Nixdorf v Broadstreet Properties Ltd, 2017 ABQB 0132

Court of Queen’s Bench of Alberta Citation: Nixdorf v Broadstreet Properties Ltd, 2017 ABQB 0132 Date: 20170227 Docket: 1501 14448 Registry: Calgary Between: Mark Nixdorf Plaintiff - and - Broadstreet Properties Ltd. Defendant _______________________________________________________ Memorandum of Decision of A. R. Robertson , Q.C., Master in Chambers _______________________________________________________ Introduction [ 1 ] This is an application for

summary judgment, brought by plaintiff in a wrongful dismissal claim. The defendant argues that a master in chambers does not have jurisdiction to assess damages, as a matter of constitutional law. [ 2 ] The defendant does not argue that a

summary judgment application is inappropriate; rather, that a

summary judgment application before a master in chambers is inappropriate because in assessing the appropriate notice period and taking into account the applicable factors the Court is said to be “weighing” evidence. The defendant argues that a master has no jurisdiction to do that. [ 3 ] I have concluded that a master in chambers does have jurisdiction to hear plaintiffs’

summary judgment applications in wrongful dismissal cases. The issue raised by the defendant is essentially a constitutional issue which would require notice to both the federal and provincial attorneys general for argument. That has not happened here.

[ 4 ] In my view, the Court of Queen’s Bench Act and the Alberta Rules of Court , read together and in light of preceding case law, make it clear that an application under rule 7.3 for

summary judgment may be heard either by a judge or a master, and if the legislature was acting ultra vires in the creation of the current Alberta Rules of Court , that argument is for another day. That is, until it has been decided by a superior court that the Rules are not valid under Canada’s constitution, I am expected to follow them.

Where the materials facts are not in dispute, the master is not “weighing” evidence. [ 5 ] Moreover, in light of recent directions from the Supreme Court of Canada and the Alberta Court of Appeal, concerns about access to justice militate in favour of a more expansive reading of the law as it relates to the jurisdiction of masters in chambers. There is still a right of appeal to a justice, where there is no constitutional issue. [ 6 ] As to the award of damages, I have concluded that a reasonable period of notice on the facts is four months. I have made other rulings on some specific heads of damages.

Jurisdiction Issues The Legislation [ 7 ] The jurisdiction of a master in chambers is set out in

section 9 of the Court of Queen’s Bench Act , RSA 2000 Chap. C-31. It does not say that a master in chambers cannot assess damages. It says this: 9

(1) In regard to all matters brought or proposed to be brought in the Court, a master in chambers (

a) has the same power and may exercise the same jurisdiction as a judge sitting in chambers except in respect of (

i) appeals, applications in the nature of appeals, applications concerning the hearing of appeals and applications to vary or rescind an order made by a judge, (ii) subject to subsection (2), stays of proceedings after verdict or on judgment after trial or hearing before a judge, unless all parties consent to the exercise of that jurisdiction by the master, and (iii) a matter for which the Chief Justice has given a direction that a master is not to exercise that jurisdiction, and (

b) with the consent of the parties, has the same power and may exercise the same jurisdiction as a judge for hearing, determining and disposing of all applications and other matters.

(2) A master in chambers may, under section 181(1) (

a) of the Traffic Safety Act , order that a suspension of a licence be stayed.

(3) Notwithstanding subsection (1), the power of and the jurisdiction exercisable by a master in chambers does not include (

a) the trial of actions, (

b) the determination of disputed or contentious questions of fact unless the parties agree to the disposition of the questions in chambers on affidavit evidence and without the trial of an issue or the hearing of oral evidence, (

c) any matters relating to criminal proceedings or the liberty of the subject, (

d) applications relating to civil contempt or for an injunction or a judgment or order in the nature of certiorari, prohibition, mandamus or quo warranto, or (

e) anything that by law is required to be done by a judge.

(4) Notwithstanding subsection (3), a master in chambers has the same power and may exercise the same jurisdiction as the Court under sections 17 and 27 to 32 of the Maintenance Enforcement Act . (My emphasis.) [ 8 ]

Section 10 also addresses jurisdiction, in connection with foreclosures. [ 9 ]

Section 11 of the Act states that, “A master in chambers is an official referee for the purposes of a reference by a judge.” [ 10 ]

Section 12 provides that an appeal lies to a judge in chambers from the decision of a master in chambers.

