Turner v Atco Frontec Corp, 2016 ABQB 265

Court of Queen ’ s Bench of Alberta Citation: Turner v Atco Frontec Corp, 2016 ABQB 265 Date: 20160510 Docket: 0401 05635 Registry: Calgary Between: John C. Turner Plaintiff - and - Atco Frontec Corp., Elpis Florov, Attorney General of Canada, John E. Battye and James R. Peverley Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E.

Nation _______________________________________________________ Introduction [ 1 ] John Turner was hired by the corporate defendant, Atco Frontec Corp. (“Atco”), as a dispatcher at Camp Black Bear (the “Camp”) in Bosnia from December 2000, until he was dismissed on October 16, 2002. This lawsuit, which alleges wrongful dismissal

and defamation, has been a twelve year odyssey by Mr. Turner, to "clear his name" and obtain compensation. The claims against the Government of Canada, John Battye and James Peverley were dealt with outside of this trial. This decision deals only with allegations against Atco and its named employee, Elpis Florov. Background Facts [ 2 ] The Camp was one of several bases set up by the Canadian military to facilitate the Canadian soldiers in their role as part of the NATO operation in Bosnia.

At times material to this lawsuit, Atco had a contract with the Canadian military to provide services such as communications, supply, and transport at the Camp as well as at a number of military bases in Bosnia. Access to the Camp was controlled, and there was perimeter security. The main entrance had a barrier, with a guard shack, staffed by soldiers 24/7. All Atco employees and all military personnel had to wear an identification card while in Camp, which was also used to gain access to the Camp. [ 3 ] Mr. Turner was born into a military family.

He did not complete grade twelve as an adolescent, but joined the infantry in 1973. He rose to the rank of Sergeant. He was discharged from the military in May 1983 as a result of his dependence on alcohol, which had led to several incidents of fighting. After his discharge, he had periods of heavy drinking, some lasting up to a year, during which time he did not work. He testified that at times he was homeless, living on the streets in Calgary, but he has managed to control this addiction for the last twenty-eight years, his last alcoholic drink being September 13, 1987. [ 4 ] Starting in 1986, Mr.

Turner found employment, working jobs such as: an equipment operator at the City of Calgary for three years; a taxi driver in Calgary for three years; and a stores person at a government defence research establishment at Suffield. He drove a truck based out of Medicine Hat for the five years before he was employed by Atco. The only evidence of his actual income before 2001was $13,626 declared in the 2000 tax year. [ 5 ] Mr. Turner was hired by Atco on December 11, 2000 to start on December 26, 2000 as a transport dispatcher at the Camp.

He was paid $50,000 a year, with benefits and worked a rotation of twelve weeks in Bosnia, followed by four weeks of vacation. He agreed in writing to be subject to the Code of Service Discipline set out in the National Defence Act , and also a Code of Ethics established by Atco. His job involved the dispatch of approximately fifty vehicles on the Camp, in terms of who drove them each day, assuring that they went out and were returned in proper order, and the coordination of any maintenance required.

Although only one dispatcher worked each shift, Atco hired several dispatchers, as the desk was open long hours. [ 6 ] Mr. Turner had two performance reviews while employed with Atco, one dated June 28, 2001, the other dated August 22, 2001. Both were good reviews, he performed his work duties well. Mr. Turner’s ability to perform the tasks of a dispatcher was never in issue in this lawsuit. Relevant Events before the Termination [ 7 ] Mr. Turner testified about a number of "incidents" that he felt were relevant to his dismissal.

These were raised at trial in an attempt to show the earlier warning on his employment file was unjustified and that key players in his termination may not have been completely impartial towards him. 1. The Dawes Interaction [ 8 ] Mr. Dawes, an Atco manager at the base, and thus senior to Mr. Turner, borrowed a vehicle and when he returned it, he was in a hurry and told Mr. Turner it was clean and gassed up. Mr. Turner testified that it was not clean. When he next saw Mr. Dawes, and raised this fact, there was a negative interaction. Mr. Turner told Mr.

Dawes that the next time he wanted a vehicle from dispatch; he should talk to Mr. Charest (the Atco transport supervisor, and the senior person in transportation). [ 9 ] Mr. Turner's next interaction with Mr. Dawes was when he had arranged a social reunion for past members of the airborne regiment. Mr. Turner would organize this event every second month, beer and food, usually pizza, was supplied by the kitchen. On February 23, 2002, the pizza did not arrive for the event. Mr. Turner was under the impression that Mr.

Dawes had cancelled the food, and as a result, exchanged heated words with him in a public area at the Camp. Mr. Turner stated he was "assertive" not "aggressive", but admitted that he did swear at Mr. Dawes. During the interaction Mr. Dawes asked if Mr. Turner was threatening him. Mr. Turner admits he replied: "I don't threaten, I just follow through". [ 10 ] Mr. Dawes and his superior, Mr. Frampton, brought this interaction to the attention of their supervisor at Atco, Mr. McCallum, who was tasked with investigating it. He talked to the various parties involved, and wrote a seven page report.

His conclusion was that there was a miscommunication over the order, but the problem was not with Mr. Dawes. He found that the manner in which Mr. Turner conducted his conversation with Mr. Dawes was: "inappropriate, inexcusable and belligerent". Mr. McCallum had a meeting with Mr. Turner and his supervisor, Mr. Charest, where Mr. Turner was presented with a letter dated February 26, 2002. The letter was a written warning that Mr.

Turner’s conduct was “not acceptable in any setting” and “that a repeat of this type of behavior, or other infractions, will result in further appropriate disciplinary action up to and including your dismissal.” Mr. Turner refused to "accept" the letter, but was aware it was on his employment file. He admits he was referred to an employee assistance program, he understood his employer felt he had an anger problem and he was advised to make sure he took whatever actions were required to ensure his interactions with all personnel were handled courteously and professionally. Mr.

Turner acknowledged that he understood he was getting a warning. He did not follow through with any anger management or other assistance. Both the memo by Mr. Dawes describing the incident and the seven page report by Mr. McCallum were read by Mr. Cox (Atco’s Assistant Project Manager in Bosnia) in his supervisory capacity after these events, as they occurred when Mr. Cox was away on monthly leave. 2. The Cox Interaction

[ 11 ] Mr. Turner relayed an incident where he went to Mr. Cox to ask for a travel expenditure to be approved. He felt Mr. Cox was very dismissive, asking his secretary to verify the claim, which was ultimately approved. As a result Mr. Turner asked to have a meeting with Mr. Cox to discuss why Mr. Cox "had a problem with him". Mr. Cox responded that Mr. Turner was welcome to come to his office and talk, but Mr. Turner did not do so. 3. The MacLeod Interaction [ 12 ] Mr. Turner described a run-in he had with Mr. MacLeod, a senior Atco employee, when in the fall of 2002, Mr.

MacLeod came into the dispatch office and demanded to see Mr. Charest, who was not in his office. Mr. MacLeod understood soap was being used to wash vehicles and this was not recommended. Mr. Turner understood soap could and was being used. Mr. Turner did not like Mr. MacLeod's attitude and testified that as a result there was an interaction which involved heated words and swearing by both parties. Mr. MacLeod testified about this interaction, he did not relate any swearing or heated words, rather a difference of understanding if soap was to be used on the vehicles. There was no follow up to this incident. 4.

Observations [ 13 ] I find that the incident with Mr. Dawes about the pizza was brought about by Mr. Turner jumping to a conclusion about who had cancelled an order, that had not actually been placed on paper, as required, but which Mr. Turner felt he had arranged, relying to some extent on the old boy's (soldier'

s) network. It does highlight his temper and inappropriate reaction. At trial, he was adamant that he did not "accept" the letter on his file, and felt it should be re-visited. Clearly, he knew his behaviour around the incident was found to be unacceptable to his superiors at Atco. Importantly, he was aware that he had received a formal warning. [ 14 ] The Cox and MacLeod interactions, were raised at trial, as both of these people were involved in events that led to Mr. Turner’s termination. I accept that Mr. Turner was not happy with the interactions with Mr. MacLeod and Mr. Cox set out above.

