Harper v Lafarge Canada Inc, 2016 ABQB 586

Court of Queen’s Bench of Alberta Citation: Harper v Lafarge Canada Inc, 2016 ABQB 586 Date: 20161019 Docket: 1503 14531 Registry: Edmonton Between: Robert Harper Plaintiff/Applicant - and - Lafarge Canada Inc. Defendant/Respondent _______________________________________________________ Reasons for Decision of the of W.S. Schlosser , a Master of the Court of Queen’s Bench of Alberta _______________________________________________________ [ 1 ] This is an application for

summary judgment in a wrongful dismissal action. Apart from the delay in booking Master’s Specials,

summary judgment is an ideal vehicle for the determination of such disputes [1] . The law is well settled and the facts are rarely in dispute. Facts [ 2 ] The Plaintiff was 61 years old at the time of his termination on July 21, 2015. He had worked at Lafarge for a period of 4 years and 6 months. Mr. Harper was a dispatcher-driver, supervisor and batch operator. His duties included “batching”; which involved insuring that cement products were mixed properly and loaded into trucks.

He was also responsible for supervising drivers, loader operators and labourers in the plant yard; which may have included up to 30 people. Mr. Harper was also responsible for ordering products, including concrete cement and aggregate. He coordinated customer deliveries and he was responsible for preliminary disciplinary action for those under his supervision. [ 3 ] In the instance leading up to his dismissal, Mr. Harper had disciplined some of the company drivers. His superintendent did not back him up. In the ensuing debate, Mr. Harper decided he no longer wished to perform a supervisory role.

His immediate superior asked for this in writing. And it was provided. [ 4 ] Lafarge might have treated this as a constructive resignation but they did not. The HR department initially put him on a paid leave. When they could not find another position for him, they terminated his employment, giving four weeks’ pay in lieu of notice.

[5] It was not easy for Lafarge to find an alternate placement for Mr. Harper. Counsel for Lafarge explained that Mr. Harper’sposition was non-union and that supervisory duties were essential to this job. Other jobs that did not include supervisory duties wereunion jobs. Mr. Harper could not simply be slotted into a union position, over-riding seniority and other issues. No one seems to haveraised the possibility of Mr. Harper becoming a driver for Lafarge again, a position he had held earlier. [6] At the time of his termination, Mr. Harper was earning $31.48 per hour.

His work was to some extent seasonal; during sometimes of the year there is a greater potential for overtime pay. At the time of his termination, Mr. Harper anticipated earning roughly$100,000 for the year as he had done the year before. At the time of his termination, he also enjoyed medical and dental insurancecoverage, accidental death and disability coverage, life insurance and travel insurance. The Battle Lines [7] The Plaintiff seeks 10 to 12 months’ pay in lieu of notice less the amount already given and and less an amount earned inmitigation. The Respondent concedes 9 – 13.5 weeks.

There are also issues about the calculation of income during the notice period,whether Mr. Harper had fully discharged his duty to mitigate and whether the circumstances surrounding his termination should attractpunitive damages. List of Authorities By the Applicant 1. Alberta Rules of Court, Alta Reg 124/2010; 2. Employment Standards Code, RSA 2000; 3. Bahrami v AGS Flexitallic Inc, 2015 ABQB 536, 2015 Carswell Alta 1554; 4. Bardal v Globe & Mail Ltd, (ON SC), 24 DLR (2d) 140, 1960 Carswell Ont 144; 5. Butler v Potash Corp. of Saskatchewan Mining Ltd, (SK KB), 47 Sask R 187, 1986 CarswellSask 543; 6.

Creusen v Scarborough Fair Convenience Stores Ltd, 6 ACWS (3d) 350, 1987 CarswellOnt 3090 (Ont Dist Crt); 7. Ducharme v Cambridge Stamping Inc, (ON SC), 67 CCEL (3d) 132, 2008 CarswellOnt 2432 (ONSC); 8. Fidler v Sun Life Assurance Co of Canada, 2006 SCC 30, 2006 CarswellBC 1596; 9. Holmberg v Pluto Investments Ltd, 2003 ABQB 109, 2003 CarswellAlta 140; 10. Hryniak v Mauldin, 2014 SCC 7; 11. Keays v Honda Canada Inc, 2008 SCC 39, 2008 CarswellOnt 3743; 12. Korber v Can-West Imports Ltd, 1984 CarswellBC 952; 13. Noseworthy v Riverside Pontiac-Buick Ltd, (ON CA), 168 DLR (4th) 629, 1998 CarswellOnt 4889 (OCA) 14.

