Cochrane v Western Energy Services Corp, 2021 ABQB 808

Court of Queen’s Bench of Alberta Citation: Cochrane v Western Energy Services Corp, 2021 ABQB 808 Date: 20211012 Docket: 1901 17874 Registry: Calgary Between: Ira Cochrane and Denina Robertson Plaintiffs - and - Western Energy Services Corp Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.E. Romaine _______________________________________________________ I. Introduction [ 1 ] The issues in this

summary trial of a wrongful dismissal claim are the appropriate length of notice for the Plaintiff, Denina Robertson, and whether she failed to mitigate her damages so as to reduce or eliminate the notice period. The parties submit that the issues in this matter are suitable for

summary trial, and I agree. II. Facts [ 2 ] Ms. Robertson commenced employment with the Defendant Western Energy Services Corp. in Leduc, Alberta in July of 2010 as an Operations Assistant. In this position, she was responsible for a variety of administrative duties, including typical office and receptionist duties and daily administrative tasks. [ 3 ] The employment relationship came to an end on or about November 4, 2019. At that time, Ms. Robertson was earning a salary of $52,800 and received benefits as follows: Premiums on AD&D and healthcare coverage - $280.12/month

Contributions to RRSP - $220/month Bonus - $200/annum, totalling $4,896.78 per month, or $58,761.36 per annum. [4] At the time of termination of the employment relationship, Ms. Robertson was on maternity leave and scheduled to return towork following the completion of that leave on about November 4, 2019. [5] However, representatives of Western Energy met with Ms. Robertson on October 29, 2019, and informed her that thecompany had undergone an organizational restructuring, and that the position she previously held no longer existed. Western Energyadvised Ms.

Robertson that there were positions available to her as Personnel Administrator, Human Resource Generalist, or as a leaderof two Health, Safety and Environment projects. [6] Western Energy submits that the Personnel Administrator and Human Resource Generalist positions were not significantlydifferent from Ms. Robertson's previous position, and notes that all of these positions provided the same remuneration as her previousposition. [7] By email of October 31, 2019, Ms.

Robertson declined the offer of a position as Personnel Administrator, indicating that theoffer was for an entry level position after she had been with the company for nine years and that it was not equivalent to her previousposition. She also said that she was unable to work overtime given her childcare obligations. [8] The Personnel Manager repeated the offer of the position of Personnel Administrator by email of November 1, 2019, andadded an offer to have Ms. Robertson lead on two HSE projects or help with social media. She indicated that Ms.

Robertson would beaccommodated with respect to overtime and that the job title could be amended if she wished. [9] There followed an exchange of emails relating to whether Ms. Robertson's previous position still existed. On November 2,2019, Ms. Robertson indicated that she would return to work on Monday, November 4th "to resume my previous position while I pursuethis case". The Personnel Manager of the company sent Ms.

Robertson an email dated November 2, 2019, in which she stated: We've made many attempts now to accommodate your return back to [Western Energy] and have shown great flexibility in doing sohowever feel you're not willing to work with us on making your return successful. Please let us know if you accept the position offered toyou. [10] Ms. Robertson responded in an email of November 3, 2019, that she had been unable to receive any further legal advice atthat point in time, and was not comfortable accepting or declining the offer until she had done so.

She indicated that she hoped to have aresponse by the end of the next day. [11] Ms. Robertson attended Western Energy on the morning of November 4, 2019. Her employment was terminated, as WesternEnergy submits that she had already indicated an unwillingness to accept the position of Personnel Administrator. She was offered, andprovided, six weeks salary, totaling $6,100. [12] Western Energy submits that Ms.

Robertson was not wrongfully dismissed: that she refused to accept the multiple offers ofalternate employment in a comparable position with the same compensation when her pre-maternity position was no longer available.Therefore, the company submits that Ms. Robertson is not entitled to anything more than the ex gratia payment that was made to her ontermination. [13] Ms. Robertson submits that she was not given a proper opportunity to accept or decline a position before she was terminated. III. Issues

A) What is the reasonable notice period to which Ms. Robertson is entitled?

B) Did Ms. Robertson fail to mitigate her damages? IV. Analysis

A) Reasonable Notice [14] As noted in Bardal v Globe and Mail Ltd., (ON SC), [1960] O.J. No. 149 at para. 21: 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 qualification of theservant. [15] Ms.

Robertson submits that reasonable notice in her case is between 7 to 10 months, and seeks nine months salary in lieu ofnotice. Western Energy submits that, if Ms. Robertson is entitled to any payment in lieu of notice in the circumstances, it would be in therange of four months prior to reduction due to failure to mitigate. [16] All of the factors listed in Bardal suggest a relatively low period of notice, other than Ms. Robertson's length of employment.

Her employment was non-managerial, clerical and did not require a high level of skills. Her age, at 31, is a neutral factor. The availabilityof similar employment, given Ms. Robertson's Grade 12 education and some post-graduation secretarial course work, is slightly in Ms.Robertson's favour, given the economic situation at the time of termination. [17] Many of the cases cited by Ms. Robertson involved plaintiffs who were older, or who held more skilled positions. Taking intoaccount the Bardal factors, I assess a reasonable notice period for Ms. Robertson of six months, before factoring in the issue ofmitigation.