I heard the evidence of Mr. Cox and Mr. MacLeod, both ex-military men, who could be curt. I do not find either were biased against Mr. Turner, or later dealt with him inappropriately because of either of these two interactions, which were minor events. Mr. Turner's personality [ 15 ] From the evidence at trial, some personality traits of Mr. Turner became evident, which are necessary to understand his lengthy testimony and the context of his dismissal. He is hard working, very invested in the military environment, has a strong sense of entitlement and a hot temper. [ 16 ] Mr. Turner is sixty years old.

He testified that he is a man who stands up for himself. He is very proud of his clean appearance, and takes great pride in his military service. He believes that although he was forced to leave the military, it taught him good leadership and organizational skills, and proficiency in the use of weapons and vehicles. That Mr. Turner was heavily invested in his military background was clearly established at trial. Mr. Hunt, his close friend testified of this strong tie, saying "once a military, always a military". William Nichol, a friend, alluded to this also, testifying that Mr.

Turner really admired the military and loved the army. Mr. Turner testified in cross-examination that he had tried, unsuccessfully, to join the US, British and Israeli armies as well as rejoin the Canadian army. [ 17 ] Mr. Turner takes great pride in his Irish ancestry, he took Irish dancing as a youth and excelled at it for some period. He travelled to Ireland, developing an interest in its history and situation. At the time he worked for Atco, he was in a relationship with an Irish airline stewardess who lived in Northern Ireland.

Before his dismissal, he was actively applying for a job with the police force in Northern Ireland, and hoped to relocate to Ireland to live there. [ 18 ] Mr. Turner would at times go beyond the scope of his duties, and do things for the soldiers on the base. An example is that during one period of intensified security after September 11, 2001, he made coffee and sandwiches and went around offering them to the soldiers on duty. This gesture resulted in a letter of commendation from Mr. Shaw, the president of Atco, who heard about this kindness. [ 19 ] Mr.

Turner could become very invested in events which he felt were morally wrong. He would step in where authority figures would not. One example that he testified about was working on a contract basis for a company based in Seattle that in his words: "got kids out of religious cults". He testified very generally about this at trial, but it is clear he had told stories to co-workers at Atco, with pride, about how by force or threat of force and with weapons he was part of a private security team that would affect a "rescue". Mr.

Turner was very sensitive to the reality that some soldiers resented Atco's involvement in the camp, as Atco employees were doing tasks that had been done by members of the military in previous times. He took it upon himself to write a letter to multiple military individuals, to criticize the fact that both civilians and military working in Bosnia could qualify for the same peacekeeping medals. He testified he took this on because he saw that this fact caused discontent to some members of the military, and they were constrained from complaining while still in the service.

He also suggested that Atco may have resented this action, as Atco employees were eligible for these medals. I did not hear any other expression that Atco resented this letter, in fact, Mr. Cox an Atco employee, who was also ex- military, was quite clear he supported Mr. Turner's view, stating that: “as a soldier: I earned my medals". [ 20 ] Mr. Turner has the capacity to write long letters outlining his position on matters, for example: his letter about the peacekeeping medals, (which was copied by him to over 100 people); his letter to Mr.

Shaw trying to get his employment with Atco reinstated; and his letter to the president of McInnis and Holloway, a subsequent employer, asking to revoke his letter of resignation. Reading these letters demonstrates how invested he could become in situations, and that he lacked insight as to how these long, detailed explanations of his point of view may appear to others. He testified he felt the recipients were honourable people and should have done the "honourable thing" i.e. reinstate him, or pay him compensation.

The most inappropriate example of this letter writing activity is the letter he sent to all McInnis and Holloway employees, on his resignation from his employment there on February 12, 2009, that gave detailed information about this lawsuit, republishing details of the alleged defamation. There was absolutely no basis to write the letter to

all the staff, who from the evidence, until that time, were unaware of this lawsuit and had no reason to be involved. [ 21 ] In his evidence, Mr. Turner downplayed his anger when dealing with others. He would not admit to involvement of any harassment in other employment situations that were put to him in cross-examination, dismissing any allegations as fabricated, unfounded or non-existent. For example, he was not forthright in his evidence about the circumstances of leaving the National Defence Research Establishment at Suffield.

In his direct examination he advised he finished his contract and was not terminated. However, when confronted in cross-examination with a letter in his employment file, he acknowledged that an investigation had accepted an allegation of harassment by a female against him during his period of probation on the job. His actions were perceived as physically threatening, so he was rejected for a permanent position and his employment there was terminated.

It is not the findings that were put to him that are important, and in fact they cannot be used to establish his "character", rather his failure to acknowledge the existence of the complaints, is instructive in terms of his credibility and reliability as a witness. [ 22 ] Mr. Turner is very invested in this litigation. I accept Mr. Hunt's evidence that Mr. Turner told Mr. Hunt, a friend and counsellor in the military, that as Mr. Hunt may be a witness at trial, Mr. Turner could not have any contact with him. Mr. Turner felt it would be frowned upon.

He also felt there may be an inference of collusion if they were in contact before the lawsuit came to court. As a result, Mr. Turner did not have contact with Mr. Hunt for at least five years, and Mr. Hunt described it as a huge loss of a friendship. Perhaps of more concern, Mr. Turner admitted that he had his friend, Mr. Gudzowaty, feign a romantic interest in Ms. Lois Smith, after she left Atco and returned to Alberta, solely to get information about her view about the mediation meeting of October 12, 2002 and Mr. Turner's termination. Also, Mr.

Turner testified that he slowed down the lawsuit after he resigned from McInnis and Holloway, as he wanted to take steps to have a memo about an alleged harassment removed from his employment file at McInnis and Holloway before the trial. Incidents Involving Ms. Florov [ 23 ] The defendant, Ms. Florov, was hired as a dispatcher at the Camp, and started work approximately one week before Mr. Turner. She had no military background. She and Mr. Turner performed the same work, but never worked together at the same time. At times they signed off to each other at the end or start of a shift. Mr.

Turner admitted in cross-examination that he had never liked Ms. Florov. Two incidents involving Ms. Florov precipitated the termination of Mr. Turner's employment with Atco. [ 24 ] The first event occurred in May or June 2002, when a soldier left a television at dispatch while Mr. Turner was on duty and asked that it be delivered to another army base. Mr. Turner left the television in a box with no instructions before he went off shift for four days. When Ms. Florov came on shift the next day, she saw the television in a box on the floor just outside the dispatch office.

She assumed it was a television for the driver's room, as both the drivers and dispatch had been requesting a new television. She had a driver install the television in the driver's lounge area. When Mr. Turner returned to his next shift, he realized the mistake and had the television delivered to its owner. [ 25 ] Mr. Turner then demanded that Ms. Florov explain why she dealt with the television in that manner. Ms. Florov did not see it as a problem, rather a mistake contributed to by Mr. Turner, who failed to label the box. Mr.

Turner felt her conduct was akin to theft, referring to it in emails as a theft and reporting it as a theft to their superior, Mr. Lockyer. Ms. Lockyer took no action. In discussion with another dispatcher who seemed unconcerned about the incident, Mr. Turner said words to the effect that: "People around here are acting like a bunch of Somalians, a bunch of thieves". [ 26 ] I find that this incident should have been dismissed by all as a mistake, caused by both Ms. Florov and Mr. Turner and a lack of communication about why the television was there.

It is important in this lawsuit as background to the second event. [ 27 ] The second event occurred later in July 2002, when Mr. Turner was on duty at the dispatch desk and a soldier asked about a bag which he had left in a vehicle. Mr. Turner said he would look for it. Someone who overheard the conversation said they had seen it handed into dispatch earlier. Mr. Turner was immediately suspicious that Ms. Florov might have taken it. He called her, she was out of the camp but indicated she would be back in half an hour, and would deal with it then.

The item was later returned to dispatch by Ken Ambrose, and returned by Mr. Turner to the soldier. Mr. Turner testified that he did not like the look the soldier gave him, he had the impression that the soldiers thought of all the dispatchers as thieves. Mr. Turner went to Mr. Lockyer to complain that Ms. Florov had stolen the item, and then returned it. Mr. Lockyer took no action. Mr. Turner took it upon himself to have a talk with Ms. Florov on July 29, and this interaction lead Ms. Florov to make a formal complaint of harassment to Atco. [ 28 ] When Ms.

