Fakhri v Canadian Natural Resources Limited, 2023 ABKB 483

Court of King’s Bench of Alberta Citation: Fakhri v Canadian Natural Resources Limited, 2023 ABKB 483 Date: 20230823 Docket: 2013 00478 Registry: Ft. McMurray Between: Kambiz Pashaei Fakhri Plaintiff - and - Canadian Natural Resources Limited Defendant _______________________________________________________ Endorsement of Applications Judge W.S. Schlosser _______________________________________________________ [ 1 ] This is the defendant’s application to summarily dismiss the plaintiff’s claim for constructive dismissal.

Limitations [ 2 ] The plaintiff sent in his letter of resignation October 31, 2018, giving two weeks notice; effective November 15, 2018. The resignation was brief, unqualified and unequivocal. [ 3 ] This action was commenced November 8, 2000. The defendant argues that it is out of time being two years and eight days after limitation had commenced.

[ 4 ] This argument is without merit as it fails to take the 75-day ministerial suspension into account (Ministerial Order 27/2020 (March 17-June 1, 2020)). The Limitations Act is one of the pieces of legislation included in the

schedule to the Ministerial Order. [ 5 ] The defendant further argues that the element of the claim, for the purposes of the Limitations Act, were probably present before October 31, 2018 and argues that it is the plaintiff’s burden under s 3(5) of the Limitations Act to show that the claim was brought in time. I agree that this would be the plaintiff’s trial burden, but the defendant retains his applicant’s burden and has not shown on a prima facie basis (or otherwise) what earlier date might apply. There is no obvious, or evident time to start the limitations clock earlier.

Merits [ 6 ] The applicant has the burden of showing at least a prima facie case of no merit to the claim. The burden then passes to the respondent to show an arguable case. The threshold for demonstrating constructive dismissal in an employment situation is as follows: [33] The Potter test was succinctly summarized by the Ontario Court of Appeal in Brake , at paras 64 to 66: The test that Potter establishes for constructive dismissal consists of two branches. Satisfaction of either branch is sufficient for a finding of constructive dismissal. The first branch of the Potter test has two steps.

First, the court must determine objectively whether a breach has occurred. To do so, the court must ascertain whether the employer has unilaterally changed the contract. If an express or an implied term gives the employer the authority to make the change or if the employee consents or acquiesces in it, the change is not a unilateral act and will not constitute a breach. To qualify as a breach, the change must also be detrimental to the employee.

Second, once it has been objectively established that a breach occurred, the court must ask whether a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed ( Potter , at paras. 37-39). The second branch of the Potter test necessarily requires a different approach.

On this branch, constructive dismissal consists of conduct that, when viewed in light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract ( Potter , at para. 42). Kosteckyj v Paramount Resources Ltd, 2021 ABQB 225 , at para 33 per Sidnell J, citing the decisions named there with approval. That case had to do with ( inter alia ) a unilateral pay reduction. [ 7 ] There is no unilateral change here. [ 8 ] Mr.

Fakhri has alleged harassment, or ill treatment, which has to be assessed on an objective basis - not just the employees’ subjective perception of those events (Lamb v Gibbs Gage Architects , 2011 ABPC 315 , at para 33 per Burt J, Alberta Court of Justice). [ 9 ] It is a term of the employment contract that the employee is to be treated with civility, decency, respect and dignity ( Jacobs v PHAT Training Inc , 2014 ABQB 100 ) per Acton J. [ 10 ] This is not a case where an employee was passed over for promotion based on race, ethnicity, colour or other prohibited grounds ( Harun-ar-Rashid v Royal Canadian Mounted Police (RCMP), 2019 ABQB 54 , per Mandziuk J; which would be within the ambit of the Alberta Human Rights Commission, rather than a civil claim. [ 11 ] The plaintiff was hired August 15, 2011 and had worked for CNRL for seven-and-a-half years as at the date of his resignation.

