Mark Gladiolus Abdon - v. -, 2021 SKPC 37

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2021 SKPC 37 Date: July 15, 2021 File: 139/20 Location: Regina _____________________________________________________________________________ Between: Mark Gladiolus Abdon - and - Brandt Industries Canada Ltd. Annie B. Quangtakoune For the Plaintiff Ashton Butler For the Defendant JUDGMENT P. DEMONG, J ______________________________________________________________________________ Introduction [ 1 ] Mr. Abdon was employed in Regina by the defendant (hereafter ‘Brandt’) as a welder in March of 2012.

He was dismissed, without notice, on February 6, 2020. He alleges that the dismissal was unjust, and he now seeks common law damages arising from that termination. He asserts that a reasonable period of notice would be approximately eight months. He acknowledges that the amount of

money he seeks exceeds the monetary jurisdiction of this Court, but he is prepared to waive any claim for damages in excess of $30,000.00. He seeks interest on that amount and his court costs. [ 2 ] Brandt has filed a Reply. It asserts that it had just cause to terminate Mr. Abdon’s employment without notice. In the alternative, it places into issue the quantum of damages claimed by Mr. Abdon, arguing in part that Mr. Abdon failed to take reasonable steps to mitigate his damages. It asks that the claim be dismissed and that it be granted its court costs. [ 3 ] By way of brief

summary, Brandt asserts that Mr. Abdon abandoned his employment when he failed to show up for six ten-hour shifts - January 15, 16 and 17, and thereafter on February 3, 4, and 5, 2020. While Mr. Abdon says that his failure to attend was due to a back injury, supported by two doctor’s notes, Brandt asserts that if, in fact, Mr. Abdon had injured his back, he should have, but failed and/or refused to fill out short-term disability forms that were provided to him - which were required by Brandt to process the injury. Brandt maintains, however, that Mr.

Abdon’s injury was feigned so that he could travel to the Philippines to religiously affirm and then celebrate his earlier common law wedding vows. Brandt argues that Mr. Abdon was dishonest because he provided false information to the company to substantiate his absence from work. Brandt argues that this dishonesty, coupled with Mr. Abdon’s unauthorized time off from work, and his failure to fill out the necessary paperwork, which was required by the company, constituted insubordination. Brandt asserts that because of Mr. Abdon’s conduct, Brandt’s trust relationship with Mr. Abdon had been irreparably broken.

Brandt therefore maintains that it terminated Mr. Abdon for just cause. [ 4 ] Mr. Abdon denies that he feigned injury and argues that he was not obligated to attend work because of his injury. Therefore, his absence was not unauthorized. He argues that even if his non-attendance could be described as unauthorized, Brandt’s decision to terminate him without notice was not justified because it was an isolated event, and out of proportion to his alleged nonfeasance or misfeasance.

As such, he argues that Brandt, at most, should have followed the discipline policies set out in its employee manual which articulates a progressive discipline protocol dealing with unauthorized absences: a verbal warning for a first offence; a written warning for a second offence; a suspension for up to three days for a third offence; and dismissal for a fourth offence. Evidence, Analysis and Findings of Fact [ 5 ] Much of the evidence is undisputed. Where the evidence conflicts, I will explain why I prefer some evidence over the other. [ 6 ] Mr. Abdon is 39 years old.

He is married and at the time of his dismissal he had three children. At all pertinent times he lived in a house in northwest Regina. On March 19, 2012, he commenced employment with Brandt, as a welder, at its Pinkie Road facility which is about a ten-minute drive from his home. Prior to his dismissal he was earning $27.00 per hour. Overtime, when available, was paid out at 1.5 times that amount. Mr. Abdon worked a ten-hour evening shift, starting at 4:30 p.m. and ending at 3:30 a.m. He was entitled to three weeks of ‘earned’ vacation per year - meaning that vacation accrued as work was performed but not before.

Three weeks’ vacation has been described at trial as 120 hours - equivalent to 12 ten-hour shifts. Mr. Abdon was entitled to health and dental benefits, paid for by Brandt, together with a pension benefit paid by Brandt equivalent to 5% of his yearly earnings. [ 7 ] Brandt is a large diversified corporation. One of its business pursuits involves the manufacture and sale of agricultural equipment. At all relevant times Brandt was manufacturing agricultural augers at its Pinkie Road facility.

I accept, as Brandt has stated, that the manufacturing process is streamlined and that the production quotas demanded of that facility are arduous. In the expectation of manufacturing 20 augers per day, or one each hour, (in order to meet sales targets) the facility runs two ten-hour shifts of twenty-five welders per shift, together with about twenty other full-time employees. Parts are stockpiled in the yard, and then brought into the shop which is run as an assembly line.

These parts are placed into jigs and run along the assembly line to be welded, checked for quality control, and then painted. [ 8 ] I accept that an unauthorized absence by an employee, such as a welder, has significant consequences to this streamlined process and to the facility’s ability to meet quota. The process becomes more arduous and slows down when other workers must cover, and make up for, a shortage of personnel. Unauthorized absence adversely impacts Brandt’s quota and ultimately, its profits. I also accept that scheduling is complicated in this environment.

Management must accommodate and reconcile holiday requests for approximately seventy employees, in advance, and simultaneously deal with medical, family, or bereavement leave, daily. [ 9 ] Other than the matter now before this Court, and several prior unauthorized absences, there is nothing to suggest that Mr. Abdon

was anything other than a competent employee. These earlier unauthorized absences were dealt with by verbal warnings culminating in a written warning dated March 24, 2015. It read: Re: Attendance Dear Mark: This letter is written confirmation of our previous discussions as well as our conversation today regarding the serious concerns I have with your attendance. I have spoken to you several times and explained to you that your attendance at work needed to improve. On March 17 th , 2015, you went home sick stating you were ill but did not show up or call in your regular shifts on March 18 th and 19 th .

