Watson v Schlumberger Canada Limited, 2022 ABKB 646

Court of King’s Bench of Alberta Citation: Watson v Schlumberger Canada Limited, 2022 ABKB 646 Date: 20220929 Docket: 2001 15494 Registry: Calgary Between: Jeannette Watson Plaintiff - and - Schlumberger Canada Limited Defendant _______________________________________________________ Reasons for Decision of the Honourable Justice E.J. Sidnell _______________________________________________________ [ 1 ] Jeannette Watson was employed with Schlumberger Canada Limited (SCL) for just over 20 years. SCL terminated Ms. Watson, without cause, effective October 15, 2020.

SCL cited a sharp decrease in oil prices, the economic downturn in Alberta, and the resulting effects of the COVID-19 pandemic on the economy as reasons for Ms. Watson’s termination. [ 2 ] This matter was set down to be heard as a

Summary Trial under

Part 7, Division 3, of the Alberta Rules of Court , AR 124/2010 . It was originally scheduled for a full day hearing, but it took two days. I am of the view that there could have been some reduction of hearing time if the parties had prepared an Agreed Statement of Facts covering uncontroversial issues, even an agreement to a basis for the calculation of damages, since the period of reasonable notice was disputed. I encourage counsel to make their best efforts to enter into an Agreed Statement of Facts as part of their preparation for a

Summary Trial.

[3] Ms. Watson submits that she is entitled to reasonable notice of a period of between 21 and 23 months, together with out-of-pocket expenses incurred as a result of her wrongful termination, interest pursuant to the Judgment Interest Act, RSA 2000, c J-1, andcosts. [4] SCL submits that the period of reasonable notice to which Ms. Watson is entitled to is between 15 and 20 months. However,SCL also asserts that Ms. Watson has failed to mitigate her damages, and that failure should reduce the notice to which she is otherwiseentitled. [5] Upon her termination, SCL paid Ms.

Watson $32,171.21, representing eight weeks pay in lieu of notice in accordance withthe Employment Standards Code, RSA 2000, c E-9 (the Code). [6] SCL notes that Ms. Watson’s renumeration was based on several criteria, and in response to Ms. Watson’s claim, submitsthat Ms. Watson: (

a) is not entitled to a base salary increase during the notice period; (

b) would not have earned any commission in 2020 and is not entitled to any commission during the notice period; (

c) would not have earned any key performance objectives bonus (“KPO bonus”) in 2020 and is not entitled to any during thenotice period; (

d) is not entitled to vacation pay in addition to damages during the notice period; (

e) is not entitled to compensation for the loss of use of the SCL provided laptop computer and associated software; (

f) is not entitled to SCL’s contributions to the Canada Pension Plan (CPP) during the notice period; and (

g) is not entitled to the costs of her relocation to British Columbia. [7] This case raises the following issues to be determined relating to the damages payable to Ms. Watson arising from hertermination without cause: Issue 1: What is the reasonable notice period? Issue 2: Did Ms. Watson fail to mitigate her damages thereby reducing the notice period? Issue 3: What are the damages Ms. Watson is entitled to receive for: (

i) base salary; (ii) commissions; (iii) KPO bonus; (iv) group benefits; (

v) pension plan; (vi) parking; (vii) stock purchase plan; (viii) SCL’s CPP employer contributions; and (ix) vacation pay. Issue 4: What are the damages Ms. Watson is entitled to receive for a loss of benefits or mitigation expenses in relation to: (

i) her use of the SCL laptop computer and associated software; (ii) loss of a cellular plan; (iii) professional membership fees paid to Alberta Professional Engineers and Geoscientists of Alberta (APEGA); (iv) relocation expenses to British Columbia; and (

v) miscellaneous mitigation expenses for gas to attend interviews and networking. Issue 1: What is the reasonable notice period? [8] Both parties agree that the leading case on determining the period of reasonable notice is Bardal v The Globe & Mail Ltd(1960), (ON SC), 24 DLR (2d) 140 (Ont HCJ), but suggest different outcomes. The “Bardal factors” are frequentlyused to determine the length of reasonable notice, and were set out in Bardal at page 145:

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant . [ 9 ] The Bardal factors are not exhaustive but provide a framework from which to consider the circumstances of a wrongful dismissal case. Character of the employment [ 10 ] Ms.

Watson received a Bachelor of Science degree in geology and a minor in physical geography from the University of British Columbia. She started working for SCL in 2000 and in 2009 obtained a Professional Geologist designation with APEGA. [ 11 ] Ms. Watson started in a technical role and, over the years, she moved into more senior technical and team positions, first as a specialized geologist and then as a technical sales manager. SCL had a division which sold its proprietary Software Integrated Solutions (SIS). Effective May 1, 2018, Ms.

Watson became a SIS Account Manager and was told that her “base salary and grade” would remain the same. [ 12 ] Both Ms. Watson and SCL agreed that SCL’s job description for “Sales Engineer” set out the duties of Ms. Watson as SIS Account Manager. That job description included, among other things, the following statement: The Sales Engineer is responsible for growing market share and revenue with assigned accounts. The Sales Engineer is also responsible for establishing and building relationships with assigned customers.

This person promotes the sale of ... products and services to assigned accounts, utilizing field background expertise to match customer need with applicable solution. The Sales Engineer optimizes sales opportunities through in-depth knowledge of client activities and plans, and communicates customer activity and sales opportunities through effective use of sales business systems/processes. [ 13 ] In conjunction with her appointment as SIS Account Manager, Ms.

Watson acknowledged receipt of the SCL Canada Employee Handbook (Handbook), which included information on SCL’s policies, benefit plans and protocols. [ 14 ] In March 2020, Ms. Watson received a Performance Appraisal and Development Plan (PADP) from the person she reported to: Glenn Kaminski, SCL’s Sales Manager-SIS Canada. The PADP included ratings for Ms. Watson’s 2019 calendar year performance. In addition, Mr. Kaminski commented on Ms. Watson’s 2019 performance and her plans and goals for 2020, which were already underway, including: Jeannette ended the year at 81.3% ... of her $10.1 M Target.

From a revenue mix perspective on commissionable target, with a strong foundation ... 71% of Plan ... you had a significant contribution to your plan in place and were well positioned. You ended the year with ... notable wins being sales to [specific clients identified]. Given your accounts had a high base of recurring revenue, I was expecting a stronger year considering your strong background, relationships and 18 years’ experience in the Canada market as well as training and support provided ... as well as local support.

I was pleased to see Jeannette is very organized and does not miss deadlines, she is very proficient with all administrative and process aspects [of] the role which ensured quote contracts and paperwork were executed leading to SIS recognizing all revenue available in her accounts. In 2020, I would like you to focus more time and energy on client engagement and building relationships within your accounts, you could also benefit from account specific strategies (and actions) to drive revenue in your accounts.

I would encourage you to leverage and collaborate more with your ... peers as well as myself to develop and close deals in 2020. ... [ 15 ] Ms.

Watson did not agree with the March 2020 PADP and in her response referenced some of her specific successes and general achievements in 2019, together with plans for 2020, a portion of which was as follows: 2019 was for me, my first full year as an account manager, I was very surprised and disappointed by the rating above as I felt I was truly motivated and enthusiastic to apply my new learned skills from a month away mid year for Sales University (where I finished top of the class). I also managed to continue to close opportunities whilst on training. . . .

I was successful in closing numerous large deals with [specific clients noted], all whilst building strong relationships with these and other new clients. . . . I feel that my performance has been incorrectly perceived by management, I was fully engaged at all times with all of my clients. I will make sure that in 2020 quarterly reviews are completed ..., I will request monthly reviews with my manager to ensure that I am on target and that there are no false perceptions and that I will not be surprised in 2020 by any ... rating in the future. ... [ 16 ] The job description and PADP show that Ms.

Watson was a high-level SIS Account Manager who relied on her university education, technical knowledge, industry contacts, sales acumen and considerable experience with SCL. Ms. Watson’s long tenure assisted in her ability to be knowledgeable about the products and services SCL offered. As SIS Account Manager, Ms. Watson did not have any employees reporting to her.

[17] For 2019, the last year during which Ms. Watson was an Account Manager for the full 12 months, her T4 income was$273,075.38. Length of service [18] Ms. Watson’s career at SCL was her first and only significant employment after graduating from university. She worked forSCL for just over 20 years from September 25, 2000 to October 15, 2020, when SCL terminated her without cause. This is a long periodof service with the same employer. However, while it constituted a long time with one employer, I do not find Ms.

