Dahlen v Avenue Living Communities Ltd, 2021 ABQB 797

Court of Queen’s Bench of Alberta Citation: Dahlen v Avenue Living Communities Ltd, 2021 ABQB 797 Date: 20211005 Docket: 2003 12227 Registry: Edmonton Between: Krystell L. Dahlen Plaintiff - and - Avenue Living Communities Ltd. and Anthony Giuffre Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Krystell L.

Dahlen appeals a December 18, 2020 decision of the Master which struck her Statement of Claim in this action and ordered that she pay costs of $600.00. [ 2 ] The Master struck the claim because he held that Ms. Dahlen’s action was barred by the Workers’ Compensation Act , RSA 1980, c W-15 . The Statement of Claim [ 3 ] Ms. Dahlen’s Statement of Claim was issued on July 28, 2020. Its drafting is unconventional, which is not surprising given that Ms. Dahlen is not represented by counsel.

As will appear, understanding exactly what she has claimed in the Statement Claim is important in determining whether her claim is barred by the WCA. [ 4 ] Ms. Dahlen has organized her allegations under several headings. I will use those headings in this

summary of her allegations. Sexual Harassment in the Work Place : - Ms. Dahlen became an employee, a manager, of Avenue Living Communities Ltd sometime before October 19, 2018.

- On October 19, 2018 Ms. Dahlen attended a retreat for a group of Avenue Living’s managers. - At the retreat she was sexually harassed by several male members in the group of managers who were on retreat. Ms. Dahlen set out details of the instances of sexual harassment in the Statement of Claim. - Ms. Dahlen complained about the sexual harassment to the appropriate officers of Avenue Living. She was offended by the reaction she got from one of those officers. At least one of the men who she alleges sexually harassed her suffered no consequence for his behaviour. He was promoted and Ms.

Dahlen had to endure continuing to working with him. The experience caused Ms. Dahlen “anxiety, emotions and depression over the next several months.” - Ms.

Dahlen further describes the effects she felt as a result of the sexual harassment she alleges and her employer’s response to it as follows: I am very emotional, depressed, fatigued, isolating myself, I couldn’t sleep, I have a fear of going out where there are large groups of people, I am on the edge all the time, I lost friendships at work, social withdrawal, extreme high and low moods, I was having heart palpitation issues due to stress, fear of men, being humiliated in front of many other managers, constant worrying, feeling overwhelmed, feeling like I have a target on my back from these men, feeling as if my professional reputation was ruined.

My personal life has been affected as I do not feel comfortable around men. Work Overload/Exhaustion/Working 3 positions only being paid for one - Ms. Dahlen alleges that between October, 2018 and May, 2019 she was required to perform the duties of a Sales Agent, a Leasing Agent and a Receptionist, when her position was Sales Manager and she was paid only for that position. Being threatened/overloaded with 3x the work - Set up to fail – By the new Vice President - Ms.

Dahlen alleges that in May 2020 Avenue’s vice-president threatened “the whole Edmonton maintenance team and Edmonton Portfolio Managers”. [I suspect the May 2020 date is an error – that it should be May 2019.] The threats were heard by another officer of Avenue Living who failed in his duty to stop them and to report them. There were other occasions on which the same upper management member threatened her job. He “set her up to fail” by overloading her with work and sabotaging her and her staff by failing to ensure that purchase orders for materials they required were dealt with.

She made upper management aware of what was happening but there was no response. Being set up to fail: - Another officer of Avenue, who held a position superior to hers, used his authority to pressure Ms. Dahlen to accompany him on a trip to Arizona in December, 2018. When she refused to communicate with him after the trip, he retaliated. He falsely criticized her work in an audit of it, thereby tarnishing her reputation with senior managers. Unsafe Office and Toxic Work Environment - Ms.