Section 13 provides that a master may refer any matter to a judge for decision, and the judge may dispose of, or refer back the matter in whole or in part. [ 11 ] It is clear that a master is a judicial officer in the eyes of the Alberta legislature. The Alberta Rules of Court [ 12 ] Furthermore, a master is a judicial officer in the eyes of the Court of Queen’s Bench pursuant to the Alberta Rules of Court . Rule 7.3 allow

summary judgment applications to be brought to the “Court” and in the

definitions part of the Rules we find a definition of “Court”: “Court means the Court of Queen’s Bench of Alberta acting by a judge or master except when the context refers to the Court as an institution” (my emphasis). [ 13 ] Rule 7.3 is not limited to debt claims or claims for liquidated damages. It is in respect of any “claim”, and subsection (3)(

a) specifically allows the Court to assess the amount of judgment to be granted summarily. [14] It says that the Court may, “if the only real issue to be tried is the amount of the award, determine the amount or refer theamount for determination by a referee”. It goes on to provide in subsection (3)(

b) that if judgment is given for part of a claim, the Courtmay refer the balance of the claim to trial or for determination by a referee, as the circumstances require. [15] As indicated, a referee may include a master in chambers as provided for in the Court of Queen’s Bench Act and as well, rule6.44 specifically provides that masters may be referees for the purposes of the Rules. [16] Accordingly, reading the applicable legislation as to the master’s jurisdiction and the applicable portions of the Alberta Rulesof Court, it is clear that a master may hear a

summary judgment application that involves a determination of the quantum of damages,and make the appropriate assessment, so long as there is not conflicting evidence on a material point. [17] Rule 7.3 does not distinguish between a master or a justice, and the Court of Queen’s Bench has, through the Rules, allowedthis application to be heard by a master in chambers.

Case Law [18] Counsel for the defendant refers to some cases that may be read as suggesting otherwise. [19] The first is Lucy v Interbuild Development Ltd, (AB KB), 1974 CarswellAlta 127, [1975] 1 W.W.R. 244,where the Court said, at paragraph 24, that when the master when granting judgment he was assessing damages. The assessment wasdone ex parte. The Court said that the master was “adjudicating upon a matter of law.” The Court went on to say that, “he clearlytherefore exercised a power conforming to the type of jurisdiction exercised by judges of the Superior Court.

In so doing I find he actedwithout jurisdiction and, as I stated, I find his judgment to be a nullity.” [20] This statement seems clearly to no longer state the approach of the courts. In an ex parte application for judgment, current rule3.37(3)(

a) specifically provides that the Court may, amongst other things, “direct a determination of damages”. Furthermore, theconcern that the master was exceeding jurisdiction by “adjudicating on a matter of law” seems to conflict with current expectations. Masters are supposed to make adjudications on matters of law on a regular basis. For example, finding liability on a

summary judgmentapplication involves doing that. [21] Lucy v Interbuild was criticized by the Alberta Court of Appeal in S.B.I. Management Ltd v 109014 Holdings Ltd, 1981ABCA 235, 1981 CarswellAlta 284, at paragraph 72 of the ABCA report reproduced in the binder of authority submitted by thedefendant. (The CanLII version of the same decision numbers the paragraphs differently.) At paragraph 41, the Court said this: That a Master, in the proper case, can grant

summary judgment is beyond dispute. I do not interpret the ratio in Lucy v. Interbuild Dev. ...to hold otherwise. If it does, I respectfully state that it is in error. [22] At paragraph 72, the Court said this: The Master would be exceeding his jurisdiction of the assessed damages, in the sense that he weighed evidence in order to arrive at anamount. That is the ratio of Lucy v. Interbuild Dev. supra. Here, however, there was no weighing of evidence. The amount of $2110 isthe result of the addition of liquidated amounts set out in the lease or acknowledged by the parties. (My emphasis.) [23] In S.B.I.

Management, the master determined the appropriate compensation pursuant to the Landlord and Tenant Act, 1979. That legislation required the Court to “consider the nature of the use and occupation by the over holding tenant and the tenant payableunder the prior tenancy.” This would involve some element of discretion and assessment even though the amounts calculated as a resultwere liquidated. [24] At paragraph 69 of the decision, the Court of Appeal said this: It might well be argued that, in considering “the nature of the use and occupation by the over holding tenant”, the Master was exercisinga judicial power.