Watson’s 20 years ofservice with SCL to constitute “exceptional circumstances” which might extend the reasonable notice period: see Lalani v CanadianStandards Association, 2015 ONSC 7634, at para 25. [19] Length of service is usually a significant factor in assessing reasonable notice, with longer periods of service giving rise tolonger periods of reasonable notice: Hunsley v Canadian Energy Services LP, 2020 ABQB 724, at para 20. Age of the employee [20] When she was terminated, Ms. Watson was 43 years old. [21] Ms.

Watson submitted in her written brief that the Supreme Court of Canada’s decisions, in Law v Canada (Minister ofEmployment and Immigration), (SCC) and McKinney v University of Guelph, (SCC), stand for theproposition that it is generally known that persons over the age of 45 have more difficulty finding work than others. [22] In McKinney, La Forest J, for the majority, upheld the dismissal of a human rights and constitutional challenge to mandatoryretirement provisions which required the appellants to retire at age 65.

In the context of discussing the objectives of the Human RightsCode, 1981, SO 1981, c 53, La Forest J made a comment, at page 299, regarding persons over 45 who do not have specific skills havingmore difficulty finding work than younger workers: The objective of ss. 9(

a) and 4 of the Human Rights Code, 1981 is to extend protection against discrimination to persons in a specifiedage range. The protection as originally prescribed was limited, we saw, to persons between the ages of 45 and 65, an age groupconsidered with considerable justification to be most in need of protection. Barring specific skills, it is generally known that persons over45 have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by thefact that the latter are frequently more recently trained in the more modern skills.

Their difficulty is also influenced by the fact that manyin that age range are paid more and will generally serve a shorter period of employment than the young, a factor that is affected not onlyby the desire of many older people to retire but by retirement policies both in the private and public sectors. By 1982, youth employmenthad also become a more serious factor and the protection was extended, we saw, to the ages of 18 to 65. [23] The Law decision concerned the constitutionality of ss. 44(1)(

d) and 58 of the Canada Pension Plan, RSC, 1985, c C-8, andwhether entitlement to survivor's pensions could be made on the basis of age. Iacobucci J, on behalf of a unanimous court, found theprovisions constitutional and, at para 101, referred to the comments of La Forest J quoted above in observing that there can be increasingdifficulty finding and maintaining employment as one grows older. [24] Ms. Watson is a person who is highly educated and has specific skills. She was not 45 at the time of her termination, she was43. I do not see either Law or McKinney being authority to extend a period of notice for Ms.

Watson. I find Ms. Watson’s age ontermination to be a neutral factor. Availability of similar employment, having regard to the experience, training andqualifications of the employee [25] Ms. Watson relied on Lund v Quinn Maintenance Inc, 2020 ABQB 722, for her submission that I should take judicial noticethat during the notice period Alberta was suffering from a general economic downturn with increased unemployment, particularly in theoil and gas industry.

I find it is not necessary to take judicial notice of the economic conditions in this case as SCL noted in itstermination letter that its reasons for terminating Ms. Watson included “a sharp decrease in oil prices” and “the economic downturn inAlberta”. [26] However, economic conditions are just one factor in a constellation of factors for determining the availability of similaremployment. It is important to consider all of the factors as an interconnected network. None of the factors in the constellation can begiven such weight that they outshine the other factors.

Further, there must be no double-dipping of the weight given to similar or relatedfactors. In cautioning against double counting when examining the employee’s circumstances as a whole, Poelman J said in Hunsley, atparas 27 and 28: ... I find the review of authorities and analysis of Robertson M. in Toole v Northern Blizzard ... to be a helpful and reliable statement ofthe law.

As noted there, “reasonable notice takes into [account] both the implied understanding at the outset of the employment, asmodified by years of service, promotions, and other factors, as well as the actual circumstances existing at the time of termination”: para26. A depressed economy or sector tends to lengthen the notice. But is only one factor and should not be given disproportionate effect ... The amount of reasonable notice must be determined based on circumstances at the time of dismissal, not subsequent events or length ofactual unemployment ... [27] In terms of the effect of the pandemic, SCL contrasts Ms.

Watson’s situation with the employees who claimed compensationfor reasonable notice in Hunsley, Kosteckyj v Paramount Resources Ltd, 2021 ABQB 225 (overturned as to the finding of constructivedismissal: 2022 ABCA 230) and Kraft v Firepower Financial Corp, 2021 ONSC 4962, because Ms. Watson was terminated seven

months after pandemic restrictions began affecting the vast majority of employees in Alberta. There was no evidence before me as to thetype of restrictions that were in place in October 2020, but there is no doubt that restrictions on attending workplaces and social eventswere in place, and COVID-19 vaccinations were not widely available until the early part of 2021. The effect of the pandemic on theavailability of similar employment is not a factor on its own, but a part of the constellation of factors.

It cannot be given too much weighton its own but should also not be ignored. [28] The pandemic restrictions transformed some types of work from being primarily pursued in an office, to being performedremotely. Even though she moved to British Columbia in September 2021, Ms. Watson said that she was applying for jobs she couldperform remotely in Alberta and elsewhere. [29] Ms. Watson was a Professional Geologist who was in a high-level sales position for proprietary technical products at acompany where she spent her career of 20 years.

She had no employees reporting to her and was not a manager at the time of herdismissal. Comparable cases [30] Ms. Watson and SCL relied on a number of cases which they asserted as comparable, one of which was cited by both of them:Stuart v Navigata Communications Ltd, 2007 BCSC 463. It is not expected that there will be cases that have the exact same fact patternas the terminated employee has experienced. There will be some cases that are comparable on some of the Bardal factors where othersare more similar on other Bardal factors.

It is the constellation of Bardal factors in any given case that is most important. [31] The tables appended to these reasons set out the cases relied on by both Ms. Watson and SCL, together with a high-levelsummary of the Bardal factors and distinguishable features from Ms. Watson’s circumstances. Reasonable notice period [32] The Bardal factors are not exhaustive and additional factors may be considered depending on the circumstances of the case.Here, I find that an analysis of the Bardal factors is satisfactory to determine the appropriate reasonable notice period for Ms.

Watson.Considering the constellation of Bardal factors applicable to Ms. Watson’s circumstances as discussed above, I find that the appropriatenotice period is 20 months, from October 16, 2020 to June 15, 2022. Issue 2: Did Ms. Watson fail to mitigate her damages therebyreducing the notice period? [33] Ms. Watson provided a list of her efforts to secure alternative employment, including the jobs she applied for, and the jobinterviews she participated in. This list covered Ms. Watson’s activities to October 16, 2021, and was included in her affidavit swornOctober 26, 2021. [34] SCL claims that Ms.

Watson failed to mitigate her damages for failing to accept a position as Client Success Manager withLinkPoint Technology Group Ltd. based in Kelowna, British Columbia, where Ms. Watson had moved as of September 1, 2021. [35] At the

Summary Trial, SCL asserted that Calgary is the preferred location for oil and gas companies in Canada but did notsubmit in its written materials, or provide any authority suggesting, that Ms. Watson’s move to Kelowna should be considered as afailure to mitigate. [36] In Brown v Hrt Motors Inc, 2020 ABQB 620, at paras 79 and 80, Devlin J summarized the legal principles relating tomitigation in the employment context as follows: It is a basic principle that someone who loses their job must look for other work in an attempt to reduce their financial losses.

If they donot, their entitlement for compensation from their former employer may be reduced. Importantly, the burden of proof lies on theDefendant to show that, on a balance of probabilities, the Plaintiff failed to meet his or her efforts to mitigate: Red Deer College v.Michaels [1976] SCR 324. There are reasonable limits on what is expected of an employee in terms of mitigation. The Plaintiff correctly cites Christianson v. NorthHill News [1993] AJ No 622 (CA), where our Court of Appeal considered the principle by which an employee’s efforts to mitigate willbe judged.

There, the Court said the following (at para 11): 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 may not make the best possible decision. In particular, the Courts will not expectwhen faced with a breach of contract, to take steps which are risky or unsavory. ...

In wrongful dismissal cases, the Plaintiff need notmitigate damages by taking a significant demotion or going back to the employer who fired him or her. [37] With regard to comment in the quote from Christianson that an employee does not have to return to an employer who firedthe employee, it must be read in light of Evans v Teamsters Local Union No 31, 2008 SCC 20, where, at paras 25 to 36, Bastarache J,for the majority, found that the principles to be considered where an employee can mitigate by accepting re-employment with theemployee’s former employer apply equally in both constructive dismissal and wrongful dismissal cases.

