Ayalew v The Council for the Advancement of African Canadians in Alberta, 2023 ABKB 195

Court of King’s Bench of Alberta Citation: Ayalew v The Council for the Advancement of African Canadians in Alberta, 2023 ABKB 195 Date: 20230403 Docket: 1803 11169 Registry: Edmonton Between: Tesfaye Ayalew Plaintiff/ Defendant by Counterclaim - and - The Council for the Advancement of African Canadians in Alberta Defendant/ Plaintiff by Counterclaim Corrected judgment: A corrigendum was issued on April 4, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Costs Endorsement of the Honourable Justice M. J. Lema _______________________________________________________

I. Introduction [ 1 ] Mr. Ayalew seeks enhanced costs of $84,362.50 following his success in Ayalew v The Council for the Advancement of African Canadians in Alberta 2023 ABKB 113 (employer unable to assert just cause after dismissing without cause and paying severance). [ 2 ] The employer says no enhancement is warranted, instead that Schedule-C-level costs of $33,745 (fees portion) should be paid. [ 3 ] I agree with the employer. II. Analysis [ 4 ] Mr.

Ayalew’s enhancement position is that the Africa Centre (AC) failed completely on both of its principal arguments i.e. that it acquired new information post-dismissal amounting to cause and that it made a mistake in dismissing without cause. [ 5 ] Per his brief: In the present case, two defences were put forward: A. After-acquired cause – this defence was entirely without merit, as Mr. [John] Gaye [AC board chair at the time] freely admitted that no new information came to the Africa Centre Board’s attention [; and] B. Mistake – the evidence utterly failed to support the argument put forward. Mr.

Gaye freely admitted that the Board did not base its decision to terminate on the interim report [of a workplace investigator] and there was no evidence whatsoever that the Africa Centre made a mistake. [ 6 ] I will start with the mistake aspect . It is true that Mr. Gaye made the noted admission and that the AC offered no other evidence of its rationale for dismissing Mr. Ayalew (beyond a generic “need a change in leadership”). [ 7 ] However, context is important here.

The evidence showed that the Board had received the investigator’s interim report before the “terminate or not” board meeting and that the Board had reviewed the report before deciding on termination without cause. The investigator’s report effectively cleared Mr. Ayalew of the misconduct allegations. The Board later came to believe that the investigator reached the wrong conclusion on those allegations.

But as reflected in the Centre’s statement of defence, the above conjunction of facts appeared to show that the Board had indeed relied on the “all clear” report in deciding to dismiss without cause. [ 8 ] In direct examination on this aspect, Mr. Gaye confirmed these details. He then added, almost parenthetically, that “As a matter of fact, our decision – the Board’s decision – [to terminate without cause] was not based on the report of the investigator” (main judgment, para 50). In cross-examination, he confirmed that the Board did not rely on the report in making that decision.

Then he said: “That’s why the termination was without cause.” Which is unusual, because an effectively “no material misconduct” investigative report would presumably have been a reason to dismiss without cause. [ 9 ] Mr. Gaye’s “no reliance” testimony appeared to be spontaneous and went beyond the scope of the AC’s counsel’s questions leading up to it (focusing on why the Board did not accept the report), and unexpected, since it was at odds with the surrounding evidence (as to the Board having, and reviewing, the “all clear” report in time for its board meeting).

The AC’s counsel did not return to this aspect in re-direct (e.g. to explore whether Mr. Gaye had mis-spoke when he said “no reliance”). As I see it, the AC decided to live with Mr. Gaye’s evidence on this point i.e. take him as his (apparently unexpected) word on the reliance (none) aspect. [ 10 ] It may be that the AC should have discovered this no-reliance evidence in preparation for trial or even earlier.

On the other hand, the contextual evidence clearly pointed to reliance on the report i.e. if one “connected the dots” on the timing of the (“all clear”) report’s release and the very-shortly-thereafter (without-cause) dismissal. It may be that the AC assumed -- perhaps reasonably -- that Mr. Gaye would provide relied-on-it evidence here. [ 11 ] In these circumstances, I do not see the AC’s (partial) framing of the case as “mistaken reliance on report” as unreasonable. It was at least arguable. [ 12 ] In any case, Mr.

