Kosteckyj v Paramount Resources Ltd, 2021 ABQB 225

Court of Queen’s Bench of Alberta Citation: Kosteckyj v Paramount Resources Ltd, 2021 ABQB 225 Date: 20210324 Docket: 2001 08899 Registry: Calgary Between: Olga Kosteckyj Plaintiff - and - Paramount Resources Ltd. Defendant _______________________________________________________ Reasons for Decision of the Honourable Justice EJ Sidnell _______________________________________________________ [ 1 ] The Plaintiff, Olga Kosteckyj, seeks damages for wrongful dismissal. She commenced employment with Apache Canada Ltd. as a Senior Integrity Engineer on October 15, 2013.

In August 2017, the Defendant, Paramount Resources Ltd. took over the business of Apache in Canada and continued Ms. Kosteckyj’s employment. Paramount continued to pay Ms. Kosteckyj her base salary, but Ms. Kosteckyj’s benefits and bonuses were aligned with the Paramount programs. [ 2 ] Paramount is a publicly-traded energy company which explores and develops petroleum and natural resources. On March 27, 2020, Paramount announced that, effective April 1, 2020, it would institute a company-wide “Cost Reduction Program”.

In an affidavit filed by Paramount’s Vice President of People Operations, Greg Byrgesen, the Cost Reduction Program was described as including, but not limited to: “• a salary reduction of 10% for all employees; • a salary/fee reduction of 20% for all Directors and the CEO; • a suspension of 6% RRSP Contribution Program; and • the delay/cancellation of the 2019 Bonus Program.” [ 3 ] On April 1, 2020, as a result of the Cost Reduction Program, Ms.

Kosteckyj’s base salary was reduced from $154,800 to $139,320, Paramount’s contribution to her RRSP, based on 6% of her salary, was suspended, and her bonus status was unknown. In addition, her access to seminars and training was curtailed. Ms. Kosteckyj took no steps to accept or reject the changes resulting from the implementation of the Cost Reduction Program.

[4] In a further cost-cutting measure, to achieve a 15% reduction in Paramount’s workforce, Ms. Kosteckyj, along with a numberof other Paramount employees, was terminated, without cause, on April 22, 2020. [5] Paramount acknowledges that Ms. Kosteckyj was a valued employee, with 6½ years of service, and that she is entitled todamages in lieu of reasonable notice of termination. Both parties agree that the leading case on determining the period of reasonablenotice is Bardal v The Globe & Mail Ltd (1960), (ON SC), 24 DLR (2d) 140. Both parties assert that Ms.

Kosteckyjwas terminated in an economic downturn, but each has a different position regarding the relevance of that fact. Issues [6] In addition to the two preliminary issues addressed in these reasons (disclosure of a settlement offer and a proposedamendment to the Amended Statement of Claim), this matter raises the following issues: (

a) Was Ms. Kosteckyj constructively dismissed? (

b) What is the length of notice that Ms. Kosteckyj is entitled to? (

c) In the calculation of damages, what amount should be used for: (

i) salary (ii) RRSP (iii) benefits (iv) 2019 bonus (v) 2020 bonus (

d) Is Ms. Kosteckyj entitled to damages for: (

i) her professional dues (ii) costs of upgrading (

e) Were Ms. Kosteckyj’s mitigation efforts adequate? First preliminary issue: Defendant’s disclosure of settlementoffer [7] Ms. Kosteckyj brought a preliminary application to strike paragraphs 12 and 13 of the Amended Statement of Defence,which state as follows: 12. On April 22, 2020, Paramount terminated the Plaintiff's employment without just cause. Paramount issued the Plaintiff paymentfor all accrued earnings up to and including her termination date, plus vacation pay. Paramount further offered the Plaintiff $54,215.38for termination pay in exchange for a release of claims (the "Severance Offer").

The Plaintiff rejected this offer, in which case,Paramount paid the Plaintiff $14,844.62, equivalent to 5 weeks of pay in lieu of notice pursuant to Alberta's Employment StandardsCode, RSA c E-9. 13. The Severance Offer constituted reasonable pay in lieu of notice in the circumstances, and the Plaintiff was not entitled to any furtherpayment. Specifically, Paramount states that the Severance Offer was reasonable in light of the Plaintiff's age, position, responsibilities,length of service, and compensation at the time of termination.

Further, Paramount states that the Plaintiff was obligated to accept theSeverance Offer under her duty to mitigate damages and it was unreasonable for her to reject it. [8] Including settlement discussions in pleadings or otherwise disclosing them to the court is improper. Disclosure of asettlement offer also occurred in Hamilton v Hamilton, 2021 ONSC 274, where Justice Summers said, at para 4, footnotes omitted: At the outset of the motion, the applicant’s counsel properly raised a concern about the respondent’s affidavit and disclosure of hissettlement offer.

The respondent’s explanation confirmed the disclosure was intentional. I ruled that the settlement communication wasimproperly before the court, that I would ignore it, and no further reference should be made to it during submissions. ... Offers areconfidential and the terms of an offer shall not be mentioned in any document filed ... and shall not be mentioned to the judge hearing theclaim dealt with in the offer, until the judge has dealt with all the issues in dispute except costs. I also note the common law andfollowing statement by the Supreme Court of Canada in Bombardier v.

Union Carbide Canada Inc.: Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute.Sometimes called the “without prejudice” rule, it enables parties to participate in settlement negotiations without fear that informationthey disclose will be used against them in the litigation.

This promotes honest and frank discussions between the parties, which can makeit easier to reach a settlement. [9] The obligation to keep settlement discussions and offers confidential promotes, as the Supreme Court of Canada points out inUnion Carbide Canada Inc v Bombardier Inc, 2014 SCC 35, honestly and frankness to facilitate settlement. It also maintains the

independence and impartiality of the trier of fact, which is one of the foundational principles of our legal system. As the Supreme Court of Canada noted in Cojocaru v British Columbia Women’s Hospital and Health Centre , 2013 SCC 30 , at para 12 : ...

A fair process requires not only that the parties be allowed to submit evidence and arguments to the judge, but that the judge decide the issues independently and impartially as the judge is sworn to do. ... [ 10 ] Disclosing a settlement offer in a pleading undermines judicial impartially and can encroach on the fair and just system of judicial determination that we rely upon.

While it may be appropriate to raise the existence of a settlement offer after a decision has been made, and in the context of the costs to be awarded, it cannot be disclosed in the pleadings or else where in the litigation before a decision has been rendered. When the defendant intentionally discloses its rebuffed settlement offer, it must be presumed that the defendant proposes an inference that the plaintiff, in not accepting the settlement offer, did not act reasonably.

