AG Growth International Inc (AGI-Westeel) v Dupont, 2021 ABQB 793

Court of Queen’s Bench of Alberta Citation: AG Growth International Inc (AGI-Westeel) v Dupont, 2021 ABQB 793 Date: 20211001 Docket: 2110 00440 Registry: Red Deer Between: AG Growth International Inc. operating as AGI-Westeel Appellant - and - Tyler Earl Dupont Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice J.S.

Little _______________________________________________________ I Overview [ 1 ] For reasons given at 2021 ABQB 663 , I granted the appeal of AG Growth International (Westeel) from a Provincial Court trial judgment which awarded damages of approximately $46,000, representing 10 months wages, to Mr. Dupont for wrongful dismissal. On the issue of costs, I stated that “[o]rdinarily Westeel as the successful party would have its costs here and in the court below” but directed counsel to seek my assistance if they could not agree on costs. II Arguments [ 2 ] Ms.

Hagg for Westeel in her written submissions relies on my statement quoted above and has submitted a Bill of Costs for $8308.73 comprised of $5302.50 in Provincial Court costs for the two day trial and $2356.65 for the Queen’s Bench appeal. I take no issue with the amount of those costs.

[3] Mr. Boris as counsel for Mr. Dupont argues that my statement quoted above suggests that I have some reservations aboutawarding costs to the successful party in this particular situation and that I ought to exercise my discretion in favour of leniency towardshis client and let the parties bear their own costs. [4] In support of his argument, Mr. Boris points out that:

a) Mr. Dupont has not found another full-time job since his termination in early 2019.

b) He lost his home to foreclosure as a result.

c) Because he cannot afford a family law lawyer and cannot pay child support, his ex spouse refuses him access to his youngdaughter.

d) His only asset is a vehicle valued at around $2000.

e) Because of a brain injury suffered 15 years ago, he has severe cognitive issues. While he worked as a welder for Westeel for 10years, he is incapable of obtaining a designation in that trade.

f) According to its website, Westeel has a market cap in the region of $540M with quarterly sales of $300M. III Analysis [5] Costs are discretionary: Rule 10.29(1)(a). But judicial discretion must be exercised according to legal criteria: Pelech vPelech, (SCC). The general rule is that the winner is entitled to costs, and I am not at liberty to disregard that generalrule because a costs award would cause hardship to the losing litigant. Nor should I consider impecuniosity: Anderson v CanadaSafeway Limited, 2005 ABCA 6. [6] The factors I may consider are set out in Rule 10.33(1): (

a) The result of the action and the degree of success of each party; (

b) The amount claimed and the amount recovered; (

c) The importance of the issues; (

d) The complexity of the action; (

e) The apportionment of liability; (

f) The conduct of a party that tended to shorten an action; (

g) Any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [7] Applying those factors to the trial and appeal, Westeel was successful in the appeal. But at trial, where Mr. Dupont wassuccessful, he sought damages for eleven months employment and received ten, so he was not overshooting. The action was notcomplex, apportionment of liability was not in issue, and I have no information respecting the conduct of either party to shorten theaction except that the trial judge noted that Mr.

Dupont had not delayed prosecution of the case. [8] That leaves one specific criterion, importance of the issues, and the more general criterion of what else I considerappropriate. [9] The issue in the trial and appeal was serious, namely whether or when sexual assault/sexual harassment gives rise totermination of the offender’s employment.

How that issue is resolved is important to both employees and employers, but it is employerswho need to know what policies ought to be adopted and what procedures ought to be followed when confronted with situations like this.For that reason, Westeel had good cause to challenge the trial court decision. It was not a case of a huge employer using an appeal as amethod of avoiding payment of less than $50,000. Rather, the employer challenged a result with long term implications for itsrelationship with its employees. [10] As to what else I consider appropriate, Mr. Dupont was a long term employee.

He is subject to a disability. While I concludedthat the trial judgment cannot stand because the trial judge’s reasoning respecting the degree of seriousness of the sexual assault beganfrom an incorrect starting point, it does not automatically follow that he would not have reached the same conclusion using the correctstarting point. IV Conclusion [11] On balance, I believe that it would be equitable that each party bear its own costs of the trial and that Westeel be entitled tothe costs of the appeal, namely $2356.65. Whether it elects to pursue those costs, given Mr. Dupont’s financial situation, is a business

decision it can make. [ 12 ] Thank you to counsel for their written submissions. Written submissions received September 30, 2021. Dated at the City of Red Deer, Alberta this 1 st day of October, 2021. J.S. Little J.C.Q.B.A. Appearances: Kristen Danielle Hagg HMC Lawyers LLP for the Appellant David Michael Boris Tulloch Boris Law Office for the Respondent