Florov first made her complaint orally to her direct supervisor, Mr. Lockyer, he told her to go to Ms. Lois Smith, an employee in Atco’s human relations department at the Camp. Ms. Florov was told to write a statement, which she submitted on August 30, just after a month of scheduled holiday. In that statement, she outlined that previous to July 29, Mr. Turner was accusing her of wrongdoing (the television incident).

Her testimony at trial was that on July 29, he came into the office, where she was working on email, and walked right up behind her, and then walked away and told her words to the effect that he had experience as a detective, and that she was a thief. He said this behavior made all Atco employees look bad in the eyes of the military and he did not want to look bad. Ms. Florov testified that Mr. Turner was aggressive, authoritative and tried to intimidate and belittle her. He had no interest in her side of the story.

She suggested that they go to the military police if there was an investigation about the loss of the bag. Ms. Florov testified that Mr. Turner was suggesting he could set her up to look like a thief to the military police. [ 29 ] Ms. Florov testified that Mr. Turner was loud, often telling stories of the Vandoos and tales of his involvement in an armed rescue of a child from the Church of Satan. She had seen a heated exchange between him and another employee, after which Mr. Turner suggested they take the dispute "outside".

She also testified that she did retrieve the bag, following up on a rumour she had heard that a "Dave" had it. She testified someone agreed to return it to her, but gave it to her in a way that she had no information as to how it was found. She did not tell Mr. Turner details of how she got the bag and gave it to Ken Ambrose to return to Mr. Turner, as he was accusatory and jumping to conclusions. She did not tell these details to Ms. Smith or divulge them in the October meeting. [ 30 ] Ms. Florov wrote an email to Ms. Smith on September 28, asking her to delay any further action on her complaint until Mr.

Turner had a chance to meet with Mr. Charest, as Ms. Florov thought Mr. Charest had a good relationship with Mr. Turner and they may be able to come up with a resolution. Mr. Turner left on leave in late August, and returned to the Camp in late September 2002. Ms. Florov testified that she went to the military police three times, once after she returned from her leave at the end of August, to see if there was any investigation about the "bag" incident and to volunteer her information. She was told that there was no investigation underway by the military police.

She went another time before the mediation meeting because she was scared when Mr. Turner came back from his leave at the end of September. She attended the military police again on October 13, to report that she was nervous and in fear of reprisal by Mr. Turner, she did not feel the October 12 meeting solved anything. Only this last attendance was documented by the military police and brought to the attention of Mr. Cox. [ 31 ] Ms. Florov testified that she was not contacted by Mr. Turner between July 29 and the October meeting.

She denied ever telling anyone about the details of her complaint outside of the discussions at the October meeting. She denied ever telling anyone that she made complaints of sexual harassment against Mr. Turner. [ 32 ] Mr. Turner's testimony about the July 29 incident confirms the subject of the discussion and the place. His testimony about the tone of the meeting and what was said is dramatically different from Ms. Florov's evidence. Mr. Turner testified that he had this discussion as he saw Mr. Lockyer was a weak leader and not going to do anything about it.

He maintained that some weapons were stored in the dispatch office, so it was crucial in his mind that there were no "thefts", this was a security issue. He wanted to talk to Ms. Florov, to explain to her how military people think, that there was tension between the Atco people and the French Canadian soldiers and that items should go to a lost and found. Mr. Turner felt that items in the lost and found box at the end of the day should be turned over to the military police. He acknowledged there was no formal process that this was to happen at that time. [ 33 ] Mr.

Turner testified that when he came into the office on July 29, Ms. Florov was fifteen feet away, working on the computer. No one else was in the office; there were people next door in the driver's room. He was not speaking loudly or yelling, but he wanted to make the point that he felt she had taken the bag, and that was theft, and not acceptable. He testified that Ms. Florov made comments to the effect that the soldier got the item back, so it was no big deal. Mr.

Turner acknowledged that he talked about his association with detectives in the United States when he was rescuing children from religious cults, but in his mind only to show he was familiar with methods of investigation. He did talk about the military police, saying that they had asked about the incident with the bag, and he told her: "it was her lucky day" that the military police had not opened an investigation. [ 34 ] When Mr. Turner returned from his leave at the end of September, he heard rumours that Ms. Florov was saying he had threatened her, and had made a formal complaint.

A meeting was held on October 12, 2002, to deal with Ms. Florov's complaint. Before the meeting, Mr. Turner was given the original written complaint made by Ms. Florov, which suggested he had threatened her. Mr. Turner asked for Ms. Florov to provide in writing more detail of what the threats were. [ 35 ] Ms. Florov, when asked to be more specific about the threats, added to her written statement the following: He said you know what, I have a lot of friends that break legs and take care of problems for him. That he can find me anywhere in North America or any other continent because he is a detective.

I said what does that mean and he said you know what I mean. He said he has friends in the New York police department, with the RCMP and bounty hunters because he is one. [ 36 ] Mr. Turner provided a three page written response to Ms. Florov’s complaint, sent to Ms. Smith at Atco under an email entitled "waste of time". In it, he summarized some of his conversations with Ms. Florov as: ...“Did you know that I used to work with detectives in the United States. With that experience, I detect something is wrong between you and I”. She said, "I don't like being called a thief". I said, "If the shoe fits, wear it.

If Cox finds out about this he is going to have someone's head and it isn't going to be mine. Don't you understand what kind of problems this would have for everyone?" She denied taking the bag and then said, "I was told we could take things after they were here a long time". I asked, "Who said that?" She said, "I can't remember". I said, "That's bullshit". Then I said, "Well, how about the bag. It was only here a few days". She said, "Oh no, it was here a lot longer than that".

I said, "Fucking Bullshit, the MWO who lost the bag knew exactly when he lost it and besides, it doesn't matter how long something is here, if it doesn't belong to you, you don't take it. Didn't you ever learn that? Then I said, "You probably don't know this but an MP (military police) came and talked to me about the bag and asked what was going on at TnPl regarding theft?" I said to Elpis Florov that I asked the MP, "Have you gone anywhere with what you know?" the MP's answer was "No".

I said to Elpis Florov," It's your lucky day because had the MP started an investigation probably only the TFBH Commander could have stopped it"... [ 37 ] A meeting to review Ms. Florov’s complaint of harassment was arranged by Atco personnel, with Ms. Florov, Mr. Turner, Ms. Smith and Mr. MacLeod in attendance. Mr. Turner testified that before the meeting he sent Ms. Florov's statement to two detectives or police friends to get advice on how to question Ms. Florov on her statements. At the meeting he proceeded to ask her questions that allowed only yes or no answers.

He acknowledged that he was allowed to ask her all the questions he wanted. She asked him only one; why he thought he had the authority to call her a thief. [ 38 ] Ms. Florov described Mr. Turner as aggressive and angry in the meeting, and not interested in her side of the story, just stating that she was a thief. Although Mr. Turner initially denied in examination that he called Ms.

Florov a thief, it was certainly the implication from his explanation of the meeting, and in cross-examination when confronted with earlier statements, he indicated he did call her a thief in the meeting and he said her complaint was "fucking bullshit". He denied threatening Ms. Florov, or saying words to the effect he would break her legs, or harm her. He did roll his eyes at her allegations in the meeting, as she was suggesting she was afraid of him, and she could not sleep as a result of the incident. [ 39 ] Mr. Turner testified that he objected to the fact that Mr. McLeod was at the meeting.

Before the meeting started he questioned Mr. McLeod's impartiality (due to the "soap" incident) and asked if Mr. Charest could be there, but Mr. Charest was on leave. Mr. Turner testified that he felt Mr. McLeod fell asleep during the meeting, as he was sitting there with eyes closed and arms folded. Mr. Turner testified that in the meeting he asked Mr. McLeod to leave, if he was going to sleep. That he went to sleep and that this request was made were denied by Mr. MacLeod. [ 40 ] At the end of the meeting, both employees were asked if either had any suggestion to remedy or work out the situation

between them. Ms. Florov said she felt she could get into a working relationship with Mr. Turner, if she could feel safe and free from intimidation, and false accusations. Mr. Turner questioned how she could spend an hour saying how afraid and upset she was that she could not sleep due to the incident and now say that she could work with him. He was clear that his position was: "either she goes, or I go". At trial, Mr. Turner acknowledged using those words, but testified that in his mind (unspoken at the meeting), he was thinking maybe he or Ms.