This type of inference has no place in our adversarial system. [ 11 ] After termination of employment, an employee is not required to accept an employer’s settlement offer to mitigate the employee’s damages when that offer requires a release of the claim against the employee, as it did in this case. A defendant cannot argue that a rejection of a settlement offer was unreasonable until after the court makes its determination as to what are reasonable damages in lieu of notice.

That is why, in relation to formal offers to settle, Rule 4.28 is clear that the formal offer to settle is to be “to be kept confidential and not disclosed to the Court” until accepted or “the remedy for the claim has been decided”. [ 12 ] It is important for the proper functioning of our independent and impartial legal system to maintain the confidentiality of all settlement offers in litigation until the merits of the case are determined. Disclosing a rejected settlement offer may be appropriate on an application for costs. Indeed, Rule 10.33(2)(

h) contemplates that the court may consider “any offer of settlement made”, regardless of whether or not the offer of settlement is a formal offer of settlement under the Alberta Rules of Court . Disclosing a settlement agreed to may also be appropriate where a party seeks to enforce the terms of that agreement or relies on other exceptions to settlement privilege: Bellatrix Exploration Ltd v Penn West Petroleum Ltd , 2013 ABCA 10 , para 29 . [ 13 ] At the commencement of the

Summary Trial, Paramount acceded to strike paragraphs 12 and 13 from the Amended Statement of Defence. I order that paragraphs 12 and 13 be struck from the Amended Statement of Defence and I will ignore the information contained in them: Gilbert v Graves , 2006 BCSC 1516 , paras 9 and 10 . Second preliminary issue: Application to amend the Amended Statement of Claim [ 14 ] At the commencement of the

Summary Trial hearing, Ms. Kosteckyj made an application to amend her Amended Statement of Claim to add the following paragraph: In the alternative, Paramount constructively dismissed Kosteckyj by unilaterally reducing Kosteckyj’s salary by 10%, and cancelling the 2019 Bonus Plan, the 6% RRSP matching program and all seminars and training on April 1, 2020. [ 15 ] Paramount objected to the amendment on the basis that it would be prejudiced by such an amendment by virtue of this matter proceeding as a

Summary Trial and the evidence already having been submitted to the court in the form of affidavits and cross- examination transcripts. Following the

Summary Trial hearing, I requested that both parties submit written argument on this application. [ 16 ] Ms. Kosteckyj submits that, notwithstanding her amendment application, an amendment is not necessary because she was not required to specifically plead a constructive dismissal. However, neither the Statement of Claim nor the Amended Statement of Claim refers to April 1, 2020, however the pleadings allege termination on April 22, 2020. Without the proposed amendment, the facts underpinning the allegation of constructive dismissal are not before the Court. [ 17 ] Ms.

Kosteckyj’s pleadings set out a claim for wrongful termination on April 22, 2020, with damages for the notice period calculated at the pre-April 1, 2020 salary, benefits and bonus amounts, less the payment of $14,884.62 which she already received. However, if she was terminated on April 22, 2020, then she was not constructively dismissed on April 1, 2020. If Ms. Kosteckyj claims termination on April 22, 2020, she can only claim damages for her salary at that date.

If she was constructively dismissed on April 1, 2020, she can claim for damages at her pre-April 1, 2020 salary. [ 18 ] As a result, the proposed amendment affects the calculation of Ms. Kosteckyj’s damages, which could be either: (

a) without the amendment: for wrongful termination on April 22, 2020, with damages for the notice period starting on April 23, 2020 and calculated at the post-April 1, 2020 salary, benefits and bonus amounts, less the payment of $14,884.62 which she already received; or (

b) with the amendment: for constructive dismissal on April 1, 2020, with damages for the notice period starting April 2, 2020 and calculated at the pre-April 1, 2020 salary, benefits and bonus amounts, less the amount she earned from April 1 to 22, 2020 and less the payment of $14,884.62 which she already received. [ 19 ] Rules 1.2 and 3.68 are engaged in determining whether or not to grant an application to amend pleadings.

In Woodbridge Homes Inc v Andrews , 2019 ABQB 585 , Justice Mandziuk said, at para 18, that his decision to “to adjudicate upon all of the parties’ arguments, causes of action and defences, regardless of pleadings deficiencies” was “aligned with the spirit and letter of Rule 1.2 of the Alberta Rules of Court ”. He found that allowing “amendments is consistent with the overarching goal of resolving the claims between these parties in a fair and just way, with cost-effectiveness and timeliness top of mind”. In that trial, the evidence and arguments aligned with the amendments.

Justice Mandziuk described the general rule and exceptions for permitting amendments to pleadings in Woodbridge , at paras 19 to 21:

Substantively, Rule 3.65 of the Alberta Rules of Court gives the Court discretion to allow amendments after pleadings are closed. Thegeneral rule is that, with the court’s permission, a pleading can be amended at any stage of the proceedings no matter how late or carelessthe party seeking the amendment may be ... This general rule allowing amendments is subject to four major exceptions: 1. The amendment would cause serious prejudice to the opposing party, not compensable in costs; 2. The amendment requested is “hopeless” (an amendment that, if it were in the original pleadings, would have been struck); 3.

Unless permitted by statute, the amendment seeks to add a new party or a new cause of action after the expiry of a limitation period;and 4. There is an aspect of bad faith associated with the failure to plead the amendment in the first instance. ... Amendments proposed even at a very late stage of a civil proceeding are permitted under the general rule, provided that the amendmentsdo not prejudice the opposite party or fall into one of the other exceptions.

For example, if all the evidence has already been completedwithout reference to an issue not raised by the pleadings, prejudice will be virtually inevitable: McDonald v Fellows ... [20] Exceptions 2, 3 and 4 to the general amendment rule are not raised by Paramount as it focuses on the issue of prejudice whichis not compensable by costs, and the fact that the amendment was proposed after the evidence was submitted in the

Summary Trial. [21] In McDonald v Fellows (1979), 1979 ABCA 224 , 17 AR 330 (Alta CA), the Court of Appeal found, at para 10, thatthe trial judge had decided the case on “a basis contrary to the pleadings, without any request for amendment of those pleadings, afteramending them himself at the conclusion of the evidence”.

While in that case it was the trial judge who had initiated amendments to thepleadings, Laycraft JA outlined, at paras 11 and 12, the tension between the general rule of permitting late amendments where there is noprejudice and the circumstances where the evidence has been entered and the case conducted with out reference to the amendments: The general rule is no doubt that amendments will be permitted at a very late stage of proceedings where there is no prejudice to theopposite party.