Dahlen alleges that the office building in which her office was located was “infested with bedbugs and cockroaches” and that a “medium sized snake” was found by security staff. Further, the building was located in an area where there were many homeless people, drug dealers, and gang members. The conditions interfered with Ms. Dahlen’s ability to recruit employees to positions that needed filling because applicants were not comfortable coming to the office given its location. Upper management ignored her complaints and requests that the offices be relocated. Forging of my name on a Lease - Ms.

Dahlen alleges that someone forged her signature on a lease in July 2019 when she was on medical leave. Her complaint to her superior was avoided. The incident caused her significant stress and anxiety. Confidentiality of WCB File not being protected by Avenue Living - Ms. Dahlen alleges that her right to maintain the privacy of medical information was breached by Avenue Living when her WCB file was passed from one officer to another. I have been on WCB from July 8, 2019 to Present - Ms.

Dahlen alleges that she suffered a low back injury at work because of being required to complete an unreasonable amount of work in a short period of time. - Ms. Dahlen made a WCB claim in respect of her back injury. It was accepted. - Ms. Dahlen told her WCB case manager everything she was dealing with at work and was advised to make a “Psychological Injury Claim” in addition to the physical injury claim she made as a result of the back injury. WCB accepted her psychological injury claim in September, 2019. [ 5 ] The Statement of Claim also includes extensive descriptions of the “injury” Ms.

Dahlen alleges she has suffered as a result of the actions on the part of Avenue Living managers which she has alleged. It is not necessary for the purposes of this application for me to summarize those allegations. [ 6 ] Ms. Dahlen has listed the following in the “Remedy Sought”

section of the Statement of Claim:

- Suing the Defendant for $1.5 Million Dollars. - My Employment Future is unknown at this time, due to my psychological injury. - Costs for ongoing therapy that [I] will need to deal with my Anxiety, Depression, Emotions, fear of large gatherings/public places, severe trust issues, losing friendships at work, job loss and uncertain of what [I] will be able to do for work again if able to, loss of confidence, self worth. - Losing 10% of my wage for over one year due to being on WCB. - Health Benefits need to be ongoing and changed to direct bill until [I] am able to obtain work with benefits. - All Costs. - Letter of Reference - Costs for Education/training if [I] am unable to do Property Management work any longer.

The Workers’ Compensation Act [ 7 ] The WCA , s 21(2) provides: This Act and the regulations apply instead of all rights and causes of action, statutory or otherwise, to which a worker . . . [is] or might become entitled against the employer by reason of any accident happening to the worker, and no action in respect of that accident lies against the employer. [ 8 ] The WCA defines “accident” in s 1(1)(

a) as follows: “accident” means an accident that arises out of and occurs in the course of employment in an industry to which this Act applies and includes (

i) a wilful and intentional act, not being the act of the worker who suffers the accident, (ii) a chance event occasioned by a physical or natural cause, (iii) disablement; and (iv) a disabling or potentially disabling condition caused by an occupational disease. [ 9 ]

Section 22 of the WCA vests the cause of action which s 21 takes away from the worker in the Workers’ Compensation Board. [ 10 ] It is clear that any loss or damage arising from her employment with Avenue Living for which it has been determined Ms. Dahlen is entitled to WCA benefits cannot be sought in this action. She simply has no cause of action against Avenue Living for those losses or damages. The Issue [ 11 ] The question before me, however, is whether or not the Statement of Claim Ms. Dahlen has filed raises causes of action for damages or losses for which her WCA claim does not compensate her.

Has she sued for damages or losses beyond those covered by her WCA claim? [ 12 ] The “unconventional” drafting of the Statement of Claim makes this issue somewhat difficult to answer. The Master whose Order has been appealed made the same observation. He reviewed the Statement of Claim in an attempt to see if it raised a cause of action not barred by the WCA . In his Endorsement, issued on December 18, 2020, he said: The Plaintiff is unrepresented by counsel. Her Statement of Claim is lengthy and really appears to be an Affidavit, setting out the chronology of events which she alleges brought about her injuries.

