O'Donnell v Soldan Fence and Metals, 2015 ABQB 764

Court of Queen ’ s Bench of Alberta Citation: O'Donnell v Soldan Fence and Metals

(2009) Ltd, 2015 ABQB 764 Date: 20151202 Docket: 1303 12294 Registry: Edmonton Between: Mark Gregory O'Donnell Plaintiff - and - Soldan Fence and Metals

(2009) Ltd. Defendant _______________________________________________________ Reasons for Judgment of W.S. Schlosser , Master in Chambers _______________________________________________________ [ 1 ] This is a

Summary Judgment application in a wrongful dismissal law suit. [ 2 ] Mark O’Donnell’s employment at Soldan Fence and Metals

(2009) Ltd. (Soldan) was terminated April 15, 2013 without cause. At the time he was 58 years old and had worked for Soldan, or its predecessor, for 34 years and 11 months. [ 3 ] As at the date of termination Mr. O’Donnell was earning an annual salary of $58,478.80, plus monthly benefits of $169.27. [ 4 ] When he was terminated, the Defendant paid Mr. O’Donnell $9,400.00 less statutory deductions; representing eight weeks of pay and vacation pay accrued up to the date of termination. Soldan also retained MAK Consulting Inc. to assist Mr.

O’Donnell with dismissal planning and ‘career transition’. [ 5 ] The Plaintiff obtained employment about 10 months post-termination; first at CRC Wellhead Supply Ltd., for a brief period, and then with Western Canadian Screens Ltd. The Plaintiff earned an annual salary of $48,000.00 at Western Canadian Screens, which was approximately $10,000.00 less than he had earned at Soldan. The job with Western Canadian Screens, which commenced in

February 2014, ended in September 2014 after unhappy differences developed with a co-employee. The Plaintiff’s mitigation earningstotaled $28,353.38. [6] Liability is admitted. The issues remaining in dispute are as follows: 1. Is the reasonable notice period 15 months or 22 months? 2. Were the Plaintiff’s efforts to mitigate satisfactory? 3. Is the Plaintiff entitled to vacation pay over the reasonable notice period? 4. Does a Master have the power to determine unliquidated damages in a

summary judgment application? [7] I am going to deal with the last point first. Authorities Cited 1. Lucy, Cameron and Boyce v. lnterbuild Development Ltd., 197 4 CarswellAlta 127 2. S.B.I Management Ltd. v. 109014 Holdings Ltd., 1981 ABCA 235 , 1981ABCA235 3. Supple v. Newton, 1990 CarswellAlta 473 (Master) 4. Espey v. Chapters Inc., 1998 CarswellAlta 1325 (QB) 5. Levitt, The Law of Dismissal in Canada, third ed. 6. Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 7. Wallace v. United Grain Growers Ltd., [1997] 3 R.C.S. 8. Hryniak v. Mauldin, 2014 SCC 7 9. Stoney First Nation v.

Imperial Oil Resources Limited, 2014 ABQB 408 10. Shuya v. Azon Canada Inc., 1995 Canlll 9084 (ABQB) 11. Heinz v. CANA Construction Co., 1987 CarswellAlta 239 (QB) 12. Wolfe v. 523004 Saskatchewan Ltd., 2006 SKQB 205 13. Jeffrey v. Plant Forest Products Corp. , 1990 CarswellSask 205 (QB) 14. Pulak v. Algoma Publishers Ltd., 1995 Canlll 7277 (ONSC) 15. Bagby v. Gustavson International Drilling Co. Ltd., 1980 ABCA 227 16. Driscoll v. Coseka Resources Ltd., (AB KB), 1992 Can LI I 6154 (ABQB) 17. Employment Standards Code, RSA 2000, c. E-9, at sections 37 and 38 18. Robinson v.

