Cordeau-Chatelain v Total E&P Canada Ltd, 2021 ABQB 794

Court of Queen’s Bench of Alberta Citation: Cordeau-Chatelain v Total E&P Canada Ltd, 2021 ABQB 794 Date: 20211005 Docket: 1801 09517 Registry: Calgary Between: Elizabeth Cordeau-Chatelain Plaintiff - and - Total E&P Canada Ltd. Defendant Corrected judgment: A corrigendum was issued on October 25, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.C. Price _______________________________________________________ I. Introduction

[ 1 ] The Plaintiff, Elizabeth Cordeau-Chatelain, seeks damages for wrongful dismissal against her former employer, the Defendant, Total E&P Canada Ltd. (“TEPCA”). The primary issues are the length of the notice period and the date that notice was given. [ 2 ] The damage calculation requires the determination of several issues which were argued before me at a four-day trial in June 2021. The Plaintiff was the only witness in her case. The Defendant called Ms. Vanita Haining and Mr. Adedeji Ogunnubi, both TEPCA employees.

Also in evidence at the trial was an Agreed Initial Exhibit Book and an Agreed Statement of Facts. II. Preliminary Issue [ 3 ] A preliminary issue arose at trial with respect to a proposed amendment to the Statement of Claim. In the later years of her employment, the Plaintiff was paid in CHF (Swiss francs). In her original Statement of Claim, the Plaintiff calculated her damage claim based on the currency conversion rate set out in her employment contract.

At the start of the trial, the Plaintiff applied to amend her Statement of Claim to instead claim damages based on the actual conversion rate as it existed on the date of her termination. [ 4 ] The Defendant opposed this on the grounds that the use of the contractual conversion rate in the original Statement of Claim constituted an admission, and also that the Defendant had not prepared witnesses to speak to the conversion rate and so would be prejudiced by the late amendment. [ 5 ] I allowed the amendment subject to the parties entering into an Agreed Statement of Facts, which was submitted as an exhibit in the trial.

In any event, for reasons set out below I find that no conversion calculation is necessary to determine the quantum of damages. III. Background Facts [ 6 ] Ms. Cordeau-Chatelain was hired by TEPCA to the position of “Communications Manager” on August 5, 2008. She worked at TEPCA in that role until June 2013, at which time her compensation included salary, benefits, and both short-term incentives (“STI”) and long-term incentives (“LTI”). [ 7 ] TEPCA is a Canadian subsidiary of Total S.A., a French corporation and one of the world’s largest energy companies. In June 2013, Ms.

Cordeau-Chatelain accepted a secondment with Total Gestion Internationale S.A. (“TGI”), another subsidiary of Total S.A., where she worked until her secondment ended on March 31, 2017. The secondment required her to move to Paris, France, which she did with her husband on June 29, 2013. [ 8 ] During her time at TGI, Ms. Cordeau-Chatelain’s employment with TEPCA was “suspended”. The terms regarding her suspension of her employment was set out in a letter dated June 13, 2014 from TEPCA. This letter states “[w]hen your TGI Contract ends, your TEPCA Contract will resume”.

It is not disputed that this letter formed part of Ms. Cordeau-Chatelain’s employment agreement with TEPCA. [ 9 ] For the duration of her employment with TEPCA and TGI (collectively the “Total group”), Ms. Cordeau-Chatelain held senior communications positions. [ 10 ] Ms. Cordeau-Chatelain’s employment with the Total group ended on March 31, 2017. IV. Issues [ 11 ] The issues are: A. When was notice of termination given to the Plaintiff by the Defendant? B. What is the appropriate period of reasonable notice? C. What was the Plaintiff’s salary, in Canadian dollars, at the time of her termination? D.

What benefits is the Plaintiff entitled to recover and for what period of time? E. Is the Plaintiff entitled to recover any STI or LTI for the notice period and if so, what amount? F. Did the Plaintiff mitigate her losses? G. Is the plaintiff entitled to recover mitigation expenses? If yes, what amounts? H. What is the total damages calculation? V. Law and Analysis A. When Was Notice of Termination Given to the Plaintiff by the Defendant?

[12] Under the relevant agreements, the length of Ms. Cordeau-Chatelain’s employment with TEPCA and TGI was“undetermined”: they were both indefinite-term contracts. [13] An employer must give notice before terminating an employment agreement without cause. The Defendant does not allegecause. Notice was described in Deputat v Edmonton School District No. 7, 2008 ABCA 13 at paras 9-11: "Notice" is just information that the employment will end on a certain date. In the meantime, the employment continues. Notice does notequate to money.

