Rooney v GSL Chevrolet Cadillac Ltd, 2022 ABKB 813

Court of King’s Bench of Alberta Citation: Rooney v GSL Chevrolet Cadillac Ltd, 2022 ABKB 813 Date: 20221205 Docket: 1001 10260 Registry: Calgary Between: Edward Rooney Plaintiff - and - GSL Chevrolet Cadillac Ltd c.o.b. as GSL Chev City Defendant _______________________________________________________ Reasons for Judgment of the Honourable Justice Colin C.J. Feasby _______________________________________________________ Introduction [ 1 ] The Plaintiff, Edward Rooney, claims that he was constructively dismissed by the Defendant, GSL Chev City. Mr. Rooney

says that GSL developed a business succession plan that fundamentally changed the nature of his employment and resulted in a material decrease in compensation. Mr. Rooney further asserts that GSL suspended him without pay despite having no authority to do so. GSL states that there was no substantial unilateral change in Mr. Rooney’s terms of employment and that it was entitled to reasonably discipline Mr. Rooney including suspending him without pay. [ 2 ] This matter was scheduled for trial three times before proceeding.

Twice it was adjourned by the Court because of COVID- 19-related restrictions and the third adjournment was required because an important witness had COVID-19. This matter proceeded by way of a five-day trial between November 14 and 18, 2022 though it did not take up five full days of court time. The parties delivered closing submissions in writing on November 28, 2022. Application to Amend Pleadings to Assert Cause [ 3 ] Mr. Rooney surreptitiously recorded discussions between himself and his supervisors concerning disciplinary actions that GSL had taken against him and changes to his role at GSL.

At the commencement of trial, GSL sought permission to amend its Statement of Defence to allege that Mr. Rooney was dismissed for cause. GSL alleged that by recording his supervisors without their knowledge or consent, Rooney breached the terms of his employment. Since the recordings were not known to GSL until after Mr. Rooney’s employment ended, this is what is often referred to as an allegation of after-acquired cause. [ 4 ] Rule 3.65 provides that a Court may give permission to amend a pleading after the close of pleadings.

The Court of Appeal in Pace v Economical Mutual Insurance , 2021 ABCA 1 at para 3 held that “[a] court should allow a party to amend a pleading at any time after the close of pleadings unless there is a compelling reason not to.” The Court went on to explain at para 4: “[a] compelling reason exists if the proposed amendment will significantly harm a legitimate litigation interest of the non-moving party or the amended pleading will contravene the public interest in promoting expeditious and economical dispute resolution.” [ 5 ] GSL contends that the amendment should be allowed because there is no prejudice to the plaintiff.

GSL submits that Mr. Rooney has known of GSL’s concerns with the recordings for some time and that the circumstances surrounding the recordings were explored in questioning. Amending the Statement of Defence to plead an allegation of cause does not expand the parameters of the dispute. [ 6 ] Mr. Rooney submits that a pleading amendment to assert dismissal for cause for the first time should not be allowed at the commencement of trial more than 12 years after the termination of the employment relationship and commencement of legal proceedings. Counsel for Mr.

Rooney further submits that he would have adopted a different approach to questioning and trial if cause had been pleaded. [ 7 ] The character of employment dismissal litigation changes when there is an allegation of cause. An allegation of cause raises both the financial and reputational stakes for the former employee. A former employee facing an allegation of cause may adopt different litigation and settlement strategies than the former employee would have in litigation without an allegation of cause.

A new allegation of cause at trial changes the nature of a dispute to the detriment of the former employee in a way that will often be unfair. From the vantage point of a trial judge, it is impossible to know what different choices a former employee may have made if the allegation of cause had been made known at an earlier stage in the litigation. [ 8 ] Hollins J denied a similar application at trial by an employer to amend a Statement of Defence to assert after-acquired cause in Watkins v Willow Park Golf Course Ltd, 2017 ABQB 541 .

She observed at para 11 that the employer did not give “any reason for failing to plead these particulars prior to trial, notwithstanding that the Plaintiff was terminated almost 6 years ago.” In the present case, we are dealing with a period since termination that is twice as long. [ 9 ] GSL’s inordinate delay in seeking an amendment combined with the intrinsic difference between litigating a constructive dismissal claim and a dismissal with cause claim leads me to conclude that the application to amend GSL’s Statement of Defence must be denied.

An adjournment to permit further questioning and providing compensation through a costs order is not appropriate where a trial has already been adjourned three times for COVID-19-related reasons. To adjourn this matter again would contravene the public interest in promoting expeditious and economical dispute resolution. [ 10 ] Had GSL’s pleading amendment been sought within a reasonable time after the discovery that Mr. Rooney had surreptitiously recorded his supervisors ( ie . 10+ years ago), I have no doubt that the Court would have permitted the amendment.

Any prejudice arising from an amendment of this nature during the questioning phase of the litigation, though potentially significant, could have been ameliorated through additional questioning and an order for costs. When a significant amendment such as a pleading of cause in an employment dismissal case is sought at trial, additional questioning will often be impractical and costs may be insufficient; that is certainly the case here. [ 11 ] Even though I have denied the amendment, just in case I am incorrect, later in these reasons I consider the merits of GSL’s claim of after-acquired cause.

Admissibility of Evidence Surreptitiously Recorded Conversations [ 12 ] Mr. Rooney’s testimony was interrupted by an objection to adducing recordings of conversations with his supervisors. I conducted a voir dire on the admissibility of the recordings. At the conclusion of the voir dire, I ruled the recordings admissible. I explained at the time of ruling that my reasons for admitting the recordings would be included as part of my written reasons for judgment to be issued after the conclusion of the trial.

[13] GSL contends that the surreptitious recordings are not admissible on several grounds. First, it is alleged that the recordingsare of poor quality and inaudible in parts. As such, GSL says that the recordings are not sufficiently reliable to be accepted as evidence. Second, as a matter of public policy, workplace recordings should not be admissible because to do so would encourage secretiverecordings and undermine employer-employee relationships. [14] The recordings are, for the most part, of reasonable quality and easy to understand.

There are times that it is difficult todecipher what is being said when the speakers are talking over one another, but this is the nature of human conversations and not thefault of the recording. There are a couple of blank spaces on the recordings that GSL says should cause the Court to question whetherthe recordings were altered. [15] GSL’s corporate representative, Mr. Amman, confirmed in response to an undertaking given at questioning and read in at trialthat Mr. Kennedy had reviewed the tapes and confirmed that they accurately recorded what he said.

GSL was unable to obtain anyconfirmation of accuracy of the recordings from Mr. Huber because he had left GSL’s employment by the time of the undertakingresponse. Given that Mr. Kennedy and Mr. Rooney have confirmed the accuracy of the recording of their parts of the conversations,there is no reason to doubt the accuracy of the recording of what Mr. Huber said. I further accept Mr.