Those injuries are both physical and psychological. The WCB has accepted her claims with respect to those injuries. Pursuant to the decision of the Court of Appeal in Ashraf , I have attempted to discern the “essential character” of the Plaintiff’s action. In my view, the essential character of her action is for damages for workplace injuries and consequentially must be struck pursuant to Rule 3.68. I find it impossible to discern a cause of action for wrongful dismissal, although if it were pleaded properly, such a claim might be made.

I asked counsel for the Defendants whether the Plaintiff’s cause of action would be limitation barred if she were to start a separate action. He acknowledged that it would not be as the Plaintiff’s employment ended in July 2019. This Appeal [ 13 ] Ms. Dahlen’s appeal from the Master’s decision first came before Belzil J. on June 8, 2021.

Belzil J. directed “the Worker’s ( sic ) Compensation Board to clarify which portions of the Appellant’s Statement of Claim, filed July 28, 2020, fall outside the jurisdiction of the Workers’ Compensation Act, RSA 2000, c W-15 or were not accepted.” Belzil J. adjourned the appeal pending the WCB’s compliance with that direction.

[ 14 ] It appears that Ms. Dahlen communicated this direction to the WCB immediately. On June 9, 2021, Susan Barfett, a Case Manger with the WCB sent her a letter addressed to “To Whom it May Concern”. The letter says: This letter confirms the acceptance of Ms. Dahlen’s claim for psychological injury, related to sexual harassment in the workplace. Injuries accepted: - Acute reaction to stress - Generalized anxiety disorder - Major depressive disorder (partially related to the harassment.) Entitlement is based on the evidence received on file in relation to the workplace events, comprehensive psychological medical assessments, and WCB Policy 03-01

Part 2. Chronic onset psychological injury is compensable when it is an extreme emotional reaction to:

a) an accumulation, over time, of a number of verifiable work-related stressors that do not fit the definition of traumatic event,

b) a significant work-related stressor that has lasted for a long time and does not fit the definition of a traumatic event, or

c) bullying or harassment, defined as a repeated incident of objectionable or unwelcome conduct, comment, bullying or action intended to intimidate, offend, degrade or humiliate a particular person or group As with any other claim, WCB investigates the causation to determine whether the claim is acceptable.

Claims for this type of injury are eligible for compensation only when all of the following criteria are met: - there is a confirmed psychological or psychiatric diagnosis as described in the DSM, - the work-related events or stressors are the predominant cause of the injury; predominant cause means the prevailing, strongest, chief, or main cause of the chronic onset psychological injury, - the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and - there is objective confirmation of the events.

Ongoing compensability for chronic onset psychological injury will be accepted when the medical evidence shows that the work or work-related injury is the predominant cause of the current symptoms. I hope the above information satisfied you concerns. [ 15 ] In anticipation of the hearing of this appeal Ms. Dahlen has filed a document entitled “What is not covered by my WCB Claim”.

Her list includes: - Sexual harassment of her by a member of senior management; - Failure of the Chief Human Resources Officer to protect her; - Failure of other senior leaders to provide support to her when they knew what was going on; - Psychological injury resulting from the sexual harassment incidents other than the three alleged in the Statement of Claim as having occurred on October 19, 2018, which were the only incidents of sexual harassment to which her WCB claim related; - The cost of long-term psychological counselling; - Reduced employment opportunities; - Forgery of her name on a lease agreement; - Failure to keep her medical information confidential; - Being required to work in an unsafe building.

Her list also includes several items that are not mentioned in the Statement of Claim. She gives details of each of the matters listed in the document. Ashraf v. SNC Lavalin [ 16 ] The Ashraf case referenced by the Master is Ashraf v. SNC Lavalin ATP Inc. 2015 ABCA 78 .

