Stangenberg v Bellamy Software, 2016 ABQB 160

Court of Queen ’ s Bench of Alberta Citation: Stangenberg v Bellamy Software, 2016 ABQB 160 Date: 20160318 Docket: 1503 14381 Registry: Edmonton Between: Bernice Stangenberg Plaintiff - and - Bellamy Software, a division of Sylogist Ltd Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] Bernice Stangenberg sued Bellamy Software, a division of Sylogist Ltd for wrongful dismissal after her employment with Bellamy was terminated effective August 31, 2015.

At the time of her dismissal, she had worked for Bellamy for approximately 17 years. On termination, Bellamy paid Ms. Stangenberg the equivalent of eight weeks salary, relying on a term in an employment agreement purporting to limit compensation for termination without cause to the amount provided by the Alberta Employment Standards Code .

[2] She sued for damages for wrongful dismissal in the amount of $93,320.49 based on 17 months’ pay. [3] Bellamy defended the claim relying on the provisions of the employment agreement. [4] The application on December 17, 2015 was for

summary judgment by Ms. Stangenberg for the amount claimed plusprejudgment interest and costs. [5] Ms. Stangenberg relies on her statement of claim and an affidavit sworn October 22, 2015. She was cross-examined onNovember 27, 2015 and I have been provided with the transcript. [6] Bellamy provided no evidence on the application, and seeks to have it dismissed. Brief Answer [7] Ms. Stangenberg’s application for

summary judgment is dismissed for the reasons that follow. I am satisfied that there areissues that require further evidence and submissions to ensure a fair resolution of the matter. Background [8] Ms. Stangenberg began working with a predecessor of Bellamy as a support specialist on March 16, 1998. It was then adivision of a company called HTE. In 2001, HTE sold its Bellamy division to a company called Microage.

In 2006, Microage soldBellamy to Sylogist. [9] She says in her affidavit that throughout those transactions, she continued to work for Bellamy doing “essentially the sametasks with no break in employment”. She states that her position did change over time and she was assigned additional duties. [10] When HTE sold Bellamy to Sylogist, Ms. Stangenberg received a severance payment from HTE. [11] On May 12, 2006, she received an employment offer from Sylogist. Her employment was to commence the day following theclosing of the sale from HTE to Sylogist.

Her title was to be Product Manager, Utilities & Accounts Receivable with a starting salary of$50,000 per year. [12] Paragraph 10 of the offer letter states: 10 In the event that Sylogist terminates your employment without cause, Sylogist will provide the notice or pay in lieu of noticerequired by the Alberta Employments Standard Code or other applicable legislation. You are not entitled to any other termination notice,pay in lieu of notice, or other benefits. [13] Another letter to Ms.

Stangenberg on May 12, 2006 stated: As described in documentation you received from Nor-Dat concerning the sale of the Bellamy Software Division, your employment withSylogist will be treated as continuous employment from the date of commencing employment with Nor-Dat for purposes of theEmployment Standards Code. The primarily affects your vacation accrual and years of service calculation. [14] Ms. Stangenberg accepted the offer and worked for Sylogist until her employment was terminated at a meeting on August 28,2015.

She was given a letter on Augusts 31, 2015 confirming the termination and advising of the payment of eight weeks pay in lieu ofnotice. [15] Ms.

Stangenberg’s affidavit of October 22, 2015 states that at the time of her dismissal, she was a “team lead” and wasreceiving a base salary of $72,084.96. [16] Her affidavit describes her efforts at finding suitable new employment to the date of the affidavit. [17] Following the chambers application on December 17, 2015, I reserved decision and on January 11, 2016 wrote counsel askingfor submissions in relation to the potential applicability of Francis v CIBC, (ON CA), [1994] OJ No 2657 (CA). [18] Written submissions were filed by the Plaintiff on January 29, 2016 and by the Defendant on February 12, 2016.