Rooney’s evidence that he did notalter the recordings in any way. [16] GSL relies on two labour tribunal decisions for the proposition that workplace recordings are not admissible on public policygrounds: British Columbia Government and Service Employees’ Union v British Columbia Public Service Agency, (BCLA) and United Steelworkers, Local 9074 v HCN-Revera Lesee (Waverly/Rosewood) LP, (MBLB).

Thearbitrator held in British Columbia Government and Service Employees’ Union v British Columbia Public Service Agency at para 13: In British Columbia, the prevailing opinion is that the evidentiary probative value of surreptitious recordings of workplace conversationsis outweighed by the possible deleterious and chilling effect admissibility of recordings will have on workplace cooperation,collaboration, open settlement discussion and frank exchange in problem solving.

Countenancing surreptitious recordings to gatherevidence for future conflict adjudication does not encourage trust in workplace relationships; foster objectives of cooperativeparticipation in resolution of workplace issues; or promote conditions favorable for the orderly, constructive settlement of disputes. Tothe contrary, it can create a climate of apprehension, antagonism and distrust. [17] Courts in civil cases have the discretion to exclude relevant evidence where the prejudicial effect of the evidence outweighs itsprobative value.

The discretion to exclude relevant evidence exists to enable the Court to ensure trial fairness.

The Court of Appeal heldin CLM v DGW, 2004 ABCA 112 at para 9 “in civil cases, as a general rule, relevant evidence may be excluded if its probative value isexceeded by its prejudicial effect.” See also, Draper v Jacklyn, (SCC), [1970] SCR 92 at 96-96 (per Spence J). [18] What is weighed by the court is the probative value of evidence, which is its propensity to help the trier of fact decide amatter in issue, and the prejudicial effect of the evidence on the trier of fact, which is its propensity to distort or undermine the fact-finding process.

The weighing of probative value and prejudicial effect is a matter of trial fairness and only balances factors internal to atrial. The Court in weighing probative value and prejudicial effect does not consider matters external to a trial such as a public policyinterest in maintaining positive workplace relations.

The approach to admissibility outlined by the arbitrator in British ColumbiaGovernment and Service Employees’ Union v British Columbia Public Service Agency where probative value is weighed againstpublic policy concerns is not appropriate for a court. [19] A similar impulse to exclude surreptitious recordings on public policy grounds is seen in the family law context. JusticePentelechuk, as she then was, reviewed case law from various jurisdictions on surreptitious recordings in the family law context in AJUv GSU, 2015 ABQB 6 at paras 151-169.

Pentelechuk J’s review of the case law shows that there are many examples of surreptitiousrecordings and other kinds of surreptitiously obtained evidence being both found admissible and ruled inadmissible in family law cases.

Conflicting outcomes in family law cases concerning the admissibility of surreptitious recordings was also noted by O’Ferrall JAdissenting in VLM v AJM, 2021 ABCA 267 at para 61. [20] Justice Spence in Scarlett v Farrell, 2014 ONCJ 517 at para 31 explained that despite the disparate outcomes there is acoherent line of thought in the family law cases dealing with surreptitious recordings: All the cases recognize the general repugnance which the law holds toward these kinds of recordings. However, at the end of the day,the court must consider what the recordings themselves disclose.

And if the contents of those recordings are of sufficient probativevalue, and if, as Justice Sherr stated, the probative value outweighs the policy considerations against such recordings, then the court willadmit them into evidence.

It will do so having regard to the court’s need to make decisions about the best interests of children basedupon sufficiently probative evidence that may be available to the court. [21] The common thread identified by Justice Spence is the same balancing of probative value against public policy seen in theemployment context in British Columbia Government and Service Employees’ Union v British Columbia Public Service Agency. Thisapproach to balancing is contrary to the long-established law of evidence. [22] Sidney N. Lederman, Alan W. Bryant, and Michelle K.

Fuerst, The Law of Evidence, 5th ed, (Toronto: LexisNexis, 2018)explain at §9.1 “[t]he manner in which evidence is obtained, no matter how improper or illegal, is not an impediment to its admission atcommon law.” The test of admissibility is whether the evidence is relevant to the matter in issue.

Laskin J, as he then was explained indissent, though not dissenting on this point, in Hogan v R, (SCC), [1975] 2 SCR 574 at 594: “[t]he common law rule ofadmissibility of illegally or improperly obtained evidence rests simply on the relevancy of the evidence to issues on which it is adduced,without regard to the means by which it was procured....” The question of the common law rule of admissibility of illegally orimproperly obtained evidence does not arise as frequently today in the criminal context because the Charter guarantees of fundamentaljustice (s 7) and protection from unreasonable search and seizure (s 8) provide a framework for the analysis of most illegally orimproperly obtained evidence. [23] The Saskatchewan Court of Appeal in Propp v Propp, 2014 SKCA 5 at paras 41-42, citing an earlier edition of The Law of

Evidence, confirmed that the traditional common law approach to admissibility of illegal or improperly obtained evidence remains thelaw in civil matters in Saskatchewan.

Eamon J in GG & HH Inc v 2306084 Alberta Ltd, 2022 ABQB 58 at para 14 likewise concludedthat the common law rule continues to prevail in civil cases in Alberta outside the family law context where he noted that there is someuncertainty. [24] Many of the cases concerning the admissibility of surreptitious recordings deal with illegally obtained recordings: see,generally, Criminal Code, s 184 which prohibits the interception and recording of a conversation by a stranger to the conversation.

Forexample, recordings made by one parent of conversations between the other parent and a child or recordings by an employer ofconversations between employees. The recordings made by Mr. Rooney are different; they are recordings of conversations betweenhimself and his supervisors. A participant in a conversation may record that conversation without the consent of the other participants inthe conversation: Criminal Code, s 183.1. [25] Mr.

Rooney’s recordings, though legal, may be considered improper in the sense that recording conversations in theworkplace has the potential to undermine trust in the ways noted in British Columbia Government and Service Employees’ Union vBritish Columbia Public Service Agency. Even if I accept that Mr. Rooney’s recordings were improper, which I do not, I cannotdisregard the common law rule of admissibility of illegally or improperly obtained evidence and rule relevant evidence inadmissible onpublic policy grounds.

Creating an exception to the common law rule of admissibility of illegally or improperly obtained evidence inrespect of surreptitious recordings in the context of an employment relationship or more generally for public policy reasons is a matterfor the legislature or a higher court. [26] British Columbia Government and Service Employees’ Union v British Columbia Public Service Agency stops short ofholding that surreptitious recordings in the workplace are always improper.

The arbitrator observed at para 14 The exceptions when surreptitious recordings are considered to have been warranted and admissible include circumstances when personsin the employment or broader relationship making and tendering the recording had to resort to surreptitious recording to deal with arelationship power imbalance in order to objectively establish their credibility in the face of being accused of being a perpetrator or liar,rather than a victim. [27] Mr. Rooney reasonably suspected that he was being constructively dismissed.