However, re-employment withthe SCL was not applicable to Ms. Watson in this case. [38] In dissent in Evans, at para 99, Abella J cited the following passage from Red Deer College v Michaels, (SCC):

In Red Deer College , at p. 332, the Court held that the burden of proving that an employee has failed to mitigate his or her damages lies with the employer. Laskin C.J. cited Cheshire and Fifoot’s The Law of Contract (8th ed. 1972), to explain the nature of the burden: . . . the burden which lies on the defendant of proving that the plaintiff has failed in his duty of mitigation is by no means a light one, for this is a case where a party already in breach of contract demands positive action from one who is often innocent of blame. [p. 599] As this passage suggests, the burden of proof is onerous.

This is consistent with the approach to mitigation as a principle in damages more generally. As Waddams observed: “In case of doubt, the plaintiff will usually receive the benefit, because it does not lie in the mouth of the defendant to be over-critical of good faith attempts by the plaintiff to avoid difficulty caused by the defendant’s wrong” ... [ 39 ] The offer from LinkPoint included a base salary which was considerably less than Ms. Watson’s base salary at SCL and did not include similar benefits. There was no evidence regarding the prospective commissions that Ms. Watson might earn at LinkPoint. Ms.

Watson negotiated several aspects of LinkPoint’s offer, including flexible working hours to accommodate dropping off her children at school. She did not raise the issue of compensation during this negotiation, but in connection with her request for additional vacation time was told that she had already been offered the top of the salary range. Ms. Watson ultimately rejected LinkPoint’s employment offer indicating that she would be interested if the total compensation package was “modified”. [ 40 ] Relying on Brown , at para 86 , SCL submits that Ms.

Watson cannot remain impassive in the face of lesser job offers that still pay a reasonable amount. I am of the view that the gap between her SCL base salary and the proposed LinkPoint base salary is such that it cannot be said that the LinkPoint position offered to Ms. Watson, with her particular background and expertise, paid a reasonable amount.

As noted, I have no information regarding prospective commissions at LinkPoint to include that aspect of the compensation package in this determination. [ 41 ] SCL further relies on Brown , at para 96 , for the proposition that a failure to mitigate will be found where someone is simply not trying, or their attempts are such that a reasonable person would deem them hopeless and doomed to fail. Based on the evidence provided by Ms. Watson at the

Summary Trial, I am satisfied that SCL has not met the burden of proof to show that Ms. Watson’s was not trying to obtain new employment or that her attempts were hopeless and doomed to fail. [ 42 ] I find that a failure to mitigate has not been made out in this case and there should be no corresponding reduction of the reasonable notice period. Issue 3: What are the damages Ms. Watson is entitled to receive for: Base salary [ 43 ] The parties agreed that Ms. Watson’s base salary in 2020 was $160,030. Ms.

Watson submitted that her base salary would have increased during the notice period, which in this case would include both 2021 and up to June 15, 2022. [ 44 ] Ms. Watson noted that in previous years she had received periodic increases to her base salary though she acknowledged that they were often an accompaniment to a promotion. Her last raise was in 2017 before she took the position of SIS Account Manager. Ms. Watson submitted that if the base salary was not increased during 2021 or 2022, it would be the longest period during her over 20-year career with SCL that she had gone without a base salary increase.

Adverse inference [ 45 ] SCL submits that Ms. Watson’s performance did not warrant a raise. Ms. Watson responded that two of the four other SIS Account Managers received a raise in 2021. Ms. Watson requested disclosure of the other SIS Account Manager’s “thresholds, targets and amount in commissions paid”, but the request was refused by SCL. Ms. Watson submits that this information is relevant to base salary and that I should make an adverse inference against SCL for its failure to produce it. [ 46 ] Ms.

Watson relies on Bevis v Renaissance Wine Merchants Ltd , 2006 ABQB 8 , rev’d, in part, on other grounds, where, at para 30, the employee’s “extreme difficulty obtaining information pursuant to undertakings, production of documents and Court Orders” was noted, though no adverse inference was drawn. Ms. Watson also points to Ruel v Air Canada , 2022 ONSC 1779 , where the Court considered an opposed motion for

summary judgment in the employment context under rule 20.04 of the Ontario Rules of Civil Procedure , RRO 1990, Reg 194 . The Court drew an adverse inference based on the employer’s failure to answer certain questions and found that the employee’s 2019 bonus of $35,000 would have been paid to him had he not been terminated. This adverse inference was made after the employer refused to provide any information on the bonus criteria, whether the employee could have potentially received the bonus the year it was paid out, or to provide particulars of bonuses paid out to others at the employee’s level. [ 47 ] Ms. Watson also relies on Wiltse v Seastar Chemicals ULC , 2020 BCSC 658 , where, on a

summary trial for wrongful dismissal, in the absence of any evidence from the employer, the Court drew an adverse inference against the employer and accepted the employee’s calculations regarding his base salary and corporate profit bonus. In Wiltse , the Court accepted the employee’s evidence because nothing contrary was forthcoming from the employer. [ 48 ] In Bevis , Ruel and Wiltse , the disclosure sought related to the plaintiff employee. This is different from the disputed disclosure in this case which relates to other employees in the same position, but not on the same compensation scheme as Ms. Watson.

SCL submitted that each of the SIS Account Managers were rated individually, had different targets and different client lists. [ 49 ] In Singh v Reddy , 2019 BCCA 79 , at paras 8 and 9 , the British Columbia Court of Appeal discussed the adverse inference

principle and how it applies to the failure of a party to call a witness at trial. The Court there did not mention drawing an adverse inference where a party to a civil action has refused to produce records. [ 50 ] Drawing an adverse inference for disputed disclosure at this

Summary Trial would be improper as the

Summary Trial Application does not set out this relief and only relief sought in an application can be granted. [ 51 ] In Alberta, typically, a party in a civil suit who takes the position that undisclosed records are relevant and material, and should have been disclosed by the opposing party, brings an application under Rule 5.11 to obtain a ruling on the contested disclosure. Ms. Watson provided no reason for not availing herself of a remedy under Rule 5.11 before the

Summary Trial. [ 52 ] Ms. Watson has not satisfied me it would be appropriate to draw an adverse inference against SCL in relation to this disputed disclosure request. SCL evidence on base salary increases [ 53 ] SCL also pointed out that 2021 was a difficult year financially and that Ms. Watson should not have expected an increase. Mr. Kaminski’s evidence on base salary increases was as follows: General salary increases were not provided in 2021. Although high performers were offered increases in 2021 based on global performance, which averaged about 3% of base salary, given Ms.

Watson’s performance in 2019 and 2020 it is not anticipated that she would have been one of those high performers. [SCL] anticipates similar increases in 2022, however, this has yet to be finally determined. Ms. Watson’s evidence on base salary increase [ 54 ] Ms. Watson noted that even in the economic downturn of 2017 she received a raise, albeit before she took the position of SIS Account Manager. [ 55 ] When asked what the increase to Ms. Watson’s base salary should be, counsel for Ms.

Watson suggested an average of past increases, even though the last increase was in 2017 and her previous increases were often tied to a promotion. Not only was her last increase approximately three years before her termination, Ms. Watson also acknowledged that in October 2020 she had no expectation of being promoted from her position of SIS Account Manager. No base salary increase warranted [ 56 ] For 2½ years before being terminated, while in the role of SIS Account Manager, Ms. Watson did not receive any raise in her base salary. She relied on commissions for a significant portion of her compensation.

This was a departure from some of her previous positions where the bulk of her compensation was made up of base salary. [ 57 ] Ms. Watson had previously received increases often related to a promotion. There were no promotion prospects for Ms. Watson in 2021. [ 58 ] As discussed below, Ms. Watson was not projected to make her “Commissionable Revenue Target” in 2020 and this supports Mr. Kaminski’s evidence that it was not likely that Ms. Watson would be given an increase in base salary in 2021 had she not been terminated. Mr.

Kaminski’s evidence was that no general salary increases were provided in 2021 and that increases were limited to “high performers”. [ 59 ] For all of the foregoing reasons, I find that there is not enough evidence to show that, on a balance of probabilities, Ms. Watson’s base salary would have been increased during the notice period had she not been terminated. Commission [ 60 ] In addition to her base salary, Ms. Watson claims for commissions which relate directly to her sales performance as a SIS Account Manager. [ 61 ] SCL had a complicated commission structure for Ms. Watson.

The 2020 Sales Commission Plan stated that each employee’s plan was tailored based on seniority, base salary and revenue. Account managers who had a higher base salary, or more seniority, were expected to achieve a higher total revenue. There was no evidence as to whether Ms. Watson had a higher base salary, or more seniority, relative to the other account managers.