A responsebrief was filed by the Plaintiff on February 17, 2016. Case Law [19] The parties submitted a number of cases in support of their respective positions at the application: By the Plaintiff: Espey v Chapters Inc, (AB KB), [1998] AJ No 1518 (QB); and Gillespie v 1200333 Alberta Ltd., 2012 ABQB 105

By the Defendant: Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108; 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49; Desanti v Gray, 2011 ABCA 226; Gillespie v 1200333 Alberta Ltd., 2012 ABQB 105; Carrell v Worley Parsons Canada Ltd., 2008 ABPC 345; Roden v The Toronto Humane Society, (ONCA); Chadburn v Sinclair Canada Oil Company, 1966 CarswellAlta 58 (SC); Robinson v van Walraven, 1997 CarswellOnt 883 (OCJGD); Stephens v Morris Rod Weeder Co, 1999 CarswellSask 324 (QB); Desaulniers v Wire Rope Industries Ltd, 1995 CarswellBC 149 (SC); Russo v Kerr Bros Limited, 2010 ONSC 6053; and Hansen v Altus Energy Services Partnership, 2010 ABQB 820 [20] In support of her position on Francis v CIBC, the Plaintiff cited: Long v Delta Catalytic Industrial Services Inc, [1998] AJ No 131 (QB); Bell v Stanley Industrial Consultants, [1996] AJ No 553 (QB); and Globex Foreign Exchange Corp v Kelcher, 2011 ABCA 240 [21] In response to the Plaintiff’s submissions on Francis, the Defendant referred to: Bilg v Unifund Assurance Company, 2015 ABQB 779; Woronuk v Woronuk, 2009 ABQB 306; HJ Hotels v Stone, 2001 NBCA 103; White v Stenson Holdings Ltd., (SC); Addison v M.

Loeb, Ltd., (1986), (ON SC), 45 OR (2d) 399; and Kennett v Superior Millwork Ltd., 2005 ABCA 84. [22] Replying to the Defendant’s arguments on Francis v CIBC, the Plaintiff referred to: Addison v M Loeb, Ltd., [1986] OJ No 2637 (CA); National Trust Co v Mead, (SCC), [1990] 2 SCR 410; and Lyons v Gainers Incorporated, 1987 CarswellOnt 903 (Dist Ct).

Summary judgment issues [23] The latest word from the Court of Appeal on

summary judgment is in Condominium Corporation No 0321365 v Cuthbert,2016 ABCA 46. There, the Court stated at paras 25-29: [25] Hryniak identified a cultural shift. The Supreme Court held that

summary judgment ought to be granted whenever there is nogenuine issue requiring trial: “when the judge is able to reach a fair and just determination on the merits on a motion for

summaryjudgment”: para 49. [26] Since Hryniak, this Court has confirmed the test for

summary judgment in Alberta: Windsor v Canadian Pacific Railway Ltd.,2014 ABCA 108 at para 13, 572 AR 317; Sherwood Steel Ltd v Odyssey Construction Inc, 2014 ABCA 320 at paras7-8; WP v Alberta, 2014 ABCA 404 at para 26 [WP]; Ostrowercha at paras 9-11; Whitecourt at para 9. [27] When deciding a

summary judgment application, there are two considerations. With respect to the process, the court must ask,“whether examination of the existing record can lead to an adjudication and disposition that is fair and just to both parties”: Whitecourt atpara 9; see also Ostrowercha at para 9; WP at para 26; Windsor at para 16. With respect to the substantive issues, the court must ask“whether there is any issue of merit that genuinely requires a trial or, conversely, whether the claim or defense is so compelling that thelikelihood it will succeed is very high such that it should be determined summarily”: Whitecourt at para 9; see also Ostrowercha at para

10. An issue of merit is established when the respondent’s (non-moving party) case discloses a “genuine issue of a potentially decisivematerial fact in the case which cannot be summarily found against the non-moving party on the record revealed by the ‘fair and just[summary] process’”: Ostrowercha at para 11. [28]

Summary judgment is not possible if opposing parties’ affidavits and evidence conflict on material facts because a chambersjudge cannot weigh evidence or credibility on a

summary judgment application: Sherwood Steel at paras 7-8; Whitecourt at paras 31, 40-41. [29] Complex legal questions may be sufficient to deny

summary judgment. A full trial is required when the

summary record cannotbe used to decide legal issues that are unsettled, complex or intertwined with facts: Templanza v Wolfman, 2016 ABCA 1 atpara 20; Amack at paras 36-37. A trial is also required when an applications judge is not satisfied she can fairly resolve the dispute on therecord before her: Templanza at para 20. [24] I dealt with

summary judgment in the aftermath of Hryniak v Mauldin in Sticks and Stones Communications Inc v Hole'sGreenhouses & Gardens Ltd, 2015 ABQB 774. [25] In that case, I referenced a number of decisions on various aspects of

summary judgment. In particular, I referred to 1214777Alberta Ltd v 480955 Alberta Ltd, 2014 ABQB 301 and adopted the six-step process described in it: 1. The court is to presume that the best evidence from both sides is before the court. 2. The court is to ask whether a negative inference can be drawn from the absence of evidence on certain points. 3. The court should look at the complete package and ask whether all of the evidence is admissible. 4. Next, the court should ask whether there is a conflict in the evidence and, if so, whether, (

a) the conflict has been resolved oncross examination; or (b), whether the evidence giving rise to the conflict is purely self-serving and is otherwise unsupported. 5. The next step is to examine the evidence. 6. Having performed that evidentiary exercise, the plaintiff will be entitled to judgment if the plaintiff can prove all elements of thecause of action and the defendant either has no defence or is missing critical elements of proof necessary to maintain that defence.

