Hoffert v Golder Associates Ltd, 2017 ABQB 341

Court of Queen’s Bench of Alberta Citation: Hoffert v Golder Associates Ltd, 2017 ABQB 341 Date: 20170526 Docket: 1201 01135 Registry: Calgary Between: Thomas Hoffert Plaintiff - and - Golder Associates Ltd. Defendant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C. Dario _______________________________________________________ I. Introduction [ 1 ] The plaintiff, Thomas Hoffert, claims that he was wrongfully dismissed from his employment with the defendant, Golder Associates Ltd. (“ GAL ”). Mr.

Hoffert worked for GAL at its Calgary office for over 22 years as an archaeologist, a position he held until he was formally terminated on March 10, 2011. [ 2 ] GAL is an Alberta-based subsidiary of parent company Golder Associates Corporation. Golder Associates Corporation is a multinational company that operates national branches in countries around the world, including Golder Associates Inc. (“ Golder U.S. ”), operating in the United States.

Through these subsidiaries, Golder Associates Corporation offers ground engineering and environmental consulting services to clients who seek Golder’s expertise (collectively, the group of companies is referred to as “ Golder ”). [ 3 ] Clients contract GAL to complete cultural resource inventories, including creating detailed lists of culturally sensitive assets

that project developers would need to account for before obtaining development and building approvals from local governments. On atypical job, Mr. Hoffert and his team of archaeologists would travel to development sites in the U.S., survey the land, take photographs,record their observations, and use those notes to prepare a final report for the corporate client and/or local government agencies.

Atypical final report would describe artifacts and other culturally significant features that the team discovered in the subject area and makerecommendations with respect to proposed developments on those lands. [4] Commencing in 2009, Mr. Hoffert raised concerns with GAL regarding the type of visa he was relying on to get across theCanada-U.S. border. He also stated he did not feel that a work associate (whom I refer to as Mr. M), was fit or qualified to fulfil his role. [5] Since 2000, Mr.

Hoffert had been entering the U.S. on a North American Free Trade Agreement (“NAFTA”) Trade Visa(“TN”) as a Technical Publications Writer (the “TN Technical Publications Writer Visa”). In 2009, Mr. Hoffert told GAL that he wasconcerned that the type of activities he performed in the U.S., which consisted mainly of field work, did not properly fall within theTechnical Publications Writer classification.

In response to his concern, GAL obtained a legal opinion, which generally affirmed thevalidity of using the TN Technical Publications Writer Visa for its archaeologists, while acknowledging it was perhaps not the best fit. [6] By the end of December 2010, Mr. Hoffert refused to cross the border to work in the U.S., citing personal risk in using thewrong type of visa, and concern in allowing Mr. M. to work in the U.S. without proper experience or qualification. This refusal came onebusiness day after GAL told Mr. Hoffert that it would not transfer him to an affiliate office in Denver, Colorado. Mr.

Hoffert had been aproponent of the transfer. [7] In February 2011, GAL obtained a second, updated legal opinion on the risks of using the TN Technical Publications WriterVisa for its archaeologists. The opinion affirmed the appropriateness of this visa classification. GAL provided a copy of this opinion toMr. Hoffert and clearly warned him, in writing, that GAL would view any further refusal of assignments in the U.S. as a resignation or anabandonment of his work responsibilities. Mr. Hoffert stated he was willing to work in the U.S. under a different visa, provided he didnot have to work with Mr. M. [8] Mr.

Hoffert continued to refuse assignments in the U.S. until GAL terminated his employment on March 10, 2011. A formalwithout prejudice letter providing eight weeks’ pay in lieu of notice did not specify the cause for his dismissal. It contained an offer ofsettlement of a further eight weeks’ pay in lieu of notice in exchange for a release. Mr. Hoffert did not accept the settlement offer. At thetime of his termination, Mr. Hoffert had been working for GAL for over 22 years and was 56 years old. II. Parties’ Positions [9] Mr.

Hoffert argues that GAL constructively dismissed him or otherwise wrongfully dismissed him, and that he is legallyentitled to greater notice or greater pay in lieu than what was offered. He asserts that, even if GAL can prove misconduct, when oneviews his actions in their context, they are not sufficiently serious to justify

summary dismissal. He is suing GAL for 24 months of salaryplus benefits in lieu of notice. [10] GAL’s position is that it had just cause to terminate Mr. Hoffert, citing his wilful disobedience and insubordination.Accordingly, GAL says Mr. Hoffert is not entitled to notice or pay in lieu. GAL did not allege cause for dismissal until after Mr. Hofferthad been terminated with notice. [11] Mr. Hoffert raised other arguments in the pleadings that he did not pursue at trial. For example, in the pleadings, Mr. Hoffertalleged that GAL intentionally interfered with his subsequent employment.

His allegation is that GAL affected his reputation andemployability by preventing him from working on projects that also involved GAL. At trial, Mr. Hoffert did not make submissions onthis claim and his evidence to this effect is limited. Mr. Hoffert necessarily fails on all of the grounds plead but not argued as he hasfailed to prove those claims on a balance of probabilities. This decision will make no further comment on those allegations. III. Issues [12] This case raises the following issues: 1. Did GAL constructively dismiss Mr. Hoffert? 2. Did GAL have just cause to dismiss Mr. Hoffert? 3.

What, if any, are Mr. Hoffert’s damages? IV.

Summary of Law A. Constructive Dismissal [13] The doctrine of constructive dismissal applies when an employer unilaterally alters a fundamental term of the employmentcontract, evincing an intention not to be bound by the original agreement. In such situations, the employer is said to have repudiated thecontract, giving the employee an option to treat the contract as at an end and to sue for wrongful dismissal: Farber v Royal Trust Co(1996), (SCC), [1997] 1 SCR 846 [Farber] at para 33.

The Supreme Court of Canada recently confirmed that Farber isthe leading authority on the law of constructive dismissal in Canada: Potter v New Brunswick Legal Aid Services Commission, 2015SCC 10 at para 30, [2015] 1 SCR 500 [Potter].

[14] The employee has the burden of establishing that he has been constructively dismissed, and if successful, he is entitled todamages in lieu of reasonable notice of termination: Potter at para 31. [15] Constructive dismissal can take two forms: “that of a single unilateral act that breaches an essential term of the contract, orthat of a series of acts that, taken together, show that the employer no longer intended to be bound by the contract”: Potter at para 43. [16] Mr.

Hoffert argues that GAL breached his employment contract through GAL’s insistence that he enter the U.S. on a TNTechnical Publications Writer Visa, conduct that Mr. Hoffert alleges required him to engage in risky and illegal behaviour. Additionally,Mr. Hoffert argues that Mr. M.’s lack of experience put Mr. Hoffert at risk. Mr. Hoffert asserts that where an employer asks or requiresan employee to do something illegal, that requirement constitutes constructive dismissal. Mr.

Hoffert cites as authority Fajardo v SuperCeramic Tile Importing Ltd, [2012] OJ No 4325 (SCJ) and Nethery v Lindsey Morden Claim Services Ltd, [1999] BCJ No 137 (SC).These cases are distinguishable from Mr. Hoffert’s situation. In those cases, the employees resigned their employment because ofunethical or illegal conduct engaged in or requested by their employers, and then argued they were constructively dismissed. In contrast,Mr. Hoffert did not resign. He began to refuse U.S. work assignments but continued to work until he was dismissed. Mr.

Hoffert alsocites Onni v Campbell, 2002 BCSC 1310, where there was a clear termination as a result of the employee’s refusal to engage in conducthe felt was illegal. It was not a constructive dismissal case. [17] I am not persuaded that the doctrine of constructive dismissal applies in the present circumstances. First, GAL did notunilaterally alter a fundamental term of Mr. Hoffert’s employment contract. In insisting that he enter the U.S. on assignment, thecompany was merely asking him to continue what he had already been doing for the last two decades.

At the time of his refusal, Mr.Hoffert had been using a TN Technical Publications Writer Visa for over ten years. [18] Second, even if Mr. Hoffert could establish that GAL repudiated the contract, there is no evidence that Mr. Hoffert elected totreat his employment as at an end prior to his formal dismissal. On the contrary, he continued to work in Canada and testified at trial thathe was willing to continue working for GAL in Canada, and in the U.S., albeit on a different class of visa. [19] Relatedly, in this case, we have a clear date on which Mr. Hoffert was dismissed: March 10, 2011.