Commissionable Revenue Target and threshold for commission [ 62 ] The 2020 Sales Commission Plan also indicated that there were three revenue types that were given different percentages of recognition when included in the “Commissionable Revenue Target calculation”. [ 63 ] A document entitled “Compensation Plan Details”, relating specifically to Ms. Watson for the 2020 calendar year, noted two types of targets: (a) “Revenue Target” of $9,740,978.14; and (b) “Commissionable Revenue Target” of $9,379,611.33.

[ 64 ] There was a base threshold incorporated into the Compensation Plan Details for earning commission. In 2020, the threshold was set at 84% of Commissionable Revenue Target. As a result, in 2020, Ms. Watson: (

a) was set a Commissionable Revenue Target of $9,379,611.33; (

b) was required to obtain a threshold of 84% of the Commissionable Revenue Target, being $7,878,873.52, before she was entitled to any commission and, if she failed to meet that threshold, she was not entitled to any commission; (

c) upon meeting 84% of the Commissionable Revenue Target, she was entitled to 84% of a commission of $128,024.06; and (

d) upon achieving more than 84% of the Commissionable Revenue Target was entitled to a pro rata share of the $128,024.06 commission. [ 65 ] The 2020 Sales Commission Plan , and the 2021 Sales Commission Plan, at clause 3.4, states that: Eligibility for any incentive under this Plan upon employee’s termination will be in line with [SCL] HR Compensation & Benefits guidelines.

Upon employee’s termination, no commission will be paid on any revenue recognized after the Participant’s last date of employment. ... [ 66 ] In my view, clause 3.4 requires the Commissionable Revenue Target and Commissionable Revenue to be prorated from January 1 to October 15, 2020, as opposed to being considered on an annualized basis, to determine Ms. Watson’s commission in 2020. Issues of credibility and reliability [ 67 ] Ms. Watson sought to determine her claim by

Summary Trial. Liability is not in issue, only damages are to be determined. SCL provided all of the evidence before this Court relating to the amount of revenue earned by Ms. Watson in 2020. Ms. Watson has no conflicting evidence. However, Ms. Watson appears not to accept SCL’s evidence and, it would seem, invites this Court to be skeptical of SCL’s evidence. [ 68 ] The comments of Paperny J (as she then was) in Compton Petroleum Corp v Alberta Power Ltd , 1999 ABQB 42 , at para 12 , while under old Rules 158.1-158.7, are just as applicable to

Summary Trials granted under Rule 7.5: The burden of proof to be met by an applicant for judgment under the

summary trial procedure is the same as that in a trial; the party asserting the affirmative of an issue must prove it, on a balance of probabilities. ... [ 69 ] At one point in Ms. Watson’s brief, she states SCL asserts that “the total revenues from Ms. Watson’s accounts for 2020 was $7,606,775.73. If true , this would represent roughly 81.1% of the 2020 target” [emphasis added]. [ 70 ] At another point in her brief, Ms. Watson says SCL: ... refused to provide revenue numbers [broken-down] for Ms. Watson’s client accounts over the notice period.

Even where it did provide those numbers for 2020 and early 2021, it did not provide the actual underlying information used to calculate those numbers. Apparently, Ms. Watson is supposed to take [SCL’s] word for it or otherwise bring multiple court applications in order to obtain this information. [ 71 ] Ms. Watson has no evidence relating to the revenue she earned in 2020 but is skeptical of SCL’s evidence. There is nothing wrong with being skeptical and undertaking the discovery to challenge and understand evidence.

However, if no other evidence is tendered, and there is no basis for being skeptical, then what is the purpose of suggesting the evidence is not true or complaining that one party must accept the other parties word? [ 72 ] Ms. Watson’s skepticism is inconsistent with her assertion that

Summary Trial was appropriate. In her

Summary Trial Application, Ms. Watson states that the “evidence required to make the necessary findings of fact is primarily documentary and not controversial” and resolution “will not depend heavily on findings of credibility. Conflicting affidavit evidence, if any, can be addressed through common sense inferences”. The only common-sense inference that can be made about evidence that is not challenged or undermined in any way is that the evidence is correct. [ 73 ] In my view, Ms. Watson applied for a

Summary Trial on the basis that there would be no significant issues of credibility raised. It is too late to suggest that the only evidence on the revenues, being that provided by SCL, should not be accepted because Ms. Watson is not sure if it is “true”. Ms. Watson has provided no basis to challenge the revenue information provided by SCL and has not proposed any other revenue amounts. Further, there were no submissions regarding any, let alone multiple, court applications having been made for disclosure of information. This is a situation where the plaintiff cannot have her cake and eat it too. Either the matter is ready and appropriate for a

Summary Trial, or the matter raises issues of credibility or reliability that must tested under cross- examination at trial. Here, Ms. Watson opted for the matter to proceed by

Summary Trial and submitted that the evidence was primarily documentary and not controversial. Adverse inference [ 74 ] Ms. Watson submits that the Court should draw an adverse inference against SCL for its failure to provide specific account information broken-out from overall revenue numbers and underlying information used to calculate the revenue numbers for Ms. Watson. For the reasons set out at paragraphs [50] to [52], I decline to draw such an adverse inference. Commission 2020 evidence [ 75 ] Mr. Kaminski’s evidence regarding Ms. Watson’s Commissionable Revenue during 2020 was inconsistent. In his affidavit,

Mr. Kaminski said: Although the Commissionable Revenues for 2020 from the accounts Ms. Watson oversaw was $7,606,775.73, the majority of such revenues related to existing contracts which ensured a minimum level of revenue, regardless of Ms. Watson’s efforts. Moreover, given that, at the time of her termination in October 2020, Ms. Watson was 19% behind her target and had not met her monthly target allocation for any month, it is unreasonable to assert that she would have been able to make up the shortfall in the final months of the year. Attached as Exhibits “F” and “G” hereto are the 2020 Revenues from Ms.

Watson’s accounts and the Sales Commission Plan Statement for Ms. Watson for 2020. [ 76 ] The exhibits attached to Mr. Kaminski’s affidavit included the following information: (

a) Exhibit F: (i) $6,400,604.34 as “January to October 2020 Total Revenue from Jeannette Watson Accounts”; and (ii) $7,606,775.73 as “2020 Total Revenue from Jeannette Watson Accounts”. (

b) Exhibit G, which Mr. Kaminski said in his affidavit was “the Sales Commission Plan Statement for Ms. Watson for 2020”; and contains evidence regarding the amounts attributable to Ms. Watson’s sales to the date of termination, October 15, 2020: (i) $6,208,615.76 as “YTD Recognized Revenue”; and (ii) $5,903,786.30 as “YTD Commissionable Revenue”. [ 77 ] The obvious inconsistency from the body of Mr. Kaminski’s affidavit and Exhibit F is that the former describes $7,606,775.73 as Ms. Watson’s Commissionable Revenues for 2020 and the later amount as being 2020 Total Revenue. This error was not noticed before the

Summary Trial as the parties acknowledged that they had not differentiated between “Total Revenue” and “Commissionable Revenue”. [ 78 ] On cross-examination, Mr. Kaminski was asked about the revenues for Ms. Watson’s accounts: Q Okay. And what were they for 2020? A 5.903 million from the sheet covering till the end of October. Q And what are you referring to? Are you referring to something in your affidavit? A I'm referring to Exhibit G. Q Okay. Now, Ms. Watson was dismissed before the end of 2020, so would these revenues include all revenues from those accounts for the 2020 year?

A These -- this one includes to the end of October, the Exhibit G. There is an Attachment F -- or Exhibit F which highlights the 2020 revenue for the full 12 months, which you have on page 2 of Exhibit F. It's 7.6 million. . . . A … we've provided the totals in two formats. We've provided the -- the revenue totals, and we've provided a breakdown which is in the commission plan, which is Exhibit G, the commission plan statements. … [ 79 ] What seemed evident at the

Summary Trial was that SCL appeared to use the term “total revenue” and “recognized revenue” interchangeably with “Revenue Target” revenue. [ 80 ] Ms. Watson says that she relied on the amount of $7,606,775.73 set out in the affidavit of Mr. Kaminski as her “Commissionable Revenue”. SCL says that the correct amounts are contained in the exhibits and that $6,400,604.34 is the amount earned in Commissionable Revenue by Ms. Watson by October 15, 2020.

[ 81 ] Despite the issues with the evidence, it is clear that Ms. Watson’s threshold of 84% of the Commissionable Revenue Target for the full 2020 calendar was $7,878,873.52. While she may have been close to this number, particularly if using Mr. Kaminski’s affidavit evidence of $7,606,775.73, she did not achieve that threshold.