Where, however, evidence has been completed and the case has been conducted without reference to an issue not raisedby the pleadings, prejudice will be virtually inevitable. In Cels ...

Beck J. said ... : "Amendments should not, I think, be made with the object of moulding the pleadings to the evidence after the close of the evidence andwith a view to the giving of judgment based upon the pleading as amended, unless it is quite clear that the opposite party would haveexamined the witnesses on his own behalf and cross-examined those on behalf of the opposite party and obtained discovery by affidavitor cross-examination, not otherwise than he did with respect to any point which may fairly be supposed to be material on the issueproposed to be raised by amendment." In Scott Bros. Gravel Co....

Bull J.A. said: "In my view it is too much to expect defendants in an action meeting a case of fraud such as the one alleged here, to anticipate in theirpreparations for trial, in their adduction of evidence and in their conduct of trial, that they were faced with an entirely different, althoughfactually allied, cause of action.

If the respondent had applied at or before the trial to amend its pleadings to cover the new cause ofaction, it would seem evident that the amendment would have gone as of course but would have entailed an adjournment so that theappellant and its co-defendants could in turn amend their pleadings and raise in defence matters which could be of vital importance …Further examinations-for-discovery might well have been found necessary." [22] In Wagner v Wagner, 2014 ABCA 428, the Alberta Court of Appeal discussed natural justice in the context of a courtgranting relief that a party has not expressly sought in the pleadings and, at paras 27 to 30, said: Normally, a court should not give relief that a party has not been expressly sought in the notice of application or pleading.

Natural justicerequires that the opposing party know what is being sought, and why. Usually that information is only available from the notice ofapplication, although that is not always so. The opposing party may know what relief is sought, and why, by some other means and inenough time to marshal his or her arguments and evidence: DWH v DJR, ... This is not to suggest that ferreting through affidavits for theissues to be decided is ideal. Relief sought should be stated with precision in a notice of application, and not left to be divined from otherdocuments filed. [23] In this case, Ms.

Kosteckyj filed her Statement of Claim on July 20, 2020 and she did not mention the changes on April 1,2020, the Cost Reduction Program or its effect on her compensation, and she did not claim that she had been constructively dismissed.However, she specifically claimed damages based on her pre-April 1, 2020 salary, benefits and bonus. Ms. Kosteckyj amended herStatement of Claim on September 29, 2020 to seek enhanced costs. [24] Paramount’s Statement of Defence was filed on August 12, 2020 and amended on September 28, 2020. The amendmentsrelated entirely to style and not substance.

In paragraph 7 of its Amended Statement of Defence, Paramount denies Ms. Kosteckyj’sallegation that she is entitled to damages based on her pre-April 1, 2020 salary and notes that Paramount implemented the CostReduction Program on April 1, 2020. [25] Ms. Kosteckyj swore an affidavit on October 28, 2020 in which she refers to the Cost Reduction Program as follows: 38. In March 2020, I received an email from Jim Riddell, Chief Executive Officer of Paramount, that my salary would be reduced asof April 1, 2020 by 10% and that Paramount would no longer contribute to my RRSP. ...

Paramount did not seek my agreement toreducing my salary or to cancelling the RRSP program. ... [26] Ms. Kosteckyj was cross-examined on this paragraph of her affidavit and the reductions to her compensation as a result of the

implementation of the Cost Reduction Program. The email from Mr. Riddell, dated March 27, 2020, was attached as an exhibit to her cross-examination. [ 27 ] In her

Summary Trial brief, Ms. Kosteckyj included several paragraphs under the heading “Paramount’s unilateral changes to the employment contract on April 1, 2020 amounted to constructive dismissal”. Paramount responded in its

Summary Trial brief to this argument by agreeing that the test for constructive dismissal was articulated by the Supreme Court of Canada in Potter v New Brunswick Legal Aid Commission , 2015 SCC 10 and applying it to the facts. [ 28 ] At paragraph 60 of its

Summary Trial Brief, Paramount raises the Plaintiff’s failure to plead constructive dismissal: ... The Plaintiff purports once again to effectively argue that she was “constructively” dismissed as of April 1, 2020 ... . Paramount submits that the Plaintiff was actually terminated on April 22, 2020. The Plaintiff did not assert that she had been constructively dismissed until after she was actually dismissed. The Plaintiff cannot now disregard her actual termination ex post facto . For that matter the Plaintiff cannot suggest that she was constructively dismissed and then argue her employment was not “terminated”.

The Plaintiff never asserted she was constructively dismissed nor has that been plead. Nor has she alleged in her Affidavit, filed in support of her Application for

Summary Trial, that she considered herself to be constructively dismissed. [ 29 ] Paramount argues that it will be prejudiced in a variety of ways if an amendment pleading constructive dismissal is permitted: (

a) Paramount was unable to introduce any evidence in response to the claim of constructive dismissal. (

b) Paramount limited its cross-examination of Ms. Kosteckyj on her Affidavit to her understanding of the Cost Reduction Program and did not explore any steps she took as a result of it. (

c) Because the application to amend was made after all of the evidence was submitted, Paramount did not have the opportunity to introduce evidence of the “reasonable Paramount employee” who was also affected in the same manner as Ms. Kosteckyj. (

d) There is no evidence on whether Ms. Kosteckyj mitigated her damages and whether she was required to continue her employment despite “varied terms”. [ 30 ] Paramount argues that it was unable to introduce evidence in response to Ms. Kosteckyj’s claim for constructive dismissal. However, this is contrary to the position taken in Paramount’s

Summary Trial Brief, where is it said: “The Plaintiff did not assert that she had been constructively dismissed until after she was actually dismissed.” In other words, Paramount knew Ms. Kosteckyj had asserted that she claimed constructive dismissal after her termination, and before Paramount filed its

Summary Trial Brief. As noted, Paramount’s Brief addressed the Potter test for determining whether an employee has been constructively dismissed. Based on Paramount’s own materials, I cannot find that Paramount was taken by surprise or prevented from introducing new evidence when Paramount knew of the constructive dismissal argument and addressed that argument in its own

Summary Trial Brief. [ 31 ] Regarding the remaining allegations of prejudice summarized above: (

b) I have no evidence that Ms. Kosteckyj took any steps whatsoever to communicate with Paramount about the Cost Reduction Program or to indicate any dissatisfaction with it before being terminated on April 22, 2020, which aligns with the submission of Paramount in paragraph 60 of its

Summary Trial Brief; (

c) there is no need for the “reasonable Paramount employee” evidence because “the court must ask whether a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed”: Brake v PJ- M2R Restaurant Inc , 2017 ONCA 402 , para 65 ; and (

d) Ms. Kosteckyj’s mitigation obligations are not different based on whether she was wrongfully dismissed or constructively dismissed: Evans v Teamsters Local Union No. 31 , 2008 SCC 20 , at para 27 . [ 32 ] The application to amend the Amended Statement of Claim to include the alternative allegation of constructive dismissal on April 1, 2020 is granted because Paramount has not shown that it is prejudiced by it. This does not mean that Ms. Kosteckyj’s pleadings were satisfactory. The underlying facts should have been plead in the Statement of Claim so that this application was unnecessary. Was Ms.

