Costigan v Canadian Pacific Railway Company, 2017 ABQB 294

Court of Queen’s Bench of Alberta Citation: Costigan v Canadian Pacific Railway Company, 2017 ABQB 294 Date: 20170426 Docket: 1201 13567 Registry: Calgary Between: Lawrence James Costigan Plaintiff - and - Canadian Pacific Railway Company, Canadian Pacific Railway Limited, IBM Canada Limited, IBM Global Services, BP Canada Energy Company and BP Canada Energy Group ULC Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.

Antonio _______________________________________________________ Overview [ 1 ] Lawrence Costigan was outsourced from CPR to IBM, and then from IBM to BP. In each transition he was offered a compensation package that his employer assessed as “comparable”. CPR agreed to recognize his service at IBM as pensionable time for calculating pension eligibility. During the transition from IBM to BP, Mr Costigan wanted to know whether his future service with BP would also count toward his CPR pension eligibility. He raised the issue with IBM, but did not contact CPR directly.

He accepted a position with BP, on terms that IBM called “comparable” to the terms of his IBM employment, in the absence of a clear answer to the CPR pension issue. A few years later, when he tried to draw an early pension from CPR, he was informed that his service with BP did not count toward pension eligibility, and that he therefore was not entitled to an early pension.

[ 2 ] Mr Costigan brought this action against Canadian Pacific Railway Company, Canadian Pacific Railway Limited, IBM Canada Limited, IBM Global Services, BP Canada Energy Company and BP Canada Energy Group ULC, claiming damages for the difference between what he would have drawn on an early pension and what CPR was in fact willing to pay by way of pension benefits. Before trial, Mr Costigan reached a settlement with the BP parties and discontinued his action against them. Mid-trial, Mr Costigan reached a settlement with the CPR parties and discontinued his action against them.

These reasons therefore address only IBM’s liability. The parties agree that the correct defendant is IBM Canada Ltd. I take this as a request to dismiss the action as against IBM Global Services, and I do so. Hereafter, “IBM” means IBM Canada Ltd. [ 3 ] Mr Costigan’s claim raises the following issues: 1) Was there a negligent misrepresentation on IBM’s part? a. In Mr Costigan’s pleadings, the misrepresentation was alleged to be that “his continued service with IBM and BP would be counted towards his vesting requirements under the [CP Pension] Plan.” b.

In his closing argument, the misrepresentation was alleged to be that the BP offer was “comparable” to Mr. Costigan’s employment at IBM. 2) Did IBM breach a duty of good faith and fair dealing by not advising Mr Costigan that his rights under his CPR pension may be affected in the transition to BP? Mr Costigan also asserts that IBM’s failure to produce a key witness, Jenny Tung, permits me to draw an adverse inference against IBM. [ 4 ] IBM raises the following issues in its defence 3) Is Issue 1(

b) above outside the statement of claim, such that it should not be considered by this Court? 4) Was Mr Costigan’s loss of early retirement eligibility under the CPR pension inevitable? 5) Was Mr Costigan contributorily negligent? 6) Is Mr. Costigan’s action limitation barred? [ 5 ] For the reasons that follow, I find that Mr Costigan has not established any negligent misrepresentation, nor any breach of duty. IBM is therefore not liable on either basis. Given my findings of fact and law, there is no need for me to rule on Issues 3 through 6.

Facts Transition from CPR to IBM [ 6 ] Mr Costigan began working for CPR on 31 August 1976 and remained with them for 27 continuous years. Throughout this time, he and CPR both made contributions toward his defined benefit pension plan. Under the terms of the CPR plan, employees generally became eligible to receive full pension benefits at age 65. Benefits could be drawn earlier, but in a reduced amount. An employee could draw an early unreduced pension if he or she was at least 55 years of age, with combined age and years of service totalling at least 85.

If he had remained continuously employed with CPR, Mr Costigan would have reached this mark at age 55. [ 7 ] In 2003, CPR made a business decision to outsource Mr Costigan’s work unit to IBM. IBM made an offer of employment to Mr Costigan on terms similar to those of his employment with CPR. Perhaps the greatest area of difference was in the pension programs of the two companies. IBM would not accept a transfer of CPR’s defined benefit pension assets into its defined contribution plan, and annual contributions would be less than under the CPR plan.