As I read the evidence, the problem started when a Mr. Viana became his supervisor in February 2018. Mr. Fakhri says that he had a good working relationship with his previous supervisors. That appears to be reflected in the performance reviews that were in evidence at this application. [ 12 ] There appears to have been a clash of personalities between Mr. Viana and the plaintiff. Even ‘clash’ may be an overstatement. [ 13 ] The plaintiff alleges that Mr. Viana slapped his hand on the desk during meetings. The plaintiff says this was done in an intimidating and humiliating manner. Mr.

Viana, for his part, denies that this was the intent. If he did it at all, it was meant to be emphatic. [ 14 ] The plaintiff further alleges that Mr. Viana would cross the room and come into Mr. Fakhri’s office to stare at his computer screen in an intimidating manner. Mr. Viana says that looking at the plaintiff’s computer screen was part of his job. [ 15 ] The plaintiff also refers to after-hours contacts and requests. [ 16 ] The plaintiff says he was unfairly passed over for promotions and was blocked from transfers to other positions in other departments.

He says that he found working under his new supervisor a hostile working environment, with no action taken to address his complaints. He refers to an undocumented serious medical condition suffered earlier in his employment, that made him susceptible to stress and was made worse by his job environment. The plaintiff argues that his supervisor's behavior was in breach of CNRL's Code of Conduct, which forms part of the terms of his employment contract. Mr.

Fakhri did not engage the formal complaints process CNRL has in place. [ 17 ] The plaintiff resigned after a (qualified) favourable performance review October 24, 2018. Mr. Fakhri’s expectation was that in resigning he could get contract work with CNRL, having been blocked from transferring to other positions. The contract work did not materialize. It appears that Mr. Fakhri elected to quit on a mistaken assumption. [ 18 ] CNRL argues that the plaintiff would have to improve his leadership, collaborative and communication skills in order to

advance, or to be a suitable candidate for other positions within the company. They say that the plaintiff was habitually defensive and condescending to colleagues and did not welcome constructive criticism, or function well as part of a team. CNRL denies, and there is no evidence that Mr. Viana blocked internal job applications, or that his transfer or advancement was impaired on any basis other than merit and fit. There is no evidence that management conduct was calculated to cause Mr.

Fakhri’s resignation. [ 19 ] The overriding consideration here is that there is very limited detail (times, places and circumstances) about Mr. Viana’s conduct that would allow the Court to conduct an objective assessment of Mr. Fakhri’s subjective complaints. In other words, the absence of detail prevents the Court from assessing whether Mr. Viana’s conduct was, on some occasions, emphatic or threatening. On the evidence now before the Court, it appears that Mr. Fakhri simply did not respect his superior in terms of his knowledge, or qualifications, or his ability to manage or supervise the projects that Mr.

Fakhri was working on in the IT department. Mr. Fakhri was, at the time, by far-and-away the most qualified and highly educated member of his department. [ 20 ] I am unable to see that the circumstances of the plaintiff’s employment, following Mr. Viana’s appointment as the plaintiff’s supervisor, was such that the terms of the plaintiff's contract of employment were unilaterally changed to the plaintiff’s detriment, or that the employer’s conduct demonstrated that they no longer intended to be bound by the terms of the employment contract including the Code of Conduct.

There is no evidence that CNRL blocked or denied transfer or promotion on any improper grounds. I am unable to say that the evidence amounts to anything more than the plaintiff’s negative subjective

interpretation and a mistaken assumption that is not objectively supported by the evidence. [ 21 ] A respondent to a

summary dismissal application is required to put his best foot forward. On the evidence presented, this claim would not succeed at trial and is apparently without merit. [ 22 ] The application is allowed. The claim is dismissed. Heard on the 2 nd day of August, 2023. Dated at the City of Ft. McMurray, Alberta this 23 rd day of August, 2023. W.S. Schlosser A.J.C.K.B.A. Appearances: Kambiz Pahaei Fakhri for the Self-Represented Litigant Nathanael Bowles McLennan Ross LLP for the Defendant