Kosteckyj constructively dismissed? [ 33 ] The Potter test was succinctly summarized by the Ontario Court of Appeal in Brake , at paras 64 to 66 : The test that Potter establishes for constructive dismissal consists of two branches. Satisfaction of either branch is sufficient for a finding of constructive dismissal. The first branch of the Potter test has two steps. First, the court must determine objectively whether a breach has occurred. To do so, the court must ascertain whether the employer has unilaterally changed the contract.

If an express or an implied term gives the employer the authority to make the change or if the employee consents or acquiesces in it, the change is not a unilateral act and will not constitute a breach. To qualify as a breach, the change must also be detrimental to the employee . Second, once it has been objectively established that a breach occurred, the court must ask whether a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed ( Potter , at paras. 37-39 ).

The second branch of the Potter test necessarily requires a different approach. On this branch, constructive dismissal consists of conduct that, when viewed in light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract ( Potter , at para. 42 ). [ 34 ] Ms. Kosteckyj asserts that the contract she had with Paramount was the offer letter issued by Apache on September 19, 2013. However, this cannot be the case as Ms.

Kosteckyj acknowledges that changes were made to her employment contract over the years that were either accepted by her or rejected by her and are subject to other litigation. The Cost Reduction Program changed the employment contract between Ms. Kosteckyj and Paramount as it had evolved, and existed on March 27, 2020. In considering the first step of the first branch of the Potter test, I find that Paramount changed the employment contract when it imposed the Cost Reduction Program.

[35] On cross-examination, Mr. Byrgesen acknowledged that Paramount did not seek the agreement of Ms. Kosteckyj to the CostReduction Program. He also acknowledged that Ms. Kosteckyj never told him personally that she agreed to the Cost Reduction Program.When asked if he had any indication that that she had agreed to the Cost Reduction Program, Mr. Byrgesen said that he considered thefact that Ms. Kosteckyj kept working from April 1 to 21, 2020 as her agreement because otherwise she could “just walk away”. Theimposition of the Cost Reduction Program was a unilateral change to the employment contract.

There was no expressed or implied termin the employment contract giving Paramount the authority to make such a unilateral change. [36] Relying on Farquhar v Butler Brothers Supplies Ltd, (BCCA), Ms. Kosteckyj submits that she had noobligation, in the period between March 27 and April 22, 2020, to advise Paramount that she considered herself to have beenconstructively dismissed as a result of the Cost Reduction Program. In Farquhar, the court said, at page 3, that the “employee's decisionmust be made within a reasonable time.

But he is entitled to a few days, or even a couple of weeks, to think it over.” [37] Not including the days on which she was given notice of the Cost Reduction Program and her termination, Ms. Kosteckyj wasterminated 25 days after the announcement of the Cost Reduction Program. There is no obligation on an employee to advise an employerof the employee’s position on constructive dismissal before termination, as asserted by Paramount. As in this case, the employee mightnot know that they are going to be terminated after

an act of constructive dismissal. [38] If constructively dismissed, the employee has the choice of either accepting the constructive dismissal or treating the changesas a repudiation of the contract by the employer and suing for wrongful dismissal: Potter, para 30. Ms. Kosteckyj’s opportunity to makethis election was limited to the period between the notice of the Cost Reduction Program and her termination. While the 25-day period inthis case is more than “a couple of weeks”, as noted in Farquhar, in the turbulent economic conditions that both parties accept exist, I donot find that Ms.

Kosteckyj had an obligation to decide on whether the Cost Reduction Program constituted a repudiation of heremployment contract within that 25-day period before her termination. When she was terminated, the decision to accept the constructivedismissal, or to treat the changes as a repudiation, was no longer required from the perspective of Ms. Kosteckyj’s continuedemployment. [39] Both parties accept that the Cost Reduction Program was a legitimate business reaction to turbulent economic times.However, it significantly affected Ms.

Kosteckyj by imposing a salary reduction of 10%, a suspension of the RRSP contribution valuedat 6% of her salary and the “delay/cancellation of the 2019 Bonus Program”. I find that the compensation reduction imposed by the CostReduction Program was detrimental to Ms. Kosteckyj and that a breach of her employment contract occurred. [40] In the second step of the first branch of the Potter test, the court must ask whether a reasonable person in the same situation asMs.

Kosteckyj would have felt that the essential terms of the employment contract were being substantially changed. [41] Paramount relies on Doran v Ontario Power Generation Inc, (ON SC), [2007] OJ No 4476, for theproposition that a compensation reduction of 14% to 17% is a not a breach that would give rise to a finding of constructive dismissal.Here the salary reduction and RRSP contribution suspension were collectively a 16% reduction. In addition, the 2019 Bonus Programwas subject to “delay/cancelation”. In the previous two years, Ms.

Kosteckyj had earned a cash bonus $1,000 and $6,267, plus restrictedshare units benefits (“RSUs”) which Paramount says were “worth a nominal value of $2,000 and $12,333” because at the vesting datethe value was substantially reduced. Using her pre-April 1, 2020 salary of $154,800, the 16% reduction, together with the loss of a cashbonus of $1,000, would result in a 16.65% compensation reduction. The 16% reduction, together with the loss of a cash bonus of $6,267,would result in a total reduction of 20%. The effect of the Cost Reduction Program significantly affected Ms.

Kosteckyj’s compensationin the range of 16.65% to 20%, without considering any value for the RSUs. I find that the implementation of the Cost ReductionProgram resulted in the constructive dismissal of Ms. Kosteckyj. What is the length of notice that Ms. Kosteckyj is entitled to? [42] The factors for determining the length of reasonable notice, set out in Bardal by McRuer CJHC, at page 145, have been reliedupon for over 60 years: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases.

