Kubersky v Pomeroy (Pomeroy Group), 2021 ABQB 173

Court of Queen’s Bench of Alberta Citation: Kubersky v Pomeroy (Pomeroy Group), 2021 ABQB 173 Date: 20210304 Docket: 0904 00492 Registry: Grande Prairie Between: Trevor Kubersky Plaintiff (Applicant) - and - Bob Pomeroy operating as Pomeroy Group; Bob Pomeroy; and Pomeroy Hospitality Ltd; and Ryan Pomeroy; Ryan Pomeroy operating as Pomeroy Group Defendant (Respondent) Corrected judgment: A corrigendum was issued on March 5, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of W.S.

Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ Introduction [ 1 ] This is a plaintiff’s

Summary Judgment application in a wrongful dismissal lawsuit. There is a long procedural history, including a failed application for

Summary Dismissal in 2015. [ 2 ] The Defendant points to a number of inconsistencies in the evidence, arguing that these inconsistencies disclose triable

issues. There is very little evidence tendered by the Defendant. [ 3 ] It might be worthwhile to begin by clearing up a few misconceptions about

Summary Judgment. From a Master’s perspective, the law is in an unsatisfactory state. Much of the problem stems from the decision in Coffey v Nine Energy Canada Inc. That case holds that neither a Master nor a Judge can weigh evidence in Chambers (Master’s because of the constitutional impediment) and, consequently, a wrongful dismissal case must proceed at least to a

summary trial. The learned Justice in that case acknowledges that there are at least nine decisions against this position (at paras 14, 15): listing seven Masters’ decisions and two Judges’ decisions. To that list we can add Bier v Proper Cat Construction Ltd , 2013 ABQB 351 at paras 63 , 64 per Wakeling (then) J which holds out wrongful dismissal as an example of a type of case suitable for

Summary Judgment. And there are others. Authorities [ 4 ] By the Applicant: 1. Alberta Rules of the Court , AR 124/2010 , s 7.3(1) 2. Hyrniak v Mauldin , 2014 SCC 7 3. Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 4. Rudichuk v Genesis Land Development Corp , 2017 ABQB 285 5. Rudichuk v Genesis Land Development Corp , 2019 ABQB 133 6. Rudichuk v Genesis Land Development Corp , 2020 ABCA 42 7. Bevis v Renaissance Wine Merchants Ltd , 2007 ABCA 356 8. Bagby v. Gustavson International Drilling Co. , 1980 ABCA 227 9. Chapell v Canadian Pacific Railway , 2010 ABQB 441 10.

Luan v ADP Canada Co , 2020 ABQB 387 11. Bohay v 567876 Saskatchewan Ltd , 2009 SKPC 128 12. Duxbury v Crook , 2018 SKQB 353 13. Tipon v Fleet Brake Parts & Service Ltd , 2017 ABPC 29 at paras 176 and 177 14. Carroll v ATCO Electric Ltd , 2018 ABCA 146 15. Molloy v EPCOR Utilities Inc , 2015 ABQB 356 16. Toole v Northern Blizzard Resources Inc , 2017 ABQB 760 17. Dow Chemical Canada ULC v NOVA Chemicals Corporation , 2020 ABCA 320 18. Fedak v Yorkton Auto Haus Ltd , 1983 CarswellSask 250 19. Hannam v Medicine Hat School District No 76 , 2020 ABCA 343 20. R v Pasqua , 2009 ABCA 247 21.

Chando Construction Ltd v Buildtech Framing Inc , 2014 ABQB 597 at para 20 per Robertson M. 22. 1490703 Alberta Ltd v Chahal , 2020 ABQB 33 at para 71-72 23. R v Monkhouse , 1987 ABCA 227 at para 16 24. Liberty Mortgage Services Ltd v 123 Street Investments Ltd , 2011 ABQB 542 per Hanebury 25. Waquan v Canada , 2002 ABCA 110 26. Canada (Attorney General) v Lameman , 2008 SCC 14 By the Respondent: 1. Hannam v Medicine Hat School District No. 76 , 2020 ABCA 343 2. Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 3. Hryniak v Mauldin , 2014 SCC 7