Thedefendant will be entitled to judgment if the plaintiff cannot prove an essential element of its cause or if the defendant has a completedefence. (at paras 16 and 17) [26] I will approach Ms. Stangenberg’s application on the basis of the above tests. [27] For the purposes of liability, this application involves a single issue: does paragraph 10 of the employment agreement bar anyclaim for damages beyond the eight weeks required under the Employment Standards Code? No cause is alleged and it is commonground that Ms. Stangenberg was dismissed without cause and without notice.

Review of Law on issues in lawsuit [28] The Plaintiff references Espey v Chapters Inc, (AB KB), [1998] AJ No 1518 (ABQB) and Gillespie v1200333 Alberta Ltd, 2012 ABQB 105. [29] In Espey v Chapters, Fruman J (as she then was) dealt with a

summary judgment application in a wrongful dismissal case.There, she concluded at para 9: 9 Where there are issues of fact which require determination, or credibility issues,

summary judgment is also inappropriate. That is notthe case here. The facts are not in dispute and there are no credibility issues. The evidence in Ms. Espey's affidavit and cross-examinationon affidavit is sufficient to determine whether the notice given is reasonable, what an appropriate period of notice should be, and whetherthere have been reasonable attempts at mitigation. A trial judge would not be assisted by viva voce testimony. [30] On the basis of the affidavit evidence before her and the transcript of the cross-examination on the plaintiff’s affidavit,Fruman J proceeded to grant

summary judgment and assess damages, holding at para 25: 25 I see no advantages in having a trial. The facts and law are clear and credibility is not in issue. People are entitled to their day incourt, but not their decade. I do not suggest that there have been undue delays in this case; rather we must recognize that not every casemerits a trial. A

summary judgment procedure is swift, cheap and efficient, with the same neutral evaluation before an impartial judge. Itis particularly well-suited to a case like this, where a judge applies settled law to undisputed facts. Requiring a trial in thesecircumstances is not in the interests of the administration of justice. [31] I would observe that in Espey, Fruman J considered the evidence before her sufficient to consider mitigation issues and todetermine the length of notice. The termination of employment occurred in March, 1997. Notice was set at 11 months, which period hadexpired by the time of the application for

summary judgment. [32] In Gillespie v 120033 Alberta, Ross J considered the applicability of contractual provisions relating to limiting terminationpayments to those provided under the Employment Standards Code at paras 40 and 41: [40] I reject the Respondent’s argument that the minimum notice provisions of the Employment Standards Code, R.S.A. 2000, c.E-9, are determinative in this case. A contractual provision that termination notice will accord with legislated provincial standards should

be interpreted as an agreement regarding minimal notice, not an agreement to exclude the implied contractual term that dismissal withoutcause requires reasonable notice. Although employers are free to make contracts that limit an employee’s notice entitlement to thestatutory minimums (see Machtinger v. HOJ Industries Ltd., (SCC), [1992] 1 S.C.R. 986, 1992 CarswellOnt 892 atparas. 33-35), any such agreement to exclude the employee’s common law protection must be clear and unambiguous.

Requiring suchclarity where an employer intends to rely on its strict rights under the Employment Standards Code accords with the objectives of theCode as summarized by the Alberta Court of Appeal in Vrana v. Procor Ltd., 2004 ABCA 126 at para. 10: The Code contains a detailed

preamble setting forth its legislative objectives. In particular, those objectives stress the importance ofemployment legislation encouraging the “fair and equitable resolution of matters arising over terms and conditions of employment”.Further and most important for purposes of this appeal, the

preamble expressly recognizes the salutary effect of open communicationbetween employer and employee and the vital need for each to understand their respective rights and obligations. [41] In Vrana, the Court of Appeal considered the temporary layoff provisions of the Code. It held that where an employer intendsto rely on its strict rights under the Code, it needs to ensure the employee is properly advised of this intention.