Notice to an employee, i.e. giving information, is effective whatever the employee is doing at the time, or does later. Notice is validregardless of whether the employee is then actually working at his desk, is at home outside office hours, is at home on a weekend, or ison annual vacation. The employee just has to get the information. The purpose of notice of impending termination is not to pay; it is to let the employee arrange his affairs, especially to find a new job.That he is still working does not prevent that. [14] Notice must be specific, unequivocal, and clearly communicated.

The onus of proving that such notice was given rests on theemployer: Yeager v R.J. Hastings Agencies Ltd., (BC SC), [1984] BCJ No 2722 (SC) at para 40. [15] On February 23, 2017, TEPCA sent a letter to Ms. Cordeau-Chatelain which reads, in part: Re: Termination of Employment with Total E&P Canada (“TEPCA”) We regretfully inform you that your employment with TEPCA will terminate effective 31 March 2017 (“the Effective Date”). Until theEffective Date, you will continue as an employee of TEPCA, and will be required to perform your duties and responsibilities.

You willcontinue to receive your salary and benefits up to the Effective Date. ... You will be paid all outstanding wages, vacation pay, holiday pay, valid unpaid expenses, and any other money owed to you. If you haveany expenses that have not been remitted for reimbursement, please return your expense claim and receipts for those expenses no laterthan your Effective Date. You will also be paid the sum of $25,104, which represents pay in lieu of notice as required by the Alberta Employment Standards Code. [16] The parties agree that this letter amounts to notice.

Therefore, February 23, 2017 is the latest possible date of notice. The issueis whether Ms. Cordeau-Chatelain was provided with sufficient notice on an earlier date. [17] TEPCA’s Amended Statement of Defence states that the February 23, 2017 letter was its notice to Ms. Cordeau-Chatelain,and that TGI told her in October 2016 that she would be returning to employment at TEPCA. The affidavit sworn by Ms. Haining alsostates that TEPCA confirmed to the Plaintiff on February 23, 2017 that her employment would terminate.

However, at trial TEPCAargued that an earlier notice date applied. [18] TEPCA describes the February 23 letter as “confirming” prior notice. TEPCA’s position is that Ms. Cordeau-Chatelain wastold about her termination from TEPCA around the same time that she was given notice of her termination from TGI. It is agreed thatshe received notice from TGI in October 2016. Sometime in October or November 2016 she spoke with Natalie Hay, a human resourcesemployee of TEPCA. It was at this meeting or in subsequent correspondence in November or December 2016, says the Defendant, thatMs. Hay gave Ms.

Cordeau-Chatelain notice of termination from TEPCA. [19] There is a chain of email correspondence in evidence dated November 30, 2016 between Ms. Cordeau-Chatelain and Ms. Hay. The emails arranged a phone call between them on December 7th, 2016 so Ms. Hay could “explain what [TEPCA’s] process will beand discuss next steps”. [20] Ms. Cordeau-Chatelain’s testimony about her communication with Ms. Hay was somewhat inconsistent. Under cross-examination she appeared to admit that Ms. Hay had told her that there would be no position for her at TEPCA when her TGI contractended.

On redirect, she clarified that she did not recall what Ms. Hay had said with respect to her TEPCA employment, and onlyremembered being told that her TGI employment was ending and she would be receiving further documents from TEPCA in February2017. [21] She admitted to being nervous on the witness stand. She testified that she had difficulty recalling specifics because nearly fiveyears had passed and she was discussing an emotional and confusing time in her life.

I was given no reason to doubt her credibility, but Ifind that her reliability on this topic was somewhat lessened by the passage of time and her mental state. [22] However, Ms. Hay was not called to testify, and I was offered no explanation as to why. The Defendant called Ms. VanitaHaining, who was Ms. Hay’s supervisor at the relevant time, but Ms. Haining admitted under cross-examination that she had not directlycommunicated with Ms. Cordeau-Chatelain about her termination, and only knew what Ms. Hay had reported to her. Ms.

Cordeau-Chatelain’s testimony is therefore the only firsthand evidence about their communication. [23] The Defendant points to an October 21, 2016 email, sent by Ms. Cordeau-Chatelain to business contacts in Calgary, asevidence that notice had been provided by that date. The relevant

section of the email sent reads: I am reaching out because my expatriation will be coming to an end in March 2017. And, given the conditions in Calgary combined withTotal Canada’s pull-back from its oil sands investments (other than as an OBO partner), I will be returning to a severance package and aneed to find another job.

While I know I have ample time to consider my next move, I am being proactive by reaching out to those who can guide me throughout this process. [ 24 ] The Defendant says this letter demonstrates that Ms. Cordeau-Chatelain knew her TEPCA employment was ending by October 21, 2016. They say this supports their claim that Ms. Hay gave Ms. Cordeau-Chatelain notice before this time. [ 25 ] I disagree for three reasons. First, it has not been established that any conversation between Ms. Cordeau-Chatelain and Ms. Hay occurred before this date.