We regard this as excessive and we rely on all of our employees to attend work on a regular basis in accordance with their scheduled hours so that we can provide quality service to our customers. Your continued absenteeism not only affects your dependability but puts a strain on your co-workers and the Company as a whole. Regular attendance at work is a requirement and continued absences will not be tolerated In addition to all of these absences, you failed to call in and notify me that you were going to be absent for your scheduled shifts. This is unacceptable and a breach of company procedure.

Proper procedure for calling in when you are not going to be at work required that you notify me in advance for every shift your [ sic ] are going to be absence [ sic ], otherwise this creates scheduling difficulties and confusion in the workplace. We sincerely hope that your attendance will improve. Expectations going forward are that your [ sic ] will arrive to work on time at the start of your scheduled shift and notify me directly prior to your shift for any future absences.

We want you to know however, that failure to abide by the above and failure to meet expectations on a permanent basis could result in further discipline up to and including the termination of your employment. If you have any questions or if anything is unclear, please make sure you let me know immediately. [emphasis added] Yours truly, Scott Hubick Fabrication Supervisor Cc: Harold Garner – Shop Manager [ 10 ] In each of 2018 and 2019 there were no problems with Mr. Abdon’s attendance. While Mr.

Abdon had missed some time at work following an extended leave of absence in 2019, this occurred when he was held up from entry into Canada from a trip to the Philippines. That absence was excused by Brandt. [ 11 ] In March of 2019 Mr. Abdon had made plans to visit the Philippines with his wife and family and friends - some of whom worked with him at Brandt. Those plans included booking round trip flights. While the evidence was not perfectly clear, I am satisfied that those flights were booked and paid for in or about March of 2019.

I understand that those flights were to leave Regina on January 15 and return to Regina on February 6, 2020. The purpose of this trip was to validate his earlier common law wedding by religious ceremony, and then celebrate that ceremony. The church had been booked and invitations had been circulated. [ 12 ] In 2019 Mr. Abdon had travelled to the Philippines to attend a pageant that his daughter was participating in. As I understand the evidence, Mr. Abdon was given the right to apply some of his as yet unearned 2020 vacation time to this trip. I am uncertain as to how many days were borrowed.

[ 13 ] Mr. Abdon says that in or about October of 2019 he asked his foreman if he could borrow more 2020 vacation time to supplement the required 22 days that he would need for his January 15, 2020 trip to the Philippines. The foreman denied that request. Mr. Abdon says that he made the same request in November of 2019 and again his request was denied. He broached the subject again in early December of 2019 and again his request was denied. I do not know why Mr. Abdon did not ask the facility supervisor, Mr. Hubick, directly and at first instance. I am satisfied that Mr. Abdon knew that it was Mr.

Hubick who oversaw such approvals, and that Mr. Abdon’s foreman reported to Mr. Hubick. [ 14 ] I have no doubt that part of those conversations would have been taken in the context of Mr. Abdon advising that he had already booked his flights, and that the additional vacation time would be necessary to ensure that he could render those paid for flights useable. [ 15 ] Brandt had been presented with this type of problem in the past.

In order to make Brandt’s position clear to those employees who pre-booked flights without obtaining a leave approval prior to booking, Brandt had circulated a memorandum in August of 2015 explaining its ‘Acknowledgment of Leave Policy’.

That Memo read: Memo Date: August 28, 2015 To: Distributed to Specific Employees by Manager From: Graeme Taylor — Human Resources Manager Subject: Acknowledgment of Leave Policy The following memo is to confirm that you understand that any form of approved leave with the company must be approved by your manager, as well as the related consequences of committing to any plans prior to having your manager’s approval.

Approved leave is defined as having your manager’s approval prior to taking any form of leave from the organization, including but not limited to leave for vacation, banked time, bereavement, unpaid leave of absence, etc. It is the manager’s responsibility to

schedule accordingly so that their respective department continues to operate at full capacity. We try to accommodate as best as possible, however from time to time we are required to reject a request for time off based on the company’s scheduling requirements or other related reasons. If a request for Leave is not approved by the manager, the employee is required to be at work as scheduled. If the employee does not attend their shift as scheduled it may be deemed as unapproved absence and may result in disciplinary action up to and including termination of employment.

Any costs or inconveniences associated to the employee making arrangements prior to having approval for the leave will be solely the employee’s responsibility. An example would include booking airline travel for a specific period of time without having the approved leave from your manager prior. Any costs associated to cancelling or rebooking the trip would be the responsibility of the employee. We appreciate your understanding and continued compliance with this and all of Brandt’s policies.

I ,_________________ I ,________________ have read and understood the Employee – Print Name Employee Signature terms outlined in the above memo. [ 16 ] At trial Mr. Abdon was presented with this memorandum and asked if he had seen it before. He stated that he could not recall. However, Mr. Hubick testified at trial and he was certain that it had been circulated at a tool-box meeting (a short meeting that the employees participate in at the start of each shift) at or about the time it was prepared. Mr. Hubick is certain that Mr. Abdon was in attendance and he was sure that Mr.