4. Rudichuk v Genesis Land Development Corp, 2020 ABCA 42 5. Bagby v Gustavson International Drilling Co, 1980 ABCA 227 6. Cicalese v Saipem Canada Inc, 2018 ABQB 835 (at paras 143, 146-148 per Dario J.) 7. Lovely v Prestige Travel Ltd, 2013 ABQB 467 (at para 81) 8. Bowey v Baker Hughes Canada Company, 2014 ABQB 289 (at para 28) By the Court: 1. Coffey v Nine Energy Canada Inc, 2018 ABQB 898 2. Court of Queens Bench Act, RSA 2000, c-31 3. Pyrrha Design Inc v Plum and Posy Inc, 2016 ABCA 12 4. S.B.I. Management Inc. v 109014 Holdings Ltd., 1981 ABCA 235 5. 330626 Alberta Ltd v Ho & Laviolette Engineering Ltd, 2018 ABQB 478 6. O’Donnell v Soldan Fence and Metals

(2009) Ltd, 2015 ABQB 764 7. Orr v Fort McKay First Nation, 2018 ABQB 111 8. 1214777 Alberta Ltd v 480955 Alberta Ltd, 2015 ABQB 301 9. Rai v 1294477 Alberta Ltd, 2015 ABQB 349 10. Malhotra v 1743134 Alberta Ltd, 2017 ABQB 34 11. Sieben v Tremmel, 2016 ABQB 686 12. Attila Dogan Construction & Installation Co v AMEC Americas Ltd, 2015 ABCA 406 13. Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 14. Hryniak v Mauldin, 2014 SCC 7 15. The Constitution Act, 1867, Sections 92.14, 96 16. Bardal v Globe & Mail Ltd. (1960), (ON SC), 24 DLR (2nd) 140 ONT HCJ) 17.

Canada Permanent Trust Co v King Art Developments Ltd, 1984 ABCA 182 18. Bier v Proper Cat Construction Ltd, 2013 ABQB 351. Analysis Masters and

Summary Judgment [5] The starting point is Section 9(1)(

a) of the Court of Queens Bench Act. That subsection provides that Masters in chambershave ‘the same power and may exercise the same jurisdiction as a Judge sitting in chambers’ subject to a number of exceptions set outlater in the section; none of which apply here, except for 9(3)(b); which provides that the jurisdiction exercisable by a Master inchambers does not include ‘the determination of disputed or contentious questions of fact unless the parties agree to the disposition of thequestions in chambers on affidavit evidence and without the trial of an issue or the hearing of oral evidence. [6] There is nothing opaque about this wording. Section 9(1)(

a) means what it says: A Master has the same power and mayexercise the same jurisdiction as a Judge sitting in chambers. On its face, and when combined with Rule 7.3 and the Practice Directionsreferred to later, its plain meaning affirms that a Master has concurrent original jurisdiction to hear and determine

Summary Judgmentapplications. This enables a choice when there are conflicting decisions below the Court of Appeal level, such as the one in questionhere. [7] Before Weir-Jones, the latter part of section 9(3)(

b) could fairly be described as the Masters’ superpower. Before Weir-Jones, (and except in the cases when section 9(3)(

b) applies by agreement), the decided cases are replete with admonitions that neitherMasters nor Judges were to decide disputed facts on affidavit evidence – at least where those determinations would decide the case. Butthings have changed.

Summary Disposition and Fact-Finding [8] The majority in Hannam note that the current

Summary Judgment procedure has become quite ‘trial-like’.

SummaryJudgment applications and trials share the presumption that the best evidence is before the Court (Lameman at para 19). Issues are nowresolved on a balance of probabilities (e.g. Sobeys at para 12; Hannam at paras 137-8 and para 175) and not on an older, higher standardthat had been used since time pre-millennial.

[ 9 ] The distinction between

summary disposition and trials is further blurred, at least to the uninitiated, by requiring the person hearing the application to ‘find facts’ (e.g. Weir-Jones , para 21(b)); a point that is emphasized in Hannam (at paras 147-149 ).

The effect of the decided cases is to bring the procedure in Alberta very much in line with Ontario’s Rule 20 (Ontario Rules of Civil Procedure Rules 20.04(2.1) and (2.2)), which formed the basis for the Hyrniak decision. [ 10 ] I acknowledge that these applications have become much more complex and have become somewhat like ‘trials in a box’ or ‘paper trials’; primarily because of the failure of the old ways to deal with civil disputes in a timely and cost-effective way. [ 11 ] Despite the complexity of these document-rich applications,

Summary Judgment is not a trial. It is really a kind of prediction; though one with immediate and binding effects on the parties. Now the question is whether the ‘right’ to a trial should be denied and, conversely, whether a fair and just resolution is possible on the record presently before the Court. It is not an ‘adjudication’ (in the sense used in S.B.I. ) where evidence is weighed and, for example, competing pieces of evidence are compared to determine which is true, or the more probable. [ 12 ] The exercise is really no different from any final application heard in chambers.