None of the witnesses could place any communication with more precision than sometime in October or November of 2016, so this email does not necessarily support TEPCA’s theory. Second, the severance package referred to in the email could just as easily refer to one from TGI. I am unable to determine otherwise on a balance of probabilities. Third, the subject of this email can be explained by Ms. Cordeau-Chatelain acting prudently, having just received notice of termination from TGI.

She testified that her termination from TGI had been unexpected, so it is reasonable that she would develop doubts about her future with TEPCA at the same time. [ 26 ] It may be the case that Ms. Cordeau-Chatelain suspected, or even felt that she knew, as early as October 2016 that her TEPCA employment would not continue after her TGI contract ended. She may have felt the need to get her affairs in order and prepare for that possibility. However, that is not the issue.

The issue is whether TEPCA provided her with specific, unequivocal, and clear notice of her termination before February 23, 2017. [ 27 ] The evidence on the record does not satisfy me that TEPCA discharged its burden. The only direct, admissible evidence of the conversation with Ms. Hay is the testimony of the Plaintiff, and she could not recall those details with accuracy or specificity. The October 21, 2016 email indicates two things: Ms. Cordeau-Chatelain was looking at other employment, and she was expecting a severance package.

The first is explained by prudence: her termination from TGI had been unexpected and she knew that market conditions were poor, it made sense to explore her options. The second indicates that it would be her expectation that she would be receiving a severance package if she were indeed terminated by TEPCA. [ 28 ] In sum, it is possible that Ms. Cordeau-Chatelain saw the writing on the wall earlier than February 2017, but that does not discharge TEPCA’s burden. Accordingly, I find that, for the purpose of calculating damages, TEPCA gave Ms. Cordeau-Chatelain notice of termination on February 23, 2017.

Adverse Inference [ 29 ] The Plaintiff asks me to draw the adverse inference that Ms. Hay was not called because her evidence would confirm that she gave no notice to Ms. Cordeau-Chatelain. However, my finding above renders this determination unnecessary, as the adverse inference would only further support the conclusion that the Defendant failed to give notice earlier than its letter of February 23, 2017. [ 30 ] Adverse inference was raised only in the Plaintiff’s closing argument and was not debated between counsel.

For this reason, and because it is unnecessary for my conclusion, I decline to decide the issue of adverse inference on the evidence before me. B. What Was the Plaintiff’s Salary, in Canadian Dollars, at the Time of Her Termination? [ 31 ] This issue arises because the Plaintiff’s salary was paid in Swiss francs while she was seconded to TGI. The issue of currency conversion was raised in an amendment to the Statement of Claim at trial, as discussed above. [ 32 ] On July 1, 2013, Ms. Cordeau-Chatelain signed an employment contract with TGI.

This contract fixed the currency exchange rate at 1 CAD = 0.9365 CHF for the duration of her secondment. The Plaintiff now claims damages from TEPCA based on her TGI base salary multiplied by the conversion rate as it existed on April 1, 2017: the day after her termination.

It was admitted by the parties as an agreed fact that the conversion rate as at April 1, 2017 is 1 CAD = 0.7510 CHF (or 1 Swiss franc is 1.133157 Canadian dollars). [ 33 ] However, the evidence established that her salary was always set by TEPCA in Canadian dollars, even while she was seconded to TGI and she was paid in Swiss francs. [ 34 ] Mr. Ogunnubi is a human resources manager at TEPCA and long-time Total employee. He testified that TEPCA employees who are seconded abroad have their salaries set in Canadian dollars, by TEPCA, with reference to the Canadian market.

He further explained that this policy is designed to ensure fairness with Canadian colleagues who are not chosen for a secondment, and to ensure that employees who return from secondment do so at a compensation level commensurate to local salary conditions. [ 35 ] Mr. Ogunnubi’s evidence was that while she was seconded, Ms. Cordeau-Chatelain’s job performance was evaluated each year by TGI and that information was sent to TEPCA. TEPCA then generated a Canadian Reference Salary Report detailing any salary adjustments, in Canadian dollars, and transmitted it to TGI.

Finally, TGI converted the currency to Swiss francs at the contractual rate to arrive at the Plaintiff’s new annual salary. [ 36 ] Furthermore in the Agreed Statement of Facts submitted by the parties, it was agreed that: “4. While working in Paris for TGI, Ms. Cordeau-Chatelain was paid in Swiss Francs (“CHF”). However throughout her employment with TGI, Ms. Cordeau-Chatelain’s base salary was set by TEPCA in CAD and communicated by TEPCA to TGI. TGI then converted the base salary to CHF. 5. In 2016, TEPCA set Ms. Cordeau-Chatelain’s base salary at $217,566.00 CAD and communicated that salary to TGI.