This is the date fromwhich the parties calculated damages in their submissions and it is the date on which all parties agree Mr. Hoffert’s employment with thecompany ceased. [20] Accordingly, constructive dismissal has no place in this analysis. It does not reasonably arise from these facts. Rather, theissue for the Court to consider in this case is whether GAL had just cause to dismiss Mr. Hoffert and, if not, what amount of notice wasreasonable, having regard to the relevant contextual factors identified in the common law. B.

Just Cause for Dismissal [21] In the absence of just cause to terminate the employment contract, an employer may only dismiss an employee on reasonablenotice or by giving the employee pay in lieu of notice: Honda Canada Inc v Keays, 2008 SCC 39 at para 50, [2008] 2 SCR 362[Honda]. The employer bears the burden of proving that it had just cause for dismissal: McKinley v BC Tel, 2001 SCC 38 at para 36,[2001] 2 SCR 161 [McKinley], citing Butler v Canadian National Railways, (SK CA), [1939] 3 WWR 625 at 631,[1940] 1 DLR 256 (Sask CA).

This burden must be met on a balance of probabilities, the standard of proof in civil cases. [22] Just cause is so called because any cause will not do; the employee’s alleged misconduct must be sufficiently serious as toconstitute a repudiatory breach of the employment contract, such that the employer is relieved from its common law obligation to providereasonable notice or pay in lieu thereof.

Whether misconduct rises to the level of just cause is to be determined using a contextualapproach. [23] In McKinley, the issue was whether an employer was justified in dismissing an employee as a result of an employee’sdishonest conduct. Justice Iacobucci formulated the test as “whether the employee’s dishonesty gave rise to a breakdown of theemployment relationship”: at para 48. Justice Iacobucci acknowledged that this test could be expressed in different ways. For instance,does the dishonesty violate an essential condition of the employment contract?

Does the dishonesty breach the faith inherent to the workrelationship? Is the dishonesty fundamentally or directly inconsistent with the employee’s obligations to his or her employer? Theultimate question is whether the employee “engaged in dishonesty in a manner that undermined, or was incompatible with hisemployment relationship”: McKinley at para 69. [24] Importantly, the test formulated by Justice Iacobucci in McKinley is not limited to dishonesty. It applies equally to all acts ofalleged employee misconduct: see e.g.

Ross v IBM Canada Limited, 2015 ABQB 563 at para 31, 259 ACWS (3d) 293 [Ross] and Henryv Foxco Ltd, 2004 NBCA 22 at para 13, 269 NBR (2d) 63. In Ross at para 31, Justice Veit restated the standard as follows, citingMcKinley at para 57 (including her revisions in square brackets): [The court] examines each case on its own particular facts and circumstances, and considers the nature and seriousness of the[misconduct] in order to assess whether it is reconcilable with sustaining the employment relationship.

Such an approach mitigates thepossibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of[misconduct] with just cause for dismissal. At the same time, it would properly emphasize that [misconduct] going to the core of theemployment relationship carries the potential to warrant dismissal for just cause. [25] The contextual approach mandated by the Supreme Court means that mere proof of misconduct does not automaticallyconstitute cause.

In Molloy v EPCOR Utilities Inc, 2015 ABQB 356 at para 142, 19 Alta LR (6th) 285 [Molloy], this Court summarizedthe fundamental principles that apply to cases where just cause is disputed:

a) cause is a question of fact;

b) the assessment of cause is objective, contextual, and proportionate;

c) the assessment of cause entails three steps: i. determining the nature and extent of the alleged misconduct; ii. considering the surrounding circumstances, including the employment history, the employee’s role and responsibilities, the type of business or activity, the policies and practices, and the level of trust reposed in the employee; and iii. determining if the response to the alleged misconduct is balanced, having regard to the facts; the question is whether the alleged misconduct is so incompatible with the fundamental terms of the employment relationship that it warrants dismissal. [citations omitted] V.

Analysis [ 26 ] As the concept of constructive dismissal does on arise on the facts of this case, the analysis will focus on the wrongful termination claim. A. Credibility [ 27 ] Before moving to the analysis of whether there was cause for termination, the following are my findings with respect to credibility of the witnesses at trial. While the evidence of the witnesses proffered was generally credible, I find Mr. Hoffert’s evidence to be questionable at times. [ 28 ] Mr. Hoffert’s testimony was on occasion evasive, inconsistent, or speculative.

For example, he was not able to provide specific details of the issues he had with Mr. M.’s qualifications beyond vague answers, and he relied on assumptions and speculation to justify his views and actions regarding the appropriateness of the visa in question even after legal opinions to the contrary were made available to him. He provided inconsistent testimony regarding why he failed to notify GAL of a change in his professional permit status in Alberta.

Relatedly, he gave conflicting evidence about his future with GAL, testifying that he was hopeful something would work out, but at the same time, in response to why he did not disclose the change to his permit status, he stated that he knew the “writing was on the wall”. Further, he admitted to lying to Customs Agents on more than one occasion. While this admission reflects positively on him in that there was a risk for him to disclose this to the Court, it also reflects negatively on him.

In response to being asked if he is willing to lie whenever it is in his economic interest to do so, his reply was, in essence, that he might lie to keep his job and a roof over his head. While Mr. Hoffert’s position is that these lies were told with GAL’s full knowledge and support, the evidence does not support this assertion. Other examples in forming my views on credibility are referenced within this decision. [ 29 ] As a result, I am inclined to prefer the testimony of other witnesses where there is an inconsistency with Mr. Hoffert’s evidence. B.

Applicable Facts [ 30 ] Some additional background provides necessary context to assess whether there was just cause for Mr. Hoffert’s dismissal. Canada-U.S. Border Crossings [ 31 ] In the early 1990s, Mr. Hoffert made his first attempt to cross the border under the guise of a camping trip. As this method of crossing the border was not acceptable to GAL, Mr. Hoffert subsequently obtained an L1-A visa. With this visa, no representations needed to be made to the U.S.

Customs and Border Protection Agents (“ Customs Agents ”). [ 32 ] At some point in the early 1990s, GAL states it obtained legal advice recommending the TN Technical Publications Writer Visa for GAL staff working in the U.S. for the purpose of completing cultural resource inventories. Since 2000, Mr. Hoffert was supplied a TN Technical Publications Writer Visa to cross into the U.S. [ 33 ] Mr. Hoffert freely admits that on multiple occasions he lied to U.S. Customs Agents about the nature of the work he would be completing on assignment in the U.S.

For instance, he told Customs Agents that he would write his final report in the U.S. when, in fact, GAL employees typically wrote their reports after returning to Canada. Support Letters [ 34 ] GAL employees entering the U.S. pursuant to TN Technical Publications Writer Visas require support letters. Until the spring of 2005, the practice had been for Golder U.S. to sign letters supporting the visa applications of GAL’s archaeologists.

These support letters suggested that the GAL archaeologists were working in concert with Golder U.S. [ 35 ] A representative of Golder U.S. was concerned that this could be misleading, and Mr. Hoffert sought clarification from Customs Agents, reporting back to Golder U.S. and GAL. The information he obtained raised further questions about how to describe the relationship between GAL staff and GAI for the purpose of the support letters. The support letter was revised to clarify the roles of GAL and Golder U.S., reflecting more accurately which entity was carrying on the engagement and that Mr.

Hoffert was an employee of GAL. [ 36 ] Employees received a standard cover letter with each support letter containing instructions on expectations in crossing the border, and directing employees to adhere to the language used in the support letter regarding the employee’s job classification and

proposed U.S. duties. Employees were directed to be completely honest and respectful when answering any questions from U.S. Customs Agents. [ 37 ] By the time of Mr. Hoffert’s initial refusal to work in the U.S. in late 2010, the support letters no longer suggested involvement by Golder U.S., despite being written on Golder U.S. letterhead. Mr. Hoffert argues however the Customs Agents may still have been misled due to the letters being on Golder letterhead and signed by a Golder U.S. employee.

He notes a Customs Agent had at least on one occasion wrote in the visa stamp in his passport the Golder US company’s name in the spot designated for the “employer”. [ 38 ] Although instructed by GAL to be completely honest and adhere to the language of the support letter Mr. Hoffert now states he could not do so because the support letter did not describe his work situation accurately or fully. In part, this is because the support letter was silent on where the actual reports were being written and he felt he did not qualify for the Technical Publications Writer classification on that basis. [ 39 ] Mr.