The reasonableness of the notice mustbe decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant,the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of theservant. Character of the employment [43] Ms. Kosteckyj is a professional engineer with considerable work experience since graduating with a mechanical engineeringdegree in 1995 and becoming professional engineer in 2006.

She held the position of Senior Integrity Engineer for 6½ years withParamount and Apache and was the integrity engineer on the pressure equipment integrity team. Ms. Kosteckyj did not have anyonedirectly reporting to her. [44] Ms. Kosteckyj’s responsibilities included: (

a) leading the Pressure Equipment Integrity Management (PEIM) system; (

b) developing, managing and delivering PEIM training to team members and others; (

c) acting champion and advisor for the PEIM program to ensure all regulatory requirements were met; and (

d) developing key performance indicators, preparing quarterly reports and advising senior management of results.

[45] Ms. Kosteckyj asserts in her affidavit evidence that her first Paramount supervisor delegated “many of his managementresponsibilities” to her, including: “creating templates, preparing agendas for meetings, preparing quarterly presentations for seniormanagement, creating a risk registry for facility projects, creating a team intranet site, managing program materials, and managing theteam’s quarterly report.” Ms. Kosteckyj also says that she “worked directly with other supervisors and managers to solve issues inprocess and PEIM program compliance.” Based on this evidence and Ms.

Kosteckyj’s cross-examination on it, I find that Ms. Kosteckyjwas not in a supervisory or management position with Paramount. Length of service and age [46] Paramount admits that Ms. Kosteckyj’s employment with Apache is part of her 6½ year service record with Paramount. Overthose 6½ years, Ms. Kosteckyj responsibilities were fairly consistent. [47] Ms. Kosteckyj was 47 years old when she was terminated by Paramount, a factor that I find to be neutral.

As stated inPanimondo v Shorewood Packaging Corporation, (ON SC), [2009] OJ No 1519, at para 35: “While 50 may notquite be the new 40, most prospective employers expect that people in their mid-40s have some very good and productive working yearsahead of them. Those workers have the added benefit of experience, maturity and reliability.” Availability of similar employment, having regard to: experience, training andqualifications [48] The parties dispute the availability of similar employment, having regard to Ms. Kosteckyj’s experience, training andqualifications. [49] Paramount states that it terminated Ms.

Kosteckyj “as a result of serious and ongoing economic issues facing Paramount”which “included a significant historical reduction in commodity prices and the economic impact created by the Covid-19 pandemic”.While Paramount relies on difficult economic conditions as the context for the Cost Reduction Program and the termination of Ms.Kosteckyj, it takes the position that these conditions should not have a significant impact on the length of reasonable notice which Ms.Kosteckyj is entitled to. Relying on Orlando v Essroc Canada Inc, [1995] O.J.

No. 4056, at para 15, Paramount suggests that pooreconomic conditions should be considered “from the viewpoint of each party”. [50] Ms. Kosteckyj says that her “employment was terminated in the midst of a protracted economic downturn of Alberta’s oil andgas industry and an unprecedented pandemic”. As a result, Ms.

Kosteckyj says that she “has found very few employment opportunitiesthat are comparable in terms of responsibilities or compensation with [her] previous employment with Paramount”. [51] In Hunsley v Canadian Energy Services LP, 2020 ABQB 724, Poelman J noted, at para 15, in the context of a claim forwrongful dismissal for a termination on September 24, 2019, that “the Alberta oil and gas industry was in challenging financialcircumstances” in 2019, and that it was “notorious that the situation become worse in 2020, first with an industrial price war and then theCOVID 19 pandemic”. [52] Ms.

Kosteckyj relies on the decision of Master Robertson QC in Toole v Northern Blizzard Resources Inc, 2017 ABQB 760,where the terminated employee was a 48-year old engineer in a senior position, without any reports to him. The court found, at para 22,that he worked in a “relatively niche position”. His employer recruited him from a secure long-term position, which Master Robertsonfound was a factor that tended to militate in favour of elevated notice.

Master Robertson reviewed several cases, at paras 26 to 31,dealing with the impact of an economic downturn. [53] In Hunsley, Justice Poelman referred to the cases reviewed by Master Robertson and summarized them, at para 26 and 27, asfollows: Adverse economic conditions tend to increase the notice period because they usually contribute directly to the estimated time required tofind replacement employment. ... I find the review of authorities and analysis of Robertson M. in Toole v Northern Blizzard Resources Inc ... to be a helpful and reliablestatement of the law.

As noted there, “reasonable notice takes into [account] both the implied understanding at the outset of theemployment, as modified by years of service, promotions, and other factors, as well as the actual circumstances existing at the time oftermination” ... A depressed economy or sector tends to lengthen the notice. But is only one factor and should not be givendisproportionate effect ... [54] The purpose of awarding damages is “to compensate for lack of notice, and not to penalize the employer for the dismissalitself.

The notice period is meant to provide employees with sufficient opportunity to seek new employment and arrange their personalaffairs”: Evans, para 28. If the notice period is to provide employees with sufficient opportunity to seek new employment, then the stateof the industry in which their employment lies is a factor. The economic conditions are one factor, but just one of a number of factors andit is not to be given disproportionate effect: Hunsley, para 27. In this case, to provide Ms.

Kosteckyj with sufficient opportunity to seeknew employment, I find that it is appropriate to consider, as one of the factors, the current challenges for the oil and gas sector whichboth parties agree exist. [55] Ms. Kosteckyj claims that she developed expertise in a niche area of pipeline integrity. Paramount suggests that Ms.Kosteckyj has portable engineering skills. Ms. Kosteckyj provided no evidence of her skills being restricted to a niche area and I declineto so find. Cases considering the length of the notice period

[ 56 ] Ms. Kosteckyj asserts that she is entitled to 12 months notice. Paramount counters that Ms. Kosteckyj is entitled to only 6 months notice. Both parties relied on cases to support their position on the length of notice that Ms.

Kosteckyj is entitled to, which are summarized below: Plaintiff’s cases Case Character of Employment Length of Service Age Availability of similar employment – considered factors Notice Period Toole v Northern Blizzard Resources Inc , 2017 ABQB 760 Senior Development Engineer - no reports, recruited for niche position less than 3 years 48 “Economic Downturn”: paras 26 to 31 10 months Bhavsar v Canadian Natural Resources, 2016 ABQB 471 Mechanical engineer, reliability specialist - not a manager Electrical engineer 2½ years 2½ years Mr. Paul 49 Mr.