His employer had suspended him without payand he had reason to be concerned that he was being portrayed as problem employee. Mr. Rooney’s resort to recording conversationswith his supervisor occurred after the employment relationship had broken down – even though he was not yet fully aware of thefinancial impact of the break down – and was warranted in the circumstances. Disciplinary Memorandum to File – Business Records [28] GSL tendered a memorandum to file prepared by one of Mr. Rooney’s supervisors, Les Huber, concerning an incident forwhich Mr. Rooney was suspended without pay. GSL did not call Mr.

Huber to testify. GSL submits that the memorandum is a businessrecord that may be admitted pursuant to the business records exception to the hearsay rule in accordance with the principles stated inAres v Venner, (SCC), [1970] SCR 608. [29] Laycraft CJA in R v Monkhouse, 1987 ABCA 227 at para 23 adopted Wigmore’s seven criteria for the admission of hearsaybusiness records as modified and restated by J.D. Ewart, Documentary Evidence in Canada (Toronto: Carswell, 1984) at 54.

To beadmissible, a business record must be: (1) an original entry; (2) made contemporaneously; (3) in the routine; (4) of business; (5) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it; (6) who had a duty to make the record; and (7) who had no motive to misrepresent. [30] The Monkhouse approach to business records, including the requirement for there to be no motive to misrepresent, wasaffirmed in R v Ta, 2010 ABCA 145 at para 9. [31] Mr. Huber’s memorandum to file concerning the incident giving rise to the suspension of Mr.

Rooney was created during thenormal course of his duties. But the memorandum to file is qualitatively different from hospital records, banking records, meetingminutes, and similar documentation created as part of a humdrum day-to-day routine. The memorandum records an exceptionalincident. As a record of an exceptional incident by the supervisor of the employee being disciplined, it is infused with personalperceptions and judgments. And it is clear from the recordings that Mr. Huber had, in his words, engaged in “a little war” with Mr.Rooney and had threatened to make him quit. Mr.

Huber was not free from a motive to misrepresent. Mr. Huber’s memorandum to filedoes not meet the criteria for admission pursuant to the business records exception to the hearsay rule. [32] Business records may also be entered into evidence using the principled approach to hearsay using the necessity andreliability criteria: R v Owen, 2003 SCC 33 at para 59. Mr. Huber is no longer an employee of GSL. He could nevertheless becompelled to testify, so his hearsay account of the incident with Mr. Rooney is not necessary. The facts discussed above in paragraph 31in the context of Mr.

Huber’s motive to misrepresent make Mr. Huber’s memorandum unreliable. Accordingly, I also decline to admit

Mr. Huber’s memorandum to file under the principled approach to hearsay. Constructive Dismissal

Summary of the Law [33] Mr. Rooney asserts that he was constructively dismissed. The Supreme Court of Canada set out the law of constrictivedismissal in Potter v New Brunswick (Legal Aid Services Commission), 2015 SCC 10 paras 32-39.

I summarized the Potter standard inBenke v Loblaw Companies Limited, 2022 ABQB 461 at para 51: The Court must determine: (1) whether the employer has imposed unilateral substantial changes that constitute a breach of theemployment contract; and (2) if a reasonable person in the employee’s position would have felt that the breach substantially altered anessential term of the employment contract.

The onus is on the employee to establish the first part of the test and the second part of thetest is to be assessed objectively: Irvine v Jim Gauthier Chevrolet Oldsmobile Cadillac Ltd, 2013 MBCA 93 at para 46. [34] Justices Pentelechuk and Ho clarified that under the first step of the Potter analysis a court must consider whether theemployee consented or acquiesced to the changes in the terms of employment: Kosteckyj v Paramount Resources Ltd, 2022 ABCA 230paras 76-78. [35] A significant reduction in pay has been found to constitute constructive dismissal: Farber v Royal Trust Co., (SCC), [1997] 1 SCR 846 at para 36.

Justice Sidnell in Kosteckyj v Paramount Resources Ltd, 2021 ABQB 225 at para 41 found that apay reduction in the range of 16.65% to 20% amounted to constructive dismissal. The Court of Appeal concluded that Sidnell J correctlyfound the drop in pay was a unilateral substantial change in terms of employment that breached the employment contract but reversed thedecision in part on the grounds that the employee had acquiesced to the changes in the terms of employment (paras 56-69 per WakelingJA and paras 76-78 per Pentelechuk and Ho JJA). [36] An important question in the present case is when Mr.

Rooney knew about the changes in his employment and whether heacquiesced to those changes. Wakeling JA in Kosteckyj articulated a bright line test or rule for how long an employee has to decidewhether to accept new terms of employment that he suggested would be “useful for both employers and employees” (para 66). WakelingJA stated that, in his view, “it would be a rare case that a reasonable period would exceed fifteen business days” (para 60).

Pentelechukand Ho JJA declined to endorse Wakeling JA’s standard saying that they “prefer[red] to avoid stating a specific time period” (para 82). [37] A fifteen business day rule for an employee to accept or reject new terms of employment, as proposed by Wakeling JA, maybe appropriate in cases involving a professional with the means to be informed of, and ability to assert, her rights and where there is clearnotice of a change in terms of employment as in Kostekyj.

The present case shows that the messy reality of some employmentrelationships may obscure when an employee should have known that the terms of employment changed and, more importantly, whenthe employee could have appreciated the impact of those changes. A bright line rule setting out a defined period within which anemployee must accept or reject a change in terms of employment is not useful when the starting point for calculating the period is notmarked by a similarly bright line. A bright line rule for all employees is also not appropriate given varying degrees of sophistication andagency.

In cases like the present one, I conclude that it is more appropriate to determine acquiescence using a reasonableness standardthat permits a Court to consider all the relevant circumstances of the case.[1] Rooney’s Role at GSL [38] Mr. Rooney began working at GM dealerships in the Calgary area in the early 1970s as a technician with expertise inelectrical and air conditioning. Later he added expertise in drivability. He was hired by GSL as an electrical, air conditioning, anddrivability technician in June 1990. By 2000, he was performing almost exclusively drivability work for GSL.

Sometime around 2000,he was asked by GSL to focus on drivability and not his other areas of expertise. For most of the time from 2000 to the end of hisemployment in May 2010, he was the only technician at GSL with drivability designated as a primary skill. One other technician, RandyNotacker, had drivability as a secondary skill. [39] A drivability technician diagnoses and repairs drivability issues. Drivability issues are, as the word suggests, issues that affectthe ability of a vehicle to drive.

These issues include difficulty in starting, running differently when cold, acceleration problems,misfiring, and various other problems that may be indicated by an engine light or other sensor. During the period immediately prior tothe end of Mr. Rooney’s employment, most drivability diagnostic work was performed with electronic scanners connected to vehicles. Allocation of Work and System of Pay at GSL [40] Work at GSL was allocated by a computer. A dispatcher put jobs into a computer and the computer assigned work totechnicians.