Ayalew’s counsel did not address the AC’s “mistake” argument in his written closing argument or in his oral argument, or at least in any material way. The principal analysis of that point came from me (paras 43-80 of the main judgment). [ 13 ] As for “no after-acquired cause,” Mr. Ayalew’s counsel did establish, through extensive and probing cross-examination of the AC’s witnesses, that all the misconduct allegations against Mr. Ayalew were known by the Board before it terminated his employment. Who on the Board knew what about the allegations against Mr.

Ayalew, and from what source(s), and when, was somewhat of a tangle. As I see it, it was not obvious (i.e. until after the cross-examination) that the Board had indeed had all of the material information before termination. I also note that Mr. Gaye testified, in cross, that “there were new allegations of abuse or harassment that came up after the decision to terminate Mr.

Ayalew’s employment.” And both sides confirmed that some possible witnesses had ceased working for the AC and were unreachable i.e. to (potentially) testify to any such new allegations. [ 14 ] In these circumstances, I do not see the AC’s after-acquired-cause position as unreasonable. It too was at least arguable. [ 15 ] In any case, the Board advanced a third argument on how it could disavow its initial (without-cause) stance i.e. a freestanding right to “change horses” i.e. to assert just cause even where the termination was initially without cause and severance was

paid. On this point, I found against the Board. [ 16 ] The AC did not offer any authority to support this argument. I would classify its position here as not even arguable. [ 17 ] However, while Mr.

Ayalew’s pleadings made plain the without-cause nature of the dismissal and the severance paid, his counsel offered no analysis of the possible condonation or waiver dimensions here (reviewed in paras 92-102 of the main judgment). [ 18 ] All to say: I do not regard the AC advancing its principal (mistake and after-acquired cause) positions as litigation misconduct i.e. as the kind of baseless or hopeless positions x-rayed by Wakeling JA in Pillar Resources Services Inc v PrimeWest Energy Inc , 2017 ABCA 19 at paras 124 (

g) and 126 (part of his concurring judgment). [ 19 ] In any case, Mr. Ayalew’s submissions did not add materially to the analysis of the “mistake” point or at all to the “freestanding right” point, which still had to be addressed. [ 20 ] Instead, the bulk of both parties’ examinations and arguments focused on the existence (or not) of just cause i.e. the downstream issue which did not have to be decided i.e. in light of my decision that the AC could not disavow its initial (without-cause) stance. [ 21 ] I do not fault the parties for that core focus.

But, at the end of the day, the case was decided on the threshold issue, on which the Board had two at least arguable arguments. [ 22 ] As noted in the main judgment (segment on aggravated-damages claim): … the AC adopted a litigation stance that it could establish just cause. In support of that stance, it gathered information to try to build a just-cause case. In the end, I ruled that the AC could not pursue a just-cause defence in the face of the clear without-cause dismissal accompanied by severance.

But that does not mean that the pursuit of that defence was outrageous, egregious, or capricious. [paras 143 and 144] [ 23 ] On the reasonable-notice period , the AC’s position was not unreasonable. Mr. Ayalew asked in his statement of claim for 24 months. At trial, he asked for 18 months. The AC put forward cases featuring notice between 6 and 12 months. I awarded 14 months. III. Conclusion [ 24 ] I find no basis to award enhanced costs here. [ 25 ] Instead, I award costs per the non-enhanced draft bill of costs included with Mr.

Ayalew’s costs submissions, reflecting Schedule-C-level costs for the 11 applicable costs items, totalling $33,745, plus the associated disbursements and GST ($5,982.29 – also as reflected in that draft bill of costs) i.e. a total of $39,727.29, which the AC acknowledged as the appropriate costs (at least the $33,745 fees portion). (Mr.

Ayalew did not argue that Schedule-C-level costs would be inadequate if his enhancement-of-such-costs argument was not accepted i.e. otherwise seek more than Schedule-C-level costs on some other basis in the alternative.) [ 26 ] I thank the parties for their helpful costs submissions. Written submissions provided on March 10 th and 24 th , 2023 Dated at Edmonton, Alberta this 3 rd day of April, 2023. M. J. Lema J.C.K.B.A. Appearances: Andrew R. Fraser Taylor Janis LLP for the Plaintiff Will Cascadden, KC and Arielle Sie-Mah

Gowling WLG (Canada) LL) for the Defendant _______________________________________________________ Corrigendum of the Costs Endorsement of The Honourable Justice M. J. Lema _______________________________________________________ File number has been changed from 4803 11169 to 1803 11169