TGI converted that sum to 203’748 CHF and paid Ms. Cordeau-Chatelain that sum through to the conclusion of her employment on March 31, 2017.”

[37] I find on this evidence that no currency conversion is necessary to determine the Plaintiff’s base salary because it was alwaysoriginally fixed in Canadian dollars by TEPCA and then converted by TGI. Ms. Cordeau-Chatelain’s TGI salary in Swiss francs isirrelevant for the purposes of calculating the damages in this case. [38] It was agreed by the parties that Ms. Cordeau-Chatelain’s salary just prior to her termination was $217,566.00 CAD, thereforeI find that this is her annual base salary. C. What is the Appropriate Period of Reasonable Notice? [39] There was no contractual notice period limitation in Ms.

Cordeau-Chatelain’s employment agreement with TEPCA,accordingly, the common law rules on reasonable notice apply. [40] The factors for determining reasonable notice are set out in the oft-cited case of Bardal v Globe & Mail Ltd., (ON SC), [1960] 24 DLR (2d) 140 (ON HC) at p. 145: 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. [41] This list of factors is not exhaustive: Wallace v United Grain Growers Ltd, (MB KB), [1993] 87 Man R(2d) 161 (QB), app allowed (MB CA), [1995] 102 Man R (2d) 161 (CA), app allowed in part (SCC), [1997] 3 SCR 701.

The purpose of notice, from Lovely v Prestige Travel, 2013 ABQB 467 at para 148, is not to punish theemployer, but rather: ...to increase the likelihood that there will be no hiatus between the end date of existing employment and the worker’s reestablishment ofa new employment relationship and the income stream this represents. [42] Ms. Cordeau-Chatelain worked at the Total group for 8 years and 7 months. At the time of her dismissal she was 52 years oldand her job title was “Head of Governance and Métier Support”. I note that “métier” is the French word for “profession”.

She reported tothe Vice President, E&P Communications and directly oversaw a staff of 3 people and a student. [43] The position required 20 years of experience in communications and excellent French and English proficiency, both of whichshe had. Before working at TEPCA, she obtained a bachelor of arts degree. [44] Ms. Cordeau-Chatelain’s responsibilities as Head of Governance and Métier Support covered a broad range of activities. Sheadvised and assisted communications staff across Total subsidiaries in creating and implementing policies.

She drafted and editedcorrespondence for the E&P division, including official diplomatic correspondence of the President and CEO. She testified that the workrequired significant communications skill and experience. Her testimony is supported by the job description in the Agreed Book ofExhibits. [45] Her position was specialized and unique. It was a well-compensated, senior-level communications position at the fourth-largest oil and gas company in the world. It involved communication across borders, engaged political and social issues, and workedclosely with the global leadership of Total.

I accept that there are relatively few positions of that nature in the job market. [46] The Total group employs a system called the Hay Group Guide Chart for ranking positions within its corporate structure.Under that system, Communications Manager is classified as NP-14 and Head of Governance & Métier Support is classified as NP-15,which are both “middle management” according to Total’s internal designation. Positions in the range of NP-16 and above arecategorized as “top management”. Ms.

Cordeau-Chatelain never reached a top management position, but she did reach the top of themiddle management range and she herself reported directly to top management. [47] It was established that, starting in 2015, both the Total group and the Calgary economy began suffering due to economicconditions in the global oil market. The Plaintiff testified that this affected her ability to find employment after her termination, with theresult that she did not find suitable employment until July 2020, and only then after having to retrain into a completely differentprofession. To illustrate this further, it took Ms.

Cordeau-Chatelain 39 months (over 3 years) to find suitable employment after hertermination from TEPCA. [48] The Plaintiff submits that 15-18 months notice is reasonable, tending toward the higher end of the range. The Defendantargues for a period of 8-12 months. Both parties supplied case law to support their positions, a representative sample of the cases eachparty relied on is summarized below. Sample of Plaintiff’s Case Law [49] Rice v Shell Global Solutions Canada Inc, 2019 ABQB 277. This case concerned a 53-year-old chartered accountant with 8years and 7 months of service who led a team of six people.

She lived in Calgary and was terminated in 2017, then found new work after8 months. Eamon J held that her contract was for a fixed-term and awarded damages accordingly, but wrote in obiter that if the contractwas indefinite such that the common law rules applied, he would have awarded 15 months notice. [50] In Gordon v Abbott Laboratories Ltd., (ON SC), [1995] 14 CCEL (2d) 95 (ON SC), a 46-year-old middlemanager with 9 years of service was constructively dismissed and given 15 months severance. The Court noted that he was highly paidand had a highly specialized role for a middle manager.