Dismissal for delay is a good example. It too is not an ‘adjudication’ though it has a direct, immediate and final effect on the rights of the parties by depriving the plaintiff of the privilege of continuing their lawsuit. A Master considering, evaluating, or comparing evidence in a

Summary Judgment application is not usurping the powers of a

Section 96 Judge. A direct conflict in the evidence on a material point usually means a trial will be necessary. And the findings made at a

Summary Judgment application (beyond the result itself) do not make the facts res judicata . An Elusive Distinction [ 13 ] In the Orr case, Brown (then) J said, affirming Smart, M: [16] . . . The fact-finding role of a master is restricted by Section 9(3) (

b) of the Court of Queen’s Bench Act , RSA 2000, c C-31 , which provides that his or her jurisdiction does not include “the determination of disputed or contentious questions of fact unless the parties agree to the disposition of the questions in chambers on affidavit evidence and without the trial of an issue or the hearing of oral evidence.” Masters therefore do not weigh evidence. . . . [17] The line between weighing evidence, and deciding that the evidence merits granting (or not granting)

summary judgment, may seem elusive when it is considered that both parties to a

summary judgment application will typically put evidence before the Master in order to show that the test is (or is not) met. Again, Harvey CJ’s decision in Polson Iron Works offers guidance: The order under consideration is perhaps the nearest approach to determining the rights of parties by trial that the rules authorize the master to make. But in reality, he is not trying the rights of the parties. He is determining that there is no real issue to be tried. It is only when such a situation is found to exist that the master is authorized to give a judgment ….(Polson Iron Works at 235.) [ 14 ] A Master’s jurisdiction to hear

Summary Judgment applications has never been doubted (e.g. S.B.I. at para 30). Masters hear all

Summary Judgment applications at first instance where there is jurisdiction (Notice to the Profession and Public, No. 2016 – 10 December 8, 2016, (a)(42) and, before that, the direction from then Chief Justice Wittmann dated February 11, 2014, following the Hryniak decision). The whole purpose of S.B.I. was to affirm this jurisdiction and to affirm that evidence need not be ‘weighed’ to get there. [ 15 ] The

Summary Judgment procedure has developed significantly since the S.B.I. case. However, the ‘fact finding exercise’ is a notional exercise; not for the purposes of adjudicating, but for the purposes of determining whether the strengths or weaknesses of the claims or defences means that a case will not have to go to trial.

Coffey, S.B.I – Weighing and Adjudication [ 16 ] In S.B.I. (at para 57) Justice Lieberman, writing for the Court, said: “The Master would be exceeding his jurisdiction if he assessed damages in the sense that he weighed evidence to arrive at an amount… Here, however, there was no weighing of evidence…”. The damages in that case were essentially liquidated damages. [ 17 ] In the Coffey decision at first instance ( 2017 ABQB 417 ), Master Farrington declined to determine pay in lieu of notice and found that a claim for damages and the counterclaim were not suitable for

summary disposition. His decision was affirmed on appeal ( 2018 ABQB 898 ). The appeal decision came out before Weir-Jones and Hannam , at a time when there was division in the decided cases about the approach to

Summary Judgment and the correct test to be used. It is the appeal decision that gives us trouble. [ 18 ] Coffey makes a number of pronouncements: 1. That it is inappropriate to weigh evidence at a

Summary Judgment application whether it is before a Master or a Judge (para 45); 2. Weighing evidence is outside the jurisdiction of the Master and beyond the scope of the

Summary Judgment rule (para 41); and 3. A Master is precluded by

Section 9 of the Court of Queen’s Bench Act and

Section 96 of the Constitution Act from weighing evidence in reaching a determination of damages (para 21). [ 19 ] First of all, (and with respect) these pronouncements fail to grasp the ‘elusive distinction’ between

summary disposition and trial referred to in paragraph 13, above.

