Makela v Horizon School Division No 67, 2019 ABQB 974

Court of Queen’s Bench of Alberta Citation: Makela v Horizon School Division No 67, 2019 ABQB 974 Date: 20191218 Docket: 1806 00187 Registry: Lethbridge Between: Mikko Matti Makela Plaintiff - and - Horizon School Division No. 67 and John Doe1 and John Doe2 Defendants _______________________________________________________ Reasons for Decision of J.T.

Prowse , Master in Chambers _______________________________________________________ [ 1 ] The plaintiff Mikko Matti Makela brings this action for damages for wrongful dismissal and punitive damages against his former employer, the defendant Horizon School Division No. 67 (“Horizon School”). [ 2 ] For the reasons which follow I summarily dismiss all but one minor claim made by Mr. Makela. Background [ 3 ] Mr. Makela entered into a written one year probationary employment contract with Horizon School which lasted from April 1, 2007 to May 31, 2008.

[4] He then entered into a written two year employment contract which lasted from June 1, 2008 until May 31, 2010. [5] Finally, he entered into a written five year employment contract which lasted from June 1, 2010 to May 31, 2016. [6] In March of 2016 Mr. Makela’s employment was terminated, but he was paid in full up the end of the five year term, i.e. hewas paid until May 31, 2016. Alleged failure to provide notice or pay in lieu of notice [7] Horizon School argues that Mr.

Makela is not entitled to pay in lieu of notice, because he was given notice on March 6,2016, pursuant to the terms of the contract of employment, which stated as follows: The [School] may terminate this agreement upon giving [Mr. Makela] three hundred and sixty-five (365) days written notice, or suchnumber of days remaining in the contract term, which ever is less. [8] This clause results in a five year term contract, with Horizon School having the right to terminate it during years one to fouron one year’s written notice. [9] As will be explained, Mr.

Makela’s counsel argues that this provision is void, because it did not contain a proviso, at the endof the clause, stating something like “provided that in no event shall the notice period be less than 42 days”. [10] 42 days is chosen because the Employment Standards Code, RSA 2000, c E-9, (the “Code”) says that an employee with Mr.Makela’s length of service is entitled to 6 weeks notice. [11] Sections 55 and 56 of the Code effectively call for notice even where the employment contract is for a fixed term. The Codesays notice is required for fixed term employment contracts which exceeds 12 months, such as Mr.

Makela’s five year contract. [12] Mr. Makela was given 86 days notice (from March 6, 2016 to May 31, 2016) and so Horizon School exceeded the 6 weekrequirement contained in the Code. [13] However, this does not end the matter. [14] Mr.

Makela argues that, while he was given sufficient notice under the Code, he was not given sufficient notice at commonlaw. [15] This argument is based on the premise that since the written notice provision (quoted in paragraph 7 of these reasons) couldhave authorized a termination period of less than 42 days – for example if the School had given notice on May 1, 2016 for May 31, 2016– then the whole termination clause is void pursuant to

section 4 of the Code which states: An agreement that this Act or a provision of it does not apply, or that the remedies provided by it are not to be available for an employee,is against public policy and void. [16] Mr. Makela argues that, since the termination clause quoted in paragraph 7 of these reasons is void, he becomes an employeeof indeterminate duration, who is entitled at common law to more than 6 weeks notice or pay in lieu of notice. [17] I do not accede to this argument. At common law the employment contract remained a five year fixed term, and Mr. Makelawas paid for all five years. [18] Mr.

Makela cites a number of cases dealing with indeterminate contracts (not fixed term contracts) which tend to support theview that, where provisions could allow termination periods shorter than required under the applicable employment code, the noticeprovisions are void in full (not just the portions that could allow notices shorter than allowable).

See Machtinger v HOJ Industries Ltd, (SCC), [1992] 1 S.C.R. 986, 1992 CarswellOnt 892; Shore v Ladner Downs, 160 D.L.R. (4th) 76, 1998 CarswellBC973 (B.C.C.A.); Wright v Young & Rubicam Group of Cos, 2011 ONSC 4720, 2011 CarswellOnt 10754; and Lui v ABC BenefitsCorporation, 2019 ABPC 125, 2019 CarswellAlta 1094. [19] Horizons School cites a case dealing with a fixed term contract, namely Gibson v Alberta, 2013 ABQB 695, 2013CarswellAlta 2498. This decision is more relevant to the claim of Mr.