[51] Langan v Kootenay Regional Mètis Association, 2008 BCSC 1169. This case involved a man who was the chiefadministrative officer of the association for 6 years before being dismissed at age 46. The Court considered this position to be senioradministration and noted the lack of similar employment, assessing 15 months notice. Sample of Defendant’s Case Law [52] Schalkwyk v Hyundai Auto Canada Inc., (ON SC), [1995] 16 CCEL (2d) 132 (ON SC).

The OntarioSuperior Court awarded 9 months notice to a 54-year-old male National Marketing Development Manager with 8 years of service. [53] Andros v Colliers Mecaulay Nicolls, 2018 ONSC 1256, aff’d 2019 ONCA 679. The Ontario Court of Appeal affirmed 8months notice to a 45-year-old managing director. The Court noted his “relatively young age” and good prospects of finding similaremployment. [54] Spooner v Ridley Terminals Inc., (BC SC), [1991] 62 BCLR (2d) 132 (SC). The BC Supreme Court foundthat reasonable notice for 52-year-old human resources manager with 8 years of service was 12 months.

Her age was considered a neutralfactor in the circumstances. Ms. Cordeau-Chatelain’s Reasonable Notice Period [55] Some of the Defendant’s cases concern plaintiffs classified as middle management, and in argument counsel for theDefendant referred to Ms. Cordeau-Chatelain’s position on the Hay Group Guide Chart. While I recognize that Total’s internalclassification system placed Ms. Cordeau Chatelain as a middle manager, I find that the character of her employment was specialized andunique.

It was very different and distinguishable from what the case law provided considers middle management. [56] The Plaintiff in Schalkwyk, for example, never made more than $68,000 in salary and had no international responsibilities.Ms. Cordeau-Chatelain was deeply involved in coordinating and implementing global communications at a massive multinational oilcompany. This is not the sort of position that comes to mind from the phrase “middle management”, and was only classified as such inthe context of Total’s operating structure.

In my opinion, the unique character of the position indicates a longer notice period: Bahrami vAGS Flexitallic Inc., 2015 ABQB 536. [57] The Defendant’s most factually similar case is Spooner. The defendant in that case also used the Hay Group system forranking employees and the plaintiff fell outside the inner circle of executives. However, the BC Supreme Court noted that while herposition was unusually high-paying, she still had good prospects for finding similar employment, and there is no mention of economicdownturn. The plaintiff in that case was also terminated in the city where she primarily resided.

The employer in Spooner was smallerand the character of the work was more commonplace. [58] I favour the authority of Rice, as it is the most factually similar case made available to me and was decided very recently. Theplaintiff was similar in age and had the same years of service as Ms.

Cordeau-Chatelain, and she was terminated in Calgary in 2017.Based on these similarities, I find that an appropriate starting point is the 15-month notice period set out in obiter by Eamon J. [59] While case law is useful as a general guideline, it is well understood that each case must be decided on its own facts and ineach case the fact situation will be different. In this case, Ms. Cordeau-Chatelain’s position at TEPCA was highly specialized andunique, I would even say rare.

She testified that when she discussed the job, even other communications professionals at her level weresurprised by some of her responsibilities. The plaintiff in Rice was a senior accountant, but her position did not have the uniquecharacteristics of Ms. Cordeau-Chatelain’s. This in my opinion suggests that a longer notice period would be appropriate in thecircumstances: Gordon at paras 66-67; Langan. [60] When she was notified of her termination, she had been living in Paris, France for over three years and had naturally losttouch with her network of business contacts in Canada.

It is reasonable that this factor should extend the notice period due to the practicaldifficulties of seeking new employment from abroad. [61] She was also job hunting in a bad economy, specifically in the oil business and in Calgary, which Eamon J accepted as afactor in Rice. While Ms. Cordeau-Chatelain’s job search looked across Canada and she ultimately settled in Vancouver, I accept that herbusiness network was largely in Calgary, so the local economy affected her ability to find work. [62] Furthermore, she had to retrain and it took her over 3 years to find suitable employment. [63] Also, Ms.

Cordeau-Chatelain was 53 years old at the time of termination and testified to experiencing ageism during her jobsearch. I take judicial notice of the compounding negative effects that gender and age can have on a woman in the professional jobmarket, especially at the management level at which Ms. Cordeau-Chatelain operated, the specialized and unique type of the work thatshe did, the area of work she was in (energy sector), and the economic downturn and poor market and job opportunities available to her. [64] These factors indicate a higher notice period than the 15 months reached in Rice.