However, in my view, such consideration was again within the third arm of the test propounded by Dickson J., [inReference re Residential Tenancies Act (Ont.)] in that it was “merely subsidiary or ancillary to general administrative functionsassigned” to him. [25] S.B.I. also quoted from another Supreme Court decision at paragraph 40 (A.G.

Ont. v Victoria Medical Bldg Ltd, (SCC), [1960] S.C.R. 32) which, in turn, quoted from the Alberta Court of Appeal decision in Polson (cited below): “it issufficient to say that everything the Master does must be authorized by the Rules of Practice, the Judicature Act or some other statute.” The Supreme Court went on to acknowledge that

section 96 of the Constitution operates as limiting factor. [26] These cases appear to stand clearly for the authority that if a statute or the Alberta Rules of Court grant jurisdiction to themaster, then the master has jurisdiction, unless the jurisdiction so granted exceeds constitutional limits. [27] That is, the argument advanced here is much more significant than the mere assertion that a master does not have jurisdiction.The argument is that the Court of Queen’s Bench Act and the Alberta Rules of Court contain provisions that are not constitutionally valid. [28] If the defendant in this case believed the constitutional limits have been exceeded, it was incumbent on the defendant to bringan application giving notice to both the Attorney General of Canada and the Minister of Justice and Attorney General of Alberta undersection 24 of the Judicature Act, RSA 2000 Chap.

J-2. “Weighing” Evidence

[29] In support of the argument that

section 9 of the Court of Queen’s Bench Act does not allow a master to assess damages,counsel for the defendant also refers to Espey v Chapters Inc, 1998 CarswellAlta 1325 where the Court was dealing with former rule159, which provided for

summary judgment. At paragraph 18 the Court said, “a Master has no jurisdiction to determine unliquidateddamages”, citing a decision of Master Funduk in 1990, and a similar statement is made in paragraph 29. However, the Alberta Rules ofCourt were replaced in 2010. Rule 7.3, the current

summary judgment rule, is significantly different than former rule 159. [30] The defendant also relies on Orr v Fort MacKay First Nation, 2014 ABQB 111, 2014 CarswellAlta 312, where RussellBrown J., as he then was, discussed

section 9 of the Court of Queen’s Bench Act at paragraph 16. He said that that jurisdiction does notinclude “the determination of disputed or contentious questions of fact” and said “Masters therefore do not weigh evidence”. He quotedfrom Polson Iron Works v Munns, (AB KB), 24 D.L.R. 18 (Alta. T.D.) at 232-233: “the duties performed by mastersin relief of the judges are to a considerable extent at least judicial in their character”.

Brown J said, “[masters] do not determine therights of parties in the sense of weighing evidence, finding facts in determining the legal consequences of those facts by applying them tothe law.” [31] At paragraph 18, he discussed the concept of “weighing” evidence: In short, while masters may not weigh evidence to resolve disputed or contentious questions of fact, they may examine the evidence todetermine whether an issue remains to be tried or to otherwise determine (by applying the facts to the law) whether a party’s position isso compelling that the likelihood it will succeed is so high that it merits granting

summary judgment. .... I recognize that, at some level,all evidence – even extremely compelling evidence – requires weighing. ....

To carry that proposition to its logical conclusion would,however, defeat the constitutional purpose served by appointing masters of facilitating the administration of justice. (My emphasis.) Previous Decisions on Point [32] Although the defendant relies on an unreported oral decision of Master Farrington in Slatni v Weatherford CanadaPartnership, Action 1501-04258 given November 30, 2015, for the proposition that masters do not have jurisdiction to assess damagesin wrongful dismissal cases, there are reported written masters’ decisions that say otherwise: Harper v Lafarge Canada Inc, 2016ABQB 586 and O'Donnell v Soldan Fence and Metals

(2009) Ltd, 2015 ABQB 764. Also there is at least one reported decision wherejudgment was granted without a discussion as to jurisdiction: Watkins v Willow Park Golf Course Ltd, 2015 ABQB 127 (M.C.). [33] Also, in Schaffer v Lalonde, 2014 ABQB 222, Master Schlosser spoke of the desired approach at para. 26: The Master’s power set out in section 9(2)(

b) of the Act should be broadly exercised, as it is in line with the ‘culture shift’ spoken of bythe Supreme Court of Canada in Hryniak v Maudlin, 2014 SCC 7. Conclusion on Jurisdiction [34] I agree with Master Schlosser and I disagree with Master Farrington’s oral decision in Slatni. The assessment of theappropriate period of notice in a wrongful dismissal