Hoffert now also argues that there is an issue regarding whether the support letter was required to reference the corporate client paying for the reports or the local government agency that would rely on the report. Mr. Hoffert makes this claim notwithstanding that, during his employment, he was not aware of or raised an issue regarding any errors contained in the support letters on this particular issue. The 2009 Legal Opinion on the TN Technical Publications Writer Visa [ 40 ] In 2009, Mr. Hoffert opposed the use of the TN Technical Publications Writer Visa.

Subsequently, GAL obtained a legal opinion from its immigration counsel on the appropriateness of getting archaeology teams into the U.S. as technical writers (the “ 2009 Opinion ”). [ 41 ] The 2009 Opinion stated: “While this is not the best NAFTA occupation to use for this position it has been deemed appropriate since 1995.” The 2009 Opinion went on to say that it is unlikely that each U.S. Customs Agent over the past 10 years of issuing work permits based on this occupational title would have been wrong.

The 2009 Opinion noted that despite alternatives, the role of Technical Writer fit the GAL employee profile somewhat and that this was a well-established practice. [ 42 ] The 2009 Opinion was provided to Mr. Hoffert, who acknowledged at that time that the Technical Publications Writer classification seemed the most plausible, given that there was no separate category in NAFTA for archaeologists. Mr. Hoffert was concerned that when GAL staff had to describe what work was actually being done in the U.S., they would have to misrepresent to Customs Agents that they were writing the reports while in the U.S.

Although he expressed this concern to GAL, upon the expiry of his 2009 Visa, Mr. Hoffert subsequently applied for and obtained a new TN Technical Publications Writer Visa in 2010. [ 43 ] To address Mr. Hoffert’s concern, GAL obtained a supplementary legal opinion from its immigration counsel, who observed that GAL had been using the Technical Publications Writer category for many years with success every time. While the use of this category of visa left much discretion in the hands of the Customs Agents to interpret the technical writing aspects of the archaeologists’ position, its use was appropriate.

Counsel then went on to describe two other classification options: Professional Management Consultant and an Intra-company transfer, and some of the limitations in using these alternative classifications. [ 44 ] I make two observations on this evidence. First, I note that at this point there is no evidence that GAL cautioned Mr. Hoffert that lying to the Customs Agents was inappropriate. Second, Mr. Hoffert’s evidence conflicts with that of Rebecca Balcom, who was at times his direct or indirect supervisor at GAL, on whether Ms. Balcom and GAL were aware of misrepresentations made to Customs Agents. Mr.

Hoffert argues that Ms. Balcom and GAL were previously aware that he was making misrepresentations about where the reports were being written all along, and Ms. Balcom denies this. The 2009 communication they reference is the first documented statement in evidence that misrepresentations were made to Customs Agents about where the reports were being written. Mr. Hoffert’s Initial Refusal to Work in the U.S. [ 45 ] The 2009 Opinion appears to have satisfied Mr. Hoffert until late 2010, when the prospect of working in the Denver office arose. While Mr.

Hoffert was on a trip visiting family, Golder U.S. employees in Denver suggested Mr. Hoffert take a position in their offices. Mr. Hoffert was in favour of this relocation. [ 46 ] When Mr. Hoffert returned to Canada, he discussed this proposal with Ms. Balcom and other members of GAL. GAL advised Mr. Hoffert that this would not be a workable option due to what I consider to be legitimate business reasons. The transfer could only be for a one year period, and there were issues regarding supervision and availability of work after the one year period ended.

That discussion occurred Friday, December 17, 2010. [ 47 ] On the following Monday, December 20, Mr. Hoffert refused, for the first time, to work in the U.S. on the TN Technical Publications Writer Visa. At the time, Mr. Hoffert was in the middle of a U.S. project. GAL, the client, and the regulator, all expected that Mr. Hoffert would return to the U.S. to complete the project. [ 48 ] Mr. Hoffert’s testified that at this time, he was willing to do work, provided that it did not require that he travel to the U.S. In contrast, GAL’s evidence is that, at this point, Mr.

Hoffert refused to review a report written by Mr. M. (merely to confirm it was responsive to the client’s request, since Mr. Hoffert had been the client’s point of contact) even though he could review the report in Canada. Further, GAL argues that because Mr. Hoffert already had his visa stamped for this project, there was no risk for him to cross the border and complete the project. [ 49 ] By January 12, 2011, Ms. Balcom and a Human Resources representative at GAL met with Mr. Hoffert to clarify the basis for his refusal to work.

A memo prepared the same day summarizing the meeting was tendered as evidence during trial. It reflects that, during the meeting, Mr. Hoffert was warned that if he continued to refuse work in the U.S., GAL might construe such refusal as a resignation or an abandonment of Mr. Hoffert’s employment contract. Mr. Hoffert insisted that he was not resigning and did not want to resign, but that he would continue to refuse U.S. work.

[ 50 ] That same day, Mr. Hoffert met with GAL’s Chief Operating Officer and repeated his concerns regarding what he perceived to be the inappropriateness of the TN Technical Publications Writer Visa. He also discussed misgivings he had about Mr. M.’s qualifications to lead teams in the U.S., including his feeling that Mr. M.’s lack of experience put Mr. Hoffert at risk. [ 51 ] I find Mr. Hoffert did not establish at trial that his concerns about Mr. M.’s qualifications and abilities had any basis. He had limited direct work experience with Mr. M., having only worked with him in the U.S. for two weeks in 2006.

Mr. Hoffert had raised concerns about both Mr. M. and his visa classification as the basis for not working on the March 2011 proposal, even though Mr. M. was not slated to work on it. Mr. Hoffert stated he had concerns about Mr. M. working on any U.S. project, whether Mr. Hoffert was involved in it or not. The limited explanation he could provide for this objection was that, while Mr. M. was a good archaeologist, he was not sufficiently experienced in the U.S. and unfamiliar with the processes. Ms. Balcom noted that when Mr.

Hoffert first led a team into the U.S., he had no U.S. experience and had no objections to taking on that work. The 2011 Legal Opinion on the TN Technical Publications Writer Visa [ 52 ] By January 14, 2011, Mr. Hoffert again raised concerns in an email to his employer about using the TN Technical Publications Writer Visa, including that he believed he had to lie to Customs Agents about where staff was actually writing the report.

GAL provided a copy of this email to its legal counsel and requested another opinion regarding the legality of sending its archaeologists to the U.S. on TN Technical Publications Writer Visas. [ 53 ] In the interim, GAL accommodated Mr. Hoffert’s concerns by assigning him local work, even though the nature of the work he could do was limited and below his level of expertise or experience. Mr.

Hoffert’s education was sufficient to entitle him to lead teams as an archaeologist in many U.S. states, but he was not permitted to do so in Alberta because the Government of Alberta typically requires a postgraduate degree for that work. Consequently, his work during this interim period had to be billed out to clients at a substantially lower rate, which cost was borne by the company. GAL, however, refused to remove Mr. M. from his role. [ 54 ] On February 1, 2011, immigration counsel provided GAL with an updated opinion (the “ 2011 Opinion ”). The 2011 Opinion was based on Mr.

Hoffert’s specific work duties relevant to his time in the U.S., namely: collection of data and field notes for technical reports; technical writing, specifically, taking field notes to prepare technical reports for clients; management of field projects on site; and providing supervision and direction to field crews while on site. It is noteworthy that the 2011 Opinion was not based on Mr.

Hoffert actually writing the reports in the U.S. [ 55 ] The 2011 Opinion noted that the NAFTA Technical Writer category referred to various knowledge categories, including: History and Archaeology, Sociology and Anthropology, as well as engineering and technology, building and construction and other fields. The 2011 Opinion suggested that the Technical Writer category included more than just writing manuals.

Further, the 2011 Opinion noted that some of the work activities for Technical Writers, include “[d]ocumenting or recording information, getting information needed to do the job and processing information.” The 2011 Opinion confirmed that the “NAFTA Technical Writer category applies in the case of an archaeologist due to the significant information gathering and report writing processes that are involved with the position.” The Opinion further highlighted the discretion held by Customs Agents in allowing entry into the U.S., and advised of the consequent value of maintaining a consistent approach in the type of visa sought from the Customs Agents.

Issues surrounding the appropriateness of the support letters were not addressed in this opinion as neither Mr. Hoffert nor GAL raised it as an issue. [ 56 ] The 2011 Opinion concluded that there were three permissible work permit categories available to GAL archaeologists. These include the NAFTA Technical Writer category, the Management Consultant category, and the L-1B Intra-Company Transfer Visa. The 2011 Opinion discussed the characteristics and risks of each of the visa types, including the exercise of discretion in each case by the Customs Agents.