As such, it must informthe employee of this and point to the relevant sections of the Code on which it intends to rely in its notice to the employee (Vrana at para13). [33] The Plaintiff argues that paragraph 10 in the employment agreement here is not clear and unambiguous. [34] In the context of contractual provisions dealing with notice or pay in lieu of notice, the Defendant referred to: Gillespie v 1200333 Alberta Ltd., 2012 ABQB 105; Carrell v Worley Parsons Canada Ltd., 2008 ABPC 345; Roden v The Toronto Humane Society, (ONCA); and Chadburn v Sinclair Canada Oil Company, [1966] AJ No 61 (SC) [35] Of those cases, the most helpful is Roden v The Toronto Humane Society.

There, the Court of Appeal considered theapplicability and enforceability of a clause in an employment contract that provided: [55] The appellants’ employment contracts contained provisions that governed termination for cause and termination without cause.The termination provisions are similar in both contracts. That part of Ms. Roden’s employment contract that addresses terminationwithout cause (the “without cause provision”) can be found in paragraph 8.

It reads as follows: Otherwise, the Employer may terminate the Employee’s employment at any other time, without cause, upon providing the Employeewith the minimum amount of advance notice or payment in lieu thereof as required by the applicable employment standards legislation. [36] The Court stated at paras 60 and 61: [60] Any question as to the validity of the without cause provision is answered by reference to the decision of the Supreme Court ofCanada in Machtinger v. HOJ Industries Ltd., (SCC), [1992] 1 S.C.R. 986.

It is important to note that in Machtinger,the employment contract provided that the employer’s obligation in respect of notice, in the event of dismissal without cause, waslimited to something less than that which was required by the provincial employment standards legislation. [61] Justice Iacobucci, writing for the majority, explains at pp. 999-1000 of the reasons, that an employment contract that attemptsto contract out of the statutory minimum notice period by providing lesser benefits is void.

However, he states at pp. 1004-1005 that anemployment contract that referentially incorporates the legislated minimum notice period is valid: Absent considerations of unconscionability, an employer can readily make contracts with his or her employees which referentiallyincorporate the minimum notice periods set out in the Act or otherwise take into account later changes to the Act or to the employees’notice entitlement under the Act.

Such contractual notice provisions would be sufficient to displace the presumption that the contract isterminable without cause only on reasonable notice. [37] It held at para 62: [62] The without cause provisions in question are of precisely the type that Iacobucci J. says are valid: they referentiallyincorporate the minimum notice period set out in the Act. The without cause provisions do not attempt to provide something less than thelegislated minimum standards; rather, they expressly require the Society to comply with those standards.

As I have said, in my view, theprovisions do not purport to limit the Society’s obligations to payment of such amounts. That is, they do not attempt to contract out of therequirement to make benefit plan contributions. Because the contracts are silent about the Society’s obligations in respect of benefit plancontributions, the Society was obliged to – and did – comply with the requirements of the Act in that regard. [38] The Plaintiff referred to Long v Delta Catalytic Industrial Services Inc, [1998] AJ No 131 (QB) which is also a decision ofFruman J.

She stated at paras 12-15: 12 There is an implied term in every contract of employment that an employer will provide reasonable notice of termination. Failure toprovide notice is a breach of contract which entitles the employee to damages. The implied term can be negatived by a specificagreement, but clear and express language must be used by the parties: Chadburn v. Sinclair Canada Oil Co., (1966),(AB KB), 57 W.W.R. 477 at 483 (Alta. S.C.); Bagby v. Gustavson International Drilling Co. Ltd. et al, (1980), 1980 ABCA 227, 24 A.R. 181 at 191 (C.A.).

Courts will enforce a severance provision which defines the length of notice, provided it isexpressed in clear and unambiguous language: Jobber v. Addressograph Multigraph of Canada Ltd. (1980), 1 C.C.E.L. 87 at 91 (Ont.C.A.); Mahon v. Paul Revere Life Insurance Company (1982), (MB KB), 19 Man. R. (2d) 388 at 391 (Q.B.); Wallace

v. Toronto-Dominion Bank (1983), (ON CA), 41 O.R. (2d) 161 at 181 (C.A.); Matthewson v. Aiton Power Ltd.(1985), 8 C.C.E.L. 312 at 314 (Ont. C.A.). 13 If Delta intended to rely upon the severance provision contained in the offer, it had the onus of proving that it represented theagreement of the parties. The severance provision was somewhat unique. It referred to some future severance policy of Delta: one thatwould be ascertainable at the time of termination but was not ascertainable at the time of signing. Additionally, it was Delta's practice tomake unilateral changes to the severance policy without Mr.