Darji 38 “downturn in the economy”: para 2 5 months 4 months Ghate v Acres Consulting Services Ltd , [1986] O.J. No. 1389 Hydraulic engineer - project manager, minor supervisory function 4 years 50 “work slowdown problems” – “very technical and responsible tasks” 10 months Lederhouse v Vermilion Energy Inc , 2015 ABQB 387 Geologist team lead – managed a team of 5 professionals 3½ years 56 “The difficulty is ... the income that she has garnered from her experience.”: para 28 “This Court finds that the depressed economy is a factor it can consider.

It is not the sine qua non , and is simply placed into the matrix”: para 35 9 months Bellini v Ausenco Engineering Alberta Inc. 2016 NSSC 237 Senior mechanical engineer, offered guidance to junior engineers, no executive or managerial responsibilities 3 years 2½ months 61 “The parties disagree as to whether the general decline of the oil and gas industry is relevant to the availability of similar employment.”: para 53 “... difficulty is Mr. Bellini’s assertion that, given ... the location of his home and his wife’s job in Halifax, he should not be expected to relocate at his age.

In effect ... similar employment must be both in kind and in geographical proximity”: para 56 6 months Defendant’s cases Case Character of Employment Length of Service Age Availability of similar employment – considered factors Notice Period Lyness v Atlantic Foundation Group Ltd , 2012 NBQB 11 Electrician and computer process controls technician for a company specializing in energy management, with some construction, pay $25 per hour 7 years 42 None identified 5 months

Baker v VecimaNetworks Inc,2011 SKQB 368 Engineeringtechnologist,income $3,627 permonth 4 years5 months 26 None identified, Bardal notmentioned 5 monthsasclaimedbyplaintiffFredericks v2753014 CanadaInc, 2008 MSSC377 “Through on thejob training headvanced from alabourer to a pipeinspectortechnician”: para57 5 years 46 None identified, Bardal notmentioned 5 months Colwell vCornerstoneProperties Inc, (ON SC) “commenced heremployment in1997 as an assistantto the commercialmanager ... [in]2002, she waspromoted tocommercialmanager”: para 1 -$37,500 annualsalary In excessof 7 yearsunknown None identified, Bardal notmentioned 7 months Hunsley vCanadian EnergyServices LP, 2020ABQB 724 Manager, WellPlanning - attermination “threedrilling fluidsprogrammersreporting to her”:para 14 7 years 7months 34 “managerial position,remuneration and economicconditions”: paras 24 and 25 “a higher position inmanagement and a higher levelof remuneration tend to requirelonger notice periods: para 25 “Adverse economic conditionstend to increase the noticeperiod”: para 26 8 months Perewernycky vNational-OilwellCanada Ltd, 2007ABQB 170 Inside SalesRepresentativenon-managementposition -$48,000.00 annualsalary with benefitpackage 10½ years 38 None identified “I have increased the award dueto the callous, uncaringtreatment which the companyexhibited ... .

I therefore awardan additional two months’ noticefor bad faith dismissal and thePlaintiff’s total award ofdamages is thus 12 months: para73 12months Case Character ofEmployment Length ofService Age Availability of similaremployment – consideredfactors NoticePeriod Notice period for Ms. Kosteckyj [57] Ms. Kosteckyj worked for Paramount for 6½ years as a Senior Integrity Engineer and was the engineer member of the PEIMteam. She was constructively dismissed on April 1, 2020 in the midst of an economic downturn in the Alberta oil and gas industry andduring the Covid-19 pandemic.

Based on the Bardal factors, and having considered the case law relating to notice periods provided bythe parties, I find that Ms. Kosteckyj is entitled to 9 months notice starting April 1, 2020 through to December 31, 2020. Because sheworked for Paramount between the period of April 1, 2020 and April 22, 2020, the amount that Ms. Kosteckyj earned during that period,together with the severance that she was paid on her termination on April 22, 2020, must be deducted from any damages awarded. In the calculation of damages, what amount should be used for: Salary [58] Because I have found that Ms.

Kosteckyj was constructively dismissed when the Cost Reduction Program was implemented,she is entitled to damages for the notice period based on her compensation immediately before April 1, 2020: $154,800, per annum. RRSP

[ 59 ] Ms. Kosteckyj’s entitlement to the RRSP before the Cost Reduction Program was 6% of her salary, so she is entitled to 6% of the damages awarded to her for salary. Benefits Health and dental [ 60 ] Based on an estimate from her counsel, Ms. Kosteckyj asserts an entitlement to 6% of her salary during the notice period to compensate her for the value of the health and dental benefits that she did not receive after her benefits were terminated on April 27, 2020. The only evidence before me of Paramount’s cost of the health and dental coverage is from Mr.

Byrgesen’s affidavit where he says it was “self-funded” and, on cross-examination, where he says Paramount pays an administration fee to the benefits administrator. There is no evidence of the amount of that administration fee. Ms. Kosteckyj did not purchase replacement insurance coverage for the benefits she lost. [ 61 ] Paramount argues that Ms. Kosteckyj is only entitled to her out-of-pocket expenses because the benefits plan is self-funded by Paramount.

In Turner v Westburne Electrical Inc , 2004 ABQB 605 , Phillips J said, at paras 86 to 88: The Defendant argues that the Plaintiff is not entitled to damages in respect of benefits unless he has incurred a loss by subscribing to a new plan or had to pay out for claims that would otherwise have been covered. ... I believe that the law in this Province was clearly set out by the Alberta Court of Appeal in Rahmath v. Louisiana Land & Exploration Co. ...: In my view, the employee was entitled to the worth of the benefit which would otherwise have been provided.

That worth is the value of the risk that employer met by the insurance, which may be properly measured by the amount of the premiums which have been paid during the notice period. This has been interpreted as meaning that the employee is entitled to whatever contributions to benefit premiums the employer would have paid over the course of the notice period ... [ 62 ] Without evidence as to the cost of the benefits together with the administration fee, or even the cost of replacement benefits, this court is left only with the evidence as to the amount that Ms.

Kosteckyj actually spent that would have otherwise been covered by health and dental benefits. Had there been evidence of the cost of the administration fee Paramount paid, I would have found that Ms. Kosteckyj was entitled to damages in the amount of the costs incurred, plus the administration fee. In the absence of that evidence, I find that Ms. Kosteckyj is entitled to the amounts she actually expended for what would have otherwise been covered by the health and dental benefits. The parties agreed that Ms. Kosteckyj actually expended $1,244 in health and dental costs and I find Ms.