I find that the reasonable notice period forMs. Cordeau-Chatelain is 18 months, particularly due to her age combined with her gender, the specialized and unique type of work thatshe did with the Total group and the fact that she had to begin her job search from abroad after spending several years working outsideCanada. Therefore, the notice period runs from February 23, 2017 to August 23, 2018. Given her base salary of $217,566.00, thedamages owing for lost base salary over the 18-month notice period are $326,349.00. D.

What Benefits is the Plaintiff Entitled to Recover and for What Period of Time? [65] I note that TEPCA has already paid Ms. Cordeau-Chatelain certain sums which it is entitled to deduct from damages, I willaddress these after I have assessed the damages owing.

[66] In addition to salary, the Plaintiff is entitled to damages for the benefits she would have received during her notice period. Asstated in Turner v Westburne Electrical Inc., 2004 ABQB 605: I believe that the law in this Province was clearly set out by the Alberta Court of Appeal in Rahmath v. Louisiana Land & ExplorationCo. (1989), 1989 ABCA 100 , 59 D.L.R. (4th) 606 (Alta.C.A.) (at 608): In my view, the employee was entitled to the worth of the benefit which would otherwise have been provided.

That worth is the value ofthe risk that employer met by the insurance, which may be properly measured by the amount of the premiums which have been paidduring the notice period. This has been interpreted as meaning that the employee is entitled to whatever contributions to benefit premiums the employer wouldhave paid over the course of the notice period: Kinch v. Amoco Canada Petroleum Co., 1998 ABQB 171 , [1998] A.J. No.38(Q.B.), Clark v. Fiberglas Canada Inc., [1993] A.J. No.74 (Q.B.). [67] Ms. Cordeau-Chatelain chose not to purchase a private benefit plan after her termination.

TEPCA raised the case of Davey vSyncrude Canada Ltd., 2001 ABQB 652, aff’d 2004 ABCA 190, for the proposition that I may choose to award damages based on thecost to the Plaintiff of paying to replace her benefits, which would be zero, instead of the amount the Defendant would have had to payduring the notice period. [68] In my view, this is not an accurate statement of the law in Alberta. As Verville J wrote in Deputat v Edmonton SchoolDistrict No. 7, 2006 ABQB 549, appeal allowed in

part 2008 ABCA 13, at para 83: In Davey v. Syncrude Canada Ltd., supra, Langston J. insisted on the plaintiff proving an actual loss. He stated at paras. 46 and 48: The Plaintiff is entitled to compensation for expenses he incurred in replacing benefits which he would otherwise have been entitled topursuant to the employment contract. However he cannot recover for the loss of fringe benefits in the absence of proof that he hasactually suffered by reason of their absence.

To the extent that the Plaintiff paid for coverage under Alberta Health Care or its equivalent, Alberta Blue Cross or its equivalent, andfor dental coverage for which he was not otherwise reimbursed, he is entitled to recover the equivalent of the employer’s contributions tothose plans as they existed at the time of termination. The Alberta Court of Appeal at (2004), 33 C.C.E.L. (3d) 50, 2004 ABCA 190 dismissed the appeal but only examined the issue ofwhether Syncrude had cause for terminating the plaintiff. Gerow J. of the British Columbia Supreme Court in Matheson v.

Canadian Freightways Ltd. (2003), 30 C.C.E.L. (3d) 159, 2003 BCSC1728 came to the same conclusion as Langston J. in Davey. However, the decision in Davey is inconsistent with the previous AlbertaCourt of Appeal decisions in Rahmath and Christianson and subsequent Alberta courts have not followed it. [emphasis added] [69] Therefore, I choose to follow the approach taken in Turner and award damages based on the cost to the employer of providingthe benefits. It is not in dispute that the annual cost to TEPCA of Ms.

Cordeau-Chatelain’s health and insurance benefits was $12,124.00.Multiplying this figure by 1.5 arrives at the cost for the 18-month notice period which is: $18,186.00. E. Is the Plaintiff Entitled to Recover Any STI or LTI For the Notice Period and ifso, What Amount? [70] The Defendant conceded that Ms. Cordeau-Chatelain is entitled to any STI or LTI which would have accrued to her during thenotice period had she remained employed at TEPCA.

This is in line with the most recent Supreme Court jurisprudence on the subject:Matthews v Ocean Nutrition Canada Ltd., 2020 SCC 26. [71] TEPCA paid out LTI in February each year and February 2018 falls within the notice period. Ms. Haining’s evidence is thatMs. Cordeau-Chatelain would have received $79,063.27 in LTI if she had been employed on that date. There was no issue raised by thePlaintiff with that calculation, accordingly, I award Ms. Cordeau-Chatelain damages in that amount for her loss of LTI. [72] Since the 18-month notice period covers another full calendar year, Ms.