Of particular concern to Mr Costigan, as one of the most senior employees to be affected by the outsourcing, was whether he could continue to accrue time toward the “magic number” of 85. [ 8 ] Mr Costigan raised both of these issues with CPR. It negotiated with IBM to pay Mr Costigan an additional annual “fixed pension increment” roughly equal to the contributions that CPR had been making toward Mr Costigan’s pension. CPR agreed to continue to count Mr Costigan’s service with IBM toward his magic number. This arrangement was spelled out in a termination letter dated 3 November 2003.

The letter also gave Mr Costigan two options for dealing with his pension assets upon the move to IBM. Mr Costigan selected Option 2: You can elect to keep your pension benefit in the CPR Pension Plan. You will be entitled to receive an unreduced pension from the CPR Pension Plan when you cease employment at IBM provided you have attained at least 55 years of age and 85 points (age plus pensionable service) prior to your employment ceasing at IBM. Otherwise you may receive a deferred pension at 65 or your termination value.

Once you leave IBM your pension under the CPR Pension Plan will be determined based on the following: • For purposes of determining the amount of your pension formula, your pensionable service will be frozen as at the transition date. • For purposes of the “85-point-rule” and vesting provisions under the CPR Pension Plan, your service with IBM after the transition date will be recognized. … On an attachment to the termination letter, Mr Costigan initialled beside the following paragraph: Option 2. I elect to have CPR retain the value of my pension contributions.

My service for purposes of the CPR Pension Plan will cease once I become an employee with IBM and I will commence participation in the IBM’s [defined contribution] Pension Plan. All of my

service will count towards eligibility of obtaining an unreduced pension from the CPR Pension Plan. [ 9 ] IBM made Mr Costigan an offer of employment via letter dated 3 November 2003. The letter provided that • Mr Costigan’s start date with CPR would be “recognized by IBM for purposes of vacation and other employment considerations where service is a factor, including notice or severance entitlements upon termination of employment and pension contributions and vesting”; and • “Effective with your anticipated start date you will become a member of the IBM Canada Defined Contribution pension plan”.

The last words in the letter were “I understand I must advise CPR if I leave the employ of IBM for any reason in the future.” On 10 November 2003, Mr Costigan signed the offer letter immediately below these words. [ 10 ] On18 November 2003, IBM issued a revised letter to mirror the terms that Mr Costigan had negotiated through CPR.

IBM specified that it would recognize Mr Costigan’s start date as 31 August 1976, for the same purposes outlined in the 3 November 2003 letter, and agreed to pay the fixed pension increment of $3,301.01 per year “as compensation for the difference between your CPR Pension Plan and the IBM Defined Contribution Pension Plan.” This letter was “further to” the letter of 3 November, and was “subject to [its] terms and conditions.” Mr Costigan signed the second letter on 19 November 2003. [ 11 ] IBM had a letter on Mr Costigan’s file showing that he had elected to leave his CPR pension contributions in the CPR plan.

IBM’s corporate representative and human resources consultant, Pasquale Greco, testified that IBM did not have a copy of the pension agreement between CPR and Mr Costigan, and did not make efforts to obtain a copy. [ 12 ] At no point did IBM agree to maintain Mr Costigan’s employment until he reached a given age, or a given number of CPR pension points, or for any length of time. Transition from IBM to BP: agreed documents and IBM’s evidence [ 13 ] Starting in January 2007, Mr Costigan worked in a unit at IBM that primarily performed services for BP, and that had previously been outsourced from BP to IBM.

In 2007, BP decided to repatriate the work. The effect on the employees in the unit was essentially that of an outsourcing. Since BP was taking the work in-house, IBM was disbanding its unit. BP offered employment to some members of the work unit. Any affected employee could seek other employment within IBM. Employees who did not obtain other work, either within IBM or with BP, would be let go by 31 August 2007. [ 14 ] IBM’s human resources department reviewed the offers made by BP for “comparability”.

According to Mr Greco, the goal was to ensure that from a comprehensive perspective, the terms of employment at the two companies were comparable in the aggregate. Terms will never be identical; for example, benefit programs rarely align exactly. Pensions are particularly complex and cannot always be duplicated. IBM looks for other ways to “harmonize” the pension aspects of offers made on outsourcing or repatriation. [ 15 ] BP offered employment to Mr Costigan within the repatriation.

IBM reviewed the offer and found it contained terms comparable to those of Mr Costigan’s employment with IBM. [ 16 ] When Mr Costigan received the BP offer, he raised several concerns with Jenny Tung, his contact person in IBM’s HR department. The relevant concern was the potential impact on his eligibility for an early unreduced pension under the CPR plan if he were to leave IBM before reaching 85 points. [ 17 ] The record contains numerous emails between 7 and 23 August about Mr Costigan’s various transition concerns.