Florov could be transferred to another job in the Camp or another camp that Atco was managing in Bosnia. [ 41 ] Ms. Smith, after the meeting, provided both an oral and a written

summary to Mr. Cox. The

summary set out that Ms. Florov clearly felt intimidated, threatened and unsafe working with or being near Mr. Turner. Mr. Turner did not feel he harassed Ms. Florov and his two concerns were that the whole dispatch team would look dishonest as a result of the bag having gone missing from the dispatch office and he wished to lay a charge against Ms. Florov for making the suggestion that he threatened her with physical violence. Ms. Smith and Mr.

MacLeod concluded that there was not enough evidence to substantiate a case of harassment, as there were no independent witnesses, and essentially the case was a "she said/he said" case. The report did indicate that Mr. Turner possibly conducted himself, intentionally or unintentionally, in a manner that could be deemed intimating or threatening. The report indicated that some of those behaviours were demonstrated in the meeting; Mr. Turner insulted Ms.

Florov's upbringing, he became overbearing when given the opportunity to ask questions and his nonverbal body language at the meeting; gestures, snickering and eye rolling, was inappropriate. He interrupted others while they were speaking and exhibited a confrontational approach during the meeting. The

summary stated that the situation was magnified by the different backgrounds of the two employees. [ 42 ] The report made five recommendations to management: (1) that Mr. Turner be provided with assistance to deal with his aggressive behaviour; (2) that one of the two employees be moved to another location in the organization, as Mr.

Turner would not support any conciliatory resolution; (3) the supervisors in transport provide stronger leadership for the team; (4) the past performance of the two employees be reviewed and considered to determine if termination of employment is appropriate and (5) the supervisors put in place a policy in terms of the lost and found. [ 43 ] Mr. Cox received the information about the meeting and communicated with head office in Calgary in writing on October 14, accurately summarizing the report from Ms. Smith and Mr. MacLeod.

He indicated that there was no clear decision of actual harassment, but that: “we do believe Mr. Turner conducted himself intentionally or unintentionally in a manner that could be deemed intimidating and threatening.” He stated that Ms. Florov justifiably felt harassed by Mr. Turner's behaviour and attitude. Mr. Cox reported to the Calgary office that there was no feeling Ms. Florov was under a physical threat of harm, and she was taking her “concerns to the extreme”. He pointed out Mr.

Turner's total contempt for the proceeding, during which he: stated he felt he had done nothing wrong; again stated that he felt Ms. Florov was a liar and a thief; and was verbally demeaning. Mr. Cox noted the earlier documented incident of Mr. Turner threatening a senior supervisor (Mr. Dawes), and being warned. Mr. Cox felt Mr. Turner was an embarrassment to the team and a liability for Atco and recommended that Mr. Turner be terminated with cause. [ 44 ] It was clear from the evidence that Mr. Cox never considered whether Ms. Florov could be moved to another position.

He testified that he knew there were no vacancies at the Camp into which to move Mr. Turner at the time, he did not check for vacancies for Mr. Turner at other camps in Bosnia where Atco was operating. The Termination [ 45 ] Mr. Turner's employment was terminated in a meeting with Mr. Charest and Mr. Cox on October 16, 2002. A typed letter was given to him indicating he was terminated immediately. It stated that the decision was reached: Following the mediation meeting held on October 12, 2002 to resolve the conflict between yourself and a fellow employee.

In consideration of the current situation and in view of your previous behaviors, which resulted in a warning letter to you dated February 26, 2002, the Company has concluded that it can no longer rely on you to interact with your fellow employees in an acceptable manner. [ 46 ] Mr. Turner was compensated to October 17, and given an airline ticket home to Canada. He signed a general release indicating he understood that his employment benefits ceased. He asked if he could obtain an airline ticket to Ireland, not Canada, but that request was refused. [ 47 ] All evidence suggested that Mr.

Turner was calm and professional in the termination meeting. There was no evidence he ever tried to contact Ms. Florov after the July 29 incident, and only interacted with her after that date at the October 12 meeting. After the Termination [ 48 ] Mr. Turner was escorted to his room to pack his belongings and told he would be driven to Serbia that night to catch a flight to Canada the next day. He did not want to go to Canada, as he already had a ticket to Ireland for his next leave scheduled for the end of October.

He testified that he was driven over the border to Serbia, but asked the escorting soldier to drop him at the first hotel. The next morning he hitchhiked back to Bosnia, and rented an apartment in the town adjacent to the Camp, spending his time as a tourist and helping a Bosnian musician with his application to travel to Canada. Mr. Turner travelled to Ireland on October 30, and returned to Bosnia on December 3, as he wanted to be involved in the December Paratrooper reunion at Camp Maple Leaf (another Canadian peacekeeping base in Bosnia).

He confirmed that at some point after this termination, he did attend once at the gates of the Camp, and called a military friend posted there to see if the friend could get him into the Camp but his entry was denied. [ 49 ] On December 15, 2002, Mr. Turner wrote a 12 page letter to the president of Atco, Mr. Shaw. Mr. Turner testified that he thought Mr. Shaw was decent, he was ex-military and that he would reinstate him. Mr. Turner recited his detailed version of all the matters: the medal letter which he felt had antagonized Atco; the interaction with Mr.

Dawes over the cancellation of the pizza; the travel claim incident with Mr. Cox; and the "thefts" from transport. Mr. Turner asked in the letter for reinstatement and all the back pay he would have earned in the interim. Legal counsel responded on January 9, 2003, indicating that Atco's position was unchanged.

The Posting of the Photograph [ 50 ] Mr. Turner alleges that Atco had the Canadian military post his photo at the guard shack at the entrance at the Camp. The photograph had the words “ persona non grata ” written at the bottom. In addition, he alleges that Atco started rumours or took actions that caused rumours to circulate, which were untrue and defamatory. [ 51 ] It was established in evidence that Mr. Turner's photo was posted at the guard shack of the Camp. It was the decision of LCol. James Peverley, a member of the Canadian Armed Forces, and the camp commander of the Camp.

He was responsible for the administration of the Camp, protection of all people in the Camp, and the command of most of the military units posted there. [ 52 ] Mr. Cox testified that he advised LCol. Peverley that Mr. Turner was terminated and that he had been transported off the Camp. Initially, no more details were discussed. When Mr. Cox was later made aware that Mr. Turner had not left Bosnia and had taken up residence locally, Mr. Cox was concerned that Mr. Turner may gain access to the Camp, as he was friendly with some of the military posted there. Concerned that Mr. Turner may not have taken kindly to Ms.

Florov's involvement in the complaint and his termination, Mr. Cox asked the military police to keep an eye out for him. He testified that he did this for Ms. Florov's comfort. Mr. Cox also raised with LCol. Peverley that he had a concern that if Mr. Turner returned to camp there may be an altercation and this was a security concern. Mr. Cox discussed with LCol. Peverley whether Mr. Turner's photo should be posted at the guard shack, so the soldiers knew that Mr. Turner was not allowed access to the Camp. Mr. Cox testified that he did not post the photo, he merely expressed these concerns to LCol.

Peverley, who made the decision that it should be posted. [ 53 ] LCol. Peverley testified that he understood from his conversations with Mr. Cox, that there had been an altercation between Mr. Turner and another employee, resulting in Mr. Turner's termination. He understood that the altercation could continue if Mr. Turner returned to the camp. LCol. Peverley testified that it was his understanding of policy to post the photographs of Atco personnel who were terminated in the guard shack.

He confirmed that Atco had no responsibility for maintaining security of the camp, or any say in how or what was posted in the guard shack. That was a military decision and in this case it was his. LCol. Peverley could not say who actually physically prepared or posted the photo. [ 54 ] Mr. Fletcher provided Mr. Turner's email of January 27, 2003 to Mr. Cox. As a result of the contents, Mr. Cox did check to see if the photo was still there, and asked LCol. Peverley if it was appropriate to take it down. He made LCol. Peverley aware that Atco no longer considered Mr. Turner a security threat at that time. LCol.