Long's or any other employee's consent. It did so on three occasions. 14 Unilateral changes to employment contracts seem to be a touchy subject in our jurisprudence. Generally, a unilateral notification ofa change in severance entitlement by an employer after an employee has commenced working is insufficient to bind an employee. Theemployer must show that the employee had "an expression of agreement, express or implied": Brode v. Fitzwright Co. (1992), 41C.C.E.L. 289 at 295 (B.C.S.C.). Acceptance cannot necessarily be inferred from an employee's continuing to report to work after receiptof a new policy: Lyonde v.

Canadian Acceptance Corporation Ltd. (1983), 3 C.C.E.L. 220 at 224 (Ont. H.C.J.) Nor, in my view, is anemployee required to object to the amended policy once he learns of it, in order not to be bound. Finally, If the new policy reduces anemployee's severance rights, issues of consideration for the new contract arise: Rahemtulla v. Vanfed Credit Union, (BC SC), [1984] 3 W.W.R. 296 at 304 (B.C.S.C.). 15 The courts have developed a complex set of legal and evidentiary principles to ensure that employees are treated fairly at the timeof termination.

The preoccupation with fairness seems to elevate the contractual standards for provisions which limit severance,surpassing normal principles of offer and acceptance in an arms' length negotiation. The standards for severance policies that may bechanged unilaterally by an employer appear to be higher still. Courts have shown some reluctance to enforce those policies: Bienvenu etal. v. Zellers Inc. (1984), (NS SC), 5 C.C.E.L. 30 (N.S.S.C.); Clark et al v.

Optyl (Canada) Ltd. (1985), 7 C.C.E.L. 1(N.B.C.A.) [39] The Plaintiff notes that Fruman J held that the defendant had not discharged the burden of showing that Mr. Long had in aclear, express and unambiguous agreement negatived the implied term of reasonable notice of termination, stating at paras 25-26: 25 In matters of employment, economic clout most often translates into contractual control. Usually the employer can boldly dictatethe terms of employment; the severance clause is not the place to become bashful.

There is no inherent unfairness in the employer'sstrong bargaining stance, so long as the employee understands what he's getting into and what he's giving up. The employee, after all,retains the ultimate choice to decline the job offer. But if an employer wants specific termination provisions to apply, not to mention theright to change them for the worse, it has to say so in clear and express terms. Any ambiguity will almost certainly be resolved in favourof the employee. 26 While this case turns on an

interpretation of the contract, even a clear and unambiguous provision will not necessarily limit anemployee's notice on termination. A court must also find that an employee knew and understood what he was signing: Nardocchio v.Canadian Imperial Bank of Commerce (1979), (NS SC), 41 N.S.R. (2d) 26 at 41; 76 A.P.R. 26 at 41 (N.S.S.C.); Risi v.Benson & Hedges (Canada) Inc., [1986] O.J. No. 2044 (Ont. Dist. Ct.) (QUICKLAW); and agreed to be bound by the severanceprovision: Buerman v. Canada (Attorney General) (1996), 19 C.C.E.L. (2d) 127 at 131 (Ont. Ct. (Gen. Div.)).

In appropriate cases acourt may also consider coercion, improper influence or oppressive conduct: Wallace at 180. [40] The contractual term was that severance would be based on “Delta’s severance policy in effect at the time of termination ofemployment” (from para 5). That was unknown to the plaintiff at the time the agreement was entered into. [41] Ms.

Stangenberg also referred to Globex Foreign Exchange Corp. v Kelcher, 2011 ABCA 240 on the issue of consideration.There, Hunt JA (for the majority) stated at para 87: [87] I do not find it necessary to consider in detail the Ontario Court of Appeal cases discussed by Slatter J.A. since each turnslargely on its own facts.

The Ontario Court of Appeal takes the same view of Maguire as I do (and as did CA No 1): continuedemployment alone does not provide consideration for a new covenant extracted from an employee during the term of employmentbecause the employer is already required to continue the employment until there are grounds for dismissal or reasonable notice oftermination is given. [42] Slatter JA in dissent stated at para 128: [128] In Alberta, Maguire, Gestetner and Maier are the binding authorities.