Some were sent to or from Mr Costigan, and some were internal to IBM’s HR and pension departments. [ 18 ] The first ambiguous written allusion to this issue that I can find in the documentary record appears in a 7 August 2007 email from Mr Costigan to Ms Tung. He asked her to have the BP offer letter amended “[b]ased on … the fact that [he] worked for CPR and then was outsourced to IBM.” He made a similar request in a 9 August 2007 email to a human resources advisor at BP, asking that his offer letter be revised to reflect that he “worked for IBM and before that CPR.” He did not explain why he made that request.

BP replied that it would recognize his IBM service for certain purposes, but would not recognize earlier service with other companies. [ 19 ] The first explicit written mention of the CPR pension issue appears in a 10 August 2007 email from Jenny Tung to Dawn Maddix of IBM’s pension department. [ 20 ] There is no dispute that Mr Costigan raised this issue. Nor is there any real dispute that IBM’s HR department ultimately concluded the issue was closed. Mr Greco explained that its comparability analysis was based on terms and conditions of employment at IBM.

For instance, it ensured that BP mirrored the fixed pension increment that it had been paying to Mr Costigan. However, the CPR pension was not a term of employment at IBM. IBM was not a party to that agreement. Mr Greco said it would have been inappropriate for IBM to intervene where it had no ability to influence terms. He expected that CPR would not discuss Mr Costigan’s pension with an outside party.

IBM’s position was that it was Mr Costigan’s responsibility to contact CPR directly to determine the effect of his departure from IBM on his CPR pension. [ 21 ] There is a dispute over whether IBM’s position was ever made clear to Mr Costigan. Certainly it was not communicated in written form. Mr Greco testified that, given IBM’s internal culture and the history of this file, he believed Ms Tung had told Mr Costigan of IBM’s final position on his pension question. Mr Greco could not recall hearing any confirmation from Ms Tung that she did tell Mr Costigan to contact CPR directly.

Mr Greco’s belief as to what Ms Tung would have done is not evidence of what she did or did not do. [ 22 ] Ms Tung was not called as a witness by either party. Mr Costigan submits that I should exercise my discretion to draw an adverse inference against IBM from her absence. The only evidence before me is that Ms Tung was an employee of IBM at the time of

the events in question, but not at the time of trial. (IBM’s written argument contains some information about her absence, but of course I do not rely on documents or alleged facts that have been introduced for the first time in counsel’s submissions.) As a former employee, Ms Tung would not be within IBM’s exclusive control [ Horizon Resource Management Ltd v Blaze Energy Ltd, 2011 ABQB 658 at paras 146 , 147,151, 153, rev’d other grds 2013 ABCA 139 ]. Mr Costigan presumably had equal access to her, and as plaintiff the case was his to prove.

I decline to draw any adverse inference from her absence. [ 23 ] Ms Tung repeatedly expressed concerns to her superiors in HR about the potential impact of the repatriation on Mr Costigan’s CPR pension, and its effect on the comparability analysis. On 13 August 2007, she sent an email to Lisa Rosak in IBM’s pension department. I’m really concerned about the comparability of Larry Costigan’s offer. He signed BP’s job offer last week but I don’t know what the impact is to him surrounding his pension.

I spoke to Pasquale [Greco] and he has asked if you can check to see what penalty he faces if he retires early… I’m going to tell BP and Larry that we are doing additional due diligence in reviewing the comparability of his offer. [ 24 ] Ms Rosak expressed concern about whether “from a privacy standpoint” IBM could obtain details of Mr Costigan’s external pension.

She instructed Ms Tung to tell Mr Costigan to contact CPR’s pension administrators directly, since he was responsible for understanding how his combined IBM and CPR service affects his eligibility for an unreduced pension.” Ms Tung responded, Normally I would tell the employee to call except he is not voluntarily retiring. We are moving him out as part of a repatriation. We should know what the impact is … if the impact is huge, then we would consider keeping him at IBM so he’s not disadvantaged.

I hesitate to have him call because if amendments need to be made to his offer, then IBM should be the one to make the decision vs the employee dictating the terms back to us. [ 25 ] Mr Greco testified that after discussions within the HR team, Ms Tung ultimately agreed with IBM’s position. [ 26 ] In an email dated 20 August 2007, Ms Tung informed Mr. Pasquale, Ms Rozak and others of a conversation she had had with Mr Costigan that morning. Mr Costigan testified that this email accurately summarized their conversation. Ms Tung wrote that they had “agreed to disagree” about one of his concerns.