Team Cooperheat-MQS Canada Inc., 2008 ABQB 409 19. Gillan v. Panafax Canada Inc., 1986 CarswellBC 2455 (SC) 20. Hennessy v. Excell Railing Systems Ltd., 2005 BCSC 734 21. Giovanetti v. Plummer Memorial Public Hospital, 1997 CarswellOnt 4987 22. Miller v. Gateway Co-operative Ltd., 1991 CarswellSask 245 23. Colclough v. Aviation Metal Products Ltd., 1986 CarswellOnt 5650 24. 776826 Alberta Ltd. v Ostrowercha, 2015 ABCA 49 4 25. Watkins v Willow Park Golf Course Ltd., 2015 ABQB 127 5 26. Orr v Fort McKay First Nation, 2014 ABQB 111 7 27. Cardinal v Sucker Creek First Nation, 2012 ABQB 490 8 28.

Schaffer v Lalonde, 2014 ABQB 222 9 29. Muhammadv Canlanka Ventures Ltd., 2015 ABQB 145 10 30. Windsor v Canadian Pacific Railway Ltd., 2014 ABCA 108 11

31. Barda v Globe & Mail Ltd., (1960), (ON CA), 24 DLR (2d) 12 32. Novakowski v Canadian Linen & Uniform Service Co., 2015 ABQB 53 13 33. Medis Health and Pharmaceutical Services Inc. v. Bramble, (NB CA) 14 34. Tanton v. Crane Canada Inc., 2000 ABQB 837 15 35. Radwan v. Arteif Furniture Manufacturing, 2002 ABQB 742 16 36. Winfield v Pattison Sign Group, 2013 ABQB 595 17 37. Miller v. IOC Canada Inc., 2005 ABQB 226 18 38. Ditchburn v. Landis & Gyr Powers Ltd. , (ON CA) 19 39. Nelson v Champion Feed Services Inc. , 2010 ABQB 409 20 40. Turner v Westburne Electrical Inc., 2004 ABQB 605 24 41.

Hansen v Altus Energy Services Partnership, 2010 ABQB 820 42. Cunningham v Hillview Homes Ltd., 2015 ABQN 304 43. Bonsma v Tesco Corporation, 2012 ABQB 413 Masters Jurisdiction,

Summary Judgment and Weighing Evidence [8] The Respondent argues that I cannot determine this matter because a master is constitutionally barred from weighingevidence.

Wrongful dismissal damages are unliquidated damages, and, they argue, unliquidated damages cannot be determined unlessevidence is weighed. [9] In SBI Management Limited v 109014 Holdings Ltd., 1981 ABCA 235, Lieberman, J.A., writing for the Court, said at para.57: The master would be exceeding his jurisdiction if he assessed damages in the sense that he weighed evidence in order to arrive at anamount. [10] The Respondent suggests that because of the constitutional impediment, I should simply dismiss Mr. O’Donnell’s application,with costs. Alternately, I could refer the matter to a judge pursuant to

section 13 of the Court of Queen’s Bench Act, RSA 2000, c. C-31which provides: A master in chambers may refer any matter before the master to a judge for decision and the judge may dispose of or refer back thematter in whole or in part. However, I am not going to do that. [11] The Court of Queen’s Bench Act, a Provincial Statute, constitutes this Court and defines the powers of masters and judges.Section 9(1)(

a) of the Act says that subject to certain qualifications, a master has the same powers as a judge sitting in chambers. It doesnot say anything about liquidated damages.

Summary judgment applications in wrongful dismissal actions are not obviously caught byany of the exceptions in the Act. There are no disputed or contentious questions of fact. [12] The issue has not been properly framed as a constitutional issue and neither the Provincial nor the Federal Attorneys Generalare involved or on notice. For the reasons that follow, it is my view that this case is within my jurisdiction. As pleasurable as an esotericconstitutional debate might be, I do not have to weigh any evidence to decide Mr. O’Donnell’s severance. What does it mean to weigh evidence, and how does this fit into the

SummaryJudgment context? [13] The starting point for a

summary judgment application is often said to be: ‘to make findings of fact’. There are manyauthorities to the effect that the Court should not weigh evidence in chambers to get there: Sherwood Steel Ltd. v Odyssey ConstructionInc., 2014 ABCA 320 (at paras 7, 8) and the cases cited there; Orr v Fort McKay First Nation, 2014 ABQB 111 at para. 19, per Brown,J. (as he then was); Whitecourt Power Limited Partnership v Interpro Technical Services Ltd., 2014 ABQB 135, at paras. 31, 40 and41, Muhammad v Canlanka Ventures Limited, 2015 ABQB 145, per Jones, J. and the SBI case (above), for example.