Abdon had signed one, so that it could be sent to Human Resources. The Court heard that the reason

why a copy of the memorandum, duly signed by Mr. Abdon, was not presented in evidence, was because these signed copies had been reduced to electronic form and stored, but that unfortunately Brandt’s computers had been hacked in July of 2020 and the information was gone. I have no reason to doubt that evidence and I find Mr. Hubick’s evidence more compelling than Mr. Abdon’s. I say so because Mr. Hubick oversaw scheduling; he had to deal with Mr. Abdon’s absences in the past; and because Brandt is particularly concerned about absences affecting workflow. As between Mr. Abdon not recalling it, and Mr.

Hubick’s certainty that Mr. Abdon had seen it, I prefer Mr. Hubick’s evidence. [ 17 ] Brandt asks its employees to fill out a holiday request form in December of each year in order to identify when they will want to have holidays in the following year. This is in a calendar format. Employees circle the dates that they would like and present it to Mr. Hubick. Mr. Hubick can then do a reconciliation of all these requests in order to structure leave among the employees in a way that will allow Brandt to maintain its workflow. On December 19, Mr. Abdon presented his calendar to Mr.

Hubick and, having only 54 hours of available vacation time remaining, asked Mr. Hubick if he could borrow six more days. He was looking to take off January 15, 16 and 17, and February 3, 4, and 5. If granted, these additional holidays would book-end the vacation time that he had the right to take, and it would allow Mr. Abdon to take advantage of the flights that he had previously booked. He explained his predicament to Mr. Hubick but Mr. Hubick again indicated that he could not accommodate him. [ 18 ] Notwithstanding what was now, according to Mr. Abdon, at least four denials, Mr. Abdon went over Mr.

Hubick’s head and attempted to persuade Mr. Hubick’s supervisor to allow a leave of absence, or alternatively, more forward borrowing of vacation. Once again, it was denied. He then attempted to contact human resources directly and they declined to involve themselves as it was not within their prerogative. He attempted one last time, by meeting with Mr. Hubick, Mr. Hubick’s boss, and an even more senior manager - Mr. Eberle. Mr. Abdon was then given a choice: resign or show up at work as scheduled - no further absence would be approved. This meeting occurred on January 9, 2020. [ 19 ] While Mr.

Abdon indicated that the wedding itself took place on January 28, the evidence is sparse as to whether another flight could have been arranged for the dates that he had been allowed - January 18 until February 2 - or whether he simply could not afford to cancel on such short notice and re-book. His e-mail to human resources on January 7, 2020 is equivocal. It reads in part: I hope you will grant my request, much as I wanted to fly on the date I was only allowed to, but time doesn’t permit. And I can’t afford anymore to pay more than $2,800.00 for one individual.

Our church wedding (Roman Catholic) was scheduled since March last year and invitations has [ sic ] been handed out for not everybody is from Philipines [ sic ]. [ 20 ] On January 14, 2020, Mr. Abdon showed up for his scheduled shift commencing at 4:30 p.m. At 1:00 a.m. on January 15, he left a note for Mr. Hubick (who starts his day at 5:45 a.m.). The note said GO HOME I FEEL SICK (BACK PAIN). This note was attached to a medical certificate from Dr. Matand, a family physician. The certificate was signed and dated January 14. It read ‘Not fit for work - January 15 to January 21/20’. Mr.

Abdon concedes that, as is the case before every shift, there was a tool-box meeting, and he concedes that he did not share this note with anyone at that tool-box meeting. I note in passing that the time off suggested covers off exactly the amount of holiday time that had been requested, together with Mr. Abdon’s scheduled weekend before his approved holidays would start. [ 21 ] Mr. Hubick came into work at 5:45 a.m. on January 15. As was his usual practice, he reviewed his foremen’s notes, assessed the work completed, and dealt with other manufacturing issues. He saw Mr.

Abdon’s note and the attached medical certificate and was immediately suspicious. The medical certificate had obviously been obtained by Mr. Abdon prior to the start of his January 14 shift, but Mr. Abdon had not provided it to Mr. Hubick at the tool-box meeting that had been held just prior to commencement of that shift. A few hours later, Mr. Hubick became more suspicious yet. One of his employees advised him that Facebook postings that very morning showed pictures of Mr.

Abdon (with a backpack slung over his shoulder) mingling with fellow travellers at the Regina airport. [ 22 ] Nevertheless and in accordance with protocol, human resources were provided with the medical certificate and on January 16, they sent an e-mail to Mr. Abdon which reads: Hello Mark, I was unsuccessful in my attempt to reach you by phone, however attached are the Short Term Disability forms for you to complete for your absence.

You will need to complete the Employee Member Statement and please be sure to include a copy of void cheque or online banking printout if you want funds to be direct deposited. Your physician needs to complete the Attending Physician Statement. They should confirm the date you can return to work to full time & duties if they are able to at that time. If not, then an update can be provided at a later time. Return all the forms to myself and include any other documentation (reports, test results, etc) you received from the doctors, etc so that Sun Life has as much information as possible.

Insufficient medical information/documentation could result in the decline of your claim. Please be advised that you should not return to work until I have spoken with you and confirmed the proper clearance has been provided. Based on the information provided, your current expected return to work date is set for January 22, 2020. Any change to this will require updated documentation from your DR. If you have any questions at all, please don’t hesitate to call or email me.

Regards , Donna Hycza Payroll Administrator [ 23 ] The attached documents were two relatively lengthy standard form claim statements which were entitled ‘Attending Physician’s Statement of Disability Claim’, and ‘Plan Member’s Statement of Claim for Disability Benefits’. They called for a doctor’s clarification of the injury, details of the physical examination, and a request for a full and complete description by Mr. Abdon, of his injury circumstances. [ 24 ] Mr. Abdon never replied to this e-mail and never filled out the forms.