Peverley confirmed that in January Mr. Cox had raised whether the photo should be taken down. LCol. Peverley made a military decision to leave it posted. [ 55 ] From the evidence, I find that a photo of Mr. Turner, likely taken from his security pass, was posted at the guard shack of the Camp shortly after his termination, as a result of the discussion between Mr. Cox and LCol. Peverley. It remained there, first posted on the wall, and later in a rolex type clip board that was hung inside the guard shack, until at least September 2003. [ 56 ] I base this on the evidence of LCol.

Peverley who testified that the photograph was on the wall of the guard shack, along with the photo of another Atco employee who was terminated. He recalled that on that wall was a poster of civilians wanted for war crimes, as well as the photographs of local ex-employees who were a security concern. Several other soldiers testified to seeing the photograph, including Sgt. Prefontaine, a current member of the Canadian military who testified that he was posted to the Camp from March to September 2003.

When he was deployed to Bosnia he checked for the photograph, he found it on a rolex type clipboard, which was posted on the wall of the guard room with an opaque cover. The first photograph was that of John Turner, other photos were alleged war criminals. The photograph remained there throughout Sgt. Prefontaine’s term; he was on guard duties for three weeks, over the May to September 2003 period. Rumours about the Dismissal [ 57 ] At some point, Mr. Turner became aware that rumours were circulating about his dismissal. The first one relayed to him was from a member of the military, Sgt.

Austin, who testified at trial. He stated that he knew Mr. Turner when they were both in the airborne regiment. Around October 17, 2002, Sgt. Austin went for dinner and was told by a military helicopter pilot that an Atco employee had been terminated and escaped custody while being transported to the airport. The pilot told him that the employee was a threat to camp security and his photo was now on the wall of the guard shack. Mr. Austin communicated this by email to Mr. Turner, as he was sure the reference was to him, although Mr. Turner’s name was not used in the conversation. [ 58 ] Mr.

Hunt testified that he was an addictions counsellor with the Canadian Armed Forces in Canada and a friend of Mr. Turner's. Mr. Hunt knew that Mr. Turner was working in Bosnia, and gave his contact information to soldiers posted there, if they needed an AA mentor or someone to talk to about their addiction issues while in Bosnia. Mr. Hunt heard rumours relating to Mr. Turner, that he was involved in selling arms to the IRA and was some type of sexual predator, these rumours being relayed to him by two soldiers who he was treating, after their return to Canada from Bosnia. Mr. Hunt attempted to contact Mr.

Turner, but was advised he was terminated and no further information was available. Mr. Hunt then turned to a mutual friend of his and Mr. Turner's, also ex- military, Mr. Gudzowaty. Mr. Gudzowaty had heard nothing. He did CPIC and Interpol searches on two occasions and could find no mention of Mr. Turner. He testified that these allegations did not fit the John Turner he knew. He allowed Mr. Turner to live with him and use his vehicle for six to eight months after January 2003 when Mr. Turner returned to Canada. [ 59 ] Sgt. Prefontaine, who knew Mr.

Turner, testified that when he was briefed for his assignment in Bosnia, he was told about guard shack duty and told that one of the duties was to guard the gate. He was told that there would be photographs of people who were to be denied access to the camp under any circumstances. An example was given of an Atco employee who was fired but did not leave Bosnia and tried to reenter the camp. He assumed this was Mr. Turner, although no name was used. [ 60 ] Three other military personnel posted in Bosnia who were military acquaintances of Mr.

Turner testified about seeing his photograph or hearing rumours about him. Mr. Chase saw the photograph in the guard house and in an office on the base. Mr. Chase

made inquiries and was told by military friends that there were rumours that Mr. Turner was a gun runner for the IRA. He did not believe the rumours and it did not lower his opinion of Mr. Turner. Mr. Hill testified that he was told by an officer that Mr. Turner had been deemed an IRA terrorist. Mr. Haines testified that Mr. Chase and Mr. Jakes, both military members, had told him the photograph was up indicating that Mr. Turner was a persona non grata . All these three ex-army men have socialized with Mr. Turner since the incident, and were clear they thought the rumours unbelievable, or laughable. Mr.

Turner's Reaction [ 61 ] On January 27, 2003, Mr. Turner sent an email entitled "dangerous nonsense" to five individuals. This included three members of the Canadian armed forces: Col. Atkinson, the head of the eleventh military rotation in Bosnia; Captain Somerville, the head of military police for the Camp; and LCol. Peverley. He also sent it to two senior Atco employees based in Calgary, Mr. Bill Fletcher and Mr. David Reid. In that email he set out the rumours that others had reported to him: (1) that an Atco employee was saying he had heard information that Mr.

Turner was involved in sexual improprieties; and (2) that military friends were hearing rumours that Mr. Turner had escaped the escort to the airport and would be a danger to the camp. Mr. Turner indicated that rumours were circulating because his photograph was posted at the guard shack. [ 62 ] LCol. Peverley replied to Mr. Turner, indicating that it was a common practice to post the photograph of terminated employees and should Mr. Turner return to Bosnia he would not be allowed access to the Camp. He indicated he was unaware of any rumours. [ 63 ] Mr. Cox was made aware of the January 27, 2003 email.

He took seriously the accusations that Atco employees were being said to have spread rumours that the reason for the termination was sexual in nature. He talked to Ms. Sharon Russell and Mr. Gertz, both Atco employees who were mentioned in the email. As a result, he did nothing, as he felt the suggestions were unfounded. The e- mail prompted the discussions mentioned above with LCol. Peverley asking if the photograph should remain posted and advising that Mr. Turner was no longer considered a security threat to Atco, as he now was back in Canada. Post-Termination Employment [ 64 ] Mr.

Turner testified that before his termination, he understood he would likely have remained employed by Atco until the fall of 2003 when the Atco contract in Bosnia expired. In September 2002, Mr. Turner had started inquiries about obtaining employment as a police officer with the Police Service of Northern Ireland. He submitted his application in October 2002 and continued with that application process while in Bosnia. [ 65 ] Mr. Turner’s attempts to find employment and his subsequently held jobs were detailed at trial. After returning to Canada in January 2003, he lived at times with Mr.

Gudzowaty near Airdrie between February 2003 to October 2003. During this time he worked for Airdrie RV Sales for four days, and occasionally for cash doing short labour jobs. April to June 2003, he was in Kelowna helping his mother who was ill, and again he was there from October 2003 to April 30, 2004. He outlined his employment history after April 2004, which involved a number of positions ranging from bus driving, driving for a funeral home to airport refueling.

His employment record post-Atco in terms of movement from job to job was not significantly different from his pre-Atco employment record, after his discharge from the military and his sobriety. Wrongful Dismissal The Law [ 66 ] An employee is entitled to reasonable notice of the termination of his employment contract with the employer. However, if just cause is present, the employer may dismiss an employee without any notice. The employer has the onus of proving that he had cause to dismiss an employee.

The reasons for dismissal must be such to show that there has been a repudiation of an essential condition of the employment relationship, otherwise stated that there has been a breach of the employee's fundamental obligations. Breach by an employee of a reasonable corporate policy may be sufficient, but the act must be significant. It is relevant whether there were previous warnings. The grounds must be sufficient to establish a deterioration of the relationship of the parties or an inability of the employee to do his duties, or perform the employer's business.

The conduct must be such that it is incompatible with the continued existence of the employment contract. [ 67 ] Holwen v Alberta Plywood Ltd , 2005 ABQB 464 outlines a number of factors to consider, including: the gravity of the conduct; whether the conduct was willful; whether if in breach of a policy, the policy was known to the employee, consistently enforced and whether the employee was aware of the possible penalty; and whether there was any excuse for the conduct.

In that case, the judge held that although the plaintiff performed his duties well, his failure to respect and interact with his supervisors and co-workers was a disruptive and destructive force. [ 68 ] An employer is entitled to look at the cumulative effect of an employee's conduct and work record to determine if dismissal is justified.

