O’Brien v Akita Drilling Ltd, 2018 ABQB 1062

Court of Queen’s Bench of Alberta Citation: O’Brien v Akita Drilling Ltd, 2018 ABQB 1062 Date: 20181221 Docket: 1703 11562 Registry: Edmonton Between: Shannon O’Brien Plaintiff - and - Akita Drilling Ltd Defendant _______________________________________________________ Reasons for Decision of L.R. Birkett , Master, Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] Shannon O’Brien (“Mr. O’Brien”) was terminated from his job as a rig manager after 20 years of service with Akita Drilling Ltd (“Akita”). The determination of whether Mr.

O’Brien was wrongfully terminated or terminated for just cause arises in the context of the rig culture. Drilling rigs are dangerous workplaces. Rig managers must meet the expectations set for the safe and efficient operation of the rig to which they are assigned. Rig managers supervise the drilling crew and report to each other and the field supervisor. Work on a drilling rig is not a “tea party”. There is cursing, foul language and strong personalities. Rig mangers must draw on their interpersonal skills in resolving conflicts that arise. Introduction

[ 2 ] Akita is an Alberta company carrying on the business of oil rig construction, drilling and retrofit in Alberta and elsewhere in Canada. Mr. O’Brien was assigned to a rig in Saskatchewan at the time of his termination. [ 3 ] Mr. O’Brien began his career with Akita just shy of his 23 rd birthday in May of 1996 as a lease hand. He worked his way up from this entry level position to the most senior field position on a rig, that of rig manager around 2004, with a supervisory and management role. In September of 2016, Mr. O’Brien was removed from his rig and in November of 2016, he was terminated. [ 4 ] Mr.

O’Brien claims that he was wrongfully dismissed and that he has suffered damages resulting from loss of pay in lieu of reasonable notice, including compensation and benefits. He brings this application for

summary judgment seeking a declaration that he was wrongfully terminated without cause and judgment for the amounts owed to him for reasonable notice. [ 5 ] Akita maintains that it terminated Mr. O’Brien’s employment for just cause after an investigation into a client’s concerns revealed dereliction of duties, unexplained absences, refusal to follow direction and complete essential tasks, insolence and threatening conduct. [ 6 ] Mr. O’Brien claims that he was a valuable and reliable employee who provided exemplary service and maintained high professional standards in fulfilling his responsibilities as a long serving employee. [ 7 ] Counsel for Mr. O’Brien argue for

summary judgment on the basis that there are no facts that give merit to Akita’s defence of just cause and that the only real issue is the amount to be awarded to Mr. O’Brien for the termination of his employment. [ 8 ] Counsel for Akita submit that this claim is not appropriate for

summary judgment given that the material factual issues concerning the grounds for termination are in dispute, including whether Mr. O’Brien in fact engaged in the misconduct Akita relies upon for just cause. [ 9 ] I have concluded that there are genuine issues for trial and that a fair and just determination cannot be made on the record before the Court.

Summary judgment is not available to Mr. O’Brien, nor in the alternative, is

summary dismissal available to Akita. Background [ 10 ] Mr. O’Brien’s work history is agreed upon. It is Mr. O’Brien’s performance that is in issue. [ 11 ] In December 2012, Mr. O’Brien was assigned to Akita Rig #80 located on a remote site in Saskatchewan and up until March 9, 2016, he provided day shift rig manager relief working across shift to the assigned lead rig manager. In March of 2016, Mr. O’Brien began working in a dual role providing night shift rig manager duties for both Rig #80 and Rig #40 which were close to each other in proximity.

Rig #80 went to shut down in the beginning of May 2016 and when it started back up in July 2016, Mr. O’Brien returned to a night shift rig manager role. [ 12 ] In September 2016, Akita’s Field Superintendent, Justin Amyotte, received a complaint from the client owners of the rig that Mr. O’Brien was frequently absent from site Rig #80 for extended periods during his shifts and was otherwise neglecting to fulfil the rig manager duties. After an investigation into the client’s concerns, Mr. O’Brien was removed from Rig #80. The letter provided to Mr. O’Brien dated September 26, 2016 from Mr.

Amyotte states: It has been brought to my attention that your attendance as well as your performance, supervision and leadership on Rig #80 is not meeting the expectations of our client. You will recall that you were removed from your position on 20 and 22 due to similar concerns. As you are aware the current business climate is dire; we are committed to maintaining our activity for the benefit of our employees and cannot afford the risk of losing work in this current environment, therefore I must remove you from your position on rig #80 effective immediately.

Should suitable employment become available elsewhere in our organization I will contact you. [ 13 ] Following Mr. O’Brien’s removal from Rig #80, there was no contact between the parties for several weeks. On October 28, 2016, Mr. O’Brien sent an email inquiring as to whether or not Akita would put him back to work or, failing that, pay him severance. Akita responded to this email and set up a meeting with Mr. O’Brien on November 10, 2016 at which time he met with Raymond Coleman, Senior Vice President of Operations and Craig Kushner, Director of Human Resources at Akita’s Calgary offices. At this meeting, Mr.