Further, the 2020 Sales Commission Plan states that the commissions are not paid based on revenue earned after the termination of the employee and I have found, at paragraph [66], that the calculations should be based on the period between January 1 and October 15, 2020. [ 82 ] The period of January to October 15, 2020 is 9.5 months, or 79.167% of one year. Therefore, Ms. Watson’s threshold of 84% of the Commissionable Revenue Target for that period of 9.5 months, on a pro rata basis, was $6,237,467.80. [ 83 ] The evidence regarding the amount of revenue accrued by Ms.

Watson, from January 1 to October 15, 2020, is not in the body of Mr. Kaminiski’s affidavit but is contained in the exhibits: (

a) Exhibit F: The Total Revenue shown in Exhibit E, from January 1 to October 15, 2020, is $6,400,604.34 and exceeds the pro rata threshold. However, the documents at Exhibit F are marked “Total Revenue” and this is not what is used for the calculation of the Commission. (

b) Exhibit G: The document at Exhibit G does not have a title but is described by Mr. Kaminski as the “Sales Commission Plan Statement for Ms. Watson for 2020” and sets out under a heading “Plan Earning”: (i) “YTD Recognized Revenue” $6,208,615.76; (ii) “YTD Credited Revenue” $6,208,615.76; and (iii) “YTD Commissionable Revenue” $5,903,786.30. [ 84 ] None of the three figures on Exhibit G, noted above, reach the pro rata threshold of $6,237,467.80. Based on all the evidence, I find the figure that should be used to calculate the Commission is the “YTD Commissionable Revenue”, which means that Ms.

Watson achieved 94.7% of the 84% pro rata threshold. The 2020 Sales Commission Plan required Ms. Watson accrue at least 100% of the 84% pro rata threshold to be entitled to any commission. Weighting of revenues [ 85 ] Ms. Watson submits that there should be a weighting of the revenues on the basis that the fourth quarter generally yielded higher revenues. For this I am invited to take the results to October 15, 2020 and extrapolate that the last quarter would yield more than the first part of the year. This means that I would not use the actual revenue accrued for Ms. Watson’s accounts. [ 86 ] Ms.

Watson says that in 2018, her first partial year as SIS Account Manager, her fourth quarter revenues were 67% of the total. For 2019, the only full year that Ms. Watson was a SIS Account Manager, the fourth quarter yielded 26% of the total revenues. [ 87 ] There is not enough evidence to make a finding that Ms. Watson’s 2020 fourth quarter results would outperform the first three quarters of the year. Further, there was no basis shown on which I could increase the amount actually accrued to Ms. Watson’s accounts.

In addition, clause 3.4 of the 2020 Sales Commission Plan precludes payment of commission after the termination date so the proposed extrapolation does not work within that framework. Good faith [ 88 ] Based on her own evidence on cross-examination on her affidavit, Ms. Watson submits that Mr. Kaminski told her that the overall corporate 2020 revenue targets had been reduced and her threshold would be adjusted to reflect certain discrepancies in the SCL tracking system and the impacts of the pandemic. However, this was never put to Mr. Kaminski. [ 89 ] Mr.

Kaminski swore in his affidavit that no adjustments were made to thresholds due to the pandemic. Mr. Kaminski was asked about his evidence that SCL set 2020 targets after the onset of the pandemic. He said that SCL knew there would be impacts in terms of how work would be done but SCL was continuing with its business. [ 90 ] I find that the evidence before me is insufficient to show that SCL lacked good faith or committed to lower Ms. Watson’s targets or threshold.

Conclusion on 2020 commission [ 91 ] The 2020 Sales Commission Plan set outs the percentage of revenue from certain types of sales that will be used for the Commissionable Revenue Target calculation. The payment of a 2020 Commission is contingent on Ms. Watson reaching a threshold of 84% of her Commissionable Revenue Target. Ms. Watson’s Commissionable Revenue did not exceed the threshold, though it was very close. Unfortunately, the terms of the 2020 Sales Commission Plan are such the that the threshold must be reached for any Commission to be payable. For these reasons, I find that Ms.

Watson was not eligible for any commission in 2020 and is not entitled to any damages for a 2020 commission. Commission for 2021 and 2022 [ 92 ] In 2018, the threshold was 50% of the Commissionable Revenue Target and Ms. Watson earned a commission of $41,388.89 for achieving 63.99% of her Commissionable Revenue Target. In 2019, the threshold was raised to 80% and Ms. Watson earned a commission of $107,542.65 for achieving 81.27% of her Commissionable Revenue Target. As noted above, Ms. Watson was close, but did not achieve the 84% threshold set for 2020.

Based on her performance in 2018, 2019 and 2020, there is no evidence that Ms. Watson would have achieved a threshold of 84% of the Commissionable Revenue Target in 2021. However, it is not known what the

Commissionable Revenue Target would have been in 2021 or what threshold would have been negotiated between SCL and Ms. Watson. Loss of a chance to earn a Commission in 2021 and 2022 [93] Ms. Watson claims that her termination resulted in a loss of a chance to earn commissions during the notice period, whichincludes 2021 and from January 1 to June 15, 2022. [94] Ms. Watson relies on Lalonde v Sena Solid Waste Holdings Inc, 2017 ABQB 374, where the employee’s compensationincluded a short-term and long-term retention initiative payment.

Gill J, at paras 53 to 55, found that the employee was entitled to theportion of the retention initiative that he would have earned during this notice period. Gill J noted that the retention initiative expresslyoutlined how the bonus will be paid upon dismissal and that included compensation on a pro-rated basis. Gill J also quoted fromPaquette v TeraGo Networks Inc, 2016 ONCA 618. [95] Ms. Watson states that she is not required to prove, on a balance of probabilities, that she would have met the commissionpayout thresholds in 2021 or 2022 to be entitled to damages. Ms.

Watson relies on Strategic Acquisition Corp v Starke Capital Corp,2017 ABCA 250, a decision related to damages claimed by the holder of a right-of-first-refusal (ROFR) when it was not given adequatenotice of a material change in a commercial real estate transaction and lost the opportunity to exercise its ROFR. The Court of Appeal, atpara 75, referred to the general principles for assessing damages for a loss of chance where there is a breach of contract as set out inKipfinch Developments Ltd v Westwood Mall (Mississauga) Ltd (2008), (ON SC).

The Alberta Court of Appealthen cited IFP Technologies (Canada) v Encana Midstream and Marketing, 2014 ABQB 470, rev’d 2017 ABCA 157, and said, at para72, that proof of damages is based on probability, not reasonable certainty. [96] Ms. Watson also relies on a decision dealing with the expropriation of land: Springman v Surrey (City), 2021 BCSC 1804, forthe comment at para 96: While a plaintiff must prove the existence of a loss on a balance of probabilities, once they have done so, the court must do its best toquantify damages based on the evidence before it ... [97] Ms.

Watson further relies on Telsec Developments Ltd v Abstak Holdings Inc, 2020 ABCA 40, leave to the SCC refused (SCC), another decision relating to a commercial real estate transaction, where the majority of the Alberta Court ofAppeal said, at para 75: Where a plaintiff loses an opportunity to gain a benefit as a result of a defendant’s breach of contract, the plaintiff is entitled tocompensation when it shows that the chance lost “was sufficiently real and significant to rise above mere speculation”: StrategicAcquisition Corp v Starke Capital Corp, 2017 ABCA 250 at para 77.

This discount is based on an assessment of the contingenciesaffecting the likelihood of opportunity. A trial judge is expected to make their best estimate of the loss of chance based on the evidencepresented and adjust the damages accordingly. [98] SCL relies on O’Reilly v Imax Corporation, 2019 ONSC 342, at para 43, for the proposition that Ms.

Watson would not haveearned any commission during the notice period because, based on her performance as SIS Account Manager, she could have had noreasonable expectation of earning any commission: The award of damages for a lost opportunity to earn commissions should reflect the amount of commissions that the employee wouldlikely have received during the reasonable notice period. Often the measure of such lost opportunity is the employee's average annualearnings in the three-year period prior to dismissal: Clark v. BMO Nesbitt Burns Inc., 2008 ONCA 663 ...

However, if the employee’scommission income was increasing or decreasing in the period prior to dismissal, the court may find that it is appropriate to take intoaccount only the employee’s most recent earnings ... [99] The reasoning in O’Reilly was followed by Kenny J in Richmond v Panther Industries (Alberta) Inc, 2019 ABQB 705, atpara 22. [100] Both parties referred to Matthews v Ocean Nutrition Canada Ltd, 2020 SCC 26, in their written materials.