This is well demonstrated in the case of Dawson v Bridge Brand Food Services Ltd , 2007 ABQB 15 , where the court went through numerous incident reports, several of which were contentious in the plaintiff's mind, and held that the plaintiff's cumulative conduct had a negative impact on the workplace. Argument of the Plaintiff

[ 69 ] The plaintiff argued that Atco had no right to terminate his employment for cause. He argued that he was a strong performer in his job, had a good reputation with the military although he became frustrated in his dealings with people, when he did not agree with their position or attitude. Mr. Turner argued that he was totally justified in discussing Ms. Florov's behavior with her; he was making proper inquiries to protect Atco’s reputation, and facilitate the relationship between Atco and the military. According to Mr. Turner, this was to assist Atco so it was not embarrassed in the eyes of the military.

He argued it was a proper action for him to take, as his superior was not taking the "thefts" seriously, and the military would be nervous of any thefts or security issues with Atco employees. [ 70 ] The plaintiff argued that his conduct in the October meeting was appropriate and understandable, as no one seemed to be concerned about how Ms. Florov got possession of the bag, and she was making preposterous allegations against him. It was argued that the October hearing was not fair, as Mr. Macleod was not impartial. The plaintiff argued that Ms.

Florov's complaint should be seen for what it was, a tactical move as Mr. Turner realized she was involved in the removal of the bag, or had aided and abetted in its removal, both of which he felt could be offences related to theft under the military code of service discipline that applied to her as an employee at the Camp. [ 71 ] The plaintiff's position was that the decision to terminate Mr. Turner was arbitrary and capricious, incomplete and inaccurate. Further, the plaintiff argued that the outcome of the meeting should have been an effort by Atco to find another position for either Ms. Florov or Mr.

Turner, either at the Camp or another camp managed by Atco in Bosnia, so they were not dispatchers working in the same area. Argument of the Defendant [ 72 ] Atco argued that, as an employer, it had a duty to see that the work environment was conducive to the well-being of its employees. It argued that Mr. Turner’s conduct was problematic; both in the context of his interaction with Mr. Dawes, for which he was formally warned, and in relation to his conduct around another employee, Ms. Florov. Atco argued that Mr. Turner had an aggrandized sense of his role at Atco and his understanding of the military.

The issue was Mr. Turner's behavior, which was to display aggression, and to interact inappropriately with other staff on two occasions. Atco argued that Mr. Turner was a bully. Although Atco did not find a breach of its harassment policy, it argued that the attitude of the plaintiff in the meeting to discuss the allegations was not acceptable, and his spoken conclusion to the meeting: “either she goes or I go”, clearly indicated that he would not work in the same place as Ms.

Florov. [ 73 ] Atco pointed to its Code of Ethics that was annually acknowledged in writing by the plaintiff, which in clause 14 clearly stated that employees must adhere to the company's policy of providing a work environment free of discrimination and harassment, in which individuals are accorded equality of employment opportunity based upon merit and ability. The code affirmed the company's commitment to uphold high moral and ethical standards.

Atco argued that Atco’s procedure and work instruction (policy), set out that the company's objective was to provide a "working environment free from intimidation or threat of humiliation." Harassment is defined in the policy as: Any discriminatory behavior at or related to the workplace which denies an individual's dignity and respect, affects job security or creates an offensive, embarrassing or humiliating work environment. [ 74 ] Atco argued it was within its legal rights to terminate the employment of Mr. Turner, for cause, as his conduct was a breach of his fundamental obligation to Atco, his employer.

Application of the Law to the Facts [ 75 ] Much time at trial was spent on evidence around the interaction between Mr. Turner and Ms. Florov, and the television and bag incidents, and the resulting complaint and meeting. Harassment was not found to be established, so breach of the harassment policy could not be, and was not used as grounds for dismissal. Although Mr. Turner tried to focus the trial on his belief that Ms.

Florov had stolen items, and if that was the case, how his behavior was justified; the circumstances behind the removal and return of the bag and whether there was a “theft” are not the focus of this trial. It is clear from the evidence that his behaviour was not justified or acceptable. [ 76 ] The dismissal was due to Mr. Turner's behaviours, in light of his earlier run-in with a superior, Mr.

Dawes, which was documented and about which he was warned, and then his subsequent behavior in the meeting about the harassment complaint, during which he exhibited contempt for the procedure, and concerning, intimidating behaviours towards Ms. Florov. Any resolution from Atco’s point of view had to consider that the complaining employee, Ms. Florov, had the right to be free from Mr. Turner's insinuations against her, and intimidating behavior (which Atco found was demonstrated in the meeting), but Mr. Turner's position was an ultimatum: "either she goes or I go".

This meant in the circumstances of this work place, there could be no resolution with both employees continuing in their current employment. They worked the same job, and lived in close quarters in the Camp when off duty. [ 77 ] Where an employee shows contempt for and intimidating behaviour towards another employee, with whom he works in the same position (although not side by side), and is unwilling to consider or entertain any resolution of the problem between them, and having earlier been warned about his behaviours, is this a fundamental breach of his obligation?

Does it demonstrate a deterioration of the relationship, and conduct that is incompatible with the continuation of the existence of the employment contract, allowing the employer to terminate his employment for cause? [ 78 ] The conduct has to be seen in its context, this was employment where all employees were working and living on a small military base in Bosnia. The employees lived, ate, and worked in the Camp, with perimeter security. LCol.

Peverley testified that there were around 300 people living on the base, with those numbers divided roughly equally between soldiers who rotated through, and Atco employees. This was not a work place where Atco employees worked a shift and could separate and go home at night. People worked and conducted their leisure in close quarters, in a very small community. [ 79 ] I find that Ms. Florov felt intimidated and threatened by Mr.

Turner's words and actions in the meeting on July 29, and his perception that he had the right and authority to investigate the "thefts", and interact with the military police about them. Ms. Florov was

36 years old at that time and in her testimony before the court she was still, fourteen years later, tearful, and resented the fact Mr. Turner called her a thief, and intimidated her. It does not surprise me that she did not tell Mr. Turner the details of how she retrieved the bag, she had no obligation to, and he had no authority to investigate these matters. I did find her explanation of how she retrieved the bag very vague at trial. I note that Mr. Cox in his memo to his superiors honestly indicated that at no time did management feel there was a real threat of physical harm to Ms.

Florov and she was "taking her concerns to the extreme." I agree with this assessment. [ 80 ] Although Mr. Turner complains that the meeting was hastily arranged, that he did not like Mr. McLeod being there and that he felt it was a "fix", I find that Atco was following its policy in terms of dealing with a complaint of harassment, and attempting to deal with a problem between two employees. Mr. Turner's conduct in the meeting was assertive, bordering on aggressive and certainly not conciliatory. It does not surprise me that Mr.

Turner testified that he did not avail himself to any help offered in February 2002; when he was formally warned by Atco about his behaviour. He was clearly of the opinion he does not need help. The recommendations and report of Ms. Smith and Mr. MacLeod indicate a fair approach. There was not enough evidence to substantiate a case of harassment, it was a “he said /she said” case, something this court often has to face in criminal matters. Having heard the evidence in this trial, I find that Ms. Smith and Mr. McLeod made a fair assessment and fair recommendations. [ 81 ] The Atco administration was aware that Mr.

Turner had already been offered assistance with his aggressiveness, but not whether he had followed through (this being confidential). This was an employee who had good job reviews and clearly at times went the extra step to keep military members (Atco's client) happy. Mr. Turner had a past warning based on his temper, and anger, when he jumped to a conclusion about who had cancelled a food order, and was verbally abusive and threatening to a manager who he thought caused the cancellation.

Here, he was dismissive of the mediation process, rude and intimidating to a fellow employee and clearly at the end was not willing to work to resolve the issue, his response was: "either she goes or I go." [ 82 ] There was certainly a deterioration in the relationship between Mr. Turner and Ms. Florov, caused by Mr.

Turner's attitude and the personalities of both, that meant the legitimate concerns about intimidation could not be resolved, and Atco could not leave both employees working in the same position, and questionably in the same camp environment. [ 83 ] The plaintiff argued that at this point Atco had a duty to try to move either employee to another job at the Camp, or another job at another base in Bosnia where Atco provided services. This argument ignores the fact that each employee had an employment contract for a certain position in a certain place which the employer could not unilaterally change.