She advised Ms Rozak of the pension department that she needn’t contact Mr Costigan: “If the answer won’t change, then he doesn’t need to speak with you.” From the context of the email, I infer that this reflected a statement made by Mr Costigan to Ms Tung. That is, Ms Tung was conveying Mr Costigan’s position that if “the answer” from the pension department was final, there was no need for further discussion. The question corresponding to the answer was not specified in the email.

However, at this point there were only two live pension-related questions: the 85-point issue, and a concern relating to the fixed pension increment. In the email, Ms Tung noted that they needed to get back to Mr Costigan on the fixed pension increment issue, so that was not the question to which the answer was final.

I infer that the final answer from the pension department was IBM’s position on the 85-point issue as outlined above, and that Mr Costigan had been informed of that answer. [ 27 ] On 23 August 2007, Ms Tung emailed Mr Greco and another co-worker, without copying Mr Costigan: I spoke to Larry today regarding his request for [a fixed pension increment]. He did not challenge the comparability statement regarding his BP offer. He did not ask any questions either … seemed like he expected the answer would be “no”.

Mr Greco took this as confirmation that there were no outstanding issues regarding Mr Costigan’s BP offer. Transition from IBM to BP: Mr Costigan’s evidence [ 28 ] Mr Costigan learned of the BP repatriation in the late spring or early summer of 2007. BP made him an offer by letter dated 23 July 2007, replacing an earlier offer letter dated 16 July 2007. The employment offer would expire on 26 July 2007.

Mr Costigan signed acceptance on 9 August 2007. [ 29 ] Mr Costigan testified that he had many conversations with Ms Tung in which he raised his comparability concerns, including his worry that he was about to lose 31 years of pensionable service under the CPR plan. He understood that IBM was going to tell BP about CPR’s agreement to count Mr Costigan’s IBM service plan. He said that Ms Tung’s repeated answer was “I’ll get back to you”, but she never did get back to him. He felt she was doing everything in her power to help him. He didn’t know if anyone at IBM ever contacted CPR about his pension.

He was hoping so, but he didn’t know. [ 30 ] Mr Costigan states that no one at IBM ever told him about any consequences to his CPR pension. There is nothing in the evidentiary record to contradict Mr Costigan on this point. I accept this aspect of his evidence. [ 31 ] Mr Costigan explained that there was pressure on him to sign the offer or lose it. At the same time, he was under pressure at work to meet deadlines. He says he pursued the issue as attentively as he could.

It is not clear when he first raised the issue; the first express documented mention is on 10 August, the day after Mr Costigan accepted BP’s offer. Mr Costigan acknowledged that he never contacted CPR directly during the BP transition period, and that he never followed up with anyone at IBM after August 2007. When it was put to him in cross-examination that he “just let it lie”, he responded “they were just ignoring me”. [ 32 ] Mr Costigan asserts that the last word he heard from IBM on the 85-point issue was that they were looking into it.

I reject this evidence as inconsistent with Ms Tung’s email of 20 August 2007 and with Mr Costigan’s apparent silence on the issue after that date. [ 33 ] In questioning, read in at trial, Mr Costigan said that he understood that IBM had no responsibility for the CPR pension plan. He conceded that IBM did not make any representations to him about how the CPR pension plan would operate. [ 34 ] In questioning, he specified that the only misrepresentation he alleged on the part of IBM was the reference in its November 2003 offer letter to recognizing his CPR service for purposes of pension contributions.

However, he had earlier explained that he read the “Years of Service” passage in the offer letter to mean that he would be immediately vested into the IBM pension plan.

[35] When asked in cross-examination to confirm that the statement in the offer letter was the only misrepresentation he wasalleging, Mr Costigan became evasive. In particular, he was asked whether anyone at IBM stated to him that his time at BP would counttoward his CPR pension.

He answered, “That’s the question I asked Jenny to get back to me on but she didn’t.” He ultimately agreed thatIBM did not tell him he would continue to be eligible for early unreduced pension if he went to BP. [36] In questioning and at trial, he confirmed that he understood the obligation imposed on him in IBM’s 2003 offer letter when hesigned it: “I must advise CPR if I leave the employ of IBM for any reason in the future.” However, at trial he also said he assumed thatobligation would arise if he retired, resigned or was terminated, but not upon the repatriation to BP.