The facts of this appeal are not similar to those in Hobbsor Francis, and it is not necessary to express any conclusive opinion on those cases. The results in Francis and Braiden seem artificial,especially since those employment relationships continued for many years after the changes, and the decision in Hobbs was likely drivenby the high handed conduct of the employer in that case.

It follows that in most employment cases, the law in Alberta will recognize animplied “tacit agreement” to forbear from exercising the right to terminate the contract as being sufficient consideration to support anychanges in an ongoing employment relationship. [43] I am, of course, bound by the majority decision. Analysis Consideration [44] I expressed concerns following the application that the Plaintiff had not addressed consideration issues arising from Francis vCIBC. I received extensive submissions on the point. Suffice it to say that Ms.

Stangenberg argues that there was no consideration tosupport the employment agreement. Sylogist argues that there was.

[ 45 ] Ms. Stangenberg refers to Bell v Stanley Industrial Consultants , [1996] AJ No 553 (QB) , another decision of Fruman J. At para 28, she stated: 28 In this case the defendants bear the onus for proving, on a balance of probabilities, that the termination provisions contained in the offer letter became a term of Mr. Bell's contract of employment. There is no doubt that the defendants provided a notice to Mr. Bell, but a unilateral imposition of a contractual term is not binding. At the time he received the offer letter, Mr.

Bell had already been working for Stanley Associates for a few weeks pursuant to terms communicated to him by Mr. Howard, and perhaps had already received a salary payment. This was clearly the case at the time he received the Stanley Benefits Plan booklet. The defendants never followed up, and neither before nor after delivery of the offer letter initiated a single conversation with Mr. Bell concerning the notice period for termination. [ 46 ] It is trite law that the court does not generally consider the sufficiency of consideration.

This is not one of those cases that falls into any exception to that general rule. [ 47 ] Sylogist raised in its reply that one of the features introduced in the employment agreement was Ms. Stangenberg’s eligibility to participate in Sylogist’s incentive plan. They introduced a stock option agreement between Ms.

Stangenberg and Sylogist “dated on September 1, 2006, to be effective on May 15, 2006”. [ 48 ] The employment agreement itself states in para 5: During your employment you may be eligible for salary increases, participation in Company incentive plans, and other forms of compensation that may be extended to you at the Company’s sole discretion. There is no guarantee a Company incentive plan applicable to you will be put in place, or will be extended from year to year if one is put in place. [ 49 ] It does appear that there were some benefits to Ms.

Stangenberg arising out of the purchase of Bellamy Software to Sylogist, including being enrolled in Sylogist’s benefit plan. There is no information as to what benefit plan Ms. Stangenberg had before the sale to Sylogist. From the letter of May 12, 2006, which should be read in connection with the employment agreement of the same day, she was treated as having tenure for benefit and vacation entitlements predating the sale not only to Sylogist but to Sylogist’s predecessor.

Her “hire date” was stated to be October 1, 2001, again previous to Sylogist’s acquisition. [ 50 ] There is a strong argument that these factors satisfy any requirement that there be consideration for the agreement, and that “continued employment” was not the only consideration for the employment agreement. [ 51 ] Here, there also may have been a brand new employer such that an employment agreement between an employee of a division being acquired by a new owner might be reasonable and amounts to new employment and not simply continued employment (from a contractual point of view as opposed to a legislated employment standards perspective. [ 52 ] Cases cited by Sylogist are to the effect that the “continuous service” provision may not be all-encompassing.

Sylogist argues that Ms. Stangenberg’s employment with Bellamy’s previous owner was legally terminated such that an employment agreement with a new employer (Sylogist) did not require fresh consideration in any event. [ 53 ] This position is supported by Kennett v Superior Millwork Ltd , 2005 ABCA 84 . [ 54 ] The argument is not absolutely clear, as Ms. Stangenberg worked for Bellamy Software to the time of its acquisition by Sylogist and continued to work for “Bellamy Software” thereafter.

The extent to which an ownership change amounts to a change of employer was not argued before me. [ 55 ] My conclusion is that the defendant has shown that there is a strong argument that there was fresh consideration for the agreement, or that no new consideration was necessary because this was legally new employment. [ 56 ] Put another way, the Plaintiff has not satisfied me that the employment agreement is void for want of consideration. That is an argument that requires more evidence to make a reasonable determination on that point. Six-Step Test for

Summary Judgment [ 57 ] As noted above, the threshold question is whether or not the court requires oral evidence to make a fair determination on the evidence. Significant credibility issues or conflicts in the evidence put forward by the parties are often strong indicators that the court will want to see and hear the witnesses, or at least some of them. [ 58 ] Here, the evidence and issues before me on this application suggest that there is likely more evidence, in particular evidence of consideration, potential unconscionability and fundamental changes in the nature of Ms.

