written notice received by Thompson was the September 21, 2011 letter which does not state that Thompson is being terminated. [ 18 ] Cardel agrees that if this court finds that Thompson was terminated, he is entitled to one year’s base salary. IV. The Law

A) Repudiation in the General Contract Context [ 19 ] The general principle of repudiation (also referred to as anticipatory breach) has limited application in the employment context as, unlike an innocent party to a breach of contract who has a choice to continue the contract or to accept the repudiation and treat the contract as terminated, an employee is rarely given a choice to accept or reject a repudiation. [ 20 ] To constitute repudiation, the breach must deprive the injured party of a substantial part of the benefit to which he is entitled under the contract: G.H.L.

Fridman, The Law of Contracts in Canada , 5th ed. (Toronto: Thomson Carswell, 2006) at 608. It must be a breach that goes “to the root of the contract”; the conduct must be of a serious nature vis-a-vis the contents, obligations, and purpose of

the contract: Fridman, supra, at 607-608. [21] A repudiation does not terminate the contract unless the innocent party accepts the repudiation and is prepared to treat thecontract as ended. The innocent party, in effect, has an election whether or not to treat the contract as continuing or as ended once theoffending party has committed

an act that can be viewed as repudiatory: Fridman, supra, at 615. [22] Geoffrey England, Roderick Wood & Innis Christie in Employment Law in Canada, 4th ed, looseleaf (consulted on 23 April2013), (Markham, ON: Lexis Nexis Canada, 2005) vol 2 at 15-3 effectively summarize the options and consequences flowing fromrepudiation: In the general theory of contract, when one party repudiates a contract by explicitly manifesting an intention no longer to be bound; byfailing to perform what is, expressly or impliedly, a major obligation or set of obligations under the contract; or by failing to performwhat appears at the outset to be a minor obligation, but with consequences so serious that there is no point in the other party continuing,the other party has the option of accepting the repudiation and bringing the contract to an end or keeping the contract on foot.Repudiation by one party does not terminate the contract.

Termination requires repudiation by one party and acceptance of therepudiation by the other. England, Wood & Christie go on to explain that in practice this general analysis of repudiation does not apply in the employmentcontext.

B) Repudiation in the employment law context [23] Lambert JA in Philp v Expo 86 Corp (1987), (BC CA), 45 DLR (4th) 449 (BCCA) at p 459 summarizedthe challenge presented by the general law of repudiation in the employment context: If a contract of employment is repudiated by one party, the other party does not normally have the usual repudiation alternatives of eitheraccepting the repudiation and suing immediately for damages, or, alternatively, continuing to perform himself, waiting for performancefrom the other side, and, if it fails, suing then for damages for breach.

The reason is that under a contract of employment it is usually notpossible for the party who receives the repudiation to continue to perform his part of the contract if the repudiating party is notperforming his part. So, in effect, the repudiation becomes the breach. [24] Thus, in the employment context, repudiation of a contract is deemed to be a breach of contract.

C) The relationship between repudiation and dismissal/termination [25] Wrongful dismissal is an example of repudiation of an employment contract. “‘Wrongful dismissal’ is, I think, a mereillustration of the general legal rule that an action will lie for unjustifiable repudiation of a contract”: Re Rubel Bronze & Metal Companyv Vos., [1918] 1 KB 315 at p 320.

Another commonly cited quote from this case states: If the conduct of the employer amounts to a basic refusal to continue the servant on the agreed terms of the employment, then there is atonce a wrongful dismissal and a repudiation of the contract (at p 323). England, Wood & Christie write that dismissal is a manifestation to the employee by the employer that it no longer intends to abide bythe employment contract and that it will no longer accept performance on the part of the employee (at 15-1).

[26] The British Columbia Court of Appeal in Poole v Tomenson Saunders Whitehead (1987), (BC CA), 43DLR (4th) 56 at p 70 (BCCA) stated that “[d]ismissal of an employee is either justified or is wrongful. If it is wrongful the conduct isproperly characterized as a fundamental breach going to the root of the contract and evincing an intention on the part of the employer tobe no longer bound by the contract.” [27] Thus, if the change to the employment relationship is minor, or if the change reflects a proper

interpretation of an existingprovision of the employment contract, the employee may not consider such a change to be

an act of repudiation. However, if aparticularly important term is altered unilaterally, the employee may have his or her remedy. An employer’s repudiatory words orconduct must be such as to constitute a repudiation by the employer of the essential obligations imposed on him by the contract: England,supra, vol 1 at 3-25. [28] The Ontario Court of Appeal commented on the meaning of repudiation in the employment context in Wronko v WesternInventory Service, 2008 ONCA 327 at para 24, 90 OR (3d) 547: ...an employer’s unilateral change to a fundamental term of an employment contract constitutes a repudiation of the contract.