The Management Consultant category involves analysing and resolving specific strategic and operating problems, which may not be a clear fit with Mr. Hoffert’s or other staff’s duties. Further, there must be no intent to immigrate, which was also a concern raised by Mr. Hoffert regarding the TN Technical Publications Writer Visa. Based on the information submitted regarding work permit categories, the L-1B Visa requires employees to occupy a position in the foreign branch of the company.

It seems to me that this does not fit the business model under which GAL was operating, as the employees were not actually being transferred to work for one of its U.S. subsidiaries, and that visa would not work for any temporary employees hired on a project basis. [ 57 ] On February 10, 2011, GAL delivered a copy of the 2011 Opinion to Mr. Hoffert. GAL wrote that it could “no longer accommodate” Mr. Hoffert’s refusal to work in the U.S. and notified him that he would be required to work in the U.S. “on an ongoing basis,” with his next assignment expected to start in April 2011.

GAL explicitly stated that ongoing refusal to work in the U.S. would be interpreted as an abandonment of employment responsibilities and subject to disciplinary measures, including termination. [ 58 ] GAL also provided Mr. Hoffert with a letter addressing the three bases he at that time had claimed for his refusal to work in the U.S.: the right to refuse unsafe work; his views regarding Mr. M.’s qualifications and ability to fulfill his assigned role; and the inappropriateness of GAL’s work visa process.

GAL confirmed its position on these issues: that the right to refuse unsafe work was not a valid basis for refusing to work in the U.S.; that GAL was satisfied that Mr. M. was qualified and fit to act in the role given him; and with respect to the visa issue, GAL relied on the 2011 Opinion that confirmed their practices were legally supported. [ 59 ] At trial, Mr.

Hoffert stated he did not read all of the 2011 Opinion, even though he was actively refusing work from his employer of 22 years partly due to his adamant opinion that there was a problem with GAL’s practice of relying on the TN Technical Publications Writer Visa. GAL had sought the 2011 Opinion as a direct response to Mr. Hoffert’s concerns. I find his actions in failing to read all of the 2011 Opinion difficult to understand. It likely resulted in him continuing to make assumptions about the validity of the visa classification used by GAL. [ 60 ] In October 2011, after he was terminated, Mr.

Hoffert did seek legal advice via email from an immigration lawyer (whom he had not engaged) on whether the Technical Publications Writer classification was appropriate for an archaeologist. The cursory advice solicited was based on Mr. Hoffert’s limited characterization of his work as follows: “My job is to walk around digging holes nothing remotely to do with writing technical reports.” It is not surprising that, with this description, the immigration lawyer suggested using a Technical Publications Writer designation would be risky in this context.

[61] On February 10, 2011, the same day that he received the 2011 Opinion, Mr. Hoffert received notification from theGovernment of Alberta that he was eligible to become a permit holder in the Province of Alberta that would enable him to do work at amore senior level, more similar to what he had been doing in the U.S. Given that he did not hold a master’s degree, this was a specialdesignation due to his significant work experience. He did not disclose that he obtained this permit status to GAL. Mr.

Hoffert did notjust fail to tell GAL about the permitting letter from the Alberta Government, but requested that an Alberta Government staff member notpass this information on to GAL, instead keeping it confidential, as he was not sure if it was “good news or bad news” at that point. Mr. Hoffert’s Termination [62] By March 2011, Mr. Hoffert had refused to include his name on a work proposal for a project in Idaho. On March 9, a HumanResources representative repeated GAL’s position that Mr. Hoffert’s refusal constituted an abandonment of his employment contract.Mr.

Hoffert repeated his refusal to include his name on the proposal, citing concerns with the TN Technical Publications Writing Visaand Mr. M. [63] GAL terminated Mr. Hoffert on March 10, 2011. [64] GAL argues that Mr. Hoffert effectively orchestrated his own termination, which Mr. Hoffert disputes. GAL says the timingof Mr. Hoffert’s refusal to work in the U.S. – the Monday immediately after the Friday on which he learned that GAL would not consentto his transfer to Denver – is suspect. Mr. Hoffert states the timing of his refusal to work was merely coincidental. [65] GAL also suggests that Mr.

Hoffert was insincere when he claimed that he was willing to continue working in Canada. GALpoints to Mr. Hoffert’s failure to disclose the confirmation he received from the Government of Alberta waiving the requirement for anadvanced archaeology degree to hold a permit in Alberta. Had GAL known about the confirmation, it may have expanded the number ofwork options available to him within GAL. Mr. Hoffert testified that, at that point, he felt that his termination was inevitable. [66] Finally, GAL states that Mr. Hoffert had intended to move to the U.S., which creates a motive for Mr.

Hoffert to orchestratehis dismissal. Although there is evidence that Mr. Hoffert’s wife had applied for permanent residency and for graduate degree programsin Alberta, by the end of May 2011, he and his wife had sold their house and she moved to the U.S. along with all of their possessions.Mr. Hoffert followed by September of 2011. GAL points to an email Mr. Hoffert sent to two friends in mid/late February 2011 that saidhe would be moving to the U.S., although at trial he testified that he did not mean it. Most telling is the email Mr.

Hoffert sent to aninternal client at Golder U.S. on February 17, 2011, advising that he and his wife would be moving to the U.S. “sometime this year”. Inthat email, he stated that he was refusing U.S. work due to the visa issue and Mr. M. He also indicated that, as GAL was giving him untilApril to comply or be disciplined and/or terminated, his lawyer told him to “stick to [his] position until they make good on their threatthen we go to court”. Despite this email, Mr. Hoffert testified that he had no intention to move to the U.S. until after he was terminated.

Cause not claimed in termination letter [67] GAL did not allege cause in its without prejudice letter terminating Mr. Hoffert’s employment. That letter both confirmedpayment of 8 weeks’ severance pursuant to the Employment Standards Code, RSA 2000, c E-9, and provided an offer of settlement inexchange for a further 8 weeks’ severance. The record of employment did not indicate cause for termination, rather it indicated “other”. As GAL has the onus of proof to establish just cause, Mr.

Hoffert argues that these factors should be weighed against GAL’s assertionthat it had cause for termination. [68] Case law on whether offering a severance payment weighs against an employer’s ability to later allege cause is largely fact-driven. Generally courts have concluded that a payment by the employer should not be construed as condonation of the employee’sconduct, or admission of lack of a basis for cause, depending on the facts of the case.

For example, in MacFarlane v Westfair Foods Ltd(1994), (AB KB), 158 AR 267 (QB), this court found that a $15,000 severance package offered was “an act ofgenerosity, as opposed to one of condonation”: para 112.

Similarly, in a case where a plaintiff was given one month’s salary in lieu ofnotice at the time of dismissal, the court concluded the defendants were not precluded from justifying the dismissal on the ground ofcause: Castell v Gardiner Thornton Davidson Garrett Masson and Associates (1972), (BC SC), 30 DLR (3d) 506 atpara 14. [69] As another example, where an employee was given an opportunity to resign and offered certain payments, and then offered anew position in a different capacity and at a much lower salary, the British Columbia Court of Appeal concluded that the true test iswhether just cause existed: Atkinson v Boyd, Phillips & Co (1979), (BC CA), 9 BCLR 255 (CA) at paras 19, 23.Further, the court noted, at para 23: If it were the law that an employer who shows consideration to an employee whom he has the right to dismiss for cause thereby loses hisright, no employer could safely act in a humane manner when exercising his right. [70] Similarly, in Matheson v Matheson International Trucks Ltd (1984), 4 CCEL 271 (Ont HCJ) at para 7, the court stated: If it were the law that an employer who gives some pay to an employee whom he has a right to dismiss for cause loses that right,employers would simply never give any severance pay when terminating an employee for what they perceive as just cause. [71] Some courts have viewed such an offer to pay as an “attempt to terminate the relationship in a reasonable manner”, and not awaiver of rights that arose from the employee’s conduct.

Nor does it prevent the prior conduct from being relied upon as just cause fordismissal should that offer be refused: Perry v Papillon Restaurant Ltd (1980), 8 ACWS (2d) 216 (BCSC) [Perry] at para 11. [72] The fact that an employer does not allege cause until after the fact, however, may affect the weight courts give to such claim:see Howard A Levitt, The Law of Dismissal in Canada, 3d ed, loose-leaf (release 39, October 2015), (Toronto: Canada Law Book,2011), vol 1 at 6-12.1.