He asserted at trial that he did not do so because there was no timeframe within which the documents had to be filled out, nor did the e-mail say that it was mandatory that he fill these forms out. In my view his assertions lack substance. The e-mail made it absolutely clear that he should not return to work until he had spoken to H.R., and not until a proper clearance had been provided. Obviously, the forms would have to be filled out at some point prior to his return to work. Therefore, the timeframe is clear and the requirement to fill them out is mandatory – assuming Mr.

Abdon intended to return to work. [ 25 ] Mr. Hubick says that he attempted to phone Mr. Abdon and e-mail him on several occasions between January 15 and February 6. He says that Mr. Abdon never replied. I have no hesitation in accepting this testimony. Mr. Hubick struck me as honest and straightforward. I am satisfied that these steps would be what any reasonable supervisor would undertake. [ 26 ] Mr. Abdon advised the court that the trip to the Philippines involved a twelve-hour flight from Regina to Hong Kong, followed by a layover in Hong Kong and then another two-hour flight to Davao City in the Philippines.

The return flight took the same amount of time but in reverse. While in the Philippines Mr. Abdon attended his wedding ceremony and for some period of time he celebrated at a ranch in the Philippines. The Court was not provided with much detail as to what Mr. Abdon did over the course of these 22 days, but Mr. Abdon indicated that he would, from time to time, rest and try to recuperate from his back pain. During this time Brandt became aware of several more Facebook photographs. While the photos are undated, they show Mr.

Abdon in the Philippines, and at times carrying his wife, holding her up into the air, and horseback riding. [ 27 ] On February 4, Mr. Abdon sent an e-mail to Mr. Hubick. The e-mail simply enclosed, without further comment, another doctor’s report. That doctor’s report reads: TO WHOM IT MAY CONCERN:

This is to certify that one Mark Gladiolus S. Abdon, 37 years old, male, a resident of BLK. 6, LOT. 16, Justice St. SGR Village, Catalunan Grande, Davao City, has been examined at Agusan del Norte Provincial Hospital, Libertad, Butuan City on Feb 3-5, 2020 because of: Findings/Diagnosis: SCIATICA This certification is being issued upon the request of Mr. Mark Gladiolus S. Abdon, for whatever purpose it may serve except medico-legal. AS PER RECORD: GINA R. BACOL, M.D., FPMS [ 28 ] This doctor did not testify at trial.

This medical certificate was not tendered at trial for proof of contents, but rather, as simple confirmation that Mr. Abdon had attended this doctor and requested that the certificate be prepared. At trial, Mr. Abdon did not describe, or provide any detail whatsoever, as to how his presumed sciatica affected him during his vacation. I am unable to understand how a medical certificate presumably obtained on February 4, or before, can assert that Mr. Abdon was suffering from sciatica on February 5. [ 29 ] On February 6 Mr.

Abdon showed up for his regularly scheduled shift, commencing at 4:30 p.m. ready, willing, and able, to work. He was taken aside by Mr. Hubick and Mr. Hubick’s supervisor. They advised Mr. Abdon that Brandt felt that they had been duped. They presented him with a termination letter and escorted him off the premises. The termination letter reads: February 6, 2020 Mark Abdon 302 Doiron Rd. Regina, SK S4Y 1G1 Dear Mark, As you are aware, we have spoken to you on several occasions in regards to our concerns with you not following company policies and procedures.

It has come to our attention that you have been missing from work without applying for our medical short term disability program as instructed to do so many times. You have not responded to our request to follow the process related to the leave. This is completely unacceptable and a breach of company policy and procedure. Based on all of the foregoing, and the seriousness of your actions, this letter is to inform you that your employment with the company is terminated for just cause effective today, February 6, 2020.

Your final payment covering outstanding earnings and vacation pay will be made to you at the end of the next pay period. Your record of employment will be available from Service Canada after you receive your final pay. All Brandt property and material must be returned today. This includes keys, security cards, Company credit cards, cell phones, personal

computers, vehicles, documents (including electronic copies of documents) and files, etc. You are permitted to retain any Brandt property, including any confidential information for yourself for any purpose. Furthermore, be advised that you are required to maintain in strict confidence any confidential information that you obtained about Brandt, its affiliated and related corporations, their customers and employees on a go forward basis. The Company will take steps to enforce any breach of your legal obligations in this regard. Your benefits will be terminated immediately.

You may have the right to convert your life insurance to an individual benefit. To preserve this right, however, you will need to apply within 30 days of your last day of work. Please speak to Shirley Reiter about options for conversion of life insurance and any pension or benefit options. She can be reached at Elev8 Wealth Advisors Inc., 306-994-2308 or 1-800-838-6146. We wish you all the best in your future endeavors. Yours Truly, Norm Sane Shop Manager CC: Marc Eberle-Operations Manager I note that the letter does not identify insubordination or deceit as a basis for termination.

However, these grounds have been pled and I am satisfied that, in law, after-acquired causes may properly be advanced in legal proceedings in circumstances such as these. [ 30 ] Mr. Abdon says that following the termination he was sad and frustrated. After about two weeks he commenced a job search. He applied with the Canadian Navy as a welder and was told of the steps that would have to be taken by him to become a member of the Armed Services. Mr. Abdon felt this to be too arduous.