The computer assigned work based on the priority of the job, the availability of technicians, and whether the job was atechnician’s area of primary, secondary, or tertiary expertise. Supervisors had the power and ability to override the computer in theassignment of work. [41] As a practical matter, the fact that Mr. Rooney was the only person with drivability as a primary skill meant that the computerwould assign him all the drivability work that he could handle. Drivability work would only go to Mr. Notacker if Mr.

Rooney was toobusy or on vacation. [42] The assignment of work at GSL had a significant impact on pay. GSL paid workers based on time worked on jobs, not for thetime that they were at GSL and available to work. Idle time before, after, or in between jobs was not paid. Accordingly, the amount ofwork assigned to a technician by the computer was a significant determinant of the amount of pay for the technician.

[ 43 ] GSL also did not always pay technicians for the actual amount of time to complete a job. Sometimes technicians would be deemed to have spent more time than they did on a job and paid accordingly. Other times technicians would be deemed to have spent less time than they did on a job and paid accordingly. Whether a technician was deemed to have spent more or less time on a job depended on the standard amount of time that GM indicated should be spent on each type of job. GSL had the discretion to compensate technicians for jobs that took longer than the GM standard.

GSL’s term for time spent on jobs that took longer than the GM standard was “non-productive available time” which was commonly spoken of using its acronym, NPAT. Changes in Working Conditions [ 44 ] GM owned Saab, a Swedish car maker. GM was one of the casualties of the financial crisis of 2008-2009. As part of GM’s restructuring plan, GM committed to sell Saab. GM’s efforts to sell Saab collapsed in late 2009 and GM decided to cease manufacturing and selling Saab vehicles.

In turn, this required GM to close Saab dealerships. [ 45 ] One of the consequences of GM closing Saab dealerships in Canada was that warranty work on Saab vehicles had to be transferred to continuing GM dealerships. GSL was one of the dealerships designated to perform warranty work on Saab vehicles. [ 46 ] Mr. Rooney cites work on Saab vehicles as being one of the negative changes in his working conditions in early 2010. He says that GSL technicians did not have Saab training and GSL did not have the tools necessary to perform work on Saab vehicles.

This was a particularly vexing problem for drivability where much of the work was conducted using GM-specific electronic scanners. As a result, work on Saab vehicles took much longer than comparable work took on GM vehicles. This, in Mr. Rooney’s view, had a negative effect on his compensation. No quantitative evidence showing the negative financial impact of working on Saab vehicles was adduced. [ 47 ] Mr. Kennedy and Mr. Amman both acknowledged the challenges that taking on Saab warranty work posed for GSL and its technicians.

Both men testified that GSL supervisors did their best to troubleshoot problems encountered servicing Saab vehicles. Further, they testified that GSL compensated technicians for the additional time taken working on Saab vehicles by paying technicians for NPAT. [ 48 ] Taking on Saab warranty work in early 2010 was an unwelcome headache for GSL technicians like Mr. Rooney, but it was not a substantial change in the terms of employment. Saab vehicles never comprised a significant amount of the work in the shop.

The lack of Saab training and tools was a transitory problem that was almost if not completely resolved by the time that Mr. Rooney’s employment ended in May 2010. Once that problem was addressed by GM and GSL, working on Saab vehicles was not fundamentally different than working on GM vehicles. The requirement that Mr. Rooney work on Saab vehicles was not the kind of substantial unilateral change to employment terms sufficient to ground a claim for constructive dismissal. Short Paid Work [ 49 ] Mr. Rooney complains that he was short paid on many jobs in 2009 and 2010.

The relevant work orders were listed in the Statement of Claim and put into evidence at trial. [ 50 ] Most of the short payment disputes appear to come down to a question of whether GSL should pay Mr. Rooney for NPAT. Some of this work was on Saab vehicles in early 2010. [ 51 ] The evidence of Mr. Rooney concerning short payment for jobs was unconvincing. He did not have a good memory of the specific incidents and short payment cannot be discerned from the work orders. No quantification of the loss from alleged short payments of work was provided to the Court. [ 52 ] Mr.

Rooney’s claim in respect of short payment for work is dismissed. Further, given that Mr. Kennedy testified that he heard and attempted to resolve Mr. Rooney’s short payment claims, I find that concerns regarding short payment do not support Mr. Rooney’s claim that he was constructively dismissed. [ 53 ] GSL admitted in an answer to an undertaking given at questioning that was read-in at trial that it failed to pay Mr. Rooney vacation pay for Family Day in 2010 in the amount of $460. I award Mr. Rooney damages of $460 with interest calculated starting from Family Day 2010.

Disciplinary Actions [ 54 ] Prior to 2010, Mr. Rooney was never disciplined or suspended by GSL. From January until the end of his employment in May 2010, Mr. Rooney was suspended without pay three times. The suspensions occurred on January 18, April 18, and April 22. [ 55 ] Mr. Rooney’s courtroom demeanour and the way conducted himself in the recordings shows him to be cantankerous. Though he may have been difficult at times, he was a longstanding and loyal employee of GSL who had generally positive relations with his co- workers. As his supervisors at GSL began to change his role in 2010, Mr.

Rooney became more difficult and acted out. Mr. Rooney’s actions cannot be understood apart from the context in which they occurred. [ 56 ] The suspensions were imposed by Mr. Huber and Mr. Kennedy, who were the same individuals who had decided to change Mr. Rooney’s role at GSL by opening the drivability department. The disciplinary actions must be viewed in light of the tension between Mr. Huber and Mr. Rooney in 2009-2010. In the audio recording of the discussion between Mr. Huber, Mr. Kennedy, and Mr. Rooney on April 22, 2010, Mr.

Huber can be heard saying that there was “tension in between us” and referring to “our little war that we had.” Later in the conversation, he agreed that sometime in the previous year he had told Mr. Rooney that, “I won’t fire you, I will just make you fucking quit.”

[57] Each of the suspensions occurred in reaction to a specific incident and involved sending Mr. Rooney home to “cool off.” Mr.Rooney was not given an opportunity to appeal his suspensions to a higher authority at GSL. The effect of sending Mr. Rooney homewas to suspend him without pay because of the way that the GSL compensation system worked – there was no pay for idle time. [58] On January 18, 2010, Mr. Huber suspended Mr. Rooney without pay for squealing tires in the shop. The evidence from Mr.Amman was that squealing tires was a regular occurrence in the shop because the floor was slippery. Mr.

Kennedy testified that in hisjudgment Mr. Rooney had squealed the tires more than necessary or appropriate in the circumstances. In the audio recording, Mr.Rooney refers to the incident as being a little “meltdown.” [59] On April 18, 2010, Mr. Kennedy suspended Mr. Rooney without pay for arguing with him about whether a specific jobshould be covered by warranty or not. [60] On April 21-22, 2010, Mr. Huber and Mr. Kennedy suspended Mr. Rooney for a day and a half without pay for having anargument with another technician, Dean Cleverly. Mr. Kennedy testified that Mr.