An act ofrepudiation carries consequences, which depend on how the employee responds to the repudiation.

D) The relationship between repudiation and constructive dismissal [29] The Supreme Court of Canada’s decision in Farber v Royal Trust Co., (SCC), [1997] 1 SCR 846 is theleading case on the current approach to constructive dismissal. Although decided under civil law, its principles have been applied incommon law jurisdictions (see Pathak v Jannock Steel Fabricating Co., 1999 ABCA 8 at para 13, 228 AR 312).

The question in Farberwas whether the unilateral changes made by the respondent to the appellant’s employment contract amounted to constructive dismissal.The court discussed at para 23 the concept of constructive dismissal, noting that contracts are binding on the parties thereto and theparties cannot unilaterally change the obligations they have incurred under the contract: Nor can the parties, absent an agreement to this effect, change the terms of their contract or the manner in which it is to be performed.The contract’s binding force means that they are bound not only over a period of time, but also with regard to the content of what theyhave undertaken. [30] Gonthier J, writing for the court, held that when an employer unilaterally makes substantial changes to the essential terms ofthe employment contract, it ceases to meet its obligations and therefore is terminating the contract.

The employee can then treat thecontract as resiliated for breach: Farber at para 24. An employer may, of course, make any changes to an employee’s position that arepermitted by the contract, thus the extent of the employer’s discretion depends on the construction of the particular contract at para 26: To reach the conclusion that an employee has been constructively dismissed, the court must therefore determine whether the unilateralchanges imposed by the employer substantially altered the essential terms of the employee’s contract of employment.

For this purpose,the judge must ask whether, at the time the offer was made, a reasonable person in the same situation as the employee would have feltthat the essential terms of the employment contract were being substantially changed. [31] The court discussed at para 33 the traditional formulation of the law of constructive dismissal in common law jurisdictionsand found that it parallelled the approach under the civil law: Thus, it has been established in a number of Canadian common law decisions that where an employer unilaterally makes a fundamentalor substantial change to an employee’s contract of employment – a change that violates the contract’s terms – the employer iscommitting a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herselfconstructively dismissed. [32] The court reconciled the law of repudiation with the law of constructive dismissal at para 34:

A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employmentcontract without providing reasonable notice of that change to the employee. Such action amounts to a repudiation of the contract ofemployment by the employer whether or not he intended to continue the employment relationship.

Therefore, the employee can treat thecontract as wrongfully terminated and resign which, in turn, gives rise to an obligation on the employer’s part to provide damages in lieuof reasonable notice. [33] In Pathak, at para 15, the Alberta Court of Appeal adopted the Supreme Court of Canada’s formulation of the law ofconstructive dismissal, summarizing the question to be answered in any given case: The question which must be answered is whether a reasonable person in the same situation as the appellant [employee] would have feltthat the essential terms of the employment contract were being substantially changed. [34] If the answer is yes, then the employer will have committed a fundamental breach of the employment contract and theemployee is entitled to consider him or herself constructively dismissed.

The test is not purely objective, rather the assessment is fromthe standpoint of a reasonable person in the employee’s position. [35] Cardel cited two cases in argument: Park v Parsons Brown & Co (1989), (BC CA), 62 D.L.R. (4th) 108(BCCA) and Olinski v Doon Student Association (1993), 49 CCEL 294 (ONGD). In Park, the employee had a five year fixed termemployment contract with the defendant employer to act as its president and CEO. The contract provided for early termination by eitherparty on 18 months notice.

The defendant advised the employee that it intended to pass a resolution giving him the requisite 18 monthsnotice. In response, the plaintiff cleaned out his desk and returned his office key. The employer relieved him of his duties and put in placea committee to run the business. The employee, however, was permitted to use his office and parking space.

Several months later, theemployee, who had continued to receive his salary, brought an action for wrongful dismissal alleging that the employer repudiated theemployment contract. [36] The trial judge found the employer liable for wrongful termination of contract: “The suggestion that the Company had notrelieved the plaintiff of his function as Chief Executive Officer by inviting him to sit in his office and use his parking space as usual canbe no more than pretence” (at p 113).

On appeal, the employer argued that it was not obliged to provide work and that, according to theterms of the contract, the directors could determine the duties to be performed and the powers to be exercised by the plaintiff.