i) Weight and Probative Value [14] In its ordinary sense (and I have in mind The Concise Oxford Dictionary meaning) ‘to weigh’ is to ‘estimate relative value orimportance’, or, ‘to consider with the view to choice, rejection, or preference’. In the trial context this usually means an estimation ofprobative value. In the trial context, weight has to do with ranking admissible evidence to find facts or to decide whether one fact is more

or less probable than a competing fact. In this case, I do not have to decide between competing facts. There are no facts in dispute. Thereare no questions of admissibility in this case. ii) Weight and Admissibility [15] Weight and admissibility are two different things. Admissibility has to do with whether you can consider evidence, or evenhear it at all. Like truth or the quality of being unique, admissibility does not admit of degree. iii) Weighting Factors [16] There may be another sense in which evidence might be weighed.

Bardal (below) sets out a non-exhaustive list of factors fordetermining the length of reasonable notice. It might be said that ranking the factors (by attaching more weight or importance to lengthof service than to age, for example) is, in some sense, weighing or weighting evidence. However, (and subject to what follows), the lawof reasonable notice is so well travelled, the determination is largely a question of attaching equal weight to what the decided cases tellus are the important points and then applying the decided cases to them like an algorithm.

There might be an unusual case that takes usoutside this exercise. But this is not one of them. iv)

Summary Judgment [17] A master (or for that matter, a judge), in a

summary judgment application is playing a very different role from a trier of fact ata trial. [18] Masters, or chambers judges, hearing

summary judgment applications are not acting as ‘triers of fact’. They determine thesufficiency of the evidence to make a

summary disposition. The Court is saying: ‘If the matter were to go to trial, this would be theresult’. The Court is reaching its decision that a matter need not go that far on a level of certainty that is usually (and perhaps necessarily)higher than balance of probability certainty. And this is done on the assumption that both sides are putting their best case forward. [19] If the weight of evidence is in question at a

summary judgment application, it might be necessary to see the witnesses andsend the evidence for ‘forensic testing at trial’: 776826 Alberta Ltd. v Ostrowercha, 2015 ABCA 49. [20] Conflicts in the evidence usually mean that the matter must go to trial. It is not an option to resolve conflicts in the evidence ata

summary judgment application, unless the parties agree and the matter is being heard by a master (section 9(3)(

b) of the Court ofQueen’s Bench Act), or unless the conflict has been resolved in some other fashion. [21] The distinction is subtle but important. In Orr v Fort McKay First Nation, 2014 ABQB 111, Brown J. said: [17] The line between weighing evidence, and deciding that the evidence merits granting (or not granting)

summary judgment, mayseem elusive when it is considered that both parties to a

summary judgment application will typically put evidence before the master inorder to show that the test is (or is not) met. Again, Harvey CJ’s decision in Polson Iron Works offers guidance: The order under consideration is perhaps the nearest approach to determining the rights of parties by trial that the rules authorize theMaster to make. But in reality, he is not trying the rights of the parties. He is determining that there is no real issue to be tried.

It is onlywhen such a situation is found to exist that the Master is authorized to give a judgment …. (Polson Iron Works at 235.) [18] In short, while masters may not weigh evidence to resolve disputed or contentious questions of fact, they may examine theevidence to determine whether an issue remains to be tried or to otherwise determine (by applying the facts to the law) whether a party’sposition is so compelling that the likelihood it will succeed is so high that it merits granting

summary judgment. (Janvier v 834774Alberta Ltd, 2010 ABQB 800 at para 15.) I recognize that, at some level, all evidence – even extremely compelling evidence – requiresweighing. (Brown, “The Possibility of ‘Inference Causation’: Inferring Cause-in-Fact and the Nature of Legal Certainty” (2010) 55McGill LJ 1 at 31-35.) To carry that proposition to its logical conclusion would, however, defeat the constitutional purpose served byappointing masters of facilitating the administration of justice. This conundrum need not be resolved here.