Cleverly was upset by the argument and left work fortwo days. According to Mr. Rooney, there was no argument and Dean Cleverly left work to attend to a family matter. Mr. Ammantestified that on that day he saw Mr. Rooney and Mr. Cleverly having what appeared to be a discussion, not an argument. [61] Where an employer has just cause for terminating an employee, the employer may impose a lesser sanction including anunpaid suspension: Carscallen v FRI Corp., (ON SC) at para 75 aff’d (ON CA). GSL,however, does not claim to have had just cause to dismiss Mr.

Rooney for any of the incidents for which he was suspended without pay. [62] Absent there being just cause to dismiss an employee, the common law provides “if there [is] no agreement to such an effect,no employer [has] a right to suspend an employee for a breach of a term of his employment and deprive him of his wages for the periodof his suspension”: Earle et al v Liquor Control Commission (NB), (1969) (NB CA), 5 DLR (3d) 743 (NB CA) at748.

See also, Carscallen (ONSC) at para 30. [63] The question for the Court is whether GSL had the power under the express or implied terms of employment to suspend Mr.Rooney without pay. GSL submits that the suspensions were done in accordance with its ordinary disciplinary practices and wereproportionate to the acts of misconduct. GSL’s evidence is that there was a well-established system of progressive discipline that startedwith a warning before escalating to sending the employee home without pay.

As established as the GSL discipline process may havebeen in practice, it was not contained in a written employment agreement between Mr. Rooney and GSL nor did GSL have a formalwritten policy governing the discipline of employees. There was no evidence at trial that when the employment relationship was formedor at any time after that there was a meeting of the minds between the parties with respect to the question of employee discipline. Accordingly, I find as a fact that there was no express right to suspend Mr. Rooney without pay in the employment agreement betweenGSL and Mr. Rooney.

That leaves the question of whether there was an implied term of reasonable discipline that permitted GSL tosuspend Mr. Rooney without pay. [64] The question of an implied term of reasonable discipline in an employment agreement was addressed by Justice Doherty inHaldane v Shelbar Enterprises Limited, (ON CA) at para 10: the employer’s right to suspend without pay, as an exercise of reasonable discipline may flow from an implied term of the employmentcontract. Terms may be implied into a contract based on custom and usage or based upon the presumed intention of the parties: M.J.B.Enterprises Ltd. v.

Defence Construction

(1951) Ltd., (SCC), [1999] 1 S.C.R. 619 at pp. 634-36, 170 D.L.R. (4th)577; Machtinger v. H.O.J. Industries Ltd., (SCC), [1992] 1 S.C.R. 986 at p. 1008, 134 N.R. 386, per McLachlin J.Whether by way of custom and usage, or the presumed intention of the parties, the determination of whether a term should be impliedinto a contract will depend on the evidence led and the trial judge’s findings of fact. [65] Doherty JA, however, declined to decide whether a term of reasonable discipline should be implied.

He concluded at para 16,“a case could be made for implying a term providing for reasonable discipline into employment contracts. Such a step would, however,raise complex questions concerning both the procedural and substantive scope of that implied term. In any event, the issue should await acase where it is fully argued and its resolution is necessary for the decision.” [66] The three ways that a term may be implied in a contract was outlined by Supreme Court of Canada explained in MJBEnterprises at para 27.

A term may be implied: (1) based on custom or usage; (2) as the legal incidents of a particular class or kind of contract; or (3) based on the presumed intention ofthe parties where the implied term may be necessary to give business efficacy to the contract or as otherwise meeting the ‘officiousbystander’ test as a term which thee parties would say, if questioned, that they had obviously assumed. [67] I cannot imply a term of reasonable discipline under MJB Enterprises categories (1) or (2). Custom and usage refers to a wayof doing things that goes beyond the immediate parties.

Typically, custom and usage refers to an industry practice. The pedigree for thisidea can be traced back to at least Georgia Construction Co. v. Pacific Great Eastern Railway Co., (SCC), [1929] SCR630 at 633-634. There is no evidence of custom or usage other than the evidence of the GSL witnesses that it was GSL’s practice tosuspend employees without pay if bad behaviour persisted after a warning. This is too thin a basis on which to conclude that there is anindustry practice sufficient to find an implied term.

Similarly, there is no evidence before me to allow me to make any conclusion withrespect to the appropriateness of implying a term of reasonable discipline into employment contracts generally. In this regard, I shareDoherty JA’s reticence and leave the question for another day. [68] Under MGB Enterprises category (3), I find that business efficacy requires that a term of reasonable discipline be implied inthe unwritten GSL-Rooney employment agreement.

Some way of enforcing corporate standards of employee conduct was obviouslynecessary and the parties would have assumed at the time of contract formation that GSL had a right to reasonably discipline Mr. Rooneyfor non-compliance with corporate standards of employee conduct. I am not prepared, however, to conclude that GSL’s actual disciplineprocess conformed to the implied term of reasonable discipline for two reasons. First, a power to suspend without pay is not required forbusiness efficacy. The same purpose – to demonstrate disapproval and give time for the employee to cool off – can be accomplished by

a suspension with pay. To the extent that a power to suspend is implied by reason of business efficacy, it is a power to suspend with pay. Second, an implied term of reasonable discipline must include procedural protections for the employee. I adopt the conclusion of Echlin J in Carscallen (ONSC) at para 44 as being some of the appropriate procedural protections in the implied term of reasonable discipline: if a right of suspension is to be contracted for, and upheld as fair and reasonable, a right of review must exist in the contract or policy akin to the unionized employee’s right to grieve.

The supervisor imposing the discipline must not be permitted to be the sole judge, jury and executioner. There must be an opportunity to have whatever penalty is imposed reviewed by another party. [ 69 ] Mr. Rooney was not disciplined in accordance with the implied term of reasonable discipline. On three occasions, he was suspended without pay and without any recourse to a higher authority for review of the suspension. Unauthorized discipline can constitute constructive dismissal: Henderson v. Saan Stores Ltd. , 2005 SKQB 34 at para 29 . The suspensions of Mr.

Rooney were brief and did not cause significant financial hardship, but nevertheless constitute grounds for constructive dismissal. The discipline imposed in this case without contractual authority constitutes a unilateral substantial change in terms of employment that could reasonably be viewed by an employee in Mr. Rooney’s position as a breach of the employment contract. [ 70 ] Mr. Rooney asserted constructive dismissal after the third and most significant suspension without pay. I find that Mr. Rooney did not acquiesce to GSL’s disciplinary practice of suspension without pay.

He objected to his first suspension but acted reasonably in not asserting constructive dismissal given that it was for a short period and may have been an isolated occurrence. Only after the second and third suspensions occurred in short succession did Mr. Rooney assert constructive dismissal. I find that Mr. Rooney asserted constructive dismissal within a reasonable time following the April 22, 2010, disciplinary action. Diminished Role and Reduced Compensation [ 71 ] From 2000 until early 2010, Mr. Rooney was the only GSL technician with drivability designated as his primary expertise.