In Matthews, atparas 50 to 55, Kasirer J, on behalf of a unanimous court, set out the approach to be taken to assess the damages to be awarded for abonus the employee claims would have been earned during the notice period: In Paquette, the employee participated in his employer’s bonus plan, which stipulated that employees had to be “actively employed” onthe date of the bonus payout. ... In Paquette, but for the employee’s termination, the employee would have received the bonus within thereasonable notice period.

The motion judge ... concluded that the employee was not entitled to the bonus because ... he was not“actively” employed and so did not qualify under the terms of the plan. The employee’s appeal was allowed. ... The Court of Appeal in Paquette built upon the approach in Taggart, proposing that courts should take a two-step approach to thesequestions. First, courts should “consider the [employee’s] common law rights” ... That is, courts should examine whether, but for thetermination, the employee would have been entitled to the bonus during the reasonable notice period.

Second, courts should “determinewhether there is something in the bonus plan that would specifically remove the [employee’s] common law entitlement” ... “Thequestion”, van Rensburg J.A. explained, “is not whether the contract or plan is ambiguous, but whether the wording of the planunambiguously alters or removes the [employee’s] common law rights” ... ...

As the court ... reiterated in Paquette, when employees sue for damages for constructive dismissal, they are claiming for damages ascompensation for the income, benefits, and bonuses they would have received had the employer not breached the implied term toprovide reasonable notice ... Proceeding directly to an examination of contractual terms divorces the question of damages from theunderlying breach, which is an error in principle.

Moreover, the approach in Paquette respects the well-established understanding that the contract effectively “remains alive” for the purposes of assessing the employee’s damages, in order to determine what compensation the employee would have been entitled to but for the dismissal ... Courts should accordingly ask two questions when determining whether the appropriate quantum of damages for breach of the implied term to provide reasonable notice includes bonus payments and certain other benefits.

Would the employee have been entitled to the bonus or benefit as part of their compensation during the reasonable notice period? If so, do the terms of the employment contract or bonus plan unambiguously take away or limit that common law right? [ 101 ] Following the direction set out in Matthews , there are two questions to be asked, which I have set out below. Would Ms. Watson have been entitled to the bonus or benefit as part of her compensation during the reasonable notice period? [ 102 ] If she met certain criteria, Ms.

Watson was entitled to a commission as part of her compensation. [ 103 ] In 2018, she exceeded the 50% threshold and received a commission. In 2019, she exceeded the 80% threshold and received a commission. As explained at paragraph [84], Ms. Watson had reached 94.7% of the 84% pro rata threshold by October 15, 2020. As a result, she did not reach the 2020 threshold and no 2020 commission has been awarded to her. [ 104 ] Based on her performance in 2018, 2019 and 2020, Ms.

Watson never reached 84% of her Commissionable Revenue Target, but she was very close in both 2019 and 2020. [ 105 ] I have no information as to whether the 84% threshold would have been increased or decreased in 2021 or 2022. Because Ms. Watson has been very close to the 84% threshold in both 2019 and 2020, it seems possible that, had she not been terminated, she could have reached the 84% threshold during the notice period, though I must recognize that she did not reach it in either of those years. I find that it is appropriate to allocate a 50% probability that Ms.

Watson would have reached her threshold in 2021 and 2022. [ 106 ] In O’Reilly , the Court suggested using an average of the annual earnings for the three previous years, unless the commissions were declining, which they did in this case. Here, Ms. Watson’s 2018 commission was earned over a partial year and had a relatively low threshold of 50%. Ms. Watson exceeded the 80% threshold in 2019 but fell short of the 84% threshold in 2020. Ms.

Watson’s 2020 decline to zero in commission is recognized in the allocation of a 50% probability that the threshold would be met in 2021 and 2022 and does not need to be addressed further. [ 107 ] I have already dealt will the 2020 commission and have found Ms. Watson is not entitled to any commission. However, for 2021 and to June 15, 2022, the end of the notice period, I find it is appropriate to average the 2019 actual commission and unearned 2020 commission and multiply that average by 50% to account for the probability that Ms. Watson may or may not reach the threshold in 2021 and 2022.

I find it is not appropriate to use the 2018 commission in this calculation because it was a partial year with a significantly lower threshold. [ 108 ] Averaging the 2019 commission earned by Ms. Watson, when she reached 81.27% of the target and earned a commission of $107,542.65, and the 2020 commission of $128,024.06, that was not earned by Ms. Watson because she only reached 94.7% of threshold, results in an amount of $117,783.36. Applying a probability of 50% to this number results in an award of $58,891.68 per annum. [ 109 ] Ms.

Watson thus would have been entitled to the commission as part of her compensation during the reasonable notice period as follows: (a) 2021: $58,891.68; and (b) 2022: $58,891.68 multiplied by 5.5/12 = $26,992.02. If so, do the terms of the employment contract or bonus plan unambiguously take away or limit that common law right? [ 110 ] Clause 3.4 of the 2021 Sales Commission Plan states that eligibility for any incentive under the plan will be “in line” with the SCL HR Compensation & Benefits guidelines. These guidelines were not in evidence. The Handbook does not address the payment of incentives.

As a result, there is no evidence regarding eligibility requirements for commission. [ 111 ] Clause 3.4 of the 2021 Sales Commission Plan also states: “no commission will be paid on any revenue recognized after the Participant’s last date of employment”. While I have found that this language precludes using commissions after termination to calculate the entitlement for 2020, it does not preclude an award of damages for a commission that could have been earned in 2021 or 2022. [ 112 ] I find that the terms of the 2021 Sales Commission Plan do not unambiguously take away or limit Ms.

Watson’s common law right to commission as part of her compensation during 2021. In the absence of any information about the 2022 Sales Commission Plan, I apply the same analysis to 2022. Conclusion on 2021 and 2022 commission [ 113 ] I find Ms. Watson is entitled to commission as part of her compensation during the reasonable notice period as follows: (a) 2021: $58,891.68; and (b) 2022: $26,992.02.

KPO bonus [ 114 ] The KPO bonus was based 80% on SCL performance (the “SCL component”) and 20% on individual performance (“Ms. Watson’s component”). [ 115 ] In 2019, Ms. Watson earned a KPO bonus of $19,203.61 out of a possible $32,006.16. [ 116 ] Mr. Kaminski said that 100% of the SCL component of the KPO bonus was achieved in 2020 and 50% in 2021. [ 117 ] It was not clear on the evidence how the potential KPO bonus was calculated, but both parties used the figure of $32,006 as the maximum possible amount.

Further, the 2020 Sales Commission Plan stipulates an employee’s “on target earnings” is composed of base salary of 50%, which for Ms. Watson was $160,030, meaning that the on target earnings would be $320,060. The 2020 Sales Commission Plan also identifies the on target earnings KPO bonus being 10%. Since 10% of $320,060 is $32,006, this amount as the maximum possible KPO bonus accords with the 2020 Sales Commission Plan. [ 118 ] Clause 3.6 of the 2020 Sales Commission Plan states that each employee will be given specific key performance objectives , but those were not identified in the evidence for Ms. Watson.

Clause 3.6 of the 2021 Sales Commission Plan is similar, but again no specific key performance objectives were identified in the evidence. In the absence of evidence as to Ms. Watson’s individual performance, I find that it is appropriate to apply a similar analysis to the KPO bonus that I applied to the Commission, resulting in a 50% factor applying to Ms. Watson’s component in 2021. For 2022 SCL performance, given there is no information, I find it appropriate to take 75% of the average of the 2019 and 2021 SCL performance results for the SCL component, and to apply the 50% factor to Ms.

Watson’s component. [ 119 ] In the result, I find that Ms. Watson is entitled to the following for KPO bonus: (a) 2020: SCL component 80% x 100%, plus Ms. Watson component 20% x 0% = $32,006 x (0.8 + 0) = $25,604.80; (b) 2021: SCL component 80% x 50%, plus Ms. Watson component 20% x 50% = $32,006 x (0.4 + 0.1) = $16,003; and (c) 2022: SCL component 80% x 75%, plus Ms. Watson component 20% x 50%, for 5.5 months of 12 months = $32,006 x (0.6 + 0.1) x (5.5/12) = $10,268.59. Group benefits [ 120 ] The parties agreed that, in 2020, Ms. Watson received annualized benefits valued at $5,359.61.

No claim was made for an increase to this benefit amount over the duration of the notice period. For the notice period, Ms. Watson’s damages for group benefits are $8,932.60. Pension plan [ 121 ] The parties agreed that, in 2019, the value of Ms. Watson’s pension benefit, on an annualized basis, was $13,270.46. No claim was made for an increase to this benefit over the duration of the notice period. For the notice period Ms. Watson’s damages for her pension plan are $22,117.40. Parking [ 122 ] As an employee, Ms. Watson was entitled to a parking spot.