For example, in Mayhew v Canron Inc (1982), (NS SC), 50 NSR (2d) 278, supp reasons (NS SC), 50 NSR (2d) 349 (SC), the Court held that employer’s belief it had cause was not properly communicated to theemployee to give him any warning that he was in danger of being terminated. Further, the Court found that the offer made to the

employee was an indication that the employer believed its later allegation of just cause was fragile: at para 34.

While the employer was not precluded from arguing just cause, the court found just cause was not made out: at paras 14, 34-35. [ 73 ] From these examples, it is clear that an offer of severance is not an automatic election to terminate an employee with notice, however, it is a piece of evidence to be considered by the court in determining whether the employer has just cause in the specific circumstances. [ 74 ] While this part of the analysis may appropriately fit below in the determining whether just cause has been established, I will address it now. In the present case, GAL was clear in informing Mr.

Hoffert that ongoing refusal to work in the U.S. would be interpreted as an abandonment of employment responsibilities and could result in termination. The warnings he received, including the day prior to his termination, leave little doubt as to the basis for termination or the position of the employer. The modest severance payment and offer of settlement made in the termination letter should not be interpreted as altering that position. I concur with the views of the British Columbia Supreme Court in Perry that the employer was attempting to terminate Mr.

Hoffert in a reasonable manner, and such action should not now be impede GAL from asserting cause. Mr. Hoffert was an employee of over 22 years, and as further described below, was instrumental in developing the U.S. work base for GAL, and was a team leader. I do not see the offer of settlement or even the payment of base severance as an acknowledgement that the employer did not have sufficient basis for cause. This analysis focuses then on whether GAL in fact had cause to terminate Mr. Hoffert on the basis of the other facts in evidence. C.

Determination of Cause using Three-Step Analysis [ 75 ] The three steps in the assessment of just cause for dismissal, as set out in Molloy at para 142 , are: i. determine the nature and extent of Mr. Hoffert’s alleged misconduct; ii. consider the surrounding circumstances; and iii. determine if GAL’s response to Mr. Hoffert’s alleged misconduct is balanced, having regard to the facts. [ 76 ] These steps are discussed below. i. Nature and extent of the alleged misconduct [ 77 ] GAL points to Mr.

Hoffert’s refusal to enter the U.S. on a TN Technical Publications Writer Visa, beginning in December 2010, and to a lesser extent his refusal to work with Mr. M. based on his view of Mr. M.’s qualifications, as the primary grounds for his dismissal. GAL characterizes Mr. Hoffert’s actions as insubordination and wilful disobedience. [ 78 ] GAL claims Mr. Hoffert’s dismissal is further justified on the basis of his unwarranted attacks on his supervisors, including speaking negatively about his employer in emails to colleagues or clients, and based on Mr.

Hoffert demanding the right to dictate who would supervise his U.S. project work. These grounds are secondary and will not be focus of this decision. Further, although there was evidence at trial that Mr. Hoffert did not observe certain protocols, GAL does not claim misconduct on that basis, nor do I consider those incidents relevant to the legal assessment of cause in this action. [ 79 ] GAL references other conduct of Mr.

Hoffert that it suggests could contribute to a finding of misconduct, including: • sending reports without reviewing them; • unilaterally sending clients notes that he will not be participating in certain jobs; • sending U.S. government workers (clients of GAL) notes that he is planning on leaving GAL and does not care about whether GAL gets the job; • not being willing to do certain work (such as a report review) even though it was in Alberta (and fell within the scope of his work duties); • unilaterally asking the Bureau of Land Management or the United States Department of Agriculture and Forestry Services (the agency that would ultimately receive the report) to cancel his permit; and • denigrating Mr.

M.’s abilities and questioning, both internally and to clients, the judgment of GAL management in allowing Mr. M. to hold that position. These are relevant considerations to the extent they relate to and form part of the grounds for termination: insubordination by refusing work in the U.S. on a TN Technical Publications Visa; and refusing to work due to unsubstantiated concerns regarding Mr. M. working in the U.S., and his qualifications and abilities.

The Court’s assessment of cause focuses on these grounds for termination. [ 80 ] In reviewing the grounds for cause advanced, whether these grounds are sufficiently serious to warrant dismissal depends, in part, on whether accepting GAL assignments in the U.S. was a term of his employment contract. It also depends on whether refusing to accept assignments in the U.S. is misconduct sufficient for termination. Finally, it is necessary to consider whether GAL’s response is appropriate in the circumstances. a. Was Mr.

Hoffert expressly or impliedly required to work in the U.S. as a term of his contract? [ 81 ] Both parties agree that Mr. Hoffert’s employment duties compelled him to work “extensively” in the U.S. The parties disagree, however, as to whether he was required to work in the U.S. as a term of his employment contract. Mr. Hoffert argues that his

participation on projects in the U.S. was always voluntary. GAL says it was an implied term of his contract that he should work“extensively” in the U.S. [82] Mr. Hoffert had no formal job description at GAL beyond the one contained in his original letter of employment fromDecember 1988 (with the predecessor corporation to GAL), which simply stated: “Your duties will be to assist with the archaeologicalconsulting for our clients. Your duties may occasionally involve assisting biological scientists as necessary.” [83] Mr.

Hoffert regularly travelled to and spent several months each year working on GAL contracts in the U.S., beginning atsome point in the 1990s and continuing up to his refusal in December 2010. From 2001 to 2010, 73 to 100 percent of Mr. Hoffert’sbillable time was attributable to work he performed in the U.S. On average, he spent 91 percent of his billable time each year in the U.S.Even if Mr. Hoffert volunteered for his first foray into the U.S. market, as the volume of GAL’s U.S. business increased, GAL developeda legitimate business interest in expecting that Mr.

Hoffert would continue to work on contracts there. [84] In Brown v Pronghorn Controls Ltd, 2011 ABCA 328 at para 36, 515 AR 128, the Court of Appeal favourably cited theremarks of Justice Finlayson in Smith v Viking Helicopter Ltd (1989), 68 OR (2d) 228, 31 OAC 368 (CA), which dealt with anemployee unsuccessfully suing for constructive dismissal after declining his employer’s offer to transfer him from Ontario to Quebec.Justice Finlayson observed (at para 10): Counsel seemed to equate the terms of employment with the personal situation of the respondent, a lifelong resident of Ottawa, who hada family and a home with a mortgage.

It has never been my understanding that an employee is entitled to a job for life in a place of hischoosing. If he wishes to remain an employee of a given company, he must expect reasonable dislocations in that employment includingthe place where it is to be performed [emphasis added]. In other words, an employer presumptively has the right to direct an employee’s place of work within reason: CED 4th (online),Employment Law (West), “Common Law and Contracts of Employment: Common Law of Employment: Termination and Dismissal:Constructive Dismissal: Change in Location of Work” (II.1.(e).(x).

E) at § 443. [85] I find that it was reasonable in the circumstances of this case for GAL to require Mr. Hoffert to continue travelling to the U.S.for work and that this was an implied term of the employment contract. Factors that support this conclusion include: 1. GAL is a national corporation with international clients and belongs to an international group of affiliated companies. Acorporation of GAL’s size has a legitimate business interest in being able to control its human resources by directing its employees’ placeof work. 2.

GAL had established a practice of asking its archaeologists to travel to the U.S. for work over many years. Mr. Hoffert was notalone in this regard. 3. Mr. Hoffert consistently and regularly worked on GAL contracts in the U.S. for more than a decade; his U.S. projects comprisedthe overwhelming bulk of his work. Over the course of Mr. Hoffert’s employment, GAL’s U.S. business increased substantially. Thisgrowth was due in part to Mr. Hoffert’s excellent client relations. 4. There is no evidence that requiring Mr.

Hoffert to work in the U.S. imposed an undue burden or hardship upon him (as distinctfrom the issue surrounding the appropriateness of the chosen type of visa, as will be addressed further below). 5. Nothing in Mr. Hoffert’s contract restrains GAL’s ability to direct his place of work. 6. Had Mr. Hoffert’s work been limited to Alberta (or Canada), Mr.

Hoffert would have been significantly restricted in the nature ofthe work he could perform given he did not have a master’s degree – a requirement for acting in a senior role in much of Canada. [86] Although the presence of all of these factors would not be necessary in each case to establish it, in light these factors andrecognizing the ever-evolving and fluid nature of the employment relationship, I find that the parties clearly intended by words andconduct that GAL could and should be able to require Mr. Hoffert to continue travelling to the U.S. for work. It was an implied term ofMr.