It suffices for present purposesto reiterate that masters may not carry out the weighing of evidence contemplated in Ontario’s Rule 20.04(2.1), which is the first reasonwhy the guidance in Hryniak v Mauldin regarding the standard of review is inapplicable to an application for

summary judgment underRule 7.3. [22] The question is whether this case meets the threshold for

summary determination. In this post – Hryniak culture, I takecomfort in the fact that at least one other Master has made similar observations in the wrongful dismissal context: Watkins v WillowPark Golf Course Ltd., 2015 ABQB 127, per Prowse, M at para. 6. ( and see also: Beatty v Best Theratronics Ltd, 2015 ONCA 247 andEspey v Chapters Inc, (1998) (AB KB), 225 AR 68). [23] The matter was originally set for Judges Chambers, but was moved down administratively in accordance with the PracticeDirection. Access to justice is better served by dealing with this case on its merits than by putting Mr.

O’Donnell on a jurisdictionalmerry-go-round.[1] Reasonable Notice [24] There is a common law presumption of the requirement for reasonable notice. The presumption is rebuttable by contract. It isnot displaced by minimum standards found in Employment Standard’s Acts: Machtinger v HOJ Industries Ltd., [1992] 1 SCR 98. In

Machtinger, Iacobucci, J. tells us that the concept goes back to at least 1562 and the Statute of Artificers, 5 Elizabeth I, c 4. [25] The usual starting point for cases of this type is about four centuries newer. In Bardal v. Globe & Mail Limited, (1960) (ON SC), 24 DLR (2d) 140, McRuer, C.J.O. said (at para. 21): 21 There can be no catalogue laid down as to what is reasonable notice in particular classes of cases.

The reasonableness of thenotice must be decided with reference to each particular case, having regard to the character of the employment, the length of service ofthe servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualificationsof the servant. [26] The ceiling is about 24 months. A 24 month notice period is said to be reserved for ‘senior employees and managers withsignificant responsibilities”. Novakowski v Canadian Linen &Uniform Service Co., 2015 ABQB 53 at para. 102, per Nielson J. (and thecases cited there).

Typically, reasonable notice is calculated with reference to the Bardal factors: such as the type of employment, lengthof service, employee’s age and availability of similar employment. Typically, the Court puts the numbers into the equation. The onusthen falls to the employer on the question of mitigation. [27] The decided cases tell us that greater responsibility and longer service merit longer notice. The determination is not groundedin current (or actual) economic facts. The determination is said to be ‘fact sensitive’ or ‘fact-specific’ but this seems to mean ‘factor–specific’.

There is not usually any industry–specific, or economy-specific analysis. [28] Virtually every case makes a table of decided cases; usually across Canadian jurisdictions, and they come up with a range thatis adjusted for the facts of the specific case. That will end up being the length of reasonable notice subject to the employer’s evidence;usually on the topic of mitigation. This too is said to be fact-specific but, typically, it means that an adjustment is made for mitigationfactors recognized by the decided cases.

It is not as specific as requiring an employer to prove that a job of a certain type was availableand that it would have been the employee’s for the asking. [29] There are good policy reasons why dismissed employees should not have to reinvent the wheel every time they seekcompensation for dismissal without notice; perhaps for the same reason that it is not necessary for a Plaintiff to prove the existence of aduty of care in a negligence action every time there is a car accident. [30] Notice periods are not adjusted for provincial economies.

They are determined, usually, without reference to specific evidenceabout transferability, or skills, or the actual demands of a particular marketplace. Adjustments are not usually made for the nature of theindustry. It does not seem to matter whether the Plaintiff is selling fences or rig mats. And I take notice of the fact that the economy ofthis province has changed between the time the lawsuit was started and now. The assessment tends to be a somewhat abstract game ofnumbers. [31] The point is discussed by Watson, J. in Tanton (at para 157, et seq.).

The Court uses these somewhat arbitrary numbers unlessthe resulting reasonable notice period is displaced with actual evidence to the contrary. This is the employer’s burden, as is their burdento prove a failure to mitigate. [32] The central facts are not in dispute. Mr. O’Donnell was 58 when he was dismissed. His length of service was 34 years 11months, which puts him into the category of ‘long term employee’. His job on termination was an estimator. Though he had coordinatedsafety programs and had helped conduct equipment inspections, his role was essentially non-managerial. Mr.