O’Brien was terminated and provided a letter of termination. [ 14 ] The Statement of Claim for wrongful dismissal was filed on behalf of Shannon O’Brien, along with this

Summary Judgment Application on June 16, 2017. Akita Drilling Limited filed their Statement of Defence July 17, 2017. [ 15 ] The affidavit of Shannon O’Brien, sworn April 26, 2017, was filed in support of the

summary judgment application. Mr. O’Brien has been questioned on his affidavit and for discovery. The transcripts from questioning have been filed as well as answers to undertakings. [ 16 ] In response to the

summary judgment application, Akita has filed the affidavit of Justin Amyotte, sworn April 11, 2018; the affidavit of Raymond Coleman, sworn April 10, 2018; the affidavit of Craig Kushner, sworn April 10, 2018; the affidavits of 3 rig managers, being Kevin Vandenbrand, sworn April 24, 2018, Jerry Foley, sworn April 9, 2018 and William MacDonald, sworn April 24, 2018 and the affidavit of Shawn Lowes, sworn April 9, 2018. Mr. Amyotte and Mr.

Coleman have been questioned on their affidavits and the transcripts and answers to undertakings have been filed. [ 17 ] Written Briefs and two Books of Authorities for each of Mr. O’Brien and Akita were submitted and reviewed for this application. Each party has put their best foot forward. [ 18 ] Mr. O’Brien provides examples of exemplary performance that were expressly acknowledged by Akita including that he had a

very good safety record, receiving safety and performance bonuses, awards and commendations. He had consistent excellent performance reviews, including his last performance review in March 2016 by Mr. Amyotte. Akita awarded Rig #80 its 2015 “Rig of the Year” award which reflects outstanding performance in metrics such as budgeting, performance, customer satisfaction, and safety, reflecting on the performance of its rig managers, including that of Mr. O’Brien. On questioning, Mr. Coleman said he viewed Mr.

O’Brien “as a strong rig manager and a strong ally and a great employee”. [ 19 ] Akita provides examples of past performance issues and Mr. O’Brien’s disciplinary record before 2016. Details were provided of Mr. O’Brien’s removal from Rig #20 on December 31, 2010 and Rig #22 in May 2012 due to personal conflicts, including with Akita’s clients, and performance issues. Akita refers to significant safety incidents in February 2012 and April 2012 that occurred during Mr. O’Brien’s assignment as rig manager on Rig #22 and for which Mr.

O’Brien was cited. [ 20 ] Akita provides the particulars of the September 2016 complaint against Mr. O’Brien and the details of the investigation conducted by Mr. Amyotte, gathering written statements from various Akita employees and the client representatives at Rigs #40 and #80. The investigation revealed matters deemed by Akita to be serious incidents and that Mr. O’Brien had engaged in threatening conduct in an attempt to intimidate a lead rig manager, in breach of Akita’s workplace violence policy. Akita determined that it could no longer entrust Mr. O’Brien to perform the rig manager duties. [ 21 ] When Mr.

O’Brien was informed of the results of the investigation at the November 10, 2016 meeting, he denied that he had been absent from the rigs stating he was always where he needed to be and had near perfect performance. Akita determined that Mr. O’Brien statements about his attendance were not consistent with the information that Akita’s employees and the client’s consultants reported and determined that Mr. O’Brien was not being honest and forthcoming about his absences. Mr.

O’Brien was told that Akita had decided that putting him on another rig would lead to the same problem again and, although he had been supported through other disciplinary issues, they were not prepared to continue to do so; his employment was terminated because of the findings in the investigation. Mr. O’Brien was not provided with any termination notice or payment in lieu of such notice and was notified that his employment ended with Akita effective immediately. [ 22 ] Counsel for Akita prepared an Appendix to their Written Brief summarizing the complaints against Mr.

O’Brien by topic and contrasting Akita’s evidence with Mr. O’Brien’s evidence. Despite of the extensive affidavit evidence, tested through questioning, this

summary highlights the conflicts on the material facts which will need to be resolved on hearing from the witnesses at trial. The Issues [ 23 ] The issues to be decided at the

summary judgment application are as follows: 1. Is Mr. O’Brien’s claim suitable for

summary judgment? 2. If so, did Akita have just cause to terminate Mr. O’Brien’s employment? 3. If Akita did not have just cause, what is the appropriate reasonable notice period? 4. What amount is Mr. O’Brien entitled to in damages for loss of compensation and benefits and for expenses, taking into consideration the duty to mitigate losses? [ 24 ] As I have decided that Mr. O’Brien’s claim is not suitable for

summary judgment, the other issues are not addressed. Law and Analysis [ 25 ] In addressing the issue of whether Mr. O’Brien’s claim is suitable for

summary judgement, the law with respect to wrongful dismissal must also be reviewed, in light of the evidentiary record before the Court. [ 26 ] An application for

summary judgment is governed by r 7.3 of the Alberta Rules of Court , Alta Reg 124/2010. Mr. O’Brien takes the position that there is no just cause defence to his claim for damages for wrongful dismissal. Rule 7.3(1)(

a) provides that “a party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it”. [ 27 ] The Supreme Court of Canada in Hryniak v Mauldin , 2014 SCC 7 concluded that “…

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims” ( at para 5). “Summary judgment motions must be granted whenever there is no genuine issue requiring a trial… ” (at para 47). “There will be no genuine issue requiring the trial when the judge is able to reach a fair and just determination on the merits of a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (at para 49). “… It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (at para 50). [ 28 ] Master J. T.