In that case a former employee sued his former employer “for stress and related disabling physical harm that he alleges resulted from a campaign of harassment and bullying that undermined his authority and eventually caused him to leave his employment to go on long-term disability.” He sought “damages . . . for pain and suffering and loss of income and benefits, specifically the difference between long- term disability payments and the salary and benefits he would have earned had he continued with his employment to age 65.” ( Ashraf , para 3) The employer applied to strike the claim on the basis that the claims made were compensable under the WCA and therefore

could not be the subject of an action. [17] In Ashraf the Master accepted SNC’s position and struck the action (2013 ABQB 143). An appeal to this Court wasdismissed (2013 ABQB 688). Mahoney J. held: (para 51) . . . in the present case, the constructive dismissal claim asserted in the draft Amended Statement of Claim appears to arise exclusivelyout of a series of events that I have found are an “accident” for the purpose of Alberta’s workers’ compensation regime. Like in Howard,[Howard v. Alberta Pacific Forest Industries Inc. 1999 ABQB 974] Mr.

Ashraf’s loss of income claim stems from an alleged work-related injury. Therefore, based on the circumstances of this case, I find that Mr. Ashraf’s claim in its entirety is within the jurisdiction ofthe Workers’ Compensation Board, and it is for the Workers’ Compensation Board to determine whether the statutory bar applies to allaspects of Mr. Ashraf’s claim, including his claim for constructive dismissal. [18] A further appeal to the Court of Appeal was allowed.

The Court of Appeal referenced Regina Police Association Inc. v.Regina (City) Board of Police Commissioners 2000 SCC 14 , [2000] 1 SCR 360 where the Supreme Court said that, where theissue is as described above: (para 39) The key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentiallyfrom a statutory scheme. In determining this question, a liberal

interpretation of the legislation is required to ensure that a scheme is notoffended by the conferral of jurisdiction on a forum not intended by the legislature. [19] In assessing the “essential character of the dispute”, the Court of Appeal held that the dispute between Mr. Ashraf and SNCwas twofold. Mr. Ashraf sought: (para 10) . . . damages for two causes of action:

i) physical and psychological injuries sustained in the workplace, and ii) constructive dismissal. The Court of Appeal referenced passages in the Statement of Claim where Mr. Ashraf, a self-represented litigant, had described theconduct of which he complained as having been “. . . part of systemic campaign of harassment and abuse to constructively dismiss Mr.Ashraf” and “. . . repudiation of the terms of Mr. Ashraf’s employment and his right to a workplace free of harassment and therebyeffectively constituted constructive dismissal.” [20] The Court of Appeal, presumably applying the liberal

interpretation of the WCA that the SCC ordained in Regina PoliceAssociation, held: (para 11) The WCA is the statutory scheme with jurisdiction to address the first cause of action [physical and psychological injuries sustained inthe workplace], but not the second [constructive dismissal]. The WCA asserts no jurisdiction to compensate claims for constructivedismissal and it is not suggested that there exists a collective agreement or any statutory scheme which could assume jurisdiction toaddress that claim.

If the judgment appealed from were allowed to stand, the appellant would be left without a forum to advance hisclaim, as would every other claimant for constructive dismissal who alleged that the workplace abuse leading to termination also causedstress of other psychological injury. With respect, we conclude the chambers judge erred in striking the claim as it relates to the claimfor constructive dismissal. [21] So, in Ashraf the Court of Appeal held that the cause of action for constructive dismissal is not one to which the WCAprovisions apply.

There is no suggestion in the decision that it is the only possible cause of action exempt from the application of thoseprovisions. [22] The pleading conventions which apply in this jurisdiction include that a party should plead facts, but not evidence, and shouldnot plead law. It is not necessary that a pleading expressly identify the “cause of action” which the facts pleaded gives rise to.

Thepleader is not required to state that her action is “for constructive dismissal” or “for breach of contract” or “for damages for sexualharassment” or “for breach of implied terms of employment” or “for damages arising from the manner of dismissal (aggravateddamages)”. Usually it is not difficult to identify the legal cause of action which the pleader is advancing. Occasionally, as here, wherethe drafter of the pleading is unfamiliar with pleading conventions, it may be difficult.