Stangenberg’s employment. [ 59 ] That being said, I do not have enough before me to know whether there is additional evidence on these points, whether the evidence will be contradicted, whether there will be credibility issues, or whether the real issues between the parties are legal argument on largely uncontested facts. [ 60 ] There is nothing about this case to indicate that it is not amenable to a determination without oral evidence. [ 61 ] That leads me to the six steps. 1.

The court is to presume that the best evidence from both sides is before the court. [ 62 ] Here, there is no evidence from the Defendant. The Defendant has elected to defend this application on the basis that the Plaintiff cannot prove her case and negate the defences raised in the Statement of Defence. One of the difficulties with the Plaintiff’s case is the absence of evidence which may negate the defence relating to paragraph 10 of the employment agreement: unconscionability

and fundamental change to the employment. 2. Can a negative inference can be drawn from the absence of evidence on certain points? [63] I do not draw any negative inference against the Defendant for electing to not put any evidence forward on this application,other than in response to my enquiry about consideration. The Defendant then put the stock option granted to the Plaintiff before theCourt. Otherwise, they are silent and rely on paragraph 10 which is more an argument of law.

The Plaintiff did not likely anticipate myconcerns about consideration, and elected not to negate potential defences by putting forward evidence of unconscionability or moredetails about her post-employment agreement job duties, functions and responsibilities. I draw no negative inference against her either.This is early going in the lawsuit, and the Plaintiff has attempted a pre-emptive remedy. 3.

Is all of the evidence is admissible? [64] There are no submissions before me as to the admissibility of any of the evidence, so I am able to consider the application onthe basis of the evidence the parties have put forward. 4. Is there is a conflict in the evidence and, if so, whether, (

a) the conflict has been resolved on cross examination, or, (b),whether the evidence giving rise to the conflict is purely self-serving and is otherwise unsupported. [65] None of the Plaintiff’s evidence is contradicted by evidence from the other side. There are questions about mitigation arisingout of the cross-examination which I will deal with in the context of damages, below. 5. The next step is to examine the evidence. [66] As for the central argument as to whether the termination wording is clear, express and unambiguous so as to negate theimplied term of reasonable notice of termination, Ms.

Stangenberg’s arguments do not address any ambiguity. From my reading of theclause, it appears to be clear, express and unambiguous, and it is difficult to think of wording that might make the employer’s intentionany clearer. [67] It is clear from cases such as Roden v The Toronto Humane Society and Machtinger v HOJ Industries Ltd, (SCC), [1992] 1 SCR 986 that it is possible for an employer to have its employee contract out of pay in lieu of notice in excess ofstatutory minimum amounts. Exceptions to that would be consideration, which I have dealt with above, and unconscionability.

Theplaintiff has not suggested in argument, nor put any evidence forward to suggest any unconscionability relating to the agreement with herin 2006. [68] The Defendant raises a strong argument that the Plaintiff’s claim is barred by paragraph 10 of the employment agreement.That is an argument that could likely be determined on

summary judgment or

summary dismissal. The Plaintiff has put the agreement inevidence, as well as the circumstances leading to it. Presumably, if the Plaintiff had concerns over the negotiations or the manner inwhich the agreement was reached, those topics would have been covered in her affidavit in support of the application. Step 1 presumesthat the best evidence is before the Court. [69] Having raised the argument as to the applicability and enforceability of paragraph 10, the Plaintiff’s onus on

summaryjudgment is to demonstrate that the Defendant has no defence, or is missing critical elements of proof necessary to maintain that defence(1214777 Alberta Ltd at para 17). [70] However one looks at paragraph 10, and viewing it in light of Roden and Machtinger, I do not think it can be said that theDefendant’s defence under paragraph 10 is without merit. [71] In 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49, the Court of Appeal described “merit” in light of Hryniak andWindsor v Canadian Pacific Railway at para 11: 11 Stated another way, in order for the non-moving party's case to have merit, there must be a genuine issue of a potentially decisivematerial fact in the case which cannot be summarily found against the non-moving party on the record revealed by the "fair and justprocess".