At the time he signed the offer letter,he thought he would remain with IBM until retirement. The prospect of another outsourcing or repatriation did not cross his mind. He didnot seek to clarify his assumption. He did not advise CPR when he left IBM. [37] The wording of the letter is clear, and it encompasses all manners of departure from IBM. I accept that Mr Costiganunderstood his obligation to contact CPR if his employment at IBM ended for any reason. I accept that he did not turn his mind to all theways in which that employment could end.

I reject his evidence that he believed the letter captured retirement, resignation or termination,but not repatriation. Application for pension benefits [38] In October 2010, BP informed Mr Costigan that his employment would be terminated. They reached an agreement to continue his employment on “leave of absence” status until January 31, 2012, a couple of weeks after Mr Costigan’s 55th birthday. [39] In Septemer 2011, Mr Costigan initiated his application to draw an early unreduced pension from CPR. In September orOctober of 2012, Mr Costigan received a statement of pension entitlement from CPR.

It recognized pensionable service until 2003. MrCostigan never chose a pension option. He filed his statement of claim on October 26, 2012. Quantification of loss [40] Had it been necessary to do so, I would have quantified Mr Costigan’s loss at $339,700. [41] Both parties called actuarial experts to quantify the difference between what Mr Costigan would receive if his BPemployment counts toward an early unreduced pension and what he would receive if it does not. On the base amount of lump sumdifference, the experts differed by about $8000.

I accept the view of IBM’s expert, Mr Tettmar, since he used as his lower figure theamount the CPR pension plan said it was willing to pay. Mr Costigan’s expert, Mr Johnston, based his view on what he felt the CPRpension plan should have been willing to pay. [42] Both experts opined on the appropriate gross-up to apply to the base lump sum amount, accounting for tax implications andvarious actuarial factors. Both opinions were based on assumptions that are not in evidence, such as Mr Costigan’s income, past andprojected, between his departure from BP and age 65.

Therefore I give no weight to either opinion on gross-up [R v Lavallee, (SCC), [1990] 1 SCR 852 at 893]. Mr Costigan’s point-in-time knowledge [43] Given my findings, I do not intend to perform a complete limitations analysis.

However, I find as fact that • Mr Costigan knew or ought to have known that IBM was not pursuing his 85-point issue on 20 August 2007; • Throughout, Mr Costigan knew or ought to have known that CPR was only counting IBM service toward his 85 points, not servicewith any other employer; and • Throughout, Mr Costigan had the ability to contact CPR directly to ascertain the effect of his move to BP on his CPR pension.

Analysis The plaintiff has not established a negligent misrepresentation [44] The tort of negligent misrepresentation has 5 elements, all of which must be established in order for a plaintiff’s claim tosucceed: 1) There must be a duty of care based on a special relationship between the representor and the representee; 2) The representation must be untrue, inaccurate or misleading; 3) The representor must have acted negligently in making the representation; 4) The representee must have relied, in a reasonable manner, on the representation; and 5) The reliance must have been detrimental to the representee in the sense that damages resulted. [Queen v Cognos Inc, (SCC), [1993] 1 SCR 87 at para 34]

[45] At paragraph 2 of his Amended Statement of Claim Mr Costigan specified the alleged misrepresentation: that “his continuedservice with IBM and BP would be counted towards his vesting requirements under the [CP Pension] Plan.” Mr Costigan has concededthat no such positive representation was made by anyone at IBM. Even on the most favourable version of his evidence (which I haverejected), the last he heard was that Ms Tung was “looking into it”.

This was no representation at all about the operation of the CP plan.Clearly this version of the misrepresentation claim has not been established. [46] After trial, Mr Costigan argued misrepresentation as to the comparability of the terms of employment at IBM and BP. Iobserve that the terms of the IBM and BP packages are comparable in themselves and that Mr Costigan does not allege otherwise. Thisissue is relevant only if CPR’s recognition of service at IBM can be considered a term of employment with IBM.

I find that it cannot be.For the same reason, IBM’s failure to determine details of CPR’s pension plan – to which it was not a party – was not a negligent failure.IBM’s decision not to consider the terms of the CPR pension agreement in its comparability analysis was a reasonable one. Itsrepresentation of comparability between the terms of employment at IBM and BP was not untrue, inaccurate or misleading. [47] Further, if Mr Costigan relied on IBM’s assurance of comparability as an assurance about the operation of his CPR pension,that reliance was not reasonable.