Hoffert’s contract that GAL would have this authority. b. Was Mr. Hoffert’s refusal to work in the U.S. “misconduct”? [87] Misconduct includes insubordination. Whether conduct is insubordinate is a fact-based inquiry.

Insubordination includes “anyrefusal...to follow instructions, and any other conduct...that constitutes a challenge to persons in authority or their policies”: John RSproat, Wrongful Dismissal Handbook, 6th ed (Toronto: Carswell, 2012) at 4-16. [88] By way of example, in Travel Co v Keeling, 2009 ABQB 399 at para 23, 473 AR 336, a “harsh, loud, and profanity laced”argument about “hurt feelings and lunch time shortages” did not constitute just cause for dismissal when the employee had four years of“great” performance.

Justice Germain, writing for this Court, doubted whether the quarrel could be reasonably described asinsubordination given that profanity was generally accepted in the workplace and no clients witnessed the spat. [89] By contrast, in Amos v Alberta, (AB KB), 166 AR 146, 53 ACWS (3d) 542 (QB) [Amos], a non-unionizedgovernment employee who made it a habit of repeatedly telling his supervisor how to do his job was rightfully dismissed for cause whenthe employer instructed the employee to perform a specific task that was within the scope of his duties and the employee refused to doso.

The employer issued a written warning, but the employee persisted in his refusal because he had lost trust in his supervisor’s “ethicalstanding” and suspected that he was being “set up” for failure, of which there was no evidence. In her decision, Justice Veit observedthat one act of insubordination will not normally be sufficient to justify

summary dismissal. However, she suggested that one act ofinsubordination may constitute just cause for dismissal if, as in the case before her (at para 44): • the insubordination is grave;

• it consists of wilful and deliberate disobedience of an order; • work rules were made known to the employee; • work rules were consistently enforced; • work rules were clearly communicated to the employee; • the work order was authorized, that is, that it came within the scope of the worker’s duties; • the worker was made aware, unequivocally, that discipline is the penalty for disobedience; • the work order was lawful and reasonable in content; • the employee has no reasonable excuse for disobedience; • the breach is serious. [ 90 ] The presence of all of these factors is not required to make a finding of insubordination.

In Amos , Justice Veit concluded that “the court must assess all relevant circumstances to determine if, in a particular case, insubordination justifies

summary dismissal”: at para 45. [ 91 ] When Mr. Hoffert refused to work in the U.S. in December 2010 and subsequently declined to include his name on a project proposal in March 2011, he breached the implied term of his contract that required him to accept GAL’s requests that he travel to the U.S. for work. Therefore, on its face, Mr. Hoffert’s refusal to follow GAL’s instructions can be characterized as insubordination. [ 92 ] The nature and extent of Mr. Hoffert’s misconduct and reasons for refusing such direction from his employer must be considered in the context in which it occurred. Mr.

Hoffert testified that he refused to work in the U.S. because he was concerned that he did not qualify for the visa his employer required him to use. He feared that by requiring him to use a TN Technical Publications Writer Visa, his employer had put him in a precarious situation in which he had to lie to Customs Agents about the activities he would be performing in the U.S. As a result, Mr. Hoffert believed that he could be barred from re-entering the U.S. in the future if a Customs Agent found him to be misrepresenting the truth. [ 93 ] Mr.

Hoffert’s belief that he had to lie to enter the U.S. on the TN Technical Publications Writer Visa was based on two assumptions: first, that the report had to be written on U.S. soil in order to qualify for entry as a Technical Publications Writer and, second, that the final reports he or his team wrote were not “technical publications” and the nature of his work did not qualify as “technical writing”. [ 94 ] Neither of these assumptions has been substantiated. It is not necessary (nor does this Court have the jurisdiction) to answer conclusively whether Mr.

Hoffert was or was not eligible for the TN Technical Publications Writer visa as a matter of U.S. immigration law . Based on the expert evidence tendered at trial, the decision to admit Mr. Hoffert to the U.S. on such a visa is a discretionary one determined by the individual Customs Agents. Instead, I consider whether the employer was subjecting the employee to unlawful or unreasonable work requirements, and whether Mr. Hoffert otherwise had a reasonable excuse for his workplace disobedience.

This will of course engage some evaluation of the reasonableness of the positions taken by each of the parties to this action, which in turn involves some

interpretation of NAFTA and related requirements. Were the reports technical publications? [ 95 ] On the issue of whether the reports could be considered technical publications, upon a review of sample reports, there is no doubt that Mr. Hoffert’s reports were highly detailed and technical in the sense that they called upon a specialized set of skills and knowledge. Not surprisingly, Mr. Hoffert completed an internal training course at GAL entitled Technical Writing in February 2007. [ 96 ] Although Mr.

Hoffert’s U.S. activities primarily consisted of data collection, this work was incidental to the final report, the findings of which were part of the product delivered by GAL to its U.S. clients. What is a “Technical Publications Writer”? [ 97 ] The Plaintiff’s expert, Henry Chang, and the Defendant’s expert, Bo Cooper, were both qualified to provide expert opinions on business immigration law. [ 98 ] According to uncontradicted expert evidence, NAFTA does not define who will or will not qualify as a Technical Publications Writer. Nor does U.S.

Customs and Border Protection provide guidance in their Inspectors Field Manual. As a result, Customs Agents rely on job descriptions contained in the Occupational Outlook Handbook (the “ Handbook ”) published by the U.S.

Department of Labor to determine whether the work proposed by an applicant seeking entry fits the NAFTA professional profile. [ 99 ] According to the profile of a “Technical Writer” in the Handbook, many technical writing jobs require a degree and knowledge in a specialized field, such as engineering, computer science, or medicine. [ 100 ] The experts who testified at trial agreed that there are some obligatory requirements in order to obtain a TN Technical Publications Writer Visa, namely: Canadian citizenship; that the employee’s activities in the U.S. match one of the professional categories listed in Appendix 1603.D.1 of NAFTA , including Technical Publications Writer; and that the employee holds a Bachelor of Arts or related degree plus three years of experience. [ 101 ] Significantly, I accept the Defendant’s expert evidence that there is no requirement in NAFTA , its appendices, or the public materials that Customs Agents rely on in making their decision that the Technical Publication had to be written on U.S. soil.

[ 102 ] Further, the duties of a Technical Publications Writer encompass far more than technical writing.

Other duties may include: studying samples; working with scientists to manage the flow of information among project workgroups; understanding complex information and communicating the information to people with diverse professional backgrounds; organizing material and completing writing assignments; determining the needs of end users of technical documentation; selecting photographs, drawings, diagrams, and charts that increase users’ understanding; and observing production, developmental, and experimental activities. [ 103 ] The Plaintiff’s expert states that one cannot fit into the description of Technical Publication Writer merely because the advice sought or services engaged were documented in a report; for example a lawyer providing a legal opinion is not a Technical Publication Writer.

In the present case, however, the technical publication is what GAL is being engaged to produce - not just to provide an opinion, but to provide the highly technical report. Looking at the nature of the report in context, and the services of the Technical Publications Writer provided, the employee in this case fits within the Technical Publications Writer definition. Was Mr. Hoffert a Technical Publications Writer? [ 104 ] Both parties’ experts provided their opposing opinions on whether Mr. Hoffert’s work activities properly fell within the description of a Technical Publications Writer.

The Defendant’s expert, Mr. Cooper, concluded that Mr. Hoffert qualified as a Technical Publications Writer. I prefer his evidence to that of Mr. Chang, and adopt his conclusion for the following reasons. [ 105 ] Mr. Cooper compared Mr. Hoffert’s actual job duties, with the profile of a Technical Publications Writer and considered whether his work falls within that scope. In contrast, Mr. Chang’s opinion starts from an erroneous assumption – that Mr.

Hoffert’s actual job duties match those of an archaeologist, as described in the dictionary – and then compared the defined term “archaeologist” with the profile of a Technical Publications Writer. Given that Mr. Cooper’s report is based on Mr. Hoffert’s actual job duties, on this issue, I find that Mr. Cooper’s evidence is to be preferred to the extent that their opinions conflict. [ 106 ] Further, just because one description may be a better match does not mean another classification is not appropriate.

In my view, the work activities of a particular individual may fit under more than one classification or description. [ 107 ] In assessing the correct characterization, both experts agree that what is relevant are the functions actually performed in the U.S. I agree with Mr. Cooper’s characterization of the nature of Mr. Hoffert’s work. Mr. Cooper suggested that Mr.