Cordeau-Chatelain would also have been entitled toanother STI payment. The STI program paid out certain amounts each year based on the employee’s performance, expressed as apercentage of the employee’s base salary. The range in Ms. Cordeau-Chatelain’s contract with TEPCA was 0% to 40%. [73] Ms. Cordeau-Chatelain was a consistent high-achiever and regularly received strong annual performance reviews. Both sheand Ms. Haining testified that her ratings were consistently above average. Her high performance was, in fact, one reason for hereligibility for the secondment to TGI.

However, since she did not actually work past March 2017 it is impossible to know what her STIbonus would actually have been. [74] In Hyland v Advertising Directory Solutions Inc., 2014 ABQB 336, Bensler J wrote at para 36: In cases where it was impossible to calculate the precise bonus amount an employee would have earned during the reasonable noticeperiod, some courts have quantified the bonus based on the average amount of recent bonuses.

Other courts have looked to theterminated employee's most recent bonus. [75] In Noble v Principal Consultants Ltd., 2000 ABCA 133, the majority endorsed an approach to performance-based damagesbased on previous years’ amounts. The bonus in question was based on corporate performance, but I see no reason that the same principlecould not apply to employee performance bonuses.

[76] I have the discretion to decide how to calculate STI for the purpose of damages. Given the uncontroverted evidence that Ms.Cordeau-Chatelain was a consistent high performer and that the STI amount was based on her performance reviews, I find it fair toaward damages based on the average of the Plaintiff’s three most recent STI payments. Counsel submitted that the calculation of thisamount is $49,825.38. I award damages in that amount. F.

Did the Plaintiff Mitigate Her Losses? [77] The Plaintiff was obligated to make objectively reasonable efforts to mitigate her losses flowing from the wrongfultermination: Christianson v North Hill News Inc., 1993 ABCA 232 , [1993] 145 AR 58 (CA) at para 11. The onus for provinga failure to mitigate falls on the Defendant: Coyes v Ocelot Industries Ltd., (AB KB), [1984] 56 AR 241 (QB) at para41 citing Red Deer College v Michaels, (SCC), [1976] 2 SCR 324. [78] After her termination, Ms. Cordeau-Chatelain was unsuccessful in finding new employment for over three years.

Herevidence was that only after retraining into a completely different field was she able to return to full time work, despite her efforts in thejob market. The issue is whether her efforts to find new work were reasonable. [79] As noted above, her efforts to find new potential work began before she had even received notice of her termination fromTEPCA. The Plaintiff submitted a “Job Search Mitigation List”, current up to September 21, 2018, which consists of 11 pages ofinformation about applications, email contacts, and phone calls that she had made by that time. [80] Eventually, Ms.

Cordeau-Chatelain decided to retrain as an executive coach. She obtained a graduate certificate from RoyalRoads University, and is currently working towards a Ph.D. She is currently working as a leadership coach in Vancouver and shepreviously spent some time as a self-employed coaching consultant. [81] As part of its termination policy, TEPCA offers the services of Cenera Inc. (“Cenera”), an outplacement counseling companythat assists employees who have been terminated. Ms.

Cordeau-Chatelain declined to use these services, and TEPCA argues that herfailure to do so indicates insufficient mitigation efforts. [82] I find that her decision not to use Cenera is not enough to characterize her efforts as unreasonable. The Plaintiff is not requiredto do everything possible or available to her in order to meet her obligation, she is only required to make objectively reasonable efforts:Christianson.

The evidence is that she conducted a thorough job search, engaged the help of colleagues and contacts, sought appropriatepositions, hired help when needed, and eventually chose to change careers after a significant period of determined, yet unsuccessful, jobhunting. [83] I find in the circumstances that her efforts were reasonable. However, I will further address her decision not to use Cenera indiscussing her mitigation expenses. G. Is the Plaintiff Entitled to Recover Mitigation Expenses? If Yes, What Amounts? [84] The Plaintiff claims damages for mitigation expenses in the amount of $20,157.12.

Most of this is the tuition from herGraduate Certificate in Leadership and Executive Coaching from Royal Roads University. It also includes expenses for a resuméconsultant, coaching certification classes, and a coaching organization membership fee. All of these expenses appear to have beenincurred during the notice period. [85] Her evidence was that the resumé consultant provided various services to her during her job hunt including resumé editing andfeedback. However, Ms. Haining testified that Cenera offered substantially similar services. Ms. Cordeau-Chatelain admitted that shenever spoke with Cenera.