Summary disposition is neither a trial nor an adjudication (in the

Section 96 sense). Second, and perhaps understandably, the case failed to anticipate the path of the law both in terms of the approach to

summary disposition and the appropriate test to be used; though I acknowledge that the appeal decision did not turn on the correct test to be used ( Coffey , para 20). As

such, it now conflicts with the leading authorities from the Court of Appeal. Third, and again with respect, no stock can be placed in the constitutional pronouncements made in that case. Much of the dicta in Coffey seems to be premised on the assumption that

summary disposition is an adjudication.

Summary disposition does not try the rights of the parties. A Master hearing a

summary disposition application is not weighing evidence in an adjudicative sense as a Judge would at trial. [ 20 ] The determination of damages in S.B.I. , which were essentially liquidated, met ‘the third arm of the three-fold test’ for determining constitutionality which is to review the tribunal’s function as a whole in order to appraise the impugned function in its entire institutional context, as purposed by Dixon J in the Ontario Reference case (cited in S.B.I. at para 57).

The part about weighing evidence to determine (unliquidated) damages is and remains only dicta . [ 21 ] The question in S.B.I. was whether the Master exceeded his jurisdiction in determining occupational rent for an overholding tenant. The Master there concluded there was no triable issue. The damages awarded were essentially liquidated. The issue did not involve general damages.

The proper question to ask is whether finding damages in lieu of notice is subsidiary, or ancillary to the functions assigned to a Master in chambers pursuant to now s 9 of the Court of Queen’s Bench Act , Rule 7.3 and the Practice Directions mentioned above. The case tells us that the Court is to perform a three-part test to see whether jurisdiction thus conferred on a

section 92.14 appointee infringes s 96 of the Constitution Act , 1867 . [ 22 ] In Coffey , the constitutional issue was raised by the Master but apparently not by the parties. It, and the question of weighing evidence, became the central issue before the Judge, at the instance of the Court, despite the opposition by the appellant and in the absence of the Attorney General for Alberta. Despite this case being outside the scope of the ratio in S.B.I. , the three-part test for constitutionality was not employed.

The learned Justice disagreed with the Court of Appeal about whether the third part of the test applied to these circumstances at all (para 38). [ 23 ] There is no prohibition on ‘weighing evidence’ in Sections 92.14 or 96 of the Constitution Act 1867 . [ 24 ] There is another point that is perhaps the most important. Neither S.B.I. nor Coffey explain what it means to ‘weigh evidence’, or why this should be a prohibited function for a

Section 92.14 appointee; or, for that matter, something within the exclusive domain of a

Section 96 Judge. At its widest, it is difficult to see how any decision could be reached without some weighing of evidence. Without any qualification or explanation, such a pronouncement would have the effect of rendering the entire Provincial Court (and perhaps, by extension, provincial Boards and Tribunals) illegal and unconstitutional. Like Masters, the Judges of that court and the members of the Tribunals are

Section 92.14 appointees. [ 25 ] Such a wide pronouncement could also disable many of a Master’s day-to-day functions; such as, deciding value in a foreclosure case where there is competing evidence of value. Such a determination has final effect, for example, by setting an amount of a deficiency for an insured, or commercial mortgage. [ 26 ] Where there is overlapping jurisdiction, the law is replete with ‘Master or Judge’ language. Examples range from the King Art decision (e.g. at para 60), (which followed not long after S.B.I. ) to now, Weir-Jones . [ 27 ] Even if I am wrong about the nature of a

summary disposition and the notional fact-finding exercise it entails, the proper approach to the constitutional question would have been to determine whether the requests for compensation, pursuant to s 9 of the Court of Queen’s Bench and Rule 7.3, requires making a finding that is subsidiary, or ancillary to the functions assigned to a Master in chambers. Even if Coffey has not been implicitly overridden by Weir-Jones or Hannam , the failure to perform this analysis and the failure to define what ‘weighing evidence’ means diminishes whatever persuasive force it might otherwise have enjoyed.

But other than using this as a gauge of the persuasiveness of the Coffey decision, this issue is not squarely before me. Neither side has raised it and it is academic in view of the agreements detailed below. [ 28 ] On the specific question of whether evidence would have to be weighed (as opposed to weighting factors) to determine a proper notice, Nixon J concedes that the authorities are mixed. I disagree that determining an amount of pay in lieu of notice involves anything other than weighting ( Bardal ) factors and (here) applying them to undisputed facts.