The practical effect of Mr. Rooney being the only technician with primary expertise in drivability was that Mr. Rooney had as much drivability work as he could perform. [ 72 ] Mr. Rooney testified that prior to 2000, he had also done electrical and air conditioning work. In or around 2000, Mr. Rooney was asked by GSL to focus on drivability. After being asked to focus on drivability, he rarely did electrical or air conditioning work and did not keep up his training in those areas.

Mr, Rooney took pride in being the principal drivability technician at GSL and it provided him with a good income. [ 73 ] By late 2009 GSL determined that having only one technician with drivability as a primary skill was not in its best interests. Mr. Rooney was getting older and had experienced some health problems in recent years. GSL wanted to “open up the drivability department.” Opening the drivability department was the GSL terminology for training up and designating other technicians as having a primary expertise in drivability to reduce dependence on Mr.

Rooney. [ 74 ] Sometime in late 2009 or early 2010 Mr. Rooney was told that there would be changes coming to the drivability department. But, it is important to note, these changes were not explained in detail or put in writing. Nor were the financial implications of the changes discussed with Mr. Rooney. Mr. Rooney began 2010 with a vague understanding that change of some sort was coming, but no understanding about what it meant for him. [ 75 ] Sometime in early 2010, Mr. Cleverly and Mr.

Notacker were designated as having a primary expertise in drivability in addition to their other designations of primary expertise. As a result, the computer that assigned work started to direct drivability work to them that would have previously gone to Mr. Rooney. [ 76 ] A comparison of the technician payroll reports for the period September 1 to December 31, 2009 and the period January 1 to May 31, 2010 shows that Mr. Cleverly and Mr. Notacker saw a marked increase in their volume of drivability work starting in early 2010 while Mr.

Rooney experienced a corresponding decrease in his volume of drivability work. [ 77 ] During the first months of 2010, Mr. Rooney started to notice Mr. Cleverly and Mr. Notacker were getting work that he thought should have been assigned to him. He also noticed being less busy than he was used to. Given the lack of clear explanation of the changes to the drivability department, Mr. Rooney did not address the matter with his immediate supervisor, Mr. Kennedy, until late March. [ 78 ] The changes to the drivability department were explained to Mr. Rooney for the first time in clear terms by Mr.

Kennedy on March 22, 2010. On the audio recording of that conversation, Mr. Kennedy can be heard saying: As it relates to Ed Rooney, what have we done? We have opened up the drivability department. Just hear me out and I will explain what we did and why we done it. We opened up the drivability department. We now have two other people doing drivability, besides Ed. You know who they are – Randy and Dean. Okay. No one else. They also do electrical and AC – both of them but they do drivability too now. You yourself are doing drivability. ... We put Henry in the electrical department.

This would be because we are giving drivability to Randy and Dean so we need more people in the electrical department to keep up with the electrical so that’s what we did that for. Okay. ... Because ... [Randy and Dean] can’t continue to keep working just only having access to straight time, they need to make a living too and eventually you are not going to be here. We need to bring them up. Have them trained and ready to go like eventually you are going to

be retiring or whatever. ... If you retired or you quit, we need to have people in place here, okay? We need to give them an opportunity to make a living because I am not prepared to lose either one of them okay because they are the future. [ 79 ] On the audio recording of the March 22, 2010, Mr. Kennedy can be heard saying that he and Mr. Rooney had an earlier discussion about changes to the drivability department. The earlier discussion about changes to the drivability department, however, appears to have been focussed on technological changes rather than personnel changes.

The inference that I draw from all the evidence is that Mr. Kennedy avoided discussing the personnel changes in the drivability department with Mr. Rooney because he knew it would be a difficult conversation. [ 80 ] At trial, GSL tried to rationalize its treatment of Mr. Rooney by arguing that he did not have the training to perform drivability work on new models that used GM’s new Global A computer diagnostic system. The evidence showed that no one at GSL had completed Global A training in the first months of 2010 because the training was not widely available. Mr. Notacker and Mr.

Cleverly only completed the Global A training after Mr. Rooney left GSL. The evidence also showed that only a small minority of vehicles serviced in early 2010 had the Global A system and that in early 2010 older diagnostic tools could still be used on vehicles with the new Global A system. Technological changes were coming to GM’s drivability discipline, but there was no reason in late 2009 or early 2010 to believe that Mr. Rooney would not adapt to this new system once training was available and the new technology became more prevalent. [ 81 ] The most important thing missing from Mr.

Kennedy’s March 22, 2010, explanation of the changes in the drivability department to Mr. Rooney is any discussion of the financial impact of the changes for Mr. Rooney. Though it is clear from Mr. Rooney’s questions that he was concerned about getting less drivability work, the extent of the impact on his compensation does not appear to be understood at that time by either Mr. Kennedy or Mr. Rooney. Indeed, Mr.

Kennedy obfuscated by raising the prospect that GSL could increase its total drivability work now that it had more drivability technicians. [ 82 ] The financial impact of opening the drivability department on Mr. Rooney may be illustrated by comparing his income over the period January 1, 2010, to April 30, 2010, with income for the same period in prior years. Mr. Rooney’s average income for the four-month period from January 1 to April 30 for the years 2007-2009 was $38,473.56. His income for January 1, 2010, to April 30, 2010, was $26,481.25, which is a decrease of more than 31%.

Applying the Test for Constructive Dismissal [ 83 ] Before applying the test for constructive dismissal where there is no written contract, a Court must state the relevant terms of the contract: Alberta Computers.com Inc v Thibert , 2021 ABCA 213 at paras 44 and 46 . [ 84 ] I find that a key term of the employment agreement between GSL and Mr. Rooney was that he would be the principal drivability technician for GSL.

This term stems from GSL’s request around 2000 that he focus on drivability to the exclusion of his other areas of expertise and is substantiated by the fact that for the following decade he was GSL’s principal drivability technician. Mr. Rooney’s status as the principal drivability technician meant, in practice, that he had first call on all drivability work when he was available to work.

In turn, this meant that despite GSL’s practice of only paying technicians for time working on jobs instead of available time, he had steady work and a stable income. [ 85 ] I find that GSL’s opening of the drivability department was a unilateral and fundamental change in the terms of Mr. Rooney’s employment. The opening of the drivability department materially reduced the amount of drivability work available to Mr. Rooney and correspondingly resulted in a significant decrease in compensation. I further find that a reasonable person in the Mr.

Rooney’s position would conclude that the substantial decrease in payment constituted a breach of the employment contract. [ 86 ] I also conclude that Mr. Rooney did not acquiesce to the changes in his terms of employment. As I have explained, the changes to Mr. Rooney’s terms of employment were not clearly explained to him until March 22, 2022, and even then the financial impact of the changes remained unclear. Monthly variations in income were the norm for Mr. Rooney prior to 2010, so a short-term decrease in compensation was not necessarily cause for alarm. I find that Mr.