Hoffert’s pre-writing observation and analysis were essential to the final report and ought not to be viewed in isolation when one characterizes his position for immigration purposes; one cannot isolate writing the report from the fieldwork and on-site observations of the cultural resources and artifacts that will be described and analyzed in the report. [ 108 ] I do not accept Mr. Chang’s evidence that the nature of Mr. Hoffert’s work was that of an archaeologist, as defined in the dictionary or as defined in the Handbook. I prefer Mr. Cooper’s position that Mr.

Hoffert was not in the U.S. to provide a scientific study of material remains of past human life and activities. It was not the study of the archeological heritage of the lands, but the technical evaluation of the impact of development on the archeological heritage of the lands. More specific to the Handbook characterizations, Mr. Hoffert was not tasked with studying the origin, development, and behavior of human beings through archeological excavations for the purpose of better understanding the different cultures. Merely saying that Mr.

Hoffert is an archaeologist is not determinative of the appropriate visa categorization. [ 109 ] Finally, the fact that most of Mr. Hoffert’s work conducted in the U.S. was field work, rather than actual writing of the final report, does not preclude the characterization of his work as that of a Technical Publications Writer. As stated above, the experts were unable to identify any requirement that the final report be written while physically in the U.S. [ 110 ] Based on the arguments presented to me in the context of this case, I find that Mr.

Hoffert’s work activities properly fell within the description of a Technical Publications Writer. Again, this is not a determination as a matter of U.S. immigration law. Rather this information is to assist in understanding the positions of the parties in terms of the employer’s requirement to use this type of visa in the performance of Mr. Hoffert’s work. The legal validity of the employer’s practices, such as the use of this type of visa, must be viewed in the entire factual context, including the information provided to and otherwise obtained by Mr. Hoffert.

With this factual matrix before it, the Court can then determine whether it was reasonable for Mr. Hoffert rely on the direction of the employer that the visa was appropriate or to dispute it. This is addressed further in the decision with reference to the legal opinions provided to Mr. Hoffert on this topic. Was Mr. Hoffert required to lie to Customs Agents? [ 111 ] Next I will consider whether GAL was subjecting Mr. Hoffert to unlawful or unreasonable work requirements, and whether Mr. Hoffert otherwise had a reasonable excuse for refusing assignments in the U.S. The issue is whether there is any merit to Mr.

Hoffert’s position that he was being compelled to put himself at risk by having to lie to convince the Customs Agents that he qualified for a TN Technical Publications Writer Visa. [ 112 ] Mr. Hoffert testified to one instance many years ago during which he and his team were refused entry to the U.S. GAL’s immigration counsel later facilitated the processing of the visas and the team was admitted in. From this experience, Mr.

Hoffert stated he felt that the support letter alone was not sufficient to get across the border, rather, he felt he had to bolster the merits of his visa application with fabrications or embellishments. Mr. Hoffert provided no specifics as to why he was left with that impression. [ 113 ] Mr. Hoffert also explained that often the team would cross the border together and in such case, he would speak to the Customs Agent first, to provide the majority of the information for himself and the team, suggesting he had to make misrepresentations on behalf of all of them so that they could all be granted entry. Mr.

Hoffert explained that some team members would not even pick up a pencil during the field work, so the description of Technical Publication Writer became even more questionable in their cases. Further, some would be hired only for seasonal work and not participate in the report writing once back in Canada. [ 114 ] Had GAL required Mr. Hoffert to lie or mislead Customs Agents to gain entry to the U.S., and his refusal to do so resulted in his termination, Mr. Hoffert may indeed have had a valid reason to refuse to work in the U.S. and consequently a valid basis for

wrongful termination. In the present case, however, Mr. Hoffert’s belief that he needed to embellish or fabricate information in support of his TN Technical Publications Writer Visa would only be a sufficient excuse to refuse to continue work in the US if it can be established that GAL had somehow initiated, mandated or perpetuated that notion. A preponderance of evidence supports the opposite conclusion, however: • There is no evidence that GAL or Golder U.S. instructed Mr.

Hoffert to be dishonest to Customs Agents, nor is it obvious that he needed to do so in order to cross the border on the TN Technical Publications Writer Visa (other than Mr. Hoffert’s statements to the contrary). There is no evidence GAL was even aware of Mr. Hoffert’s conduct in this regard until 2009. • 31 GAL archaeologists, including Mr. Hoffert, entered the U.S. on a TN Technical Publications Writer Visa at least 67 times between 2001 and 2010. A few of these past and present employees testified at trial. None said they were instructed or required to lie. None shared Mr.

Hoffert’s belief that they had to lie, even where they were crossing the border on their own without other team members, and in particular, without Mr. Hoffert’s assistance. • It does not appear that GAL promoted deception in this regard. I acknowledge that there were concerning issues regarding the accuracy of the older versions of the support letters Mr. Hoffert used to obtain his visa, and to a lesser extent the more current versions. I further acknowledge that in 2005, when a Golder US employee raised the issue of the support letters being misleading, Mr. Hoffert’s then-supervisor Ms.

Balcom was initially a proponent of maintaining the status quo (notwithstanding that this may have been inaccurate). Upon further discussion, however, she ultimately wrote to the others that they could not “lie” their way across the border. Subsequently, GAL clarified the support letter. Mr. Hoffert did not take issue with the revised letter at that time. • The internal cover letter from Golder U.S. that accompanied the support letter Mr. Hoffert used to obtain his visa directed staff to “be completely honest and respectful when answering any questions put to you by U.S.

Customs and Border Immigration Authorities”. • Mr. Hoffert testified that he generally followed a Customs Agent’s leading questions. When asked if he would be writing his report in the U.S., Mr. Hoffert responded, “Uh, yeah.” He testified that it is these interactions that led him to conclude that he needed to lie about where he wrote his reports. [ 115 ] Mr. Hoffert testified that no Customs Agent ever expressly told him the final report had to be written in the U.S. pursuant to the visa, and the applicable NAFTA and related provisions do not appear to require this. On three occasions where Mr.

Hoffert or another employee was turned away at the U.S. border, it was a result of insufficient work experience, lack of identification, or because the Customs Agent who processed visa applications was unavailable. There is no evidence that GAL archaeologists were turned away because their proposed activities did not qualify as those of Technical Publications Writers. [ 116 ] In my view, there is no basis to support Mr. Hoffert’s position that his final report had to be written in the U.S. or that his final work product did not constitute a technical publication.

These are conclusions he drew independently based on his own “research” and are not supported by the evidence adduced at trial, including expert opinion. [ 117 ] Mr. Hoffert asks that I find GAL was aware that employees were lying to Customs Agents and that it encouraged this behaviour. I decline to do so. While GAL failed to reprimand Mr. Hoffert’s conduct on this issue in 2009, and again in 2011 (at least in writing), GAL did attempt to address his concerns by obtaining legal opinions that the Technical Publications Writer classification was appropriate based on his actual work duties in the U.S.

While failing to address the lying specifically may be a shortcoming of GAL, I do not find that this created an expectation that employees lie to Customs Agents. The legal opinions were GAL’s method of addressing Mr. Hoffert’s concerns and his conduct. Given the 2009 and 2011 Opinions were clearly based on the type of work Mr. Hoffert actually performed in the U.S., Mr. Hoffert’s refusal to perform his work is not justified. [ 118 ] I also consider that even had GAL provided Mr. Hoffert with a different visa, such accommodation would not have addressed Mr. Hoffert’s opposition to work in the U.S. so long as Mr.

M. was allowed to continue working on U.S. projects. Mr. Hoffert did not provide any evidence that Mr. M. was not qualified to perform the job he was given or that Mr. M. impacted Mr. Hoffert in a manner that justified his insubordination. Mr. Hoffert’s unfounded perceptions of Mr. M., without more, are also not sufficient to justify his failure to perform his work. [ 119 ] At trial, Mr. Hoffert also raised an issue with the adequacy of the support letters, arguing they improperly referenced the reports being provided to U.S. government entities rather than the paying client.

This concern now raised was not a concern of Mr. Hoffert’s at the time of his refusal to work in the U.S. Further, while there are certain documents that are mandatory to present to Customs Agents (per title 8 of the Code of Federal Regulations ), there is no mandated form of support letter. The Trade Regulations to NAFTA dealing with Aliens and Nationality, 8 CFR § 214.6 (2012), specifies that documentation of the applicant’s entry to engage in qualifying professional business activities “may be in the form of a letter from a prospective employer(

s) in the United States or from the foreign employer”. This is consistent with the 2009 Opinion that to qualify for the TN Technical Publications Writer Visa, there must be a U.S. client or business petitioning for the TN Technical Publications Writer Visa on their behalf; it does not need to be the employer or client. I do not find this objection to be a reasonable excuse for refusing to work in the U.S. under the TN Technical Publications Writer Visa. [ 120 ] In light of all of these factors, I find the employer’s request that Mr.