In April, he applied at Vale Industries, which is located in the town of Indian Head, and which is approximately 75 kilometers from Mr. Abdon’s home. He was offered employment as a welder, at the rate of $23.00 per hour (with a reconsideration of that wage after three months). The job was to commence on April 27. Mr. Abdon sent an e-mail to Vale on April 22 declining the offer. He indicated that he had ‘to put into consideration the distance from home to work, which he found uneconomical, but that if he lived closer to Indian Head, he would have gladly accepted the offer’. [ 31 ] Mr.

Abdon was cross-examined at trial on his rejection of this offer. He asserted that the cost of gas to and from Indian Head would be excessive since he drove a Ram 2500 truck. I am satisfied that the drive to Indian Head would likely take 45 minutes one way, rather than the ten-minute drive to Brandt’s Pinkie Road facility. I would reasonably estimate that his vehicle would consume gas at the rate of one gallon per 30 to 40 kilometres. [ 32 ] Ultimately, Mr. Abdon accepted employment as a welder with Dutch Industries on August 31, 2020 at the rate of $24.50 per hour.

Dutch Industries is in Pilot Butte, approximately 25 kilometers from Mr. Abdon’s home. [ 33 ] Mr. Abdon says that he applied for CERB benefits while unemployed and received $2,000.00 from the federal government. [ 34 ] Mr. Abdon’s only other witness was Dr. Matand. Dr. Matand had only ever seen Mr. Abdon on one previous occasion - back in 2017 - when dealing with a sore elbow. Dr. Matand presented as a thoughtful and competent family physician. I have no hesitation accepting the evidence that he gave. Dr. Matand said that Mr.

Abdon presented at the clinic on January 14, likely in the morning, complaining of lower back pain which Mr. Abdon thought might have been attributable to shovelling snow four days previously. There was no explanation as to why Mr. Abdon waited four days. I take note of the fact that this injury presumably arose the very day following the ultimatum that was given to him on January 9. Dr. Matand indicated that his examination of Mr. Abdon was entirely normal, meaning that there were no objective indicia of injury. Dr. Matand stated that in the result, he accepted Mr.

Abdon’s story and his subjective complaints at face value. On the strength of the history given by Mr. Abdon, and his subjective complaints, Dr. Matand diagnosed a lower back muscle strain; recommended that Mr. Abdon fill a prescription for anti-inflammatory medication; advised him to take five days off work to rest and recuperate; and, to return to the clinic five days later for follow up. In passing, I should note that Mr. Abdon says that he filled the prescription of fifteen to twenty pills but only took a single pill. I note that Mr. Abdon never returned to Dr.

Matand for a follow up, and of course, he did not stay at home to rest and recuperate.

[ 35 ] Mr. Abdon did not advise Dr. Matand of his travel plans or the various activities that he would undertake for the next 22 days. He indicated that a fourteen-hour flight would not have been recommended because the static posture would not be conducive to recovery. He indicated that lifting or carrying one’s spouse would not be conducive to recovery. He indicated that horse-back riding would not be conducive to recovery. These latter three things would, he said, exacerbate Mr. Abdon’s condition.

He did not speak to sciatica, but I can take judicial notice that a lower back muscle strain is different than sciatica. Mr. Abdon described his lower back pain as a general muscular achiness and stiffness. I believe it is common knowledge that sciatica generally anticipates a painful pinching of the nerve that runs from the lower back down and across the hip and into the leg. [ 36 ] Brandt’s three witnesses gave their evidence in a manner which is consistent with what I have already set forth. Mr. Sane, Mr.

Hubick’s supervisor, was asked why he felt immediate termination was the proper form of discipline rather than the progressive discipline set forth in the employee manual. His response, and that of Mr. Hubick, can be summarized as follows: 1. Mr. Abdon attempted to circumvent vacation scheduling by repeatedly bypassing Mr. Hubick. 2. He had been verbally warned in the past about the consequences of un-approved absence, and he had been given a written warning in 2015 which explained that a further violation could result in termination for just cause. 3. Mr.

Abdon had repeatedly attempted to obtain approval (seven times) and he well knew that it would not be allowed. 4. Mr. Abdon almost certainly feigned injury to obtain the very thing that he had been denied. He thereafter failed to keep in contact with Mr. Hubick or human resources, and he failed to follow up with human resources by providing the necessary documentation. 5. His conduct, which many of the employees were obviously aware of, was intentional and dishonest, and adversely impacted on the running of the facility.

It amounted to insubordination, and the employee manual authorizes termination without notice for insubordinate acts. 6. Had Brandt simply given a verbal warning, this would be seen by Mr. Abdon and other employees as an invitation to conduct themselves in the same deceitful manner, with only nominal consequences. 7. Mr. Abdon’s deceit has irreparably shaken Brandt’s trust in Mr. Abdon. 8. While the preface to Brandt’s employee manual notes that Brandt operates in an environment where mistakes are treated as learning opportunities - Mr.

Abdon’s actions were not a mistake, so much as they were intentional deceitful conduct. Issues [ 37 ] The Court is called upon to address the following issues: 1. Did Mr. Abdon feign injury in the hope that his presumed medical condition would justify his otherwise unauthorized leave of absence? 2. Was Mr. Abdon wrongfully (or unjustly) dismissed? 3. If so, what is the appropriate period of notice that should be assessed to reflect that termination - having due regard to all the surrounding circumstances? 4.