B) Mitigation [18] There are three sub-issues under the general issue of mitigation in this case: 1) Should Ms. Robertson have accepted the alternative positions offered to her? Were they comparableto her previous position? [19] It is well-settled that a plaintiff in a wrongful dismissal action must take reasonable steps to mitigate her damages by seekingout comparatively similar employment. The Alberta Court of Appeal noted at para 11 of Christianson v North Hill News Inc., 1993ABCA 232 , [1993] A.J. No. 672 that: The efforts of the plaintiff will not be nicely weighed, particularly with hindsight.

All that the plaintiff need do is to make what at thetime is an objectively reasonable decision; he or she need not make the best possible decision ... the onus of proof is on the defendant andso any gap in the evidence accrues to the plaintiff's benefit. In wrongful dismissal cases, the courts have extended that qualification alittle further: the plaintiff need not mitigate damages by taking a significant demotion, or by going back to the employer who fired him orher.

All that is trite law. [20] It is also the case that, when an employee is returning to work following maternity leave, the employer has an obligation toprovide the employee with the same position or with alternative work of a comparable nature:

section 53.5(7) of the EmploymentStandard's Code, RSA 2000, c.

E-9. [21] The central issue in a situation where an employee has the chance to mitigate her damages is whether a reasonable personwould accept such an opportunity. [22] As noted by the Supreme Court in Evans v Teamsters Local Union No. 31, 2008 SCC 20 at para 30, a reasonable personshould be expected to accept employment "[w]here the salary offered is the same, where the working conditions are not substantiallydifferent or the work demeaning, and where the personal relationship involved are not acrimonious." [23] The obligation of mitigating by accepting comparable work increases for individuals who, like Ms.

Robertson, are dismissedas a result of a change in their position: Evans at para 311. [24] If Ms. Robertson is found to have declined an offer of reasonably similar employment, an award of damages in lieu of noticemay be reduced on the basis of failure to mitigate: Bishop v Rexel Canada Electrical Inc, 2016 BCSC 2351 at para 90. [25] Ms. Robertson submits that the positions offered her were unsuitable for her skillset. However, this submission cannot besustained on the evidence.

The positions offered the same salary that she had been making previously, the working conditions weresubstantially similar, the descriptions of what was required in the position of Personnel Administration overlapped in many respects withMs. Robertson's previous position, and Western Energy offered several options and accommodations with respect to Ms. Robertson'sovertime given her child care responsibilities. It would not have been reasonable for Ms. Robertson to refuse the offers of alternateemployment made by Western Energy. 2) Was Ms.

Robertson given a fair opportunity to consider the offer, or was she terminatedprematurely? [26] Ms. Robertson submits that she was pressured to accept one of the new positions offered, just five days prior to her returnfrom maternity leave, and that she was prematurely terminated before she could take the additional day she asked for to consider theoffers. [27] While it is apparent that Western Energy made its offers in good faith, and extended Ms.

Robertson considerableaccommodation in the terms of the offers, it is correct that she was terminated before she could take the day she requested to consider theoffer. There is no doubt that Ms. Robertson displayed no enthusiasm for the offers, including the October 31 letter refusing the positionsand it may not have been unreasonable for Western Energy to consider her "return to her previous position" in the circumstances a nearrejection, but in the circumstances, I find that Ms.

Robertson was prematurely terminated before she had adequate time to consider theoffers. [28] Therefore, I find that Western Energy has not met the onus it bears to establish circumstances sufficient to establish failure tomitigate under this heading. 3) Were Ms. Robertson's post termination efforts insufficient to meet her duty to mitigate? [29] Although Ms. Robertson suggested that she had applied for multiple positions, she has produced evidence of only twoattempts in the month following her termination.

She indicates that, while she makes a daily search of job posting websites, opportunitiesfor entry level positions do not pay enough to justify her taking the position and having fulltime child care for her children. She states,without back-up documentation, that she has applied for six additional positions without success as of February 18, 2020, and five

additional jobs from February 2020 to March 2021, again without back-up documentation. [ 30 ] Despite the low bar of evidence required to establish reasonable steps to mitigate, I find that Western Energy has met the onus of establishing that Ms. Robertson's efforts to mitigate have been insufficient. However, given the intervening factor of the COVID-19 pandemic, I reduce Ms. Robertson's reasonable notice period by one month. V. Conclusion [ 31 ] Ms. Robertson is entitled to damages equal to five months salary, minus the $6,100 she was paid on termination, plus pre- judgment interest.

The damages award is subject to a 30 percent withholding tax. If the parties are unable to agree on costs, they may make short written submissions. Dated at the City of Calgary, Alberta this 12 th day of October, 2021. B.E. Romaine J.C.Q.B.A. Appearances: Aimee E. Louie for the Plaintiff, Denina Robertson Tom Ross, Q.C. for the Defendant