O’Donnell has no post-secondary education. [33] We can make the following table from the cases referred to in court: Case Name Age onTermination Length ofService Type of ResponsiblitiesReasonableNoticeNovakowski

(2015) Alta 63 years 39 years General Manager 19 monthsWinfield

(2013) Alta 55 years 24 years Commission Sales 18 monthsMiller

(2005) Alta 51 years 30 years Special ProductSupervisor 22 months Radwan

(2002) Alta 63 years 25 years Manufacturer – Thecourt noted that Mr.Radwan was almost atretirement age, he hadlanguage limitations,limited education andskill set. 20 months Ditchburn

(1997) Ont 59 years 27 years Senior SalesRepresentative 22 months Tanton

(2000) Alta ? 25 years Non ManagerialPosition (encouraged towork in a narrow focusposition) 24 months Clark, (1993) (AB KB), 138 AR 280 62 years 32 years Shift Supervisor 22 months Konie, (1999) 1999 ABQB 540, 246 AR 168 60 years 33 years Shift Supervisor 22 months

Wilkinson, (1992) (AB KB), 130 AR 55aff’d – (1992), 1992 ABCA330 , 135 AR 217 65 years 43 years Clerk Typist 18 months Bramble (Medis), (1999) 46CCEK (2d) 45 53 years 34 years Forklift Operator 24 months Shuya

(1995) Alta 56 years 31 years Forman or Supervisor(grade 8 education) 14 months Heinz

(1987) Alta 56 years 31 years Primarily Clerical duties12 monthsWolfe (Summary Judgment)

(2006) Sask 61 years 33.5 years Journeyman/autobodytechnician (withtransferable skills) 12 months Jeffrey

(1990) Sask 55 or 56 years 31 years Sales / someManagementresponsibility 10 months Pulak

(1995) Ont 51 years 29 years Compositor (non-supervisory position)grade 9 education 6 months [34] If we apply the factors to the facts and weight them equally, the appropriate notice is 19 months. I acknowledge that there aresome outliers: Shuya, Heinz, Wolfe, Jeffrey and Pulak. However, the more recent Alberta cases should be preferred (not just becauseof their binding effect). Mitigation [35] A survey of the decided cases shows that the onus is on the employer to show a failure to mitigate (Nielson v Champion FeedServices Inc., 2010 ABQB 409).

Some cases have gone so far as to suggest that the onus requires proving that specific alternateemployment is available; Robinson v Team Cooper Heat- MQS Canada Inc, 2008 ABQB 409 at para. 124. [36] Courts will allow a ‘breathing space’ of one to two months: Hanson v Alta Energy Service Partnership, 2010 ABQB 820 atparas 50-51, per Goss, J.

A wrongfully dismissed employee is not required to take a substantially lower position: Bonsma v TestcoCorporation, 2012 ABQB 413 at para. 98; citing Evans v Teamsters Local Union No. 31, 2008 SCC 20 , [2008] 1 SCR 661. [37] The notice period has sometimes been reduced for a failure to take a job at equal or better pay, or a failure to take advantageof placement services: Miller v Gateway Cooperatives Limited, 1991 Carswell Sask 245.

A two month reduction for a failure to availherself of outplacement counselling services was found in Giovanatti v Plumber Memorial Public Hospital, 1997 Carswell Ont, 4987. [38] A failure to apply with competitors, or a failure to investigate alternate employment in the field in which the employee isqualified will also count as a failure to mitigate; Gillan v Panafax Canada Co.,

(1986) Carswell BC 2455; Hennessy v Excel RailingSystems, 2005 BCSC 734 , 2005 BC SC 734. [39] Mr. O’Donnell was dismissed in April 2013. In the period from May 2013 to February 2014, he generated 200 pages of job-searches and application-related documents; including 90 applications for re-employment. He applied at one competitor; Phoenix Fence,but was only offered an entry-level position at $19.00 per hour; which he declined. The Respondent points out that there are a number ofother competitors that he could have applied with, but apparently did not. (The evidence is not entirely clear; Mr.