I therefore decline to award damages for the resumé consultant expenditure because Ms. Cordeau-Chatelaincould have used Cenera, which TEPCA paid for and offered to Ms. Cordeau-Chatelain but she did not use it. [86] This deducts $1,800, the cost of the resumé consultant, from the claimed amount. Compensability of Retraining Expenses [87] The other claimed expenses relate to Ms. Cordeau-Chatelain’s costs of retraining as an executive leadership coach. TEPCAargues that these expenses are not compensable because they arose out of her termination itself, rather than from the lack of notice.

Inother words, even if TEPCA had provided her with adequate notice, she would still have incurred the retraining expenses. The Defendantpoints to Ms. Cordeau-Chatelain’s statement that her termination “ended her career”, suggesting that any termination, even if notwrongful, would have required her to switch professions. [88] Employers are generally entitled to terminate employment agreements, provided they give reasonable notice: Christianson atpara 21.

Damages for insufficient notice are awarded for breach of contract, but where sufficient notice is provided there is no breachand therefore no liability for damages: Deputat at para 8. [89] With respect, TEPCA’s argument misses the point. Expenses that arise from the improper termination of a contract arecompensable because there was a breach of contract. The question is not just about the nature of the expenses, but also the circumstancesunder which they were incurred. [90] In this case I find that Ms. Cordeau-Chatelain had to incur retraining expenses because she was wrongfully terminated.

Reasonableness of Retraining Expenses [91] The second question is whether the expenses incurred were reasonable. The onus is on the employer to show that the costs

incurred are/were unreasonable: Muirhead v Cambrian Engineering Group Ltd., (SK KB), [1998] 67 Sask R 190(QB). [92] There is no evidence to suggest that Ms. Cordeau-Chatelain pursued her additional qualifications for purely personal reasons,or any reason other than finding employment. As noted above, the expenses were incurred within the notice period.

As such, if theseexpenses are reasonable then TEPCA is liable for them: Pitts v Okanagan Helicopters Ltd., [1983] BCWLD 888 (SC). [93] Subject to the reasonableness of the expenses and a finding that they were incurred to better the Plaintiff’s employmentprospects, case law suggests that education and training costs form part of the damages: Baker v United Grain Growers Ltd., (AB KB), [1978] 11 AR 353 (SC); Christiansen; and Somir v Canac Kitchens, [2006] OJ No 5052 (SC). [94] The Defendant did not seriously contest the reasonableness of the tuition costs.

Having found that her mitigation efforts werereasonable, including the decision to retrain after a long period of job searching, I conclude that her tuition costs were reasonable. Thedecision to undertake graduate-level education was reasonable considering the management level at which she operated and the fact thatshe already had an undergraduate degree.

Her substantial experience was not opening doors and it was reasonable for her to conclude thatadditional education would help her employment prospects. [95] Subtracting the $1,800 claimed for resume assistance leaves a total amount of $18,357.12 for retraining expenses. There wasno evidence presented on the cost of master’s degrees, but in my view this is well within the reasonable range for the cost of a graduatedegree plus additional professional certification and membership. I therefore award special damages for mitigation expense in thatamount. H.

What is the Total Damages Calculation? [96] Certain additional damages flow from the calculation of the notice period and base salary. The parties agree that TEPCAcontributed 15% of her base salary toward a pension and savings plan. She received $1500/year in a health spending account and$64/month in “allowances and perquisites”, into a wellness account. These damages are included in the table below. [97] TEPCA provided Ms. Cordeau-Chatelain with 5 weeks working notice.

Per the letter of February 23, 2017, it also gave pay inlieu of notice in the amount of $25,104 and 3 months’ continued benefits. [98] The total damages owing are: VI. Conclusion [99] In conclusion, I find that the reasonable notice period in this case, considering all of the evidence and the factors as outlinedabove is 18 months. As such, I award the following to Ms. Cordeau-Chatelain: i. Damages in the amount of $495,081.12; and ii. Pre-judgement interest pursuant to the Judgment Interest Act, RSA 2000, c J-1. [100] As the successful party, the Plaintiff is also entitled to costs.

If counsel cannot resolve the issue of costs, counsel for thePlaintiff shall submit written costs submissions not to exceed five pages with a Bill of Costs and any Offer to Settle attached within 45

days of the issuance of these written reasons. Counsel for the Defendant shall submit their written response not to exceed five pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Plaintiff’s costs submissions. All submissions are to be filed and copies provided to me through my judicial assistant. Heard on the 7 th , 8 th , 9 th , and 10 th days of June, 2021. Dated at the City of Calgary, Alberta this 5 th day of October, 2021. J.C. Price J.C.Q.B.A. Appearances: John H.

Wilson, Q.C. and Aimee Louie for the Plaintiff Will Cascadden and Matthew Warren for the Defendant _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Madam Justice J.C. Price _______________________________________________________ In para 28, the addition of the word ‘not’ has been added in the first sentence.