summary judgment, when the facts otherwise are not materially in dispute, is anexample of “applying the facts to the law” as discussed in Orr v Fort MacKay. As Master Schlosser said in Harper: 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. The law is well settled and the facts are rarely in dispute. [35] On an opposed

summary judgment application where the applicant otherwise satisfies its initial burden, a reluctant respondentshould be able to articulate what facts are in dispute that need to be resolved at trial: Tottrup v Clearwater (Municipal District No. 99),2006 ABCA 380 at para. 11-12. If there are material facts in dispute,

summary judgment in a wrongful dismissal claim may not beavailable. [36] If a party believes the master was in error, there is a clear right of appeal. An appeal is largely a rehearing, although thestandard of review is “correctness”, which presumes the need for some argument as to why a master in chambers was incorrect inreaching the decision that he or she did.

The master’s reasons are part of the record that is to be placed before the justice hearing theappeal: rule 6.14. [37] The approach expressed long ago in the unanimous judgment of the Supreme Court of Alberta, Appellate Division enunciatedin Advance Rumely Thresher Co v LaClair, (AB CA), 10 Alta. L.R. 446, [1917] 1 W.W.R. 875, 32 D.L.R. 609 (1916)seems definitive, where the Court said: It is to be remembered that the jurisdiction of the Master is not given by statute although the office is provided for in that way. Thejurisdiction is given by the Rules of Court which are the rules of procedure only.

It simply amounts to this that by rules of procedurecertain matters are referred to the Master to decide. The judgment entered is not the judgment of the Master but the judgment of theCourt arrived at by means of certain rules of procedure. These matters can always be taken to a Judge if any party so desires and thehearing by the Judge though called an appeal is really merely a review and a rehearing. In this case the decision of the Master wasconfirmed by a Judge and even another affidavit was introduced before the Judge for the first time.

In view of the decision in PolsonIron Wks v Munns and of those considerations I have mentioned it would appear that we ought to hear no more of this objection. The Merits The Facts [38] Mr. Nixdorf obtained a business administration degree in 1983. He had 16 years of experience at executive and district/regionmanagerial level. From 2010 to 2014 he was the Regional VP of Operations, Western Canada for Herbal Magic.

[ 39 ] In 2014 he was offered a job with the defendant, Broadstreet Properties Ltd. At the time, he was winding down his association with Herbal Magic. His employment had formally been terminated (although still ongoing in the interim), and a reorganization of Herbal Magic’s business operations was underway. He had been offered a job with the reorganized company, although not in writing.

He had concluded that he would not accept that position, and after he announced that decision he was approached with the offer of employment with Broadstreet. [ 40 ] Accordingly, he was not induced to leave secure employment to work for Broadstreet. Although he was still working at the time, the Herbal Magic sunset was approaching the horizon. [ 41 ] He was initially hired as Regional Manager, Alberta Region effective September 14, 2014. He reported to the COO, Asset Management and he worked in the Alberta Regional Office in Edmonton.

He was initially paid $100,000 a year, which is less than he had been making at Herbal Magic, but there are factors which minimize this point. Firstly, he was paid a signing bonus of $10,000, and then a further bonus 90 days later, and secondly, at the time he was hired it was anticipated that he would be promoted to be the Director of Asset Operations. [ 42 ] In January 2015, that is what happened. He was given the anticipated promotion, his salary was increased $130,000, and he was then in a position to participate in the asset management bonus program.

He understood that there would be an eventual move to Campbell River, British Columbia where Broadstreet has its head office, but it was understood that that move would not occur for approximately two years. [ 43 ] In August 19, 2015 he was advised that Broadstreet was willing to pay up to $3,500 for moving expenses for the ultimate move to Campbell River, as well as $6,000 for the cost of accommodations in relation to that move. [ 44 ] However, on September 10, 2015 he was dismissed by a telephone call. A letter followed two days later. [ 45 ] He was paid two weeks’ pay, or $5,000.