Hoffert work in the U.S. is reasonable, and there appears to be no reasonable basis for Mr. Hoffert’s disobedience. I therefore find that Mr. Hoffert’s refusal to work in the U.S. amounted to misconduct. ii. Surrounding circumstances [ 121 ] To determine whether Mr. Hoffert’s misconduct is just cause for dismissal, the Court must also consider surrounding circumstances that mitigate or aggravate the seriousness of Mr. Hoffert’s refusal. This includes a consideration of his employment history, his role and responsibilities, GAL’s policies and practices, and the level of trust reposed in him.

Employment History, Role and Responsibilities

[ 122 ] Mr. Hoffert worked at GAL for approximately 23.5 years, 22 of which were full-time. He was 56 years old when he was dismissed. By the time of his dismissal, Mr. Hoffert was a Senior Archaeologist. He was classified as a Level 4 employee within GAL’s consulting stream on a rubric containing eight levels, with Level 8 corresponding to the highest degree of skill and experience. [ 123 ] Mr. Hoffert’s main responsibilities included leading teams in the field, recording observations based on his archaeological expertise, and compiling reports summarizing his team’s findings.

He played a key role in establishing and building GAL’s U.S. business in the early 1990s and often interacted with clients directly. [ 124 ] Mr. Hoffert spent on average 91 percent of his billable time each year in the U.S. His preoccupation with the U.S. was a function of Golder’s clientele, his own personal preference, and his particular qualifications. Mr. Hoffert holds a Bachelor of Arts in Archaeology.

As stated previously, whereas a baccalaureate degree was sufficient to entitle him to lead teams as an archaeologist in many U.S. states, he was not permitted to complete the same types of projects in Alberta, where the government typically requires a postgraduate degree. Until February of 2011, Mr. Hoffert was ineligible to hold a permit in Alberta (or Canada), therefore he could not have performed the same role domestically. Nor was his assistance required on domestic projects because the permit holder led his or her own team in the field.

His primary value to GAL was inseparably tied to his ability to work in the U.S. [ 125 ] Mr. Hoffert’s extensive work in the U.S. was partly borne out of economic opportunity. Accepting such assignments was a way for Mr. Hoffert to move up the corporate ladder not because of, but in spite of, his credentials. Ms. Balcom testified that the company would not have promoted Mr. Hoffert in 2003 if he had not been willing or able to work in the U.S. [ 126 ] For most of his employment, Mr. Hoffert’s work was considered excellent.

Successive performance evaluations from 1992 to 2007 called him an “outstanding employee” and a “superstar” who continued to “excel” and had made a “big contribution” to the company. In 2001, his evaluator commented that GAL’s “viability in the US market rests largely on him.” [ 127 ] In 2007, GAL honoured Mr. Hoffert’s service in a newsletter profile entitled “Tom Hoffert: 20 Great Years!” His leadership was good business for GAL. [ 128 ] In 2009, Mr. Hoffert raised concerns about work-life balance and what he believed to be an excessive amount of time spent on assignment in the field.

In his performance reviews, however, he stated he liked field work both best and least of his various duties. [ 129 ] In November 2009, GAL cited concerns over a lack of communication between Mr. Hoffert and his colleagues and acknowledged Mr. Hoffert’s feelings of alienation from the group, however, continued to praise his work in the field. GAL’s policies and practices [ 130 ] GAL’s practice of sending its archaeologists to the U.S. on TN Technical Publications Writer Visas began in the mid-1990s, when an immigration lawyer advised GAL that these employees would qualify.

There were clear business advantages to using this type of visa: this visa was less expensive than the alternatives; offered greater flexibility because they could be renewed year-to-year; imposed no bar on re-entry when they expired; and they fit neatly within GAL’s business model without requiring an employee to relocate to the U.S. for its duration or to occupy a position in the foreign branch of the company. [ 131 ] Mr. Hoffert knew about GAL’s practice of sending archaeologists to the U.S. on the TN Technical Publications Writer Visa.

Since 2001, GAL consistently employed this practice for all of its archaeologists and GAL clearly communicated the reasons for using the TN Technical Publications Writer Visa to Mr. Hoffert. GAL also clearly communicated its expectations that employees be honest in dealing with Customs Agents, although Mr. Hoffert believed this to be inconsistent with what he felt was the expectation to convince Customs Agents that he was writing the reports in the U.S.

As mentioned previously, there were at least two occasions (one in 2009, a second in 2011) in which GAL failed to provide a written reprimand to the suggestion by Mr. Hoffert that he had been misleading Customs Agents. [ 132 ] As a team supervisor (but not a senior manager), others on his team looked to Mr. Hoffert for leadership. GAL reasonably expected him to set high standards and to interact faithfully with internal and external clients, and to be honest in his engagement with Customs Agents. Mr. Hoffert’s persistent refusal to work abroad based on his own

interpretation of the NAFTA requirements, and his decision to refuse to work in the U.S. due to his objection over working with Mr. M. and to communicate his objection to others inside and outside the company, had the potential to affect the proper functioning of GAL’s archaeology business. Acceding to his request for a different Visa (an L-1B Visa) would likely have required a change in business model, would not have been appropriate for all team members, and possibly could have compromised ongoing entry into the U.S. for some of the team. [ 133 ] Based on Mr.

Hoffert’s employment history with GAL, including development of the U.S. market and the importance of the U.S. related jobs to Mr. Hoffert’s work and his position, I find that Mr. Hoffert’s refusal to work in the U.S. was significant to GAL. The evidence is clear that GAL could not make use of Mr. Hoffert’s considerable expertise in Alberta, as he was not qualified to perform the same role in Alberta (or much of Canada). GAL was not aware of the change to his permit holder status. iii.

Proportionality of GAL’s response [ 134 ] The final step in the just cause analysis is a consideration of whether GAL’s response to Mr. Hoffert’s refusal to work in the U.S is balanced, having regard to the facts. The question is whether Mr. Hoffert’s refusal to work in the U.S. was so incompatible with the fundamental terms of the employment relationship with GAL that it warranted dismissal. [ 135 ] I find that GAL’s response was reasonable and proportionate in the circumstances. The nature of Mr. Hoffert’s misconduct was significant.

After three warnings and two formal legal opinions, pursuing lesser disciplinary measures would not have been likely to change the parties’ relative positions, nor would it have repaired each party’s loss of confidence in the other. [ 136 ] After GAL obtained the 2009 and 2011 Opinions, Mr. Hoffert failed to fully consider those opinions, having testified that he did not even read all of the 2011 Opinion. Instead, he continued to baldly assert a risk without more than subjective suppositions. There is,

for instance, no evidence that Mr. Hoffert obtained immigration legal advice beyond what his employment lawyer may have told him.Although Mr. Hoffert contacted one immigration lawyer via email, he did not do so until October 2011 – seven months after histermination – and obtained cursory information based on Mr. Hoffert’s inaccurate characterization of his work. [137] Dismissing Mr. Hoffert was a balanced response to his misconduct, particularly since obtaining a different visa for Mr. Hoffertmay have impacted upon GAL’s business model. Obtaining an alternate visa for Mr.

Hoffert would not have been an unreasonableresponse if GAL had so chosen. On these facts, however, requiring GAL to obtain a different visa for Mr. Hoffert was not requiredbecause, in addition to potentially impacting GAL’s business model and limiting its flexibility, it could raise questions regarding therationale for the change from Customs Agents of a historical practice that GAL’s lawyer had twice confirmed was acceptable. GALemployees successfully used the TN Technical Publications Writer Visa for many years without incident.

Further, changing the type ofvisa he was provided would not address his refusal to work in the U.S. due to his concerns regarding Mr. M. While Mr. Hoffert stated attrial that he would have been willing to work in the U.S. under a different visa even if Mr. M. also continued to work in the U.S., this wascertainly never communicated to GAL during the 2009-2011 period. [138] Similarly, requiring GAL to let Mr. Hoffert work exclusively in Canada is not required to establish a balanced response. AfterMr.

Hoffert raised his objection in December 2010, GAL reasonably accommodated him until March 2011, despite the fact that GAL didnot have sufficient work in Canada at his level of expertise. During that time, he completed tasks usually reserved for seasonalemployees, which were billed at

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