This is an employment contract situation, not a human rights complaint where the duty of accommodation is in play. [ 84 ] The employer can dismiss an employee with notice at any time. If the employer alleges cause, it has the onus to show a fundamental breach of the employee's obligations.

I find Atco has met that onus in this case, where in the context of a small military camp, the conduct of an employee as a result of a misplaced sense of his authority and role is intimidating and rude to another and he is insisting he will not work with the other employee, who works his equivalent job. [ 85 ] Here, there had been an earlier full investigation of Mr. Turner’s aggressive behaviour and a warning of unacceptable conduct. This is not an employee who was willing to compromise, or had not been warned of the problem that the employer saw with his behaviour.

When confronted with the result that his own conduct was having, Mr. Turner told the employer that: "either she goes, or I go." This attitude of dictating to the employer what must happen, in the circumstances of this case, shows a deterioration of the relationship and a breach of a fundamental obligation of the employee. [ 86 ] I do not accept that Atco, in this small military operation, had a duty to search for another position for Mr. Turner, or Ms. Florov, or move one off the base, this would be a fundamental change to the employment contract, and could not happen without the employee’s consent.

The two employees could not continue to work in the same workplace, due to the conduct of Mr. Turner. In light of the previous warning, and the circumstances of his conduct, Atco was justified in law in its conduct. Mr. Turner’s conduct was incompatible with the continued existence of the employment contract he had with Atco. Damages [ 87 ] I will deal with the arguments I heard in relation to damages, in the event that this decision is overturned on appeal and damages becomes an issue.

The plaintiff spent time and expense on an expert report to advance a novel way to determine damages in his case, and comment about that at the trial level may be helpful. The Law [ 88 ] The assessment of damages for wrongful dismissal is assessed on a case by case basis, looking at a number of factors, including: (1) the nature of the duties; (2) the length of service in the employment; (3) the age of the employee; and (4) the ability of the employee to find other employment, considering the experience, training and qualifications of the employee.

This general law applies to indefinite term of employment contracts, as every indefinite term of employment contains a rebuttable assumption that the employee is entitled to reasonable notice. This, of course, can be changed by contractual terms, for instance if a contract is of a definite fixed term or it has specific clauses dealing with notice. [ 89 ] The burden is on the plaintiff to prove his damages on the balance of probabilities. If a lack of mitigation is alleged, the onus is on the defendant to prove a failure to mitigate by the plaintiff. The Position of the Plaintiff [ 90 ] Counsel for Mr.

Turner argued that the contract was for a fixed term, the length of time that Atco had the contract for the Balkan project. He argued this meant Mr. Turner would be entitled at minimum to payment of his salary either to the date when Atco lost

the contract (September 2003) or, on the assumption that when SNC Lavelin took over the contract at the Camp it would retain any Atcoemployees, until the end of the Canadian mission on December 31, 2004. Plaintiff's counsel argued that Mr. Turner's is a novel situation.Due to the way Mr. Turner was terminated, and the rumours that resulted, and the posting of his photograph, it was argued that it wouldbe impossible for Mr. Turner to get any other employment as a dispatcher in a military situation. Counsel argued that as Mr.

Turner wasnever subsequently able to earn income comparable to the income he received from Atco, the proper way to assess his damages is as setout by the expert, Mr. Clavelle. [91] Mr. Clavelle was called by the plaintiff, and qualified as an expert in the field of forensic accounting and able to give opinionevidence in relation to economic loss. He prepared a report which had the underlying assumption that Mr.

Turner intended to continue towork overseas in a dispatching or transportation job supporting the military, and the events surrounding his dismissal from Atcoprevented him from doing that, or obtaining any other type of dispatch job requiring security clearance. Mr. Clavelle's process wassimilar to that generally followed in a negligence case, where injuries caused by a tortfeasor have permanently affected the plaintiff'sability to work. Mr. Clavelle used Mr. Turner's average income from 2000 to 2002, calculated what he would have earned at that level toage 65, and subtracted from that amount the earnings Mr.

Turner has actually earned and is expected to earn to age 65. This resulted inhis opinion of a loss of past wages between $420,500 and $558,000 and a loss of future wages between $49,000 to $135,000, dependingon the assumptions used. The Position of the Defendant [92] Atco argued that if the contract was a contract of indefinite hiring, reasonable notice would be in the range of two months,considering Mr. Turner’s position, relatively short length of service, and non-supervisory position.

Alternatively, counsel argued that ifthis was a fixed term contract, the proper length of damages would be to the end of the Atco contract in September 2003. It was alsoargued that Mr. Turner failed to mitigate his damages. Mr. Turner clearly spent his time to the end of 2002 travelling as a tourist; he didnot seriously look for work until his return to Canada in January 2003. Even then, he took substantial time to help his ailing mother,during which time he did not seek employment. Determination of Damages [93] A determination has to be made if this was a fixed term contract, or a contract of indefinite hiring.

Mr. Turner testified that hehad the impression that he was guaranteed employment for the time that Atco had the contract in Bosnia. No conversation was noted asto how he got that impression. Reading the terms of the letter of offer, dated December 11, 2000, there is nothing to suggest theemployment was for a set term. He was hired to provide to Atco the services of transport dispatcher as part of the Atco Balkans Projectto support the Canadian Contingent in Bosnia. Nothing more is said of time. Barring any term setting a precise length of the hiring, this isa contract of an indefinite term.

There were no terms in the contract that set out the notice required. [94] One must then turn to the facts, to determine the proper length of notice. Mr. Turner was forty six years old when terminated.He had worked for Atco for just under two years. His position was not highly skilled, and he was not in a supervisory capacity. In thecircumstances, if the dismissal had been without cause, he would be entitled to notice of two months of the termination of his contract, ordamages in lieu. [95] The main difficulty with the approach of the plaintiff, who argued that Mr.

Clavelle's numbers should be accepted, is that itwas not proven that Mr. Turner was intending to pursue a career as a military dispatcher for the rest of his life; in fact his stated planswere to try to get into the police force in Northern Ireland and he had applied to do so. In addition, there was no evidence to suggest thatMr. Turner tried to get another military dispatcher job, or that he had any problem obtaining future security clearance. I do not accept thathis poor employment history since 2002 was caused by his termination from Atco.

In fact, his post-employment history has followed thesame pattern as his pre-Atco employment history, which had frequent changes of employment. As a result, Mr. Clavelle's report was nothelpful due to the inability of the plaintiff to prove the main underlying assumption to the report.

Aggravated Damages [96] Generally, damages are not available for the actual loss of the job, or any pain and stress as a result of being terminated.However, aggravated damages in a wrongful dismissal lawsuit can arise if the employer has acted in bad faith, and thus broken the dutyof good faith and fair dealing which is owed when terminating an employee.

The Supreme Court of Canada has discussed these damagesin Wallace v United Grain Growers, (SCC), [1997] 3 SCR 701 and Keays v Honda Canada Inc, [2008] SCC 39. [97] The duty of good faith requires that in the course of dismissal, the employer must be "candid, reasonable, honest andforthright" with employees and should refrain from engaging in conduct that is in bad faith, untruthful, misleading or unduly insensitive.Where an employee shows an employer engaged in bad faith conduct, or unfair dealing in the course of dismissal, injures such ashumiliation, embarrassment and damage to one's sense of self-worth and self-esteem might be worthy of compensation depending uponthe circumstances of the case.

These "intangible" injuries may lead to difficulties in finding alternate employment, resulting in anaddition to the notice period. However, the intangible injuries are sufficient to merit compensation in and of themselves. [98] Mr. Turner was concerned about his reputation as a result of the events in Bosnia. There was no evidence of acute mentaldistress, either from the plaintiff, or his several military friends who testified at trial. It is hard to say that the conduct of Atco was in badfaith, particularly when one considers Mr.

Turner's conduct in the October meeting, his attitude, behaviours and contempt for theprocedure to determine if harassment was proven. His unwillingness to consider any solution or compromise required Atco to considerwhether it could allow the continued employment of the two individuals, and whether that could be facilitated in the camp environment.This was an employee who had worked for Atco for just under two years. I do not find there is a basis for aggravated damages in the wayAtco terminated the plaintiff's employment.