Prowse observed that “It is entirely possible, following Hryniak , for the court to determine a wrongful dismissal case, either in favour of the employee or the employer, on a

summary basis. In fact, the court should not send a matter to trial if a fair disposition can be made based on affidavits and transcripts, as opposed to viva voce testimony, because trials are time-consuming and expensive.” Watkins v Willow Park Golf Course Ltd , 2015 ABQB 127 at para 6 . [ 29 ] The onus of proving dismissal without notice is on the employee. Mr. O’Brien has met that onus. The onus then shifts to the employer to establish that the misconduct of the employee justifies dismissal. In McKinley v BC Tel , 2001 SCC 38 , the Supreme Court

of Canada was called upon to consider the circumstances in which an employer would be justified in summarily dismissing an employee as a result of dishonest conduct. The comments and principles enunciated in McKinley are applicable to dismissal for the misconduct alleged by Akita. At para 35 the Court states: Cases in which courts have explicitly ruled that the issue of just cause is one of fact to be put to a jury lend further support to an approach that considers the particular circumstances surrounding the alleged employee misconduct.

Rather than viewing cause for dismissal as a legal conclusion that must be drawn in any case where disobedience (including dishonesty) is proven, these cases indicate that just cause can only be determined through an inquiry by the trier of fact into (

a) whether the evidence demonstrated employee misconduct and (

b) whether, in the circumstances, such misconduct sufficed to justify the employee’s termination without notice. At para 48: In light of the foregoing analysis, I am of the view that whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct.

More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship… At para 49: In accordance with this test, a trial judge must instruct the jury to determine: (1) whether the evidence established the employee’s deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of the dishonesty warranted dismissal. In my view, the second branch of this test does not blend questions of fact and law. Rather, assessing the seriousness of the misconduct requires the facts established at trial to be carefully considered and balanced.

As such, it is a factual inquiry for the jury to undertake. At para 53: Underlying the approach I propose is the principle of proportionality. An effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed.

The importance of this balance is better understood by considering the sense of identity and self-worth individuals frequently derive from their employment… And at para 57: Based on the foregoing considerations, I favour an analytical framework that examines each case on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship… [ 30 ] Counsel for Mr. O’Brien argues that in the context of an employee seeking

summary judgment for wrongful dismissal, the employee is put in the position of submitting that “even if” the employer’s evidence is presumed to be accurate, his or her application is still meritorious and ought to prevail. 776826 Alberta Ltd v Ostrowercha , 2015 ABCA 49 at paras 10 and 11 . Mr.

O’Brien’s position is that even if Akita’s allegations of misconduct are true, such misconduct is not sufficient to his termination for just cause and without notice. [ 31 ] Counsel for Akita points to the Alberta Court of Appeal decision in Pyrrha Design Inc v Plum and Posey Inc , 2016 ABCA 12 to suggest that if the court is able to make the necessary findings of fact, including the assumption that Akita’s allegations of misconduct are true, then the court may find there is no merit to the claim for wrongful dismissal and summarily dismiss Mr.

O’Brien’s claim. [ 32 ] In the Pyrrha case, the chambers judge was confident that a

summary determination on the existing record allowed for a fair and just adjudication, and it was therefore the proportionate way to resolve the dispute. In Ostrowercha , the chambers judge declined to adjudicate on the basis of the evidential material before him; from a process perspective,

summary judgment could not be given as a disposition that was fair and just to both parties could not be made on the existing record by using that alternative method for adjudication. Conclusion [ 33 ] Notwithstanding the best efforts of both Mr. O’Brien and Akita, this

summary judgment process does not give me confidence that I can find the necessary facts and apply the relevant legal principles so as to reach a fair and just determination. A process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute ( Hryniak ). [ 34 ] The

summary judgment application brought on behalf of Shannon O’Brien against Akita Drilling Ltd for wrongful dismissal is hereby dismissed. [ 35 ] The parties may speak to costs, if necessary. Heard on the 12 th day of July, 2018. Dated at Edmonton, Alberta this 21 st day of December, 2018.

L.R. Birkett M.C.Q.B.A. Appearances: Maurice Dransfeld and Jessica Kruhlak of McLennan Ross LLP for the Plaintiff/Applicant Christine Plante and Jennie A. Buchanan of Bennett Jones LLP for the Defendant/Respondent