On this point see O’Donnell v Soldan Fence , generally. [ 29 ] The truth of the matter is that there is no one type of case that is now inherently unsuitable for

summary disposition. There is no one type of case that requires a

summary trial. The analysis has to be performed on a case-by-case basis according to the principles set out below, and, to the extent that I am forced to choose between the conflicting decided cases, I am not persuaded that the Coffey decision properly decides the central issue raised by the Court. My vote goes to the opposite team. The Correct Approach [ 30 ] The threshold to be met in a

Summary Judgment application is set out at paragraph 21 of the Weir-Jones case: [21] Hryniak v Mauldin at para. 49 sets out a three part test for when

summary judgment is an appropriate procedure: 49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on 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. This outline of the procedural approach to

summary judgment encompasses a number of points. To enable a “fair and just

summary determination” the record before the court and the issues must: (

a) Allow the Judge to make the necessary findings of fact . An important thing to observe about this part of the test is that it assumes the

summary judgment judge (or Master) is able to make findings of fact. The Judge is entitled, where possible, to make those findings from the record and draw the necessary inferences. The parameters on fact finding are discussed, infra, para. 38.

Summary judgment is not

limited to cases where the facts are not in dispute. If the

summary judgment Judge is not able to make the necessary findings of fact, that is an indication that there is a “genuine issue requiring a trial”. This issue is discussed, infra, para 27ff. (

b) Allow the Judge to apply the law to the facts . There are cases where the facts are not seriously in dispute, and the real question is how the law applies to those facts. Those cases are ideally suited for

summary judgment: Tottrup v Clearwater (Municipal District No. 99) , 2006 ABCA 380 at para. 11 , 68 Alta LR (4th) 237, 401 AR 88. If the record allows the Judge to make the necessary findings of fact (as contemplated by the first part of the test), applying the law to those facts essentially comes down to a question of law. Cases like this one, based on the expiration of the limitation period, often fall into this category, as do those that turn on the

interpretation of documents. (

c) Assuming the first two parts of the test are met,

summary disposition must be a proportionate, more expeditious and less expensive means to achieve a just result . This third criterion is a final check, to ensure that the use of a

summary judgment procedure (rather than a trial) will not cause any procedural or substantive injustice to either party.

Summary judgment will almost always be “more expeditious and less expensive” than a trial. In the end, if the Judge finds that

summary adjudication might be possible, but might not “achieve a just result” there is a discretion to send the matter to trial. This discretion, however, should not be used as a pretext to avoid resolving the dispute when possible. These foundational criteria set the procedural framework of the modern law of

Summary Dismissal. They set the procedure for determining whether there is “no merit” or “no defence” to the claim under R. 7.3. [ 31 ] The procedure and approach is summarized at paragraph 47 of that case: [47] The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding Judge may determine, during any stage of the analysis, that

summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are not amenable to

summary disposition, a

summary disposition may not lead to a “just result”, or there is a genuine issue requiring a trial. [ 32 ] This approach was reviewed, applied and reinforced by the majority in Hannam where the Court also set out some reforms that might enhance and improve the procedure. The Parties’ Agreements [ 33 ] The parties have agreed that I may, where necessary, determine disputed or contentious matters of fact based on affidavit (and other) evidence presently before the Court. [ 34 ] The Respondent has not given up a right to trial.

Rather, as I understand it, their argument is that because a number of issues cannot be determined even on this basis, a trial will be necessary. [ 35 ] The Plaintiff has also agreed that I may dismiss those claims that have not been proved, in the absence of a formal cross application to dismiss, in keeping with the principles set out in the Pyrrha Design case. [ 36 ] This, to my mind, is exemplary advocacy; entirely in keeping with the foundational rules. Facts [ 37 ] The Plaintiff, Trevor Kubersky, was the General Manager of a Tony Roma’s restaurant in Grande Prairie.

He was hired (from this position) in February 2006 to manage three Tony Roma’s: Prince George, Fort St. John and Dawson Creek. After being hired, each of these restaurants became individually owned by numbered companies. [ 38 ] Mr. Kubersky was experienced in the restaurant business. He was hired to perform a managerial and supervisory role. His salary on hiring was to be $60,000. He was to be given a company credit card but instead was instructed to use his own for business expenses for which he would be reimbursed. Mr. Kubersky was reimbursed for a time. [ 39 ] Mr.

Kubersky’s salary was raised from $60,000 to $72,000 per annum on April 7, 2008. There is no mention in the evidence of any other employment benefits. Mr. Kubersky was terminated November 24, 2008, after working for two years and nine months. The Plaintiff was then 41. At the time of termination, he had his high school diploma but no post-secondary education. Mr. Kubersky apparently obtained part-time work (at minimum wage) about one month after termination. He also apparently received some EI benefits.