SCL had a Parking Policy which also provided for the option of an employee to be paid the equivalent of the cost of parking in the amount of $385 per month. [ 123 ] Ms. Watson claims the parking equivalent payment of $385 per month for the duration of the notice period. While employed with SCL, Ms. Watson never opted to take the cash value of the parking and used the parking spot given to her. This is distinguishable from Hunsley where the employee received a cash payment for parking. [ 124 ] Ms.

Watson submits that the fact that the cost of parking was a taxable benefit to her is determinative of the issue and the amount must be a benefit that she is entitled to during the notice period. I disagree. The test for determining whether a benefit paid to an employee is not whether the taxing authorities consider it to be a taxable benefit; rather the test is whether the benefit was a significant personal benefit to the employee: Hunsley , para 37 . [ 125 ] There was no evidence presented to show that the parking spot was a personal benefit to Ms. Watson, let alone a significant one.

I find that it would be inappropriate to award Ms. Watson damages for a benefit that she has not shown to have been a significant personal benefit. Stock purchase plan [ 126 ] SCL did not dispute that Ms. Watson was entitled to a claim for this benefit, but the parties did not agree to the value of the benefit. However, the parties agreed that, from 2014 to 2019, Ms. Watson received a benefit in the form of a discount of 7.5% off the market price of publicly traded shares of SCL that she purchased.

The discount value for the years 2018, 2019 and 2020, and a per month equivalent, is set out below, together with the monthly average as the yearly average cannot be calculated because 2020 was not a full year:

Year Annual value of ShareDiscount Value of Share Discount on amonthly basis2018 $413.10 $34.432019 $1,458.27 $121.522020 (9.5 months) $213.91 $22.52Average $59.49 [127] Ms. Watson notes that the value of the benefit would increase depending on the share price of SCL. However, there was noevidence regarding the share price of SCL in 2020, 2021 or 2022. [128] Given the historical data, I find that it is appropriate to take the average of the per-month value of this benefit from 2018 to2020, which is $59.49 and award it for the 20 months of notice. For the notice period Ms.

Watson’s damages for her the stock purchaseplan are $1,189.80. SCL’s CPP contributions [129] Ms. Watson submits that she is entitled to the CPP employer contribution that SCL would have made on her behalf during thenotice period, except that she does not claim for CPP during the 2020 calendar year as that was already paid by SCL. [130] Ms. Watson’s claim is based on CPP basing retirement benefits on a combination of contributions and years of service. Ms.Watson says that the damages in the amount of SCL’s contribution is a proxy for damage that Ms.

Watson will suffer later when CPPcalculates the value of her contributions and years of service. Ms. Watson’s evidence was that the maximum CPP employer contributionin 2021 was $3,166 and in 2022 would be $3,432. [131] Ms. Watson relies on cases where damages for CPP employer contributions were included in wrongful dismissal damages:Bagby v Gustavson International Drilling Co, 1980 ABCA 227; Davey v Syncrude Canada Ltd, 2001 ABQB 652, aff’d on othergrounds 2004 ABCA 190; Turner v Westburne Electrical Inc, 2004 ABQB 605; and Bellini v Ausenco Engineering Alberta Inc, 2016NSSC 237.

SCL relies on cases where damages were not awarded for CPP employer contributions: Clark v Fiberglas Canada Inc, (ABQB); and Pathak v Jannock Steel Fabricating Co, (ABQB). [132] In Bagby, Harradence JA concurred with the reasons of Laycraft JA, the third member of the panel did not participate in thedecision. At paras 30 and 31, Laycraft JA said: The learned trial Judge made an allowance in his computation of damages for premiums paid by the employer for life insurance andaccident insurance, for Canada Pension Plan premiums, and for premiums paid to the Unemployment Insurance Commission. ...

I respectfully agree with the conclusion reached by the learned trial judge on each of the fringe benefits which he considered. The sum of$7,000. should be added ... for the employer's pension contribution ...

This contribution is an employee benefit just as are the premiumspaid by the employer for life insurance, accident insurance and the Canada Pension Plan. [133] The unifying thread in the cases where the employer’s CPP contributions were not included in damages is that the wrongfullydismissed employee did not demonstrate that they actually sustained a loss by virtue of the cessation of employer CPP contributions. [134] SLC relies on Steven Shinn v TCB Teletheatre BC, 2001 BCCA 83, as authority for the principle that an employee mustdemonstrate an actual loss sustained from the cessation of employer CPP contributions.

The British Columbia Court of Appeal split onseveral issues on appeal but concurred on the issue of CPP employer contributions. McEachern CJ, said, at paras 19 and 20: ... plaintiff’s counsel referred us to the relevant CCP legislation which shows that the maximum pension payable under the Plan of$762.92 is only payable, at age 65, if the employee has had contributions paid on his behalf for all but seven years between the ages of18 and 65 years. The plaintiff was 18 years in 1972, but he only came to Canada in 1983 so he had no premiums paid for eleven years.Thus, the plaintiff cannot recover a full pension.

Every loss of premiums paid, however, will reduce his pension by some amount, but itwould take an actuarial study to determine if his loss is dollar for dollar for any premiums unpaid. In my judgment, it should not be necessary in a wrongful dismissal action like this one to require a plaintiff to bear the cost of such astudy.

The legislation demonstrates that pension entitlement depends upon the amount of contributions, and such amounts should berecovered unless the defendant establishes that the loss is something less than the actual premium dollar shortfall during the period ofreasonable notice. [135] For the majority in Shinn, but concurring on this point with McEachern CJ, Prowse JA, at para 37, said: I agree with the Chief Justice’s analysis of this issue. ... Wilks v.

Moore Dry Kiln ... does not stand for the proposition that the amount ofan employer’s contributions to an employee’s Canada Pension Plan during the notice period can never be recovered as damages. Rather,damages will be awarded where the employee can show that he or she has suffered a loss by virtue of the employer’s failure to pay thebenefits during the notice period. In Wilks and Sorel, the plaintiffs did not establish such a loss. In this case, Mr. Shinn has established aloss.

The best estimate of the value of that loss on the evidence before us is the amount of the employer’s contributions to the plan. [136] In Bellini, at paras 60 to 63, the LeBlanc J noted the commentary in Monk v Coca-Cola Bottling Ltd, (NSSC), to the effect that an employee is required to prove a loss with respect to the employer’s CPP contributions because CPP makesallowances for the contingency that a contributor may be out of work for some time during the contributor’s working career.

The Courtin Monk went on to say it was possible that the employee lost nothing by the failure of the employer to make contributions, any loss wasincalculable, and there was no evidence at trial as to the loss. LeBlanc J, in awarding damages for CPP employer contributions, alsoreferred to Shinn, at para 20, quoted above, and determined that it was likely that more of Mr. Bellini’s lower-earning years would becounted among his pensionable earnings.

[ 137 ] Ms. Watson did not provide any submissions on the current legislation relating to CPP or evidence relating to how her past earnings or 2021 and 2022 CPP employer contributions would affect her in the future. In her affidavit, Ms. Watson her said it was her belief that “there is a good chance” that her CPP retirement pension would be negatively affected because she did not earn wages during the notice period. [ 138 ] While it would be helpful to have evidence regarding the specifics of Ms.

Watson’s circumstances to show the loss, or potential loss, resulting from her wrongful dismissal, and to have submissions on the CPP legislation as it applies to Ms. Watson’s circumstances, I am bound by the Alberta Court of Appeal’s decision in Bagby . As a result, Ms. Watson is entitled to what would have been SCL’s CPP contributions in 2021. For higher income earners, such as Ms. Watson, it may be that the CPP employer contribution is paid before the end of the calendar year as contributions reach a maximum. However, without any submissions on this point, I find that, for 2022, Ms.

Watson is entitled to the yearly amount of CPP employer contributions for the 5.5 months of notice in that year as a percentage of the entire calendar year. For the notice period Ms. Watson’s damages for SCL’s CPP employer contribution are $4,739. Vacation pay [ 139 ] Ms. Watson states that she is entitled to 7 weeks vacation per year. In addition to her base salary, commission and KPO bonus, Ms. Watson claims for vacation pay using the following calculation: (

a) vacation entitlement of 7 weeks/52 weeks, or 13.46% of the year, then (

b) multiply 13.46% x (base salary + commission + KPO bonus) for the notice period. [ 140 ] For the remainder of the 2020 year, Ms. Watson claims that the calculation above should be made for the 2½ months after her termination. In addition, Ms. Watson claims vacation for 2021 and 2022 in accordance with the same formula. [ 141 ] Ms. Watson relies on s 61.1(2) of the Code which states as follows:

(2) Unless an employer has, prior to the giving of a termination notice, provided the employee with notice to take annual vacation in accordance with

section 38, the employer must not require the employee to take the vacation during the termination notice period. [ 142 ] Ms. Watson submits this subsection of the Code is an implied term of her employment contract, and she cannot be forced to take vacation during the notice period. [ 143 ] Subsection 61.1(2) of the Code addresses the situation of where the employee has accrued vacation as of the date of termination. In that case, the accrued vacation cannot form part of the notice period.