What is the quantum of damages that should be awarded to reflect that period of notice and should his CERB payments be set-off against that damages award? 5. Should court costs be awarded, and if so, in whose favour, and in what amount? [ 38 ] On the balance of probabilities, I am satisfied that Mr. Abdon feigned an injury - or more accurately two injuries - in the hope that Brandt would excuse his absences from work January 15, 16, and 17 and February 3, 4, and 5. [ 39 ] I note that, historically, Mr. Abdon had very few injuries that required him to take time off work.

Admittedly, while it does not necessarily follow that pre-existing good health precludes a sudden onset of low back muscle strain, a prior history of back problems would have, in my view, lent credence to the sudden onset of his alleged back problem. I also take note of the uncanny timing of the alleged original injury and then subsequent injury. Mr. Abdon had attempted, by my count, to obtain a leave of absence for his wedding on at least seven occasions in the months leading up to that wedding. On the last occasion, January 9, he was presented with an

ultimatum - resign, and try to re-apply to Brandt after the trip, or be at work at the scheduled time. The very next day he was presumablyshovelling snow and injured his back. Notwithstanding this back injury, he did not attend on a doctor for four days. No explanation wasprovided to explain this delay. [40] I note that when Mr. Abdon did attend on Dr. Matand, his examination was entirely normal - there was no objective indicia ofinjury. While that is not determinative of feigning injury, it is consistent with that conclusion. Dr. Matand prescribed anti-inflammatories.Mr.

Abdon says that he purchased a prescription, but there is no corroborative evidence that he did so. Even then, and by his evidence,he took one single pill. This, to me, is inconsistent with an injury that requires an extended (five day) absence from work. Dr. Matandsuggested time off work to rest at home to allow Mr. Abdon’s presumed injury to heal. Mr. Abdon did not do this. In fact, when given anote to take time off (from what Brandt has described as a rather labour intensive job), he returned to work within a few hours andworked almost eight hours of a ten-hour shift.

This is inconsistent with what I would consider to be the reasonable conduct of an injuredperson. Working in an arduous physical environment for long periods of time with a pre-existing low back injury is risky - both to one’sown health, the others around Mr. Abdon, and Brandt’s safety protocols. [41] Mr. Abdon failed to advise Mr. Hubick of his injury at the tool-box meeting on January 14, even though he was in possession ofa medical certificate directing him to take time off. This is inconsistent with what, objectively, I would expect of an injured person.While Mr.

Abdon contends that he advised his foreman of his injury that day and given a lighter workload, that foreman was not calledby him to confirm that conversation. Importantly, Mr. Abdon did not describe what these changes of duties were, or even how they couldbe accommodated in the context of his work as a welder on an assembly line. [42] Dr. Matand instructed Mr. Abdon to return after five days for a medical follow up. Mr. Abdon, being in the Philippines, couldnot of course do so, and he never did follow up with the good doctor.

This failure to follow up on an injury that could, possibly,adversely impact on his physically laborious job is inconsistent with what, objectively, I think a reasonable person would do. Mr.Abdon’s attendance at the airport, nine hours or so after leaving work, with a backpack slung over his shoulder, is inconsistent with a lowback injury. I think I can take judicial notice of the fact that carrying luggage on one’s back while suffering from low back pain - therebypotentially exacerbating the condition - is unreasonable, and inconsistent with injury. I take note of the fact that Dr.

Matand indicatedthat a fourteen hour flight, forcing Mr. Abdon in a static sitting position for an extended period of time, is inconsistent with a low backinjury, as is horse-back riding, carrying one’s spouse, and holding her over one’s head. And of course, taking a 22 day vacation halfwayacross the world, is inconsistent with Dr. Matand’s suggestion of recuperation at home. [43] In my view, failing or refusing to fill out Brandt’s disability forms is inconsistent with an injury.

I am left to conclude that Mr.Abdon’s failure to do so, was because he well knew that he did not suffer an injury, and either he did not want to expose himself to anallegation of fraud, or because he well knew that he would be coming back to work on February 6 in good health - which he did, surprisingly, and notwithstanding a diagnosis of sciatica a mere three days earlier. [44] I find this second diagnosis of injury equally troubling.

I have no idea whether or not a full diagnosis was undertaken: no idea ofits date of onset; the circumstances giving rise to this new and different diagnosis; or how it impacted Mr. Abdon. All of this would havebeen useful in ascertaining Mr. Abdon’s truthfulness. I suspect that a return flight of 14 hours on a plane would exacerbate sciatica. Butthen again, perhaps not, because strangely, and again, his time to full recovery is uncanny. From a diagnosis of sciatica on February 3 tofull recovery on February 6 - is precisely enough time to cover an otherwise unauthorized leave.

I simply find the temporalcircumstances to be suspect. In addition, I take note of the fact that neither the first nor the second injury is supported by corroborativeevidence. The doctor who prepared this second medical certificate did not testify. Mr. Abdon could have, but chose not to call thatdoctor, or his spouse, or any of his friends who attended his wedding and its following celebration. This may have corroborated thelimitations that Mr. Abdon presumably had while on vacation. While I have no doubt that they would have been vigorously cross-examined, that evidence may or may not have supported Mr.

Abdon’s assertions. [45] While it is a rather trite statement of law, there is no question that an employer carries the burden of proving that the terminationwas not wrongful. However, in the instant circumstances, Mr. Addon carries the evidentiary burden of showing that his leave wasmedically justified. His actions following the first diagnosis are inconsistent with a low back injury sufficient to demand a leave ofabsence from work, or at all. His failure to call corroborative evidence in support of an injury operates to his detriment, and I draw anadverse inference from that failure.