Rooney could not have fully appreciated the financial impact of the changes described to him on March 22, 2010, until he received his pay stub for March sometime in mid-April. This was followed shortly by his discussion on April 22, 2010, with Mr. Huber and Mr. Kennedy concerning a range of issues including the change in his role and his latest suspension without pay. Mr. Rooney advised GSL in writing that he was asserting constructive dismissal on May 6, 2010. I find that in the circumstances, Mr.

Rooney asserted constructive dismissal within a reasonable time and did not acquiesce to the changes in his terms of employment. [ 87 ] My conclusion that GSL breached Mr. Rooney’s terms of employment in opening the drivability department should not be understood as holding that the drivability department could not be changed. GSL had a legitimate business purpose in planning for succession and wanting to become less reliant on Mr. Rooney as he aged. However, once GSL asked Mr.

Rooney to be the principal drivability technician in 2000 and he served in that role for a decade, it was not open to GSL to make a unilateral change that caused a significant negative financial impact on Mr. Rooney. Given his length of service and role as the principal drivability technician, Mr. Rooney had a legitimate expectation to be informed of changes to the drivability department and to be protected from adverse financial impacts of the changes. If GSL was not prepared to engage with Mr. Rooney in this way, it was always open to GSL to terminate his employment without cause and to pay severance.

Dismissal for Cause – Surreptitious Recordings

[88] Earlier in these reasons at paras 3-11, I denied GSL’s application to amend its Statement of Defence to plead after-acquiredcause.

Nevertheless, I will address GSL’s position on after-acquired cause in case my decision to deny the amendment is reversed. [89] GSL relies on Shalagin v Mercer Celgar Limited, 2022 BCSC 112 where it was held at para 56 that “surreptitious recordingcan cause material damage to the relationship of trust between employee and employer” and at para 66 the Court concluded that “thesurreptitious recordings were a just cause for the Termination.” Similar observations were made in Hart v Parrish & Heimbecker Ltd.,2017 MBQB at paras 97-98. [90] Recording conversations in the workplace will often cause irreparable damage to the relationship of trust between employeeand employer and be just cause for termination.

The present case, however, differs from Shalagin in important respects. In Shalaginthe employer relied on written policies that the employee acknowledged bound him. By contrast, GSL points to two written policies, aCorporate Ethics Policy for the Bob Wolfe Group (the parent of GSL) and a PC Usage, E-mail and Cell Phone Policy for GSL, neither ofwhich speak to the issue of recording conversations with fellow employees. It is also not clear from the evidence that the two policiesidentified by GSL were the policies in effect at the relevant time.

I further note that both policies contemplated employees would signthe policies to acknowledge their understanding of and agreement with the policies. No policies signed by Mr. Rooney were put intoevidence. [91] Perhaps a more significant difference from Shalagin is that by the time of the first recording by Mr. Rooney, the employer-employee relationship was already frayed by tensions between Mr. Rooney and his supervisors, Mr. Rooney had an emergingappreciation that there had been a fundamental change in his terms of employment, and a suspension without pay had been imposed onMr.

Rooney without any basis in the terms of employment. Mr. Rooney resorted to what, in ordinary times, is rightly viewed as anunethical tactic to deal with what the arbitrator described in British Columbia Government and Service Employees’ Union as a“relationship power imbalance.” Mr. Rooney’s actions in recording conversations with his supervisors were justified because GSLexerted its power over Mr.

Rooney by imposing unilateral changes on his employment terms and disciplined him contrary to his terms ofemployment. [92] Even if I had allowed GSL’s application to amend the Statement of Defence to allege after-acquired cause, I would havedismissed the claim of after-acquired cause. Damages [93] Damages in employment dismissal cases are awarded in lieu of reasonable notice of termination. The period of reasonablenotice is determined using the factors set out in Bardal v. Globe and Mail, (1960) (ON SC), 24 D.L.R. (2d) 140 (Ont.H.C.); see also, Honda Canada Inc. v Keays, 2008 SCC 39 at para 28.

Those factors are: (

a) character of employment; (

b) length of service; (

c) age of the employee and availability of similar employment; and (

d) the experience, training, and qualifications of the employee. [94] The first Bardal factor, character of employment, was sometimes used by courts to reduce the notice period for employeesdismissed from lower ranking jobs.

Many courts now caution against placing too much weight on character of employment, saying thatit is a factor of “declining importance”: see Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469 at para 27, 337 DLR(4th) 679; Arnone v Best Theratronics Ltd, 2015 ONCA 63 at para 11; Bramble v Medis Health and Pharmaceutical ServicesInc (1999), (NB CA), 214 NBR (2d) 111 (NB CA); and Byers v Prince George (City) Downtown ParkingCommission (1998), (BC CA), 53 BCLR (3d) 345 (BC CA) at para 9 Justice Shelley adopted this view in Bahramiv AGS Flexitallic Inc, 2015 ABQB 536 at para 33. [95] In practice, the appropriate period of reasonable notice is often determined by looking to cases where the period of reasonablenotice has been determined for employees with similar characteristics in similar circumstances using the Bardal factors.

Counsel for Mr.Rooney provided me with the following table of cases which he submits supports a 20-month notice period for Mr. Rooney. Notice Period Job Title Tenure of ServiceAge Case24 months Machine Operator30 years 60 years old Dizka v VantageMachine Shop Ltd.,2021 ONSC 687622 months Mechanic andPress Maintainer 33 years 62 years old Di Tomaso v CrownMetal Packaging LP,2010 ONSC 5761

21 months AutomotiveMechanic 23 years 53 years old Dhatt v Kal Tire,2015 BCSC 117720 months Installer 19 years 47 years old Fong v Big PictureHome EntertainmentLimited, 2020 ONSC 750318 months Machine Operator20 years 70 years old Kotchea v AffiniaCanada ULC, 2014 OJ2390 (ONCA)16 months Mechanic 16 years 36 years old Kalsi v GreaterVancouver AssociateStores Ltd., 2009 BCJ390 (BCSC) [96] GSL relies only on Smith v Mistras Canada Inc., 2015 ABQB 673 at paras 48-49 where Justice Goss observed that “salesjobs involve readily transferable skills...” and cited Husband v Labatt Brewing Co., [1998] BCJ No 3193 at para 17 to the effect that forsalespersons “courts have consistently awarded notice in the range of two and a half weeks per year of service even where the plaintiffsare in their 50s or 60s.” GSL equates Mr.

Rooney’s skills as an automotive technician to expertise in sales which courts have found to bereadily transferable. [97] There are two problems with relying on Justice Goss’s discussion of the case law. First, her analysis concerns salespersons,not automotive technicians. There is no evidence before me that GM drivability expertise is as fungible as expertise in sales. Second,Justice Goss’ disposition of the case indicates a contrary view as to the appropriate notice for salespersons.