So, if an employee has accrued vacation on termination, the employee cannot be required to take that accrued vacation during the notice period as that would be a windfall for the employer. [ 144 ] In contrast to the situation addressed in s. 61.1(2) of the Code , Ms. Watson asserts that she is entitled to her full compensation during the notice period, plus an additional payment for the vacation time that would have accrued during the notice period. This would result in a windfall to Ms. Watson as, had she been working, she would have been entitled to take the time off without additional compensation.

The Handbook states that “the employee will be responsible to work with their manager to ensure all vacation is taken by the end of each year. Any balance at the end of the year will be lost and the employee will not be compensated for such days ...”. There is no evidence that Ms. Watson ever requested to work through her vacation time and to be paid for that additional work. [ 145 ] Ms. Watson also relies on O'Donnell v Soldan Fence and Metals

(2009) Ltd , 2015 ABQB 764 (MC). Applications Judge Schlosser (formerly known as Master Schlosser) commented and elaborated on his decision in O’Donnell in Eberle v Sunhills Mining Limited Partnership , 2018 ABQB 389 , at paras 18 to 24 , where he said: In my earlier decision, in O'Donnell ... , I noted: Vacation Pay [45] The authorities diverge on this point. In Cronk v Canada General Insurance ... and Driscoll v Coseka ... ; following Bagby ... , for example, vacation pay over the notice period was not allowed on the basis that it is a form of double recovery.

However, in Tanton , Watson, J. (now J.A.) found that a loss of vacation pay was loss of a tangible benefit and it now seems to be an evidentiary question. The issue is one of proof about whether the employee was obliged to use the vacation time. The evidence is that Mr. O’Donnell typically took his vacation but, following Tanton , absent evidence that Mr. O’Donnell was obliged to use up his vacation, he is entitled to it over the notice period. There is no evidence that he could not have worked over the entire notice period if he wished.

The Tanton case was followed in Turner v Westburne Electrical Inc. ... . . . In some cases, employees are entitled to paid vacation. In others, there are policies about (not) banking vacation time: in yet others, you can work through your holidays and be paid extra. When I say that the entitlement of vacation pay (as a benefit) is a matter of evidence, I mean that the Court needs the answers to the following questions: 1. Was the plaintiff entitled to a paid vacation? 2. Was the plaintiff required to take vacation time, or could he work through it (and take vacation pay in lieu of a vacation)?

The central issue is avoiding double compensation. In determining the amount of compensation for termination, the court has to look at what would have occurred and what the employee might have expected over the notice period. Vacation pay depends largely on the terms of the contract or the employment policy ... In this case there is no evidence on these central points. Vacation pay is not expressly claimed in the pleadings. There is no evidence that the Plaintiff could have worked through his vacation and have taken his vacation pay on top. And there is also no evidence that he tended to do so.

Accordingly, this issue is academic. It is not relief the Court can give without evidence and without an amendment to the pleadings. ... [ 146 ] There is no evidence that Ms. Watson could have worked through her vacation, which would have required permission in accordance with the Handbook, or that she would have been paid for vacation in addition to her base salary, commission, KPO bonus and other benefits. Indeed, there was no evidence that Ms. Watson ever intended to work through her vacation. There is inadequate evidence for this head of damages and the claim is denied. Issue 4: What are the damages Ms.

Watson is entitled to receive for a loss of benefits or mitigation expenses in relation to: Use of the SCL laptop computer and associated software [ 147 ] During her employment, Ms. Watson was issued a SCL laptop and returned it upon being terminated. [ 148 ] Ms. Watson says that her loss of the use of the laptop is compensable either because it was a loss of a benefit or because she incurred the cost of a new computer as a mitigation expense. On June 16, 2020, four months before she was terminated, Ms.

Watson purchased a new computer, with a three-year warranty, and anti-virus software for $1,134, together with a subscription to office software for $55.30/year. Ms. Watson said that at the time she felt her employment was in jeopardy and she removed her limited personal information from the company laptop. Ms. Watson also said on cross-examination that she purchased a new laptop in June 2020 “for home use”. [ 149 ] There was no evidence regarding the SCL laptop being a significant personal benefit to Ms. Watson.

The Handbook stated that company laptops could be used for limited personal use. [ 150 ] I find that there is insufficient evidence to demonstrate that the SCL laptop was a significant personal benefit to Ms. Watson and, as a result, I find that she is not entitled to damages on that ground. Given that Ms. Watson purchased the laptop four months before her termination, I also find that the nexus between the cost of the laptop and Ms. Watson’s efforts to mitigate her loss is not close enough to award damages on the basis of a mitigation expense. As a result, I find that Ms.

Watson is not entitled to any damages for the loss of use of the SCL laptop. Cellular plan [ 151 ] Ms. Watson owned her own telephone and SCL paid for the cellular phone service. Ms. Watson claims for the cellular service cost during the notice period. SCL does not dispute this claim. [ 152 ] Ms. Watson set out in her affidavit the amount of this claim to the end of September 2021 as being $879.86 and said that thereafter the average bill would be $64, which to June 15, 2022 would total $544. For the notice period, Ms. Watson’s damages for loss of the cellphone plan benefit are $1,423.86.

Professional membership fees paid to APEGA [ 153 ] Ms. Watson provided no evidence for this claim. The plaintiff has the obligation to prove its case. Ms. Watson suggested that I could rely on the same claim having been accepted in Kosteckyj , in similar circumstances, as a basis for awarding damages here. Evidence from other cases cannot be accepted as evidence in the case being heard. On the second day of the

Summary Trial, this claim was abandoned. Relocation expenses to British Columbia [ 154 ] There was no evidence for this claim, and it was not pursued at the hearing. Miscellaneous mitigation expenses for gas to attend interviews and networking. [ 155 ] There was no evidence for this claim, and it was not pursued at the hearing. Calculation of damages [ 156 ] Having found that Ms. Watson is entitled to 20 months of pay in lieu of reasonable notice, each of the heads of damages which were claimed are summarized in the table below:

Heads of damages claimed Damages awarded Base Annual Salary 2020 $33,339.58 Base Annual Salary 2021 $160,029.96 Base Annual Salary 2022 $73,347.07 Commissions 2020 $0.00 Commissions 2021 $58,891.68 Commissions 2022 $26,992.02 KPO Commission 2020 $25,604.80 KPO Commission 2021 $16,003.00 KPO Commission 2022 $10,268.59 Group benefits $8,932.60 Pension plan $22,117.40 Parking $0.00 Stock purchase plan $1,189.80 CPP Contributions $4,739.00 Vacation pay $0.00 Company laptop $0.00 Cellular plan $1,423.86 Professional membership APEGA $0.00 Relocation expenses $0.00 Miscellaneous mitigation expenses $0.00 Less payment on termination $-32,171.21 Total damages $410,708.15 [ 157 ] Ms.

Watson is entitled to interest on the above damages, pursuant to the Judgment Interest Act . [ 158 ] Ms. Watson is entitled to costs of the

Summary Trial. In the event the parties cannot agree to costs, they may write to me within 30 days of receipt of this decision for further direction on costs submissions. Heard on the 4 th day of May, 2022 and the 15 th day of June, 2022. Dated at the City of Calgary, Alberta this 29 th day of September, 2022. E.J. Sidnell J.C.K.B.A. Appearances: James M. Jeffrey for the Plaintiff Cheryl Rea for the Defendant

Appendix of comparable cases Ms. Watson’scases Character ofEmployment Lengthofservice(years) Age Availability ofsimilar employment NoticePeriod(months) Distinguishablefeatures Kosteckyj vParamountResources Ltd,2021 ABQB225, overturnedas to the findingof constructivedismissal: 2022ABCA 230 Senior IntegrityEngineer – noreports, position notrestricted to nicheskills 6.5 47 “[I]n the midst of aneconomic downturnin the Alberta oil andgas industry andduring the Covid-19pandemic”: para 57 9 Not a salesposition Lederhouse vVermillionEnergy Inc,2015 ABQB 387 Geologist, team leadof 5 otherprofessionals –formal andexperientialcredentials

[…]