Theemployer argued that the employee was the one who repudiated the contract. [37] The employer submitted that the Board of Directors’ decision to strip the employee of his duties was not a breach of contractand cited two old decisions (dated 1853 and 1901) in support of the proposition that an employer is not under an obligation to supplywork to an employee even if the employer is obliged to retain the employee. [38] The British Columbia Court of Appeal at p 113 questioned the validity of these authorities in the modern context but foundthat regardless of their applicability, two exceptions applied: Whatever the effect of those cases in today’s commercial world, Mr.

Smith recognized that exceptions to the proposition exist. Oneexception relates to contracts of employment where there is a benefit to the employee, such as an actress, or a radio or televisionperformer, from the performance of the work.

A second is where the employee’s remuneration is by commission. [39] On the facts in Park, the Court found at p 113-114 that the defendant employer had an obligation to provide work, in partbecause Park’s remuneration in the form of bonus payments was dependent upon the company’s performance but also because hisreputation depended on performance: As the Chief Executive Officer, he was primarily responsible for the operations of the company, and the success or failure of thecompany was a reflection of his performance in that role.

If he was not allowed to perform the role of Chief Executive Officer, that partof his remuneration in the form of a bonus would reflect, not his abilities, but those of a management committee. Further, his reputationin the business community as a manager would suffer when it became known that he was without duties to perform or powers toexercise.

[ 40 ] The court also found at p 114 that the contract contemplated that Park would have duties to perform and powers to exercise. While the Board of Directors could determine those duties and powers it could not eliminate them: ...Certainly the Board of Directors may determine by resolution those duties and powers but it is a very different thing to say that the board of directors may determine by resolution that Park perform no duties and exercise no powers. Clause 1 contemplates the regulation of Park by the Board of Directors, not prohibition. ...

In my view, the resolution appointing the management committee “ to carry out the day to day function of the company” was a breach of cl. 1 of the employment contract. [ 41 ] The court found that there was a repudiation of the employment contract “by the usurping of the powers of the president and chief executive officer” (at p 115). [ 42 ] The reasons for decision in Park make clear that the ability to perform one’s employment related duties and the exercise of one’s employment related powers is an integral part of an employment contract, particularly at the executive level.

By usurping the plaintiff’s powers, the defendant repudiated the employment contract and the plaintiff was entitled to a remedy for wrongful termination of the employment contract. [ 43 ] Park was cited by Brockenshire J in Ebert v. Atoma International Inc. (1997), 28 CCEL (2d) 158 (ONGD) . The judge held that the removal of an employee’s duties amounted to repudiation of the employment contract. The plaintiff was employed under a five- year fixed term contract as the defendant’s executive vice-president earning in the range of $830,000/year.

The employment contract provided for 12 months notice of termination or a payment of $250,000 in lieu of notice. [ 44 ] During the term of the contract, the defendant hired a replacement executive vice-president without advising the plaintiff. When the defendant told the plaintiff that he was being replaced, it did not mention termination, nor did it mention the $250,000 termination allowance. The defendant offered the plaintiff a different job, at approximately half the pay. After several weeks of negotiations, the plaintiff put the defendant on notice that he considered himself constructively dismissed.

The defendant replied formally notifying the plaintiff that his employment was terminated and offering him the new position. The employer also stated that if the offer was declined, his employment would be automatically terminated in accordance with his employment contract by paying him the $250,000. [ 45 ] The judge held at para 9 that “[t]here [was] no doubt that [the plaintiff] was constructively dismissed.

The hiring of his replacement effectively terminated his employment.” Furthermore at para 10, “[t]he offer on a take it or leave it basis ... of another position, at half the pay with responsibility over three employees instead of the 2000 being supervised before constituted a proposed fundamental change in the employment itself sufficient to constitute constructive dismissal . . .” [ 46 ] The judge continued at para 11: Each of the hiring of someone else for this position, and the proposed posting of Mr.

Ebert to the new position of Vice President, Business Planning and Technology, constituted fundamental breaches, by Atoma of the employment contract. [ 47 ] Implicit in this conclusion is that being relieved of one’s job duties, either through the hiring of a replacement as in Ebert , or by having one’s duties taken over by a management committee, as in Park , constitutes a repudiation of the essential terms of the employment contract amounting to dismissal.

[48] At para 15, Brockenshire J summarized the decision in Park as an example of constructive dismissal: In Park v. Parsons Brown, supra the directors of a company lost confidence in its President, and gave him 18 months notice oftermination, per his contract. During that time, they removed all his duties and authority, but continued to pay him. Mr. Park concludedthat the interference with his role of Chief Executive Officer constituted constructive dismissal, with which the B.C. Court of Appealagreed. [49] In Rene Gantzert Personal Law Corp v Bronson Jones & Co LLP, 2013 BCSC 547, the court granted leave to appeal from anarbitrator’s award based on the arbitrator’s potentially erroneous

interpretation of the law of repudiation. The arbitrator found thatpayment of an employee without supplying work did not necessarily constitute repudiation of the employment contract.