[ 40 ] Mr. Kubersky moved to Kamloops in April 2009. Three to four months later, he obtained a job as a General Manager at the Tony Roma’s in Kamloops. Issues 1. Just Cause [ 41 ] The Respondent says that Plaintiff was terminated for just cause. In a letter dated August 11, 2008, from a Mr. Julius Van Wick, Director of Food and Beverage for the Pomeroy Group, Mr. Van Wick writes: August 11, 2008 Trevor Kubersky Dear Trevor, I have some concerns regarding your performance and attitude.

Significant issues have been brought to my attention that I would consider very serious in nature and that would have a negative impact on the quality of your leadership. I feel very strongly that if you do not correct them immediately they could severely damage the reputation of the company, as well as your credibility as a leader within the Pomeroy Group. We would like to see a considerable improvement in your leadership style immediately.

The key items that we require immediate action which were discussed thoroughly with you today are as follows: • As a leader, we expect you to be very conscience of what you say in regards to the Company to colleagues, associates or customers as it could create a negative perception of the organization. • As a leader, you help to set the positive team environment and foster a working together attitude. Failure to do this can have a severe negative impact on your effectiveness. • You need to work on improving your communication skills with your colleagues and reports.

It is not appropriate to yell at your immediate reports or colleagues, or have them book personal appointments for you. • Expense approval is required on any unbudgeted expenses. Any and all use of the company plane must have prior approval of the President and all unbudgeted capital purchases of greater than $1000 are to be approved for and signed off in writing by the President. This would include things such as unbudgeted kitchen equipment and or restaurant supplies.

In order to assist you to improve your behavior and your communication style in what we expect from you as a leader, our Director of Human Resources and myself will be more than happy to provide you with coaching and counselling. Please note our expectation is immediate and sustained improvement is required in all of these areas. Additionally, we are committed to protecting individuals who have come forward with areas of concern. We expect that you will not retaliate in any form against anyone whom you think may have contributed to this

summary. Retaliation in any form is grounds for immediate termination. This letter will serve as a 30 day action plan and will be placed in your Personnel file. Failure to improve in all of the above-mentioned areas will result in further disciplinary action up to and including termination. Please feel free to see me if you have any questions or if you would like to take advantage of the training referred to above. [ 42 ] There were no specific instructions beyond what appears to be a form letter, no benchmarks set (e.g. Duxbury ) and no particulars. Mr.

Van Wick is described as the Director of Food and Beverage for Pomeroy Group. He cc’s the letter to Caprice Clark, Human Resources. Mr. Kubersky is described as the Regional Manager of the Pomeroy Group. [ 43 ] Sales at the restaurants were apparently slow and Mr. Kubersky’s employer was concerned about cash flow. There were some emails back and forth on this general theme in late September/early October 2008. Mr.

Kubersky was cautioned about signing contracts that would bind the Pomeroy Group but, again, there are no particulars given about this or any of the items set out in the letter reproduced above. [ 44 ] The cashflow issue was again highlighted in November 2008 with respect to the Dawson Creek Tony Roma’s. Apparently, as part of his compensation package, Mr. Kubersky was given a five percent stake in each of the numbered companies that owned the individual Tony Roma’s in Dawson Creek, Fort St. John and Grand Prairie.

In fact, the Pomeroy Group purported to make a cash call for certain expenses related to the Dawson Creek Tony Roma’s. [ 45 ] Then, on November 24, 2008, Ryan Pomeroy, President of the Pomeroy Group terminated Mr. Kubersky’s employment. Saying: November 24, 2008 Regional Manager, Tony Roma’s Pomeroy Group Grande Prairie, AB Dear Trevor,

Several serious situations have been brought to my attention concerning your conduct as a leader within our organization and that constitutes a breach of trust. We are left no alternative but to immediately terminate your employment. On August 11, 2008 you were presented with a letter outlining several areas in which sustained and immediate improvement was required. These areas were as follows: • As a leader, we expect you to be very conscientious of what you say in regards to the Company to colleagues, associates or customers as it could create a negative perception of the organization.

We have failed to see sustained improvement in this area. • As a Leader, you help to set the positive team environment and foster a working together attitude. Failure to do this can have a severe negative impact on your effectiveness. Your attitude has continued to deteriorate and continues to cause a negative impact within the company. • You need to work on improving your communication skills with you colleagues and reports. It is not appropriate to yell at your immediate reports or colleagues, or have them book personal appointments for you. • Expense approval is required on any unbudgeted expenses.