It is not suggested that that payment was in full satisfaction of Broadstreet’s obligations. [ 46 ] The parties have not been able to agree upon the period of reasonable notice. [ 47 ] There are some other matters in dispute as well. However, the essential facts are not in dispute, and that is why the application for

summary judgment was brought. The debates are not over what actually happened (at least for the most part – possible mitigation is part of the debate, discussed below). The debates are over what the legal outcomes are based upon the evidence that is uncontradicted. Issues [ 48 ] The issues include the following: (

a) the period of reasonable notice; (

b) vehicle allowance: whether the damage award should include an amount for his vehicle allowance, which was $2,000 per month at the time of termination; (

c) vacation accrual: whether there should be an amount paid for vacation not used. He was paid for his accrued vacation entitlement up to the time of termination, but he claims damages for the vacation that would have accrued during the notice period; (

d) mitigation: he was offered a position by ASAP Security in November 2015, and turned down the offer. He was later offered a job in January 2016 with Firstservice Residential Alberta as its Alberta president. He accepted. He started the job February 8, 2016. The defendant argues that he should have accepted the earlier job offer with ASAP Security. Analysis Notice Period [ 49 ] There is really no doubt that Mr. Nixdorf was in a relatively senior management position at the time he was hired, and it was expected that he would be promoted not long after to a more senior position. That happened.

Accordingly, his title reflected his actual managerial duties. [ 50 ] The parties have submitted a variety of cases, all with different facts, indicating a range of awards on what they argue are reasonably comparable facts.

The awards range from three months to 12 months. [ 51 ] The plaintiff submits that the appropriate period of notice in this case was six months, given his prior management experience, his education, his age at the time of termination (51), and the nature of the position he held with Broadstreet. [ 52 ] The factors shortly before his dismissal suggested a reasonable expectation of a long-term relationship.

He had been hired with a view to promotion; the promotion had occurred; his salary was increased by 30% at the time of his promotion, and in addition, he became entitled to a managerial bonus; he had actually been paid some of that bonus before his dismissal, and he had been invited to join senior management at head office in Campbell River. All of these factors would suggest both at the time of hiring and until shortly before his dismissal that he was in for the long term. [ 53 ] The defendant points out that he sent out resumes in the last couple of months before his dismissal.

The defendant argues that this is a factor that should be taken into account in assessing the appropriate period of reasonable notice. The defendant asserts that the plaintiff did not see his position as secure.

[ 54 ] On this point, I disagree with the defendant. [ 55 ] The plaintiff explained in questioning that he was responding to headhunters, however his emails at the time suggest that he was not candid in this explanation, and he may have been somewhat active, not merely passive, in looking at alternatives. [ 56 ] In my view, it makes no difference.

Thoughts of making changes, and preliminary steps to do that, do not affect the existing contractual relationships of the parties. [ 57 ] The fact that an employee is giving some thought to moving elsewhere, if a better opportunity can be found, cannot be used against him if he is dismissed shortly after. It is, at best, equally consistent with a perception that perhaps he should have been looking because he sensed that he might be dismissed in the near future.

Taking some proactive steps to minimize loss in that regard should not lead to punishment. [ 58 ] The reverse might also be true, and is equally irrelevant. An employer may be giving consideration to a reorganization of the workplace, plans that are not discussed with a particular employee, with the possible result that either the employee might be promoted or the employee’s job would become redundant.

But if the employer does not do the reorganization, and dismisses the employee for other reasons, the unexecuted plans should not lead to additional liability. [ 59 ] Furthermore, there is a good policy reason not to deduct from the award for this effort. The employer might well have stood to benefit from his proactive steps, because he may have been able to mitigate his damages very early, reducing the employer’s exposure to damages. If he had found alternative work by sensing his impending departure and looking elsewhere, he may have resigned and saved the employer the obligation to pay any severance pay.

If an employee is sensing a possible dismissal and is given legal advice that job hunting may adversely affect a possible wrongful dismissal claim, many employees may simply hunker down and wait for the bad news. [ 60 ] Given the management position that he held, the period of reasonable notice that would have been applicable would not have been less than three months.

It is widely accepted that management positions are not as readily available for replacement employment as are less senior positions, and in real terms it often takes three months to find replacement employment even when a dismissed employee is very successful in seeking new work. [ 61 ] An employee must first of all update his resume, secondly determine what jobs are available, thirdly make application, fourthly receive an invitation for an interview, and fifthly wait for the offer of employment at the new job.

Then there may be some negotiation as to the terms, and only occasionally does a new management job provide employment immediately after reaching an agreement. For all of these things to occur, a three month period should be looked at as a minimum. Few cases go below it. [ 62 ] He was 51 years old. An employee at 51 years of age does not have the same anticipations of barriers to employment as someone at a much older age. In fact, an executive at age 51, such as Mr.