Makela. [20] In Gibson, the plaintiff was hired as a chief electoral officer and his employment was to last “12 months after the polling dayfor the next general election”. The general election was held on March 3, 2008 and his employment was allowed to expire on March 3,2009. [21] The Court observed: 19. The [employee] submits that the Contract was not a fixed term contract as it did not terminate after a specified period or on a specificdate.

It terminated "12 months after polling day for the next general election ...unless the Officer is reappointed." The [employee] arguesthat this provision, together with the undisputed evidence that [the employee] reasonably expected to be reappointed, means that [theemployee] did not have reasonable notice of the termination of his employment. This is in contrast with fixed term contracts with aspecified end date, in which the contract itself serves as a form of reasonable notice. (emphasis added) [22] Even accepting that the notice provision in Mr.

Makela’s contract was void (and I do not need to rule on that point) the resultis not an indeterminate contract where some additional form of notice is required at common law. As indicated above, the fixed termcontract itself served as a form of reasonable notice. [23] Gibson also made the following observations:

44 I conclude that the fixed term provision of the Contract was not an attempt to contract out of the termination notice provisions of the Code or the remedies provided by it, and is therefore not rendered void by s 4. This conclusion is also consistent with Lovely v Prestige Travel Ltd where Wakeling J commented that a proposed contract provision for termination without notice would have been null and void (at paras 103-108), but he found the contract’s fixed term valid and enforceable. (emphasis added) [ 24 ] Accordingly, I dismiss Mr.

Makela’s claim for termination without reasonable notice or pay in lieu thereof. The claim for punitive damages [ 25 ] Mr. Makela claimed punitive damages arising from the alleged breach of his employment contract. He asserts the following in his statement of claim: Following the termination of [Mr. Makela], either Wilco Tymensen ... or another employee of [Horizon School] or both communicated to at least one of Bill Doherty, President of Banff Hockey Academy, Don McCormick, Mayor of Kimberley, BC, and an employee of Northern Alberta Extreme, of and concerning [Mr.

Makela], in an effort to prevent the hiring of [Mr. Makela] to a new position. [ 26 ] When particulars were demanded, Mr. Makela responded as follows: • in the spring of 2015, Mr. Tymensen (Horizon School) telephoned Chris McFee of the Canadian Rocky School Division (“CRSD”). • in the spring of 2016, Mr. Tymensen (Horizon School) again contacted Mr. McFee (CRSD) and told him that CRSD should not hire Mr. Makela. • another representative of CRSD, Mr. Doherty, then contacted Mr. Tymensen (Horizon School) to discuss Mr. Makela, and Mr. Tymensen allegedly stated that Mr.

Makela was responsible for the collapse of the Horizon School’s hockey school and that CRSD should be cautious about hiring Mr. Makela. [ 27 ] Mr. Makela does not claim defamation. These allegations seem to be in aid of his claim for breach of contract. However, I have already dismissed the claim for breach of the employment contract so this claim for punitive damages falls away. [ 28 ] I note that CRSD went ahead and hired Mr. Makela effective June 15, 2016 – some 15 days after his employment with Horizon School terminated. So the alleged effort to prevent Mr.

Makela’s re-hiring obviously failed. [ 29 ] The only claim which remains following this decision is Mr. Makela’s claim for the return of 10 heart monitoring watches and a heart monitor carrying bag. If the parties cannot resolve this I recommend that that remaining claim be transferred to Provincial Court Civil Division for resolution.

Summary [ 30 ] All of Mr. Makela’s claims, except for the claim regarding the heart monitors, are hereby summarily dismissed. [ 31 ] If the parties cannot agree on a costs outcome they may approach me for a ruling in that regard. Heard on the 24 th day of October, 2019, with further written argument on November 13, 2019 and December 4, 2019. Dated at the City of Calgary, Alberta this 18 day of December, 2019. J.T. Prowse M.C.C.Q.B.A. Appearances: David G. Kusick Craig Law LLP for the Plaintiff Jonathan W. McCully

Sharek Logan & van Leenen LLP for the Defendant