O’Donnell v Soldan Fence and Metals

(2009) Ltd, 2015 ABQB 764, 2015 Carswell Alta 2290; 15. Pathak v Jannock Steel Fabricating Company, 1999 ABCA 173, 1999 CarswellAlta 490; 16. Robinson v Team Cooperheat-MQS Canada Inc, 2008 ABQB 409, 2008 CarswellAlta 944; 17. Rocca v International Scissor Co, 1981 CarswellOnt 3079, 7 ACWS (2d) 534 (OSC); 18. Smith v Tamblyn (Alberta) Limited (1979), (AB KB), 23 AR 53, 9 Alta LR (2d) 274 (ABQB); 19. Spence v Courtenay Savings Credit Union, 1985 CarswellBC 3630, 35 ACWS (2d) 110 (BCSC); 20. Taweel v TRA Foods Ltd, 1990 CarswellPEI 39 (PEI Sup Crt); 21.

Van Aggelen v ICG Liquid Gas Co, (AB KB), 1988 CarswellBC 2452, 12 ACWS (3d) 212; 22. Walter v White Spot Ltd, 14 ACWS (3d) 251, 1989 CarswellBC 1810; 23. Windsor v Canadian Pacific Railway Ltd., 2014 ABCA 108 11; 24. Jorgenson v Jack Cewe Ltd, (SCC), [1980] 1 SCR 812, 1980 CarswellBC 594; 25. Crisall v Western Pontiac Buick GMC

(1999) Ltd, 2003 ABQB 255, 2003 Carswell Alta 357; 26. Perewernycky v National – Oilwell Canada Ltd, 2007 ABQB 170, 2007 CarswellAlta 342.

By the Respondent 27. Rutkowski v Edmonton Transit Mix & Supply Co, 2007 ABQB 277; 28. Wright v Calgary Auxiliary Hospital & Nursing Home, (AB KB), 1970 CarswellAlta 34, [1971] 1 WWR 532; 29. Cunningham v Hillview Homes Ltd, 2015 ABQB 304; 30. Ganam v Consolidated Concrete Ltd, [1993] AJ No 199 (ABCA); 31. Clark v Fiberglas Canada Inc, [1993] AJ No 74; 32. Kuny v Owens-Corning Canada, 1999 OJ No 3336 at para 12; 33. Lobrutto v University of St Jerome’s College, 16 ACWS (3d) 178, 44 CPC (2d) 104 at para 6. By the Court 34. Lovely v Prestige Travel Ltd, 2013 ABQB 467 (per Wakeling J, now JA).

Analysis [8] The factors set out in Bardal, though they are not meant to be exhaustive, are almost universally followed in determining theperiod of reasonable notice. They are (at para 21): 1. the character of the employment; 2. the age of the employee; 3. the length of service; and 4. the availability of similar employment, having regard to the experience, training and qualifications of the employee. Each of these factors will be considered in turn. 1. Character of Employment [9] Mr. Harper’s duties, as noted in paragraph 2 (above), were: 1. Mr.

Harper was responsible for supervising, assigning and directing drivers, loader operators and labourers in the plant yard. Onany given day this might range between 15 to 30 employees. He was not responsible for hiring or firing or disciplining employees exceptto the extent that he had some responsibility for preliminary disciplinary action. 2. Mr. Harper was in charge of the plant when the plant manager was absent. 3. Mr. Harper was responsible for ordering products but not pricing. Most of Mr. Harper’s work was non-managerial as a batchoperator.

His position was essentially one-step up from a unionized employee position. [10] ‘Character of employment’ is important because greater responsibility usually means a longer notice period. The plaintiffemphasized his supervisory functions: the defendant, his role as a labourer, batch operator and dispatcher. [11] The nature of the work is important because it is also relevant to the ability to find other work (eg Bahrami). The greater thephysical component, the greater role age might play in finding reemployment. [12] Mr.

Harper’s position was essentially that of a low-level supervisor; akin to a shop supervisor/foreman. Physical labour wasnot the dominant part of Mr. Harper’s job. Concrete batching, for example, is mostly computer controlled. 2. Age [13] Mr. Harper was 61 on termination. 3. Length of Service [14] Mr. Harper had worked at Lafarge in another capacity before this. However, there was a break in his employment and therelevant period of employment is between July 11, 2011 and July 21, 2015; a period of four years and six months. 4. Availability of Similar Employment

[ 15 ] Mr. Harper has high school. He has worked as a driver for much of his working life but he has experience dispatching and concrete batching. [ 16 ] I take notice that while the oil patch was depressed at the time Mr. Harper was terminated, there was significant construction going on in the Edmonton area – construction that would presumably require cement and the services provided by the Defendant’s company. There is no evidence that this part of the economy, in this area, was stagnant or depressed. Accordingly, I am treating the state of the economy as a neutral factor.