Any and all use of the company plane must have prior approval of the President and all unbudgeted capital purchases of greater than $1000 are to be approved for and signed off in writing by the President. This would include things such as unbudgeted kitchen equipment and or restaurant supplies.

Recently events have caused us further concern and to believe that you have failed to improve in the above mentioned areas. • You continue to make inappropriate and derogatory comments in regards to company and owner’s. • You berated an employee at the Dawson Creek Best Western when he was unable to provide the accommodation that you demanded. This is unacceptable.

We expect that Senior Leadership of our company treat all employees with the utmost respect and courtesy. • You made derogatory and inappropriate comments to staff at the Tony Roma’s Dawson Creek regarding their level of intelligence. • Your lack of ability to enforce and implement cost control measures in regards to the operation of the restaurants. You must immediately return all company issues property (i.e. keys, equipment, laptop, etc).

There is obvious dissatisfaction on your behalf with the ownership and leadership of the company and therefore in everyone’s best Interest that your employment be terminated. [ 46 ] Mr. Pomeroy also prepared what he described as a ‘letter of understanding’ providing Mr. Kubersky with a final pay cheque and accrued vacation pay but no pay in lieu of notice. Mr. Ryan Pomeroy also demanded that, in exchange, Mr.

Kubersky release and forever discharge the Pomeroy Group, Pomeroy Hospitality and its affiliates divisions, subsidiaries, predecessors, successors, etc., etc. [ 47 ] These letters referred to are attached as exhibits to Mr. Kubersky’s affidavit. As such, they are proof and acknowledgement that the statements were made. But there is no evidence to substantiate any of the contents of these letters and no evidence of any particulars of the issues they refer to. The criticism in these letters is out of step with the raise Mr. Kubersky received in April of that year.

Being critical of an employer does not constitute just cause ( Bohay at para 26 ). [ 48 ] On the evidence presently before the Court, it is plain that Mr. Kubersky was dismissed from his position without adequate cause and without proper notice, or pay in lieu of notice. 2. Who was Mr. Kubersky’s Employer? [ 49 ] The Respondents say that Pomeroy Hospitality Ltd. was not Mr. Kubersky’s employer. It is not clear what was meant by this. Presumably, it was their intention to assert that having been hired by some entity in 2006, Mr.

Kubersky’s employment then transferred to the numbered companies that were formed to own each of the Tony Roma’s restaurants managed by Mr. Kubersky. [ 50 ] This is not made out in any way, shape, or form. Mr. Kubersky’s pay raise references Pomeroy Hospitality. The correspondence from Mr. Van Wick and Mr. Ryan Pomeroy all reference the Pomeroy Group. The termination letter purports to come from Ryan Pomeroy, President of Pomeroy Group. Mr. Kubersky was asked to release Pomeroy Group and Pomeroy Hospitality when he was terminated. Mr.

Kubersky’s Record of Employment on termination indicates Pomeroy Hospitality Ltd. was the employer. [ 51 ] We do not have copies of the pay cheques, or reimbursement cheques for expenses but, if the Respondent wished to displace a conclusion that Pomeroy Hospitality Ltd. was Mr. Kubersky’s employer, it could have produced these materials. All of the evidence tendered in support of this application is consistent with Mr. Kubersky being an employee of Pomeroy Hospitality Ltd.

His title ‘Regional Manager’ is not consistent with him being employed as a supervisor of each of these restaurants, reporting to a numbered company; which, as mentioned, came into existence after Mr. Kubersky was hired. [ 52 ] The evidence presently before the Court does not disclose a triable issue about who Mr. Kubersky’s employer was.

I am satisfied that it was Pomeroy Hospitality Ltd. and if this were not the case, the Defendant would have tendered evidence to the contrary: Bevis v Renaissance Wine Merchants Ltd , 2007 ABCA 356 at para 8 and Bagby v Gustavson International Drilling Co. , 1980 ABCA 227 at para 50 .

3. Reasonable Notice [ 53 ] The parties agree that the Bardal factors apply. The facts necessary to apply those factors are not in dispute. I have reviewed the cases cited which set out a reasonable notice period ranging upwards from roughly three months. I acknowledge that Mr. Kubersky was induced to leave his prior position as Manager of a Tony Roma’s restaurant. I acknowledge that Master Robertson in the Toole case at para 24 emphasizes that this can be an important factor and can be accorded some weight in determining the reasonable notice period. However, little is known about Mr.