Defamation Argument of the Plaintiff [ 99 ] The plaintiff argued that posting his photograph at the guard shack in Bosnia at the Camp, with the words persona non grata underneath, was defamatory. He argued that the verbal rumours that he was selling arms for the IRA and had escaped escort to the airport were defamatory. Although all these rumours were attributed to the military, the plaintiff says Atco was not an innocent bystander. The plaintiff was professional and calm upon termination and was free to go wherever he wished, he was not obliged to return to Canada. The plaintiff argued that Mr.

Cox initiated the posting of the photograph by talking to LCol. Peverley, thus Atco caused the photograph to be posted. The plaintiff suggested it could be inferred that the photograph was prepared by Atco, suggesting that the photograph was likely taken from Mr. Turner’s security card. In addition, it was argued that once Atco was notified by Mr. Turner of the rumours, Atco had a duty to take more steps than simply approaching LCol. Peverley and asking if the photograph might be removed. [ 100 ] In relation to the defendant Ms. Florov, the plaintiff argued that the allegations in her written statement, that Mr.

Turner told her that he had a lot of friends that could break legs and take care of problems for him suggested that Mr. Turner would be violent, and this suggestion makes the words defamatory. It was argued qualified privilege does not apply as Ms. Florov filed the complaint out of malice, to cover up her potential liability if investigated for theft or aiding and abetting the theft of the bag. The Argument of the Defendants [ 101 ] The defendant Atco argued that it did not publish the photograph with the alleged defamatory words, persona non grata . Mr.

Cox was under a duty to report the dismissal and camp security issues to LCol. Peverley, and the evidence is clear that it was a military decision, not Atco's, to post and retain the photograph. The defendant Atco argues that any defamatory rumours proven at trial were communicated by members of the military, not Atco employees. The defendant argues that if Atco's action in passing on information that led to the posting of the photograph is held to be defamatory, Atco can successfully raise the defence of qualified privilege. It argues there was no malice in Atco's actions, in fact Mr.

Cox asked if the photograph could be removed, once aware of rumours and once Atco no longer considered Mr. Turner a security threat, after he had returned to Canada. [ 102 ] The defendant Ms. Florov argued that the statements complained of as being defamatory which were set out in her written complaint to her employer, were published only to the plaintiff and Atco.

She argued that she is entitled to claim qualified privilege, and there was no malice in her complaints, she added the details to her statement at the request of the plaintiff, and they were not published beyond the closed door meeting, and the few Atco employees who had to be involved in dealing with the complainant. The Law [ 103 ] A defamatory statement is a publication that has the tendency to lower a person's reputation in the estimation of reasonable (right thinking) persons in the community.

In the past, it was often expressed as a shameful action being attributed to someone, or a shameful statement about his or her character, or a shameful condition was attributed to him or her. It may also be thought of as a comment that exposes the person to hatred, contempt or ridicule. The defamation may be determined from the ordinary meaning of the published words, or from the surrounding circumstances.

The plaintiff, to be successful in an action for defamation must prove on the balance of probabilities that the words or actions about which the plaintiff complains are defamatory, that they refer to the plaintiff and that they were published by the defendant to a third person. [ 104 ] The Alberta Defamation Act , RSA 2000, c. D-7 provides that if defamation is proven, damages shall be presumed. The Defence of Qualified Privilege [ 105 ] The origin of the defence of qualified privilege lies in the presumption that defamatory publication means the words were spoken with malice.

Qualified privilege operates to rebut this presumption. Where this privilege applies, the bona fides of the defendant is presumed and the defendant is free to publish remarks that may be defamatory and untrue. The privilege is not absolute and will be defeated if the dominant motive for publishing the statement was malice. [ 106 ] A

summary of the law pertaining to qualified privilege is set out in the case of Elkow v Sana , 2015 ABQB 803 (paras 94 to 106 ), where Graesser J. outlines the law and summarizes the pertinent cases. [ 107 ] A qualified privilege is an occasion where the person who makes the communication has an interest or a duty (legal, social or moral) to make the comment to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. See Adam v Ward , [1917] AC 309 (HL) . The background of the privilege is that there may be a different, innocent motive for publication.

There may be circumstances where the public interest outweighs the need to protect a person's reputation. The defence protects those who honestly communicate what turns out to be misinformation to insure that the flow of uninhibited, accurate communication is protected: Elkow , at para 98 .

Stated another way: would the reasonable person, having regard to the relationship of the parties and the surrounding circumstances, as a matter of public policy, be entitled to speak in the way in which he or she did? [ 108 ] Examples of cases where qualified privilege may be extended as a defence are: the publishing of judicial pleadings, or some statements made in court; whistle blowers who make reports; complaints to a professional body; or statements made in the course of a private meeting to make significant corporate decisions, where the person who shares and the person who receives the statement have a special interest in learning the honestly held view of the person, even if defamatory.

See: Cimolai v Hall , 2007 BCCA 225 . [ 109 ] The defendant has the burden of proof to show that the defence of qualified privilege apples on the balance of probabilities. If

successful, then the plaintiff bears the burden to rebut the presumption created, and may do so by proving that the statement wascommunicated to a person not entitled to receive it, the remark was in excess or unrelated to the occasion, or the remark was motivatedby malice. See: Hill v Church of Scientology of Toronto (SCC), [1995] 2 SCR 1130, for an example of where qualifiedprivilege was not applicable due to the circumstances around the publication of court pleadings). Application of the Law to the Facts [110] Some of the statements made by Ms.

Florov and published in writing to her employer are defamatory to Mr. Turner, particularlythose that relate to his knowledge of people who break legs, and the implication he could be violent. I find that the statements in herwritten complaint and any made orally at the meeting in October are covered by a qualified privilege. They arose as she was making aharassment complaint and was required to set out the details. She had a duty to communicate the details of her complaint, and Atco had aduty to receive those details, in order to be able to take appropriate action.

I do not find that the defendant has proved malice, it is clearthat Ms. Florov was approached in an aggressive manner by Mr. Turner, who had no business investigating a "theft" and stepped overthe line of acceptable conduct in his discussion with her. I do not find that the defendant has proved that Ms. Florov's motivation to makethe complaint was malicious, or motivated only to deflect any blame for the missing bag from herself. I do not accept that the bagincident was important at the level Mr.

Turner suggests, there is no evidence the owner of the bag laid any complaints about the way itwas later found. [111] Statements that Mr. Turner was fired for reasons of a sexual nature, that he was a sexual predator, that he escaped escort to theairport or that he was running arms for the IRA are defamatory. The issue in this case is whether these statements were published byAtco, or its employees to a third party. No evidence admissible at trial linked the publication of these words to Atco, or its employees.

Allof the witnesses who testified about these rumours said they heard them from members of the military. [112] The only evidence that anyone from Atco said anything defamatory was provided in the evidence of Mr. Turner as set out in hisemail of January 27, 2003, entitled “Dangerous Nonsense”. This stated that Mr. Gertz, an Atco employee, was told by Ms. SharonRussel, another Atco employee, that Ms. Florov told her that Mr. Turner was fired because he was a “woman abuser.” [113] Mr. Gertz is deceased, so unable to testify. Ms. Russel was not called as a witness. Ms.

Florov denied any such conversation.The statement made by Mr. Turner is not admissible to prove the defamatory statement or the source, as it is double hearsay, the plaintiffbeing told by someone that someone else said something to them: see Joes Pacheco v DeRango 2001 CarswellOnt 3231, and Dalrymplev Sun Life Assurance Co of Canada et al 1966 CarswellOnt 78 (CA). [114] In relation to the posting of the photograph, I find that the posting of the photograph in conjunction with the written wordspersona non grata is defamatory in the circumstances.

The issue is if the publication was proven by the plaintiff to be by Atco or anAtco employee. It was clear from the evidence that the military prepared the security pass for Mr. Turner, they had his photograph ontheir data base, and it was the decision of LCol. Peverley to post the photograph. There was no direct evidence of who actually preparedthe photograph, and wrote the words persona not grata and who actually posted it. I do not infer from the evidence that Atco prepared orposted the photograph or wrote words under it.

It was much more likely to have been a member of the military, under the direction ofLCol. Peverley. [115] In terms of Mr. Cox commun

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