This is perhaps especially so where, as here, thedrafter of the pleading has improperly pleaded substantial evidence. [23] Never-the-less, in my view, it is reasonably clear that Ms. Dahlen has pleaded facts which could amount to the causes ofaction of constructive dismissal, breach of contract, for damages arising from the manner of dismissal, and for sexual harassment (if sucha cause of action exists in law – there are conflicting authorities.) [24] Some, but, in my view, not all of those are causes of action “to which [Ms.

Dahlen is] . . . entitled against the employer byreason of [an] accident happening to [her]” (WCA s. 21(2) – that is, causes of action barred by the WCA.

In my view, she has alsopleaded facts which are capable of raising causes of action which are not related to an accident, as that term is defined in the WCA. [25] Accordingly, her claim should not be struck on the basis that the causes of action pleaded in it are barred by the WCA. [26] I allow the appeal. [27] I acknowledge that if this litigation goes further, the unconventional drafting of the Statement of Claim is likely to causedifficulties in the context of pre-trial processes and at the trial itself. Ms.

Dahlen would be well advised to obtain legal assistance toredraft the Statement of Claim so that it clearly includes only causes of action not barred by the WCA. I am not prepared to order that sheamend the Statement of Claim at this point both because the original Application by SNC sought only the striking of the action, andbecause I expect such an order would not result in any improvement in the drafting of the Statement of Claim unless Ms. Dahlen haslegal assistance. Alternative Relief

[ 28 ] In its original application to the Master, Avenue Living sought an order “striking the defendant, Anthony Giuffre” from the Statement of Claim if the whole of the Statement of Claim was not struck. The Master did not deal with that aspect of the application as he struck the whole of the Statement of Claim. [ 29 ] From the materials before me it appears that Ms. Dahlen did not originally intend to name Mr. Giuffre as a defendant in this action.

The Statement of Claim describes the defendant as “Avenue Living Communities (Owner CEO Anthony Giuffre).” Nothing in the allegations set out in the Statement of Claims indicates that Ms. Dahlen claims that Mr. Giuffre, as opposed to the corporation which was her employer, Avenue Living Communities Ltd., is liable. [ 30 ] The original Statement of Defence filed by Avenue Living on August 18, 2020 named only Avenue Living Communities Ltd. as a Defendant. Avenue Living filed what appears to have been an amended Statement of Defence, though it is not so identified, on August 27, 2020.

This pleading showed Anthony Giuffre as a named Defendant. The amended Statement of Defence also added denials of Ms. Dahlen’s allegations by Anthony Giuffre. [ 31 ] In my view, it is clear that Ms. Dahlen’s allegations do not give rise to possible personal liability on the part of Anthony Giuffre – and that Ms. Dahlen did not ever intend to allege otherwise. [ 32 ] I order that Anthony Giuffre be struck as a Defendant in this action. Going forward the style of cause shall identify the Defendant as Avenue Living Communities Ltd. Costs [ 33 ] Avenue Living was awarded $600 costs by the Master.

Having allowed the appeal I set that order for costs aside. [ 34 ] I will make a tentative costs award. In my tentative view, Ms. Dahlen should have costs of $600. If her Statement of Claim was conventional she might have been entitled to more. I think it is also significant to the costs issue that this appeal was brought in ordinary morning chambers – not in a special chambers application as is normally the case for appeals from the master. There was no brief filed by either party.

Also, the need to strike Anthony Giuffre as a defendant appears to have arisen because of the Defendant’s unilateral amendment of the style of cause. [ 35 ] If either party wishes to propose some other costs disposition they may file and serve submissions in writing that shall be limited to two pages by October 31, 2021. If either party wishes to reply to such submissions made by the party opposite, they may do so by submissions in writing, again of no more than two pages length, filed and served by November 15, 2021. Otherwise, my tentative costs award - $600 to Ms. Dahlen – will be final.

Heard on the 24 th day of September, 2021. Dated at the City of Edmonton, Alberta this 05 th day of October, 2021. B.R. Burrows J.C.Q.B.A. Appearances: Krystell L. Dahlen appeared without counsel Giantommaso Colaneri for the Defendants