Kubersky’s prior job or his career track. The absence of evidence on this point diminishes the weight of this factor. All things considered, and applying the Bardal factors (at para 145 ) to the undisputed facts about length of employment, age of the employee, nature of the position (and etc.), it is my view that the appropriate notice period is five months. 4. Mitigation [ 54 ] Mr. Kubersky found part time work shortly after being terminated. While he is not obliged to take lesser work, he did so anyway. His earnings there should be subtracted from the pay in lieu of notice. [ 55 ] Mr.

Kubersky’s move to Kamloops and his subsequent employment is after the reasonable notice period and is irrelevant to mitigation as the reasonable notice period had already expired. 5. Expenses [ 56 ] As indicated earlier, Mr. Kubersky was directed to use his personal credit card for business expenses for which he would be reimbursed. He did so and was reimbursed for a time but then the reimbursement ceased. The expenses outstanding at the time of termination that have not been reimbursed and which had been submitted together with details are as follows (supporting documents omitted): 19.

Attached as Exhibit "C" are copies of the expense reports for the Dawson Creek restaurant that remained unpaid, along with all receipts I still have in my possession. These details for expense reports are as follows: (

a) April 1 to May 3, 2008: $5,768.74; (

b) May 6 to June 1, 2008: $2,525.38; (

c) June 19, 2008: $326.10; (

d) June 19, 2008 petty cash: $240.27; and (

e) October 9 to October 18, 2008: $405.85. 20. Attached as Exhibit “D” are copies of the expense reports for the Fort St. John restaurant that remained unpaid, along with all receipts I still have in my possession. These details for expense reports are as follows: (

a) July 24 to July 29, 2008: $1103.33; (

b) July 30 to September 30, 2008: $4,819.99; and (

c) October 2 to October 27, 2008: $1,542.16. 21. Attached as Exhibit "'E" are copies of the expense reports for the Prince George restaurant that remained unpaid, along with all receipts I still have in my possession. These details for expense reports are as follows: (

a) July 15 to September 3, 2008: $3,367.61; (

b) August 16 to August 29, 2008: $13,566.51; (

c) August 15 to September 20, 2008: $8,352.95; (

d) October 25, 2008: $12,391.95; and (

e) October 6 to November 22, 2008: $6,543.07. [ 57 ] There is a live issue about interest. There are few details about particulars of the reimbursement agreement. It is not clear whether the intent was that Mr. Kubersky would be reimbursed on 30 days so that the charges to his credit card might not attract interest, for example. Absent any proof of an agreement on these amounts, Mr. Kubersky is to be reimbursed for these expenses with interest at the Judgment Interest Act rate commencing 30 days after they were submitted. 6. House Sale [ 58 ] Mr.

Kubersky indicates that he was obliged to sell his house in Grande Prairie owing to mounting debt from the failure of the Respondent to reimburse his expenses, or to give pay in lieu of notice. The move to Kamloops can be equally explained for other reasons. This head of damages is not made out. Furthermore, there is no evidence of a loss. This claim is dismissed. 7. General Damages [ 59 ] The claim for general damages is not made out and is dismissed.

Disposition [ 60 ] This case should not have taken 11 years. The application is allowed. Judgment is granted against Pomeroy Hospitality Ltd. as follows: 1. Pay in lieu of notice; five months at $72,000 per annum less the amounts earned in mitigation (referred to in paragraph 54) plus interest pursuant to the Judgment Interest Act ; 2. Reimbursement for expenses outlined in paragraph 56 plus interest at the Judgment Interest Act rate in accordance with para 57 (no other rate having been proved); 3. The remaining claims are dismissed. [ 61 ] Costs may be spoken to. Heard on the 17 th day of December, 2020.

Dated at the City of Grande Prairie, Alberta this 4 th day of March, 2021. W.S. Schlosser M.C.Q.B.A. Appearances: C. Hirano, Stringam LLP for the Applicant Landon K. Haynes, Witten LLP for the Respondent _______________________________________________________ Corrigendum of the Reasons for Judgment of W.S. Schlosser W.S. Schlosser, Master of the Court of Queen's Bench of Alberta _______________________________________________________ In para 27 the word "overrated" has been changed to "overridden".