By virtue of IBM’s 2003 offer letter, Mr Costigan was obligated to contact CPR if his employment withIBM ended for any reason. The CPR termination letter was perfectly clear that only time with IBM, and not with any other employer,would continue to count toward his 85 points.

Mr Costigan accepted BP’s offer without having checked for himself what the impact onhis CPR pension eligibility may have been, and knowing that any such impact had not been accounted for in the offer that he signed.Even on the most favourable version of his evidence (which I have rejected), Mr Costigan asserted that he believed Ms Tung would getback to him. Thus he did not rely on a positive representation, but on an unanswered question. He could have obtained the answerhimself. His reliance on a state of uncertainty in which he was complicit was not reasonable.

The plaintiff has not established a breach of duty [48] Finally, Mr Costigan asserts that IBM owed him duties of good faith and fair dealings and breached those duties. For thesource of these duties, he cites Bhasin v Hrynew, 2014 SCC 71 and Wallace v United Grain Growers Ltd, (SCC),[1997] 3 SCR 701. Both address the limited principles of dealing fairly in performing contract (Bhasin) or when ending a contractualemployment relationship (Wallace). The former does not apply here. The latter is confined to the manner of dealing with an employee ontermination.

The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need ofprotection.

In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economicand personal) that results from dismissal. … [E]mployers ought to be held to an obligation of good faith and fair dealing in the manner ofdismissal, the breach of which will be compensated for by adding to the length of the notice period. [Wallace at para 95] Mr Costigan seeks damages for lost pension benefits, not an extension of the notice period. [49] Mr Costigan’s closing argument suggests three possible breaches of duty by IBM: 1) IBM’s assertion of comparability was a misleading statement and therefore a breach of duty.

My findings above are sufficient todispose of this argument. 2) IBM had a duty to ascertain the impact of termination on CPR pension. Given Mr Costigan’s reliance on Wallace, this claim mustarise from the fact of termination, not from the comparability analysis. Wallace did not suggest a closed list of bad faith conduct ontermination, but it did give several examples at paras 97-101. None of the examples is comparable to Mr Costigan’s situation. 3) Silence equals bad faith.

Mr Costigan has not articulated this argument in so many words, but he has cited several cases on the dutyof an employer to advise employees of benefits available under its employ. For example, Menard v Royal Insurance Co of Canada, 2000CarswellOnt 2054 dealt with an employer’s failure to advise an employee of the impact that her choice to resign would have on benefitsoffered by that employer. Mr Costigan’s case is distinguishable from these precedents, since it involves a benefit offered by a past,unrelated employer.

I further note that some of the precedents involved employees suffering from mental health issues, such that theirability to investigate their own benefits may have been reduced. Obviously this concern does not arise here. [50] The latter two arguments amount to an assertion that upon teminating employment, an employer has a duty to ascertain detailsof the employee’s external financial arrangements, even if it has no power to affect them, and to inform the employee.

This positionappears to me to be unprecedented, and I cannot accept it. [51] Factually, I can find no basis to conclude that IBM was obligated to make contact with CPR that Mr Costigan could havemade himself. According to Mr Greco, IBM expected it would not be able to discuss Mr Costigan’s pension with CPR. IBM was notparty to the pension agreement and would not necessarily have been entitled to Mr Costigan’s private information. No such barriersexisted for Mr Costigan. [52] Could IBM have communicated more clearly with Mr Costigan? Probably. Could IBM have interceded with CPR on hisbehalf?

Possibly, though given privacy concerns and IBM’s lack of privity, the extent of such hypothetical intercession is far from clear.However, I am unable to find that IBM was under any duty to seek information from CPR or to try to alter pension arrangements betweenCPR and Mr Costigan. Nor am I able to find conduct by IBM that can be described as bad faith. Order [53] The plaintiff’s claims against IBM are dismissed.

[ 54 ] If the parties wish to address costs, they may do so by letter to my chambers, attaching submissions not exceeding five double-spaced pages in length plus attachments (if any) and a draft order. Alternatively, they may jointly submit a draft consent order. In either event, the costs materials will be submitted within two weeks of the release of this judgment. Heard on the 27 th to 30 th days of March, 2017. Dated at the City of Calgary, Alberta this 26 th day of April, 2017 . J. Antonio J.C.Q.B.A. Appearances: Jeff W. Moroz Chris Jones for the Plaintiff Christine Plante Athyna Slack for the Defendant IBM Canada Limited