O’Donnell may haveapplied with 3 of 10 competitors). [40] It appears that the thrust of Mr. O’Donnell’s job applications were for sales positions. It is not clear how this fits with hisposition at Soldan Fence as an estimator. It appears that Mr. O’Donnell may have been seeking a slightly difference employment paththen the one that he had developed some expertise in. [41] Mr. O’Donnell took a job with CRC Wellhead Supply Ltd. As noted, this was short-lived; (between February 10 and February20, 2014).

On February 20, 2014, he took a job with Western Canadian Screens Ltd. in a sales position at $48,000.00 per year, which wasless than he had been making at Soldan. Mr. O’Donnell left this position September 5, 2014; not because he was terminated butapparently because of differences with a co-employee. Between September 5, 2014 and February 10, 2015, Mr. O’Donnell sent out some80 applications and attended a Job Fair, October 29, 2014. [42] Mr. O’Donnell only attended half of the outplacement services that had been offered to him by his former employer.

This mayhave resulted from a scheduling misunderstanding on Mr. O’Donnell’s part. [43] Mr. O’Donnell’s efforts were substantially greater than those chronicled in other cases where the dismissed employee’smitigation efforts were found to be below that of what might be expected of a reasonable person in Mr. O’Donnell’s position. I havesome concerns about the fact that he did not apply with all of his competitors and also that he appears to have altered his career pathslightly in his job search focus. I also have some concerns about Mr. O’Donnell’s non-attendance of the last part of his out-placementservice.

Although he may have sent out a great number of applications, his efforts might have been sharpened or more focused if he hadtaken full advantage of the service offered by his former employer. [44] Taking all of the circumstances into account, and applying the factors from the decided cases, it is my view that a negativeadjustment of one month ought to be made with respect to Mr. O’Donnell’s mitigation efforts.

Vacation Pay [45] The authorities diverge on this point. In Cronk v Canada General Insurance Co., (1994) (ON SC), 19 OR(3d) 515 (appeal allowed; (1995) (ON CA), 25 OR (3d) 505); and Driscoll v Coseka Res. Ltd.,

(1992) CanLII 6154,per Conrad J., (D. M. Lutz was counsel) at para 42, (and the cases cited there); following Bagby v Gustavson Drilling Co. Ltd., (1980)ABCA 227, for example, vacation pay over the notice period was not allowed on the basis that it is a form of double recovery. However,in Tanton, Watson, J. (now J.A.) found that a loss of vacation pay was loss of a tangible benefit and it now seems to be an evidentiaryquestion. The issue is one of proof about whether the employee was obliged to use the vacation time. The evidence is that Mr.

O’Donnelltypically took his vacation but, following Tanton, absent evidence that Mr. O’Donnell was obliged to use up his vacation, he is entitledto it over the notice period. There is no evidence that he could not have worked over the entire notice period if he wished. The Tantoncase was followed in Turner v Westburne Electrical Inc., 2004 ABQB 605 at para. 83. Disposition [46] The reasonable notice period is 19 months adjusted downward by one month with respect to mitigation activities. The plaintiffis entitled to vacation pay over the reasonable notice period and costs on column 1, Rule 10.42 to apply.

If the parties cannot agree oninterest, they may apply in regular chambers. Heard on the 24th day of June 2015. Dated at the City of Edmonton, Alberta this 2nd day of December, 2015. W.S. Schlosser M.C.C.Q.B.A. Appearances: Patrick Hart of Jackie Handerek & Forester for the Plaintiff Cristina Wendel of Dentons Canada Ltd. for the Defendant

[1] It is notable that the amounts in issue here would put this case within the jurisdiction of the Civil Division of the Provincial Court of Alberta. I do not understand there to be any constitutional bar on weighing evidence or deciding unliquidated damages there. Masters or Judges determining

summary judgment applications in Alberta are not applying Ontario Rules (see Orr , above). In the present culture, and, in keeping with Justice Browns remarks in the latter part of para 18 (above), it seems disingenuous to maintain a constitutional bright line between judges and masters powers in

summary judgment applications. It flies in the face of the plain wording of the Court of Queen’s Bench Act and, by extension, implies that the Civil Division of the Provincial Court is also operating unlawfully. This issue will have to be resolved sometime. I am grateful that it does not have to be resolved here.