However, the best evidence about the availability of similar employment is perhaps the evidence tendered by Mr. Harper in relation to the discharge of his duty to mitigate. This will be discussed below. Table of Authorities [ 17 ] The parties cited 15 cases in support of their positions about the proper length of notice.

These cases can be summarized as follows: Applicants’ Cases Age at Termination Job Description Length of Service Notice Period Weeks notice per year of service 1990 PEI Taweel 51 Grocery Store Manager 5 years 3 months 12 months 9.14 1998 Ont Noseworthy 60 Car Dealership Office Manager 4 years 10 months Stagnant economy Bardal factors: 2, 4 10 1985 BC Spence 56 Senior Loans Officer 5 years 6 months 10 months Bardal factors: 2, 4 7.27 1981 Ont Rocca 47 Scissors Setter 5 years 9 months Bardal factors: 2, 4 7.2 1986 Sask Butler 60 Senior Project Engineer 2 years 11 months 9 months Bardal factors: 2, 4 12.3 1987 Ont Creusen 56 Convenience Store Supervisor (7 stores) 5 years 6 months 9 months 6.54 1989 Walter 61 Commissary Manager 5 years 2 months 9 months 6.96 1984 BC Korber 61 Purchaser and Shipper (shoe company) 2 years 10 months 8 months 11.3 1988 BC Van Aggelen 53 Office Manager 5 years 4 months 8 months 6.0 Respondents’ Cases Age at Termination Job Description Length of Service Notice Period Weeks notice per year of service 2007 Alta Rutkowski 47 Foreman 21 years 16 months 3.0 1970 Alta Wright 55 General Nursing Home Supervisor 9 years 6 months 2.6 2015 Alta Cunningham 53 Service Manager Construction 11 years 7 months 4.0 1993 Alta (CA) Ganam Unknown Quality Control (concrete company) 11 years 9 months 3.3 1993 Alta Clark 62 Shift Supervisor 33 years 22 months 2.6

1999 Alta Kuny 60 Production Supervisor 33 years 22 months 2.6 [ 18 ] Counsel for Lafarge, Mr. Tichkowsky, made a valiant attempt to present this area of the law as being now almost entirely scientific. He calculated the number of weeks per year of service in the cases used to support his position and found that they range from 2.6 to 4 weeks per year of service. On this basis, he argues that Mr. Harper’s notice period should be between 2-3 weeks per year of service.

Based on the Plaintiff’s 4.5 years of service with the Defendant, this would translate into 9-13.5 weeks reasonable notice. [ 19 ] I completed the ‘weeks per year of service’ exercise. The calculation for all of the cases appears in the right hand column in the table above. As can be seen, the extreme spread is between 2.6 weeks per year of service and 12.3 weeks per year of service.

It affirms that there is no one month’s notice per year of service ‘rule of thumb’ (see Lovely at paras 144 et seq and the cases cited there). [ 20 ] Lafarge argued that the Court should look at the latest case from the closest industry; preferably in the province of employment, and apply that factor to determine the length of reasonable notice. [ 21 ] Of the cases cited, Rutkowski and Ganam involved similar jobs in the cement industry. Both are from Alberta. Rutkowski is from 2007. Ganam is 1993. Mr. Ganam’s age is not disclosed in the Court of Appeal’s Reasons. Mr. Rutkowski was 47 when he was terminated.

Both employees had longer years of service than Mr. Harper. The notice weeks per year of service for these two cases is 3.0 and 3.3, respectively. [ 22 ] There is much to be said for a scientific approach. After all, we are now 56 years past the Bardal decision. The Bardal factors have almost universally been adopted and applied. One of the reasons such an argument is attractive that the more formulaic the task might become, the less often this type of case would end up in court. The playing field is not very level. Close is usually good enough when it comes to termination pay.

Even if a dismissed employee has the financial wherewithal to prosecute a claim against her former employer, the risks are fairly high and only made higher by use of the Compromise rules. [ 23 ] Unfortunately, the decided cases show that this area is not yet scientific, despite many years consideration and application of the common factors (and see the dicta in Lovely (above) at para 145 et seq ).