Tindale J held atpara 26 that the question was not whether the employer was paying the employee without supplying actual work but whether theemployer usurped the powers of the employee. [50] According to these three judgments, determining whether being relieved from one’s duties amounts to repudiation of theemployment contract depends on whether such relief of duties amounts to a substantial change in the employee’s exercise of power andcontrol. [51] By contrast, in Olinski v Doon Student Association (1993), 49 CCEL 294 (ONGD) Salhany J concluded that there was norepudiation of the employment contract.

The plaintiff was employed as a business manager under a fixed term contract with thedefendant. Nine weeks prior to the end of the contract, the plaintiff was given a letter advising him that his contract would not berenewed. The letter contained a cheque representing his salary and vacation pay to the end of his contract and offered out-placementservices to assist him with his job hunt.

The plaintiff was asked to return all keys, passwords, his parking pass etc. and asked to leaveimmediately. [52] As in the case of Thompson and Cardel, the issue before the court was whether the plaintiff was dismissed or whether hiscontract was not renewed. [53] Salhany J found that the plaintiff was not dismissed, rather his contract was simply not renewed. In coming to this decision,the judge found that neither of the exceptions discussed in Park, applied. There was no evidence that the plaintiff’s reputation suffered byending his employment.

As for searching for new employment, the judge opined that the defendant had done the plaintiff a favour byrelieving him of his duties thus freeing him to look for new employment. [54] Although somewhat similar factually, Olinski was decided before Farber. The Supreme Court of Canada in Farber requiresthe court to assess the circumstances from a subjective -objective perspective; that is, whether a reasonable person in the same situationas the employee would have felt that the essential terms of the employment contract were being substantially changed.

The test is notwhether the employer felt it was doing the employee a favour. [55] In Alguire v Cash Canada Group Ltd., 2005 ABCA 387, 380 AR 227, the president of the Respondent company who hadbeen employed pursuant to a series of fixed contracts, sued for wrongful dismissal when, two and a half months before the end of hiscontract his decision making authority was removed and he was required to finish the rest of his contract at home. The employeecontinued to receive his salary to the end of the contract.

The Court of Appeal held at para 7 that: . . . a unilateral change to a fundamental term of a contract can amount to a repudiation of that contract. That is so, regardless of its term.Unilateral change to a fundamental term results in a breach of the breach of contract.

The test for constructive dismissal is whether areasonable person in the same situation as the Appellant would have felt that the essential terms of his employment contract had beensubstantially changed: Pathak v Jannock Steel Fabricating Co (1999), 1999 ABCA 8 , 228 A.R. 312 at para. 15 (CA). [56] The court held that the appellant, having been stripped of his authority and replaced by an acting President, wasconstructively dismissed and his employment contract fundamentally breached.

V.

Application of Law to the Facts [ 57 ] Applying the law to the facts of this case, the question of whether there was repudiation of Thompson’s employment contract by Cardel is a question of whether a reasonable person in Thompson’s position as President would have felt that an essential term of his employment was being substantially changed when he was relieved of his duties one month before the end of his contract and was asked to return his keys, passwords, and leave the building. [ 58 ] Applying the test in Farber , a reasonable person in Thompson’s position would have felt that an essential term of the employment contract was being substantially changed by the total usurpation of the duties and powers of his executive position.

I find that Thompson was constructively dismissed on September 21, 2011 and entitled to treat the actions of Cardel as a repudiation of the September 2010 Agreement. Thompson was not simply given notice that his September 2010 Agreement would not be renewed; rather, he was terminated without cause. VI.

Conclusion [ 59 ] Having found that there was a fundamental breach of the September 2010 Agreement, i.e. a constructive dismissal which amounts to a termination of his employment, Thompson is entitled to the damages contracted for in his September 2010 Agreement, namely 12 months base salary. [ 60 ] In the result the Plaintiff, Mr. Thompson, is awarded judgment in the amount of $285,000.00 as against the Defendant, Cardel Homes Limited Partnership. [ 61 ] Prejudgment interest and costs may be spoken to. Heard on the 4 th day of April, 2013. Dated at the City of Calgary, Alberta this 2 nd day of July, 2013. K.D.

Nixon J.C.Q.B.A. Appearances: Gwen K. Randall, Q.C. for the Plaintiff Shane B. King and

Alanda McLean (Student-at-Law) McLeod Law LLP for the Defendants