In Murray v Saskatoon (City), (Sask CA), at paragraph 19, our Court of Appeal referred to Wigmore on Evidence, 3rd ed. vol. 11, pp. 162 et seq. which explains that inference: * * * The failure to bring before the tribunal some circumstance, document or witness, when either the party himself or his opponentclaims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and thisfear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party.These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation bycircumstances which make some other hypothesis a more natural one than the party’s fear of exposure.

But the propriety of such aninference in general is not doubted.

Mr. Abdon gave no explanation why one or more of these witnesses were not called. I conclude, more likely than not, that if these witnesses had been called, the evidence provided would not have assisted Mr. Abdon’s suggestion of a low back injury. [ 46 ] For these reasons, issue one is answered in the affirmative. I am satisfied, more likely than not, that Mr. Abdon feigned injury on January 14 and then again, on February 3, in the hope that his ‘medical condition’ would justify an otherwise unauthorized leave. I find, more likely than not, that in feigning this injury, Mr.

Abdon attempted to involve the good offices of doctors in both Canada and the Philippines to facilitate this deceit. [ 47 ] Mr. Abdon has argued that his absence from work was justified by medical necessity. Therefore, it could not be seen to be unauthorized. Therefore, his termination without notice was wrongful. This line of argument fails because I have found that his leave was, in fact, unauthorized because he had feigned injury. Therefore, he should have, but failed, to report for work. [ 48 ] Counsel for Mr.

Abdon invites me to conclude that even if I find the leave to be unauthorized, this is still, at the end of the day, two incidents of unauthorized absence. She invites me to conclude, therefore, that the penalty - termination - is disproportionate to the offence, and that the discipline should have been dealt with pursuant to the discipline procedures set out in

Section II of the manual. Since unauthorized absence comes under

Section II of the discipline policy, and because that

section calls for a progressive discipline protocol: first offence - verbal warning; second offence - written warning; third offence - suspension for up to three days; fourth offence - dismissal; then, at most he should have received a verbal warning for the first instance and a written warning for the second offence. Counsel argues that Mr.

Abdon’s earlier instances of absence without leave - two verbal warnings and a written warning back in 2015 - have no bearing on the discipline that should have been used, because the manual stipulates that these forms of discipline are deemed to have been waived after the expiry of eighteen months.

She invites me to adopt this conclusion because the employee manual notes, in its preface, that ‘individuality and initiatives are encouraged, and … mistakes are treated as learning opportunities ’. [emphasis added] [ 49 ] In support of that argument, she refers this Court to the Ontario Court’s decision in Chapman v ATC-Frost Magnetics Inc ., [1997] OJ No 1778 (QL) (Ont Ct J (Gen Div)) which found that the progressive discipline protocols promulgated by an employer should be followed and an employee should be entitled to those benefits. She has cited other case law and textbook authority for that proposition.

That general proposition has been set out by Peter M. Neumann & Jeffrey Sack, eText on Wrongful Dismissal and Employment Law (2020), Lancaster House, 2012 CanLIIDocs 1 , at 7.1.4: Where an employer has explicit policies that call for progressive discipline, the sequential steps spelled out in those policies can be bypassed only in instances of serious misconduct such that

summary dismissal is the only reasonable option. I agree with that general assertion. [ 50 ] In further support of that argument, counsel properly points out that, generally speaking, wrongful dismissal law in Canada has evolved to a point where, for lack of a better term, progressive discipline should be the norm and not the exception.

She refers to Wilson v Atomic Energy of Canada Ltd. , 2016 SCC 29 , [2016] 1 SCR 770, [ Wilson ] where that Court, at para 54, cited with approval the notion that employers seeking to justify dismissal should demonstrate that they have made the employee aware of performance problems, worked with the employee to rectify them and then imposed a graduated repertoire of sanctions before resorting to the ultimate sanction of dismissal.

As a general proposition of law, I agree with that position as well. [ 51 ] To further augment her argument, she points out that numerous courts have opined that employment is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. Therefore, a person’s employment is an essential component of his or her sense of identity, self-worth and emotional well- being. For that reason, termination without notice should, reasonably, be a step taken as a last resort.

I do not accept that the first component of this observation has universal application. I have no doubt that there are people who do not consider their job, particularly those that are mundane, physically exhausting, and low paying, universally feel this way. However, her point is taken.

I accept that for most people losing one’s job robs them of a sense of dignity and self-worth - if, and when - they in turn give back to that job what they seek in return. [ 52 ] However, and in accordance with Wilson , I reiterate the comment that the purpose of progressive discipline is to demonstrate that an employer has made the employee aware of a performance problem and worked with the employee to rectify the problem.

Surely the premise of progressive discipline, and to the wiping clean of past poor behavior, is not for the purpose of allowing an employee who has been repeatedly made aware of a type of problem - to then allow that employee to wipe clean his memory of , and his understanding

of, the wrongness of the conduct that he has engaged in once he has been made aware that it is wrong. [53] Mr. Abdon had been verbally warned on attendance problems twice in the past and once in writing. In the latter case, it wasmade clear to him that a further instance may result in termination. Does the passage of time mean that he can forget his employer’sconcerns in this regard? He obviously did not and I say this because he tried desperately on seven occasions to obtain a leave of absence.He obviously knew that he required pre-approval.

If he did not understand the potential sanction that might arise, he would have beenhard-pressed not to have when - on January 9 - he was bluntly advised of his choice - resign or attend as scheduled. [54] Counsel for Brandt invites me to consider their perspective. First, Mr. Abdon was aware of the employee manual. Second, hishistory of earlier non-attendance and the warnings that followed, makes it abundantly clear that he knew how important Brandtconsidered attendance at work to be. Third, Mr. Abdon was repeatedly told of his need to attend on the dates in question. According toMr.