This is best demonstrated by the fact that of the cases cited by the parties, the range in the notice period is from 2.6 weeks per year of service to 12.3 weeks per year of service; and these results arose in not dis-similar circumstances. [ 24 ] What the decided cases show is that the Court will typically pick one or two dominant Bardal factors in any given fact situation; such as age, or the availability of similar employment. The effect of emphasising one or more of those factors can make a large difference in the outcome.

As yet, it remains a highly discretionary exercise. [ 25 ] The Alberta cases seem to be somewhat more parsimonious in determining pay in lieu of notice; averaging 3 weeks per year of service. The cases cited by Mr. Harper’s are all from other provinces and are very slightly older. They average 8.5 weeks per year of service.

The discretionary element is particularly evident in these cases in that many of them cite age and the fourth Bardal factor to justify a longer notice period, despite the fact that the age range of the dismissed employees in all of these cases is not that great. [ 26 ] If I apply the Bardal factors, giving greater weight to Mr. Harper’s age and the evidence of availability of similar work as evidenced by Mr. Harper’s mitigation attempts, it is my view that the appropriate notice period should have been six months.

Coincidentally, the average of all of the cases cited by the parties is 6.3 weeks per year of service; which would result in 7 months’ notice. But it should be acknowledged that averages can be skewed by the numbers of cases cited by either side. Mitigation [ 27 ] Mr. Harper applied for 73 positions between August 2015 and December 2015. The applications set out in his affidavit emphasise: ‘driver’, ‘dispatcher’, or ‘labourer’ – types of jobs; rather than ones with a supervisory element. They also seem to show preference for employment with the City of Edmonton, which Mr.

Harper regarded as providing a good work environment and good benefits. [ 28 ] In my view, Mr. Harper made reasonable efforts to mitigate his loss over the reasonable notice period. The evidence discloses there were limited employment opportunities open to Mr. Harper. I expect that because many of these jobs (including the one that he had at Lafarge) involved a physical component, age may have been an important factor in Mr. Harper’s inability to obtain employment over the notice period. The onus of proving a failure to mitigate rests on the employer. It is a heavy onus to meet ( Lovely at para 127 ).

The evidence of mitigation efforts often end up proving the fourth Bardal factor. [ 29 ] Mr. Harper earned $2,745.35 during the notice period. He also received $5,036.90 payment from his former employer in lieu of notice. Wages During the Notice Period [ 30 ] The Respondent says that Mr. Harper’s average earnings over his 4.5 years employment should be taken into account. [ 31 ] Mr. Harper’s work was to some extent seasonal, with the busiest months being July to October. If we accept this at face value, Mr.

Harper would have had three busy months and three ordinary months during the notice period set above. [ 32 ] Although there are a number of ways that it can be approached, it is my preference to look at Mr. Harper’s employment earnings to date in the year of termination and extrapolate for the balance of the year. On this basis, his pay would have been $102,697.19; which, divided by two, would mean pay in lieu of notice totalling $51,348.59. Mr. Harper was also entitled to benefits

totalling $64.00 per month over a six month period. The value of the benefits equals $384.00. Punitive Damages [ 33 ] Mr. Harper’s response to his employer not siding with him in the event that lead to his dismissal was to reject a supervisory role, which, in turn, was an integral part of his position with Lafarge. It was close to a resignation, though not treated as such by Lafarge. Lafarge said, and I accept, that they could not simply slot him into another position below as that was a union position and Mr. Harper’s position was non-union. I do not accept that Mr.

Harper was deliberately (or perhaps disingenuously) maneuvered into a corner from which there was no escape; or that Lafarge’s conduct was such that it might warrant sanction with an award of punitive damages. Disposition [ 34 ] Based on the foregoing, Mr. Harper is entitled to: $51,348.59 pay in lieu of notice - $2,745.35 earned in mitigation - $5,036.90 termination pay + $384.00 value of benefits over the notice period $43,95034 [ 35 ] I am grateful to counsel for their thorough presentations. Costs may be spoken to. Heard on the 21 st day of September, 2016.

Dated at the City of Edmonton, Alberta this 19 th day of October, 2016. W.S. Schlosser M.C.C.Q.B.A. Appearances: Philip Prowse Prowse Chowne LLP for the Plaintiff Neil Tichkowsky Norton Rose Fulbright Canada LLP for the Defendant