Kosteckyj is entitled to that amount. Wellness account [ 63 ] While employed with Paramount, Ms. Kosteckyj had access to a wellness account of $1,000 per year. The wellness account could only be accessed if used by the employee and would not be carried over to the next year. Ms. Kosteckyj said on cross-examination that she spent the $1,000 in the wellness account each year. Based on Mr. Byrgesen’s evidence that the program is self-funded, I find that Ms. Kosteckyj is entitled to a proportional amount of the annual $1,000 wellness account. Ms.

Kosteckyj said in her affidavit that her “extended health and dental benefits terminated on April 29, 2020”, which I understand to include the wellness account. As a result, Ms. Kosteckyj she is entitled to 245 days of these benefits. Basic life insurance, dependent life insurance, accidental death and dismemberment insurance [ 64 ] The parties agree that this benefit must be paid during the reasonable notice period. The best evidence that I have is that on Ms.

Kosteckyj’s Statement of Earning and Deductions for 2019, which she included as an exhibit to her affidavit, it shows the aggregate amount of this benefit in 2019 to be $955.44. I find that Ms. Kosteckyj is entitled to a proportional share of this amount for the benefits in 2020. Since Ms. Kosteckyj’s evidence is that these benefits terminated on April 29, 2020, she is entitled to 245 days of these benefits. 2019 bonus [ 65 ] As noted above, in past years Ms. Kosteckyj received a cash bonus and an RSU bonus. The 2019 cash and RSU bonus was expected to be paid in 2020 based on 2019 performance.

The Cost Reduction Program instituted a “delay/cancellation of the 2019 Bonus Program”. Having been constructively dismissed by the implementation of the Cost Reduction Program, Ms. Kosteckyj would, on the face of it, be entitled to a 2019 bonus sometime in 2020. [ 66 ] In his affidavit, Mr.

Byrgesen says: At the conclusion of 2020, in consideration of the cancellation of the 2019 Bonus Program and in an effort to reward employees for their hard work and dedication, most employees were provided with an award of RSUs which are scheduled to vest on April 15 th , 2021 and April 15 th , 2022. [ 67 ] Paramount’s evidence confirms that, post-Cost Reduction Program, a 2019 bonus was paid to employees in 2020, albeit in RSUs only and no cash, but there was no evidence presented as to how this bonus was calculated or what Ms. Kosteckyj’s entitlement to a bonus would have been under the program.

[ 68 ] Since I have found that Ms. Kosteckyj was constructively dismissed by implementation of the Cost Reduction Program, I have to consider Ms. Kosteckyj’s bonus entitlement had the Cost Reduction Program not been implemented. In its

Summary Trial Brief, Paramount states: Paramount agrees that absent the Cost Reduction Program, and had the Plaintiff’s employment not been terminated, she may have been entitled to a bonus during the reasonable notice period as part of her compensation. Although Paramount submits the amount of this bonus would have been significantly less than the Plaintiff has calculated, given the bonus she received in the previous two years had been $1,000 and $6,267.

However, Paramount emphasizes that as the Supreme Court noted in Matthews , a plaintiff’s right to these damages can be extinguished by the terms of the applicable agreement. [ 69 ] In Matthews v Ocean Nutrition Canada Ltd , 2020 SCC 26 , the Supreme Court of Canada addressed whether bonuses should be included in damages for constructive dismissal. Mr. Matthews was a long-term senior executive with Ocean Nutrition Canada Ltd. and included in Ocean’s long-term incentive plan (“LTIP”).

Under the LTIP, a “Realization Event”, such as the sale of the company, triggered a bonus. [ 70 ] In 2007, Ocean hired a new Chief Operating Officer with who marginalized Mr. Matthews leading to a strained relationship. Mr. Matthews remained in his position and believed that Ocean would soon be sold and entitling him to payment under the LTIP. However, termination discussions occurred before any sale was realized and Mr. Matthews left Ocean. Thirteen months after Mr. Matthews’ departure, Ocean was sold and the LTIP bonus was triggered. Since Mr.

Matthews was not employed at the time of the sale, Ocean took the position that he was not entitled to the bonus under the LTIP. Mr. Matthews sued for constructive dismissal. [ 71 ] In Matthews , the Supreme Court articulated the test for evaluating whether reasonable notice damages should include bonus payments as follows, at paras 55, 58 to 61, 64 to 66 and 76: 1. Would the employee have been entitled to the bonus or benefit as part of their compensation during the reasonable notice period? a. Where the bonus is discretionary, is the bonus integral to the employee’s compensation? 2.

If yes, do the terms of the employment contract or bonus plan unambiguously take away or limit that right? a. Were any limiting clauses adequately brought to the employee’s attention? b. Do the clause(

s) at issue comply with minimum employment standards? [ 72 ] Ms. Kosteckyj was entitled to a discretionary bonus as part of her compensation during the notice period. The evidence is clear that the bonus was integral to her compensation. Mr. Byrgesen indicated, in his affidavit, that all employees, including Ms. Kosteckyj, could have a reasonable expectation of a bonus: 19. ... In addition they would be given a pre-determined annual Cash Bonus/RSU target award based on a number of factors including their job category and position level.

This award would generally represent a reasonable expectation for an annual award amount when goals were met or exceeded (but it being understood that an award was neither guaranteed nor limited). At Paramount, ... it was anticipated that a third of the award would be in cash and the remaining two-thirds would be in RSUs. [ 73 ] In Matthews , the bonus was payable upon the “Realization Event” occurring, which the court found did occur during Mr. Matthews’ reasonable notice period. Here, I found Ms. Kosteckyj is entitled to damages in lieu of being provided a reasonable notice period.

It would have been possible for Paramount to have provided Ms. Kosteckyj with reasonable working notice, but it chose not to do so. Had that occurred, subject to the agreement relating to the bonus, discussed below, Ms. Kosteckyj would have received her pre-Cost Reduction Program salary and the discretionary 2019 bonus that Paramount gave to employees during her period of working notice. The purpose of damages is to put Ms.

Kosteckyj in the position she would have been had she been able to work to the end of the reasonable notice period: Matthews , para 59 . [ 74 ] The 2019 bonus paid to Paramount employees in late 2020 consisted entirely of RSUs. Paramount relies on the wording of the Paramount Cash Bonus and Restricted Share Unit Plan (the “Plan”) for its assertion that Ms. Kosteckyj is not entitled to any 2019 bonus. The Plan was attached to Ms. Kosteckyj’s affidavit. But for her constructive dismissal, Ms.