Nixdorf, has much to offer and enough years left in his working life that an employer would not normally hesitate before investing in a long career with him. In my view, his age is a modest, but not a significant, factor in the assessment. [ 63 ] In my view, the most important factors here are the particular facts of the case: at the time of hiring, and throughout the year of his employment, the steps taken by Broadstreet made it clear that the relationship was expected to last for a long time. He would not reasonably have thought that his employment was only for a short term.

His later promotion, raise, participation in a management bonus, and invitation to move to Campbell River confirmed this expectation. [ 64 ] The defendants argue that since he applied for a job the day he was dismissed that that amounts to evidence that there were other jobs available to him. I do not see the evidence as allowing that conclusion to be reached, at least not to the extent that it affects the period of reasonable notice.

There is no evidence that the real estate construction/marketing business that Broadstreet was engaged in was in serious decline (although the Court could take judicial notice of the fact that in 2015 in Alberta the real estate market was in a downturn due to falling oil prices) but neither is there evidence that it was an overheated market that created lots of opportunities for workers. The fact that he applied right away is just evidence of his diligence in attempting to mitigate his damages. [ 65 ] In all of the circumstances, my view is that the proper period of reasonable notice was four months.

Mitigation [ 66 ] That period would have expired January 10, 2016. In November he had received the offer from ASAP Security. He recalled that the offer was for compensation of $95,000-$105,000 per year, with a small bonus.

However, he apparently did not keep the offer letter, and when he contacted ASAP Security in an attempt to answer an undertaking at questioning, he was unable to obtain a copy of the letter. [ 67 ] However, his evidence was that he did not accept that job because the compensation was lower than he had been earning at Broadstreet, and because there was no potential for upward mobility at ASAP security.

The job that was available to him would apparently have been a “dead-end” in terms of career advancement. [ 68 ] The law is clear that a dismissed employee looking for replacement work can reject an offer of alternative employment if it is reasonable to do so under the circumstances from the standpoint of his interests. The Court should be cautious in second-guessing a decision made by an employee attempting to replace his job.

He is entitled to make a decision based on his own best interests. [ 69 ] Although he had a responsibility in law to take reasonable steps in mitigation of his damages, that does not mean that he had to take the first job that came along. As things turned out, by waiting another month or two he was able to find a much more attractive job at a much higher salary, apparently with a better future for career advancement. That is, his belief in himself seems to have been well placed.

[70] With these factors in mind, I am not able to conclude that he failed to take reasonable steps in mitigation by declining the jobwith ASAP Security.

I recognize that the burden of proving the failure to mitigate lies with the defendant, and that that evidencenormally comes from the plaintiff by way of admissions at questioning and record production, and here the critical document has notbeen produced because the plaintiff did not keep it. [71] However, no application was made for production of the document from ASAP Security as a third party, and there is noreason to believe that that evidence would be available at trial.

In the circumstances, we have before the Court at this time the sameevidence that a trial judge would have, and that evidence is that he made a reasoned decision regardless of what the precise level ofproposed compensation was, and regardless of the precise date when the new job might have commenced. Car Allowance [72] As to the car allowance, Mr. Nixdorf was required to travel a lot for business, using his own vehicle, and the car allowancerelated to that.

Employers often provide a car allowance because they want to make sure that their employees have a reasonably reliablevehicle available to them for employment purposes. [73] Although usually unspoken, it is generally thought that an executive should be driving a recent model year vehicle. There wasno requirement here on Mr. Nixdorf to buy or lease any particular vehicle, but the vehicle allowance of $2,000 per month was generous. That suggests he was to have a reasonably recent high-end vehicle. He did not have to account for fuel or distance travelled.

He wassimply paid $2,000 per month as “earnings” as it was reflected in this way on his paystub. It appears clearly to have been treated as ataxable benefit.

Since it was his own vehicle, there was no restriction on his personal use of the vehicle during his employment atBroadstreet. [74] A damages award for a reasonable notice period requires an amount reflecting the continued level of compensation that hewould have received during that period as if working notice had been given, and that would have included the vehicle allowance - at leastfor a reasonable period of time for him to sell, or trade, or buy out the lease of his vehicle if he chose to do so.