She determined that theappropriate notice period for a 62-year-old salesperson with 8 years and 10 months of service was nine months which is essentially onemonth per year of service. [98] Based on the Bardal factors and the comparable cases provided by counsel for Mr. Rooney, I find that the appropriate noticeperiod for Mr. Rooney is 18 months. GSL provided no calculation of damages in lieu of notice, so I accept the calculation provided onbehalf of Mr. Rooney which is $184,075.74. Mitigation [99] Should the appropriate notice period should be shortened because Mr. Rooney failed to mitigate his loss?

The relevantquestion for mitigation was stated by Sinclair JA in Michaels v Red Deer College, 1974 AltaSCAD 2 at para 43 and adopted by Justicede Grandpré in his concurring reasons in Michaels v Red Deer College, (SCC), [1976] 2 SCR 324 at 347. Toparaphrase, the question when considering mitigation by a dismissed employee is: Does the evidence establish that other employmentopportunities were available and that the dismissed employee reasonably should have taken advantage of those opportunities?

Themitigation analysis requires both evidence of available employment opportunities – often this will include evidence concerning therelevant employment market – and evidence concerning the dismissed employee’s efforts to obtain work. The dismissed employee’sefforts to obtain work cannot be assessed apart from evidence of the available opportunities. [100] Justice van Rensburg recently restated the test for mitigation and onus of proof for mitigation in the employment context inLake v La Presse

(2018) Inc., 2022 ONCA 742 at para 12: The defendant must prove: (1) that the plaintiff failed to take reasonable steps to mitigate her damages; and (2) that if she had done so shewould have been expected to secure a comparable position reasonably adapted to her abilities. See also, Michaels v Red Deer College (SCC) at 332 and Christianson v North Hill News Inc., 1993 ABCA 232 at para 11. [101] The onus of proof is on GSL. Mr. Rooney adduced evidence that he took some steps to seek employment. Whether these stepswere sufficient cannot be evaluated in a vacuum.

The sufficiency of a job search can only be evaluated in the context of the availableemployment opportunities. It is inappropriate for the Court to impose personal views as to what does or does not constitute a sufficientjob search or take judicial notice of the state of an employment market; it is the former employer’s onus to adduce evidence of availableemployment opportunities that the dismissed employee reasonably could have obtained. Smith J made this point in Saalfeld v. AbsoluteSoftware Corporation, 2008 BCSC 760 at para 29: Judicial notice of matters such as the availability of jobs ... should be avoided.

This approach is supported by the recent pronouncementson judicial notice by the Supreme Court of Canada. In R. v.

Spence, 2005 SCC 71, [2005] S.C.R. 458, the court stated that thepermissible scope of judicial notice varies according to the nature of the issue under consideration, and the closer a fact approaches thedispositive issue the closer should be compliance with the strict criteria for judicial notice. [102] See also, Williamson J in Leung v MDSI Mobile Data Solutions Inc., 2002 BCSC 1597 at para 10 questioning whether it isappropriate to take judicial notice of a lack of availability of jobs in the computer and software industry. [103] Mr.

Rooney was a GM technician for his whole working life which began in the early 1970s. After 2000 he worked almostexclusively as a GM drivability technician. There are a limited number of GM dealerships in Calgary. The Bob Wolfe Group, owner ofGSL, also owns a Cadillac dealership in Calgary. Mr. Rooney approached two of the non-Bob Wolfe Group GM dealerships looking forwork as a drivability technician but was not successful in either case. Only looking for work at two GM dealerships intuitively seems

inadequate but, for the reasons set out in para 101, I cannot reach such a conclusion without first considering Mr. Rooney’s job seeking efforts in the context of the evidence of available jobs. [ 104 ] GSL criticizes Mr. Rooney for not looking for work at GM dealerships in rural communities outside Calgary. Does Mr. Rooney’s duty of mitigation to extend to seeking employment outside Calgary? Mr. Rooney had worked for nearly 40-years in Calgary and working outside Calgary might require him to have a significant commute on busy highways. Justice Charney observed in Quesnelle v.

Camus Hydronics Ltd. , 2022 ONSC 6156 at para 93 : The cases indicate that an employee with ties to a particular community may not be required to look for jobs outside that community in order to mitigate his/her losses. This, of course, may depend on the distance involved, the nature of the employment at issue and other personal/family factors. [ 105 ] I am not required to decide if Mr. Rooney was obliged to seek work in rural communities surrounding Calgary because there is no evidence before the Court that there were drivability jobs available at the GM dealerships in those communities. GSL cannot criticize Mr.

Rooney for failing to seek a drivability position in the communities surrounding Calgary without offering any evidence that open drivability positions at GM dealerships in those communities existed. Any consideration of the reasonableness of Mr. Rooney’s actions would have to weigh the type of job opportunity, its location, and other factors. Was the job full or part-time? Was it exclusively drivability or were other skills required? Was it in Cochrane or Strathmore or High River? How long would it take Mr. Rooney to commute from home?

The evidence before me did not permit me to conduct any of this analysis. [ 106 ] Mr. Rooney did not consider looking for drivability technician positions with non-GM dealerships nor did he take additional training to re-establish his expertise in electrical and air conditioning and seek work in those areas. I do not fault Mr. Rooney for these choices as, at the time he left GSL, he had worked only on GM vehicles for nearly 40-years and had worked almost exclusively as a drivability technician for approximately 10-years. Mr.

Rooney also gave evidence concerning health problems, including two wrist surgeries, that would have made it challenging to retrain in an automotive technical discipline with more physical demands than drivability. Starting afresh at nearly age 60 was not realistic for Mr. Rooney. [ 107 ] I am unable to determine whether the steps taken by Mr. Rooney to find new employment were sufficient to meet the reasonableness standard required by law without evidence concerning the employment market for automotive technicians in Calgary during the relevant period. Were there suitable positions available that Mr.

Rooney failed to apply for? This is evidence that GSL could have and should have adduced if it wanted to discharge its onus. GSL and its parent, the Bob Wolfe Group which owns many other GM dealerships in Alberta, is a significant employer of automotive technicians and was well placed to obtain evidence concerning the employment market for automotive technicians in Calgary and Alberta during the relevant time. Conclusion [ 108 ] The Plaintiff is awarded $ 184,075.74 plus interest from the date constructive dismissal was asserted, May 6, 2010.

As noted above in para 53, he is also awarded $460 for unpaid vacation pay plus interest. If the parties are unable to agree on costs within 30 days of these reasons, they may make submissions of 5 pages or less supported by a draft bill of costs. Heard from on the 14 th to 18 th days of November, 2022. Dated at Calgary, Alberta this 5 th day of December, 2022. Colin C.J. Feasby J.C.K.B.A. Appearances: Stewart LaPrairie, Sawers, Barristers & Solicitors for the Plaintiff Lisa K. Martens, Nicholl & Akers, Barristers & Solicitors

for the Defendant