The mere assertion of a position by the non-moving party in a pleading or otherwise, or the mere hope of the non-moving partythat something will turn up at a trial, does not suffice. The key is whether the circumstances require a viva voce evidence in order toproperly resolve the case: see Canada v Lameman, 2008 SCC 14 at paras 10 to 11, [2008] 1 SCR 372. [72] In this case, I am doubtful that Sylogist’s defence on paragraph 10 requires oral evidence, but the Plaintiff’s ability to negatethe defence requires more evidence than is present.

Sylogist’s defence clearly has sufficient merit to defeat the Plaintiff’s claim forsummary judgment. [73] Indeed, without evidence supporting potential defences to the paragraph such as lack of consideration, unconscionability or afundamental change in the nature of the Plaintiff’s employment (see for example Swako v Foseco Canada Ltd, (1987), 15 CCEL 309(Ont Dist Ct), the Plaintiff might not be successful in defeating a

summary dismissal application if one were brought by the Defendant. [74] These issues warrant the matter going to trial in the absence of an application by the defendant for

summary dismissal of theplaintiff’s claim. No such application is before me, and I do not consider it appropriate to deal with dismissal of the plaintiff’s claim inthe absence of an application to do so. I note that such a result occurred in Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA 12,but the Defendant has not sought this remedy.

6. Has the Plaintiff proven all elements of the cause of action and the Defendant either has no defence or is missing critical elements of proof necessary to maintain that defence? [ 75 ] As a result of the above considerations, I am not satisfied that Ms. Stangenberg has established that the employment agreement is ineffective, or that the provisions of paragraph 10 are unenforceable. [ 76 ] Sylogist has satisfied me that its defence to Ms.

Stangenberg’s claim under paragraph 10 has merit such that a determination on it should proceed to trial, or at least to some further adjudication process. [ 77 ] It may be that there will be further evidence on the issue of consideration, or that Ms. Stangenberg may produce some evidence of unconscionability.

Or she may have some evidence supporting an argument that the employment agreement is inapplicable to her employment as at the date of termination because of fundamental changes between the employment date and the termination date. [ 78 ] If any oral evidence is necessary on any of these issues, a trial may be required. Otherwise, a

summary trial may be appropriate. Subject to what may be explored on unconscionability or fundamental change, it would appear that the matter may be suitable to be dealt with using affidavit evidence and cross-examination transcripts. Conclusion [ 79 ] Ms. Stangenberg’s application for

summary judgment against Sylogist is dismissed. Damages [ 80 ] In the application, Ms. Stangenberg sought an assessment of damages. Because I have dismissed the

summary judgment application it is not necessary for me to deal with the assessment of damages. [ 81 ] However, courts frequently do a provisional assessment of damages when dismissing a claim. In this aspect, I do not consider that this is one of those cases where damages can be assessed fairly on the evidence presented. I recognize that

summary judgment may be effective for plaintiffs in wrongful dismissal actions, especially where they remain out of work and require funds to live on. [ 82 ] Here, the pay in lieu of notice ran out eight weeks after Ms. Stangenberg’s termination. She remained without work, and that continued until the date of the application (on the assumption that if she had become employed between cross examination in October and the date of the application in December, counsel for the Defendant would have been notified of that material change in her circumstances). [ 83 ] I understand that

summary judgment or

summary trials are common in British Columbia in wrongful dismissal cases, and damages are assessed before the expiry of what might ultimately be determined as the reasonable notice period. The notice period claimed (fifteen additional months) will not expire until approximately the end of 2016. At the time of the application, she was less than four months past termination [ 84 ] Ms. Stangenberg has put forward evidence of her attempts to find suitable alternate employment. It is clear from the cross- examination of her that the Defendant takes issues with Ms. Stangenberg’s efforts and expectations.

In my view, a more fulsome discussion of mitigation, the job market for suitable alternative employment and Ms. Stangenberg’s expectations would be necessary to assess damages, including the assessment of a reasonable reduction for the contingency that she might obtain suitable employment before the expiry of the notice period. More evidence is needed. [ 85 ] Had I concluded that Ms. Stangenberg was entitled to

summary judgment, I would have directed an assessment of damages to proceed. [ 86 ] That is again something that might be addressed through affidavits and cross-examination such that no trial with oral evidence may be necessary. Heard on the 17 th day of December, 2015. Dated at the City of Edmonton, Alberta this 17 th day of March, 2016. Robert A. Graesser J.C.Q.B.A.

Appearances: Anthony Purgas Reynolds Mirth Richards & Farmer LLP for the Plaintiff Andrew Pozzobon Borden Ladner Gervais LLP for the Defendant