The ownership of avehicle, or a lease of a vehicle, not otherwise required by an employee does not suddenly end the day employment terminates. Furthermore, immediately disposing of a high-end vehicle, no longer required for this terminated employment, may be foolish if thenext job also requires use of a high-end vehicle. [75] If the appropriate notice period were much longer, it might be necessary to assess how long the vehicle allowance shouldcarry on. However, given that my determination is that the reasonable notice period was four months, in my view the vehicle allowanceshould have continued for that period.

Vacation Pay [76] Vacation pay is required to be paid as a cash amount only when an employee does not take vacation. Employers are entitled tosimply gross up the pay each pay period to include vacation pay (Employment Standards Code, RSA 2000 Chap. E-9, s. 41), but that isgenerally done in the construction industry or other jobs where employment is temporary or somewhat uncertain. Executives normallytake vacation during their employment (as contemplated by Employment Standards Code, s. 37). [77] The case law on awards of damages for vacation pay is somewhat inconsistent.

Levitt in The Law of Dismissal in Canada(3d) writes of the “prevailing law”: [T]he prevailing law is that, particularly in the case of employees who regularly took their vacation while they were employed, theyshould not be entitled to vacation pay during the period of notice. [78] He cites several authorities from a variety of provinces to this effect. He also points out that under legislation employers havethe right to force employees to take their vacation during the notice period (in Alberta, this is provided in

section 38 of the EmploymentStandards Code). However, he notes that other cases have rejected the theory on the basis that the employee’s obligation during thenotice period is to attempt to mitigate, and it should not be considered vacation. [79] In Bagby v Gustafson International Drilling Co Ltd, 1980 ABCA 227, 1980 CarswellAlta 373, at para. 34 the Court ofAppeal stated that it considered awarding vacation pay as well as damages for the pay in lieu of notice as “doubling”. They declined toaward it.

This was followed in other cases, including Driscoll v Coseka Resources Ltd, (AB QB) at paragraph 42. [80] It is true that some other cases have not followed this approach, such as Tanton v Crane Canada Inc, [2000] A.J. No. 1369,2000 ABQB 837, at paragraph 176. Watson, J. specifically mentioned Driscoll , but declined to follow it because he did not haveevidence before him that suggested that the plaintiff would have been compelled to take his vacation in some sort of regular basis.

Hethought that if it were his option whether to take vacation or not, then he could choose to work out to the end of a working notice periodwithout taking vacation. [81] The evidence here suggests that Mr. Nixdorf never took any vacation, and he was actually paid his accrued vacation pay atthe time of termination. If he had actually been given working notice of four months, he may have taken vacation during that period, orbeen directed to do so, since he had taken none previously.

That vacation (after deducting the payment for accrued but unused vacationat the time of termination) would have been one third of his annual four weeks’ entitlement, or approximately seven days (that is, a weekplus two more working days). [82] However things might have worked out, in my view I am governed by the directions of the Court of Appeal in Bagby, takinginto account the terms of his employment. The Employment Standards Code, s. 38 allows employers to direct when vacation is to betaken if the employer and employee cannot agree.

That is consistent with the offer of employment here, which contemplates that thevacation is to be taken “at mutually convenient times”, not at the employee’s option alone. The offer of employment says no more, andin the absence of agreement, in my view

section 38 would be triggered. It was not up to the employee to decide that he could “bank”vacation indefinitely. He was expected to take it during his employment.

Conclusion [ 83 ] Accordingly, in my view the appropriate award is to be calculated based on four months’ reasonable notice, including the car allowance, but excluding an amount for vacation pay, less the $5,000 paid at termination. As conceded in oral argument, the employer is to pay a prorated amount of the bonus earned during the four month period. There is to be no deduction for failure to mitigate relating to the job offer from ASAP Security. [ 84 ] This decision is, of course, subject to the employer’s withholding obligations imposed by section 153(1)(

c) of the Income Tax Act (Canada) R.S.C., 1985, c. 1 , and since Mr. Nixdorf received employment insurance benefits,

section 46 of the Employment Insurance Act , S.C. 1996, c. 23. [ 85 ] If counsel are not able to agree on either the precise calculation of damages, or costs, or both, they may contact the Masters’ Chambers clerk to arrange to address the Court. Heard on the 8 th day of February, 2017. Dated at the City of Calgary, Alberta this 27 th day of February, 2017. A. R. Robertson, Q.C. M.C.C.Q.B.A. Appearances: Matthew R. Laurich Matthew R. Laurich Professional Corporation for the Applicant (Plaintiff) Cristina Wendel Dentons Canada LLP for the Respondent (Defendant)