Kosteckyj would fit the definition of “Employee”: Employee means an officer or other full time employee of the Corporation who has been hired for an indefinite as opposed to a fixed period of time; [ 75 ] Furthermore, but for her constructive dismissal, Ms. Kosteckyj would fit the definition of a “Grantee”: Incentive Awards may only be granted to Employees ... In determining the Employees to whom Incentive Awards may be granted (each a Grantee) and the amount of the Cash Bonus and/or the number of RSUs to be awarded to each Grantee, the following may be taken into account ...

Typically 1/3 of the value of an Incentive Award will be paid as a Cash Bonus and the remaining 2/3 will be granted as RSUs, but, in the discretion of the Committee, the split between Cash Bonus and RSUs may be different or an Incentive Award could be entirely composed of one of the other. ... [ 76 ] Ms. Kosteckyj had no agreement that altered the application of the Plan to her. Accordingly, Ms. Kosteckyj is bound by the terms of the Plan as it applies, in

section 6(d)(i), to the RSU bonus: Termination - If a Grantee’s employment is terminated for any reason (either with our [ sic ] without cause), effective as of the date notice of such termination is given to the Grantee, all of the Grantee’s unvested RSUs shall terminate and the Grantee shall forfeit all rights ...

such unvested RSUs. For clarity, in such events the Grantee will be conclusively deemed for the purposes of this Plan to have ceased to be an officer or employee of the Corporation on the date of notice of the Grantee’s termination, and not on the date of expiry of any period of reasonable notice, or statutory or common law severance period, that the Corporation may be required at law to provide to the Grantee. [ 77 ]

Section 6(d)(

i) of the Plan extinguishes Ms. Kosteckyj’s right to an RSU bonus. Since that was all that was available to Paramount employees during her reasonable notice period, she has no entitlement to a 2019 bonus. 2020 bonus [ 78 ] Ms. Kosteckyj is not entitled to a 2020 bonus because her notice period extends only to December 31, 2020 and the 2020 bonus would be payable after the notice period expires. Is Ms. Kosteckyj entitled to damages for: Professional dues [ 79 ] Ms. Kosteckyj is required to mitigate her damages. She worked as a professional engineer for Paramount. I find that Ms.

Kosteckyj is entitled to the cost of maintaining her professional status as an engineer during the reasonable notice period, which was $411.60. This amount is not prorated for the reasonable notice period because I have no evidence before me that Ms. Kosteckyj had any option but to pay for renewal of her professional registration for an entire year. Costs of upgrading [ 80 ] After her termination, Ms. Kosteckyj undertook courses to qualify as a pressure vessel inspector. Her evidence was that this course was taken in an effort to find new employment and mitigate her damages. I accept Ms.

Kosteckyj’s evidence on this point and I find that she is entitled to the course registration and material costs of $4,499.50. Were Ms. Kosteckyj’s mitigation efforts adequate? [ 81 ] Ms. Kosteckyj asserts that she has made reasonable efforts to mitigate her damages and that her lack of finding new employment should be seen in light of the economic downtown and its particular effect on her field of expertise. The Covid-19 pandemic has been noted above. I take judicial notice that in Calgary, around March 15, 2020, most non-essential businesses closed their workplaces and migrated to remote work.

Less than two weeks later, the Cost Reduction Program was announced. About 5½ weeks after the initial closure of non-essential workplaces, Ms. Kosteckyj was terminated. Not only had there been an economic downturn in oil and gas before the pandemic took hold, looking for a new job in the midst of pandemic when so many businesses were assessing what resources they required, and were changing all of their communication practices, must have had a negative effect on every job seeker’s ability to seek a new opportunity. [ 82 ] After termination, Ms.

Kosteckyj updated her profiles on various profession social media sites, began networking with contacts in the industry and investigated courses that would be appropriate for her area of expertise. As noted above, Ms. Kosteckyj took a course, in August 2020, to become a pressure vessel inspector and took the 6½ hour exam in September 2020. [ 83 ] Ms. Kosteckyj attended a one-day session targeted to help former oil and gas sector employees find new employment. Paramount gave Ms. Kosteckyj access to a one-month career management program with an employment transition firm. At her termination meeting, Ms.

Kosteckyj was advised to use the program in the fall of 2020. In September 2020, Ms. Kosteckyj contacted the employment transition firm and participated in weekly coaching calls. Between July and October 2020, Ms. Kosteckyj applied for 10 jobs and more after that date. [ 84 ] The onus of proving a failure to mitigate rests on the employer and is not an easy burden to discharge: Lovely v Prestige Travel Ltd. , 2013 ABQB 467 , para 127 . I find that Ms. Kosteckyj’s attempts to mitigate have been adequate, especially in light of the Covid-19 pandemic conditions. Conclusion [ 85 ] Ms.

Kosteckyj acknowledges that she was paid statutory severance in the amount of $14,884.62 which will be deducted from damages that would otherwise be payable to her. In addition, she is entitled to 9 months reasonable notice from April 1, 2020 to December 31, 2020. Because she worked at Paramount between April 1 and 22, 2020, the salary she earned during that period must also be deducted from any damages payable.

Although 2020 was a leap year, I find that is not relevant to the calculations and have used a proportionate amount of 365 days for the calculations below: Description Annual Amount Proportional amount Damages for reasonable notice Base Annual Salary 2020 $154,800.00 75% $ 116,100.00 RRSP contribution 2020 6% $ 9,288.00 75% $ 6,966.00 Health and dental benefits $ 1,244.00 100% $ 1,244.00 Wellness account $ 1,000.00 67.12% $ 671.20

Life and AD&D insurance $ 955.44 67.12% $ 641.29 Professional dues (APEGA) $ 411.60 100% $ 411.60 Costs of upgrading $ 4,499.50 100% $ 4,499.50 Payment on termination $ 14,884.62 100% $ ( 14,884.62 ) Less 22 days of reduced April 2020 salary $139,320.00 6.03% $ (8,401.00) $ 107,247.97 [ 86 ] Ms. Kosteckyj is entitled to interest on $107,247.97 pursuant to the Judgment Interest Act . She is also entitled to costs. In the event that the parties cannot agree to the costs payable to Ms. Kosteckyj, then they may contact me within 30 days of the date of these reasons for further direction.

Heard on the 11 th day of February, 2021, further written submissions received February 17, 2021 and February 24, 2021. Dated at the City of Calgary, Alberta this 24 th day of March, 2021. E.J. Sidnell J.C.Q.B.A. Appearances: Jennifer Joss for the Plaintiff D. Robb Beeman for the Defendant