Abdon, it would have been seven, and Mr. Abdon should reasonably have inferred that the implications of being told to ‘resign orshow up at work’ meant that if he did not show up, he could be terminated. This last point is compelling. I conclude that Mr. Abdonfeigned injury because he was aware of the very significant ramifications of not attending when instructed to do so. Fourth, whileunauthorized absence does come under the progressive discipline model established under ‘Discipline

Section II’ of the manual, themanual makes it abundantly clear at page two, under the heading ATTENDANCE: that in the event of non-attendance from work, theemployee must notify their supervisor immediately [emphasis added] after the opening of the business day; and ‘that an employeeinvolved in an unauthorized or unreported absence for a period of three or more days is subject to discipline or dismissal. [emphasisadded]. Fifth, under the provisions of employee manual ‘Discipline

Section I’, the company considers disobedience and/orinsubordination cause for immediate dismissal. Mr. Abdon thereafter attempted to justify his absences by intentionally deceiving hisemployer. Taken together Brandt argues that a failure to attend work when instructed to do so is insubordination. Failing to fill out sickleave statements when instructed to do so is insubordination.

Feigning injury and then deceiving an employer not once, but twice, aretwo further cases of insubordination. [55] Brandt acknowledges that termination should be used only as a last resort, and that termination must be a proportionate responseto the conduct under consideration. They correctly point out that, in the Supreme Court’s decision in McKinley v BC Tel, 2001 SCC 38 atpara 33, [2001] 2 SCR 161 [McKinley], that Court adopted earlier precedent for the proposition that: ‘There is no definition which setsout, precisely, what conduct, or misconduct justifies dismissal without notice, and rightly so.

Each case must be determined on its ownfacts …’. [56] Brandt further points out, in reliance on H.A. Levitt’s The Law of Dismissal in Canada (2d ed 1992) at p 124, that misconductmust be more serious in order to justify the termination of a more senior, longer service employee who has made contributions to thecompany, and invites the Court to conclude that Mr. Abdon does not fit within that description. [57] Brandt invites this Court to use a contextual analysis along with the principle of proportionality to determine whether just causeexists and that this contextual analysis is set out in McKinley.

That contextual analysis is summarized by the Ontario Court of Appeal in Dowling v Ontario (Workplace Safety and Insurance Board) (2004), (ON CA), 246 DLR (4th) 65 (Ont CA) at paras.49 and 50: [49] Following McKinley, it can be seen that the core question for determination is whether an employee has engaged in misconductthat is incompatible with the fundamental terms of the employment relationship.

The rationale for the standard is that the sanctionimposed for misconduct is to be proportional — dismissal is warranted when the misconduct is sufficiently serious that it strikes at theheart of the employment relationship. This is a factual inquiry to be determined by a contextual examination of the nature andcircumstances of the misconduct. [50] Application of the standard consists of: 1. determining the nature and extent of the misconduct; 2. considering the surrounding circumstances; and, 3. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).

[51] The first step is largely self-explanatory but it bears noting that an employer is entitled to rely on after discovered wrongdoing, solong as the later discovered acts occurred pre-termination. See Lake Ontario Portland Cement Co. v. Groner, (SCC),[1961] S.C.R. 553 (S.C.C.). [52] The second step, in my view, is intended to be a consideration of the employee within the employment relationship. Thus, theparticular circumstances of both the employee and the employer must be considered. In relation to the employee, one would considerfactors such as age, employment history, seniority, role and responsibilities.

In relation to the employer, one would consider such thingsas the type of business or activity in which the employer is engaged, any relevant employer policies or practices, the employee's positionwithin the organisation, and the degree of trust reposed in the employee. [53] The third step is an assessment of whether the misconduct is reconcilable with sustaining the employment relationship.

Thisrequires a consideration of the proved dishonest acts, within the employment context, to determine whether the misconduct issufficiently serious that it would give rise to a breakdown in the employment relationship. [58] In the instant circumstances, the nature and extent of the misconduct is clear and obvious. Mr. Abdon was well aware of theimportance of attending work when required to and I find that he was aware of the adverse implications to Brandt’s business processesand profit if he failed to do so. He had been warned verbally and in writing in the past.

That written warning had explained whyattendance was important to Brandt and the potential consequences of unauthorized leave. Even though these prior instances might notwork against him in the progressive discipline model set up by Brandt, I cannot conclude that Brandt’s willingness to waive previousinstances of misconduct extend to allowing Mr. Abdon to ignore that which he has been made aware of. In addition to these warnings,the employee manual not only re-emphasizes this importance, it identifies unauthorized leaves of three or more days as cause fordismissal. It is simply inconceivable to me, after Mr.

Abdon had tried and failed to obtain that leave on seven occasions predating hisdismissal, that he was not acutely aware of Brandt’s concerns regarding attendance. Notwithstanding this knowledge, Mr. Abdonchallenged Brandt’s direction to work on the days in question, took unauthorized leave, and, rather than just rolling the dice and hopingfor some form of progressive discipline, he methodically and deceitfully attempted to utilize the medical profession to further hisdecision to depart from Brandt’s lawful direction. [59] Mr.

Abdon undertook this course of action when he knew, or certainly ought to have known that his failure to attend work, andthen his failure to advise Brandt in a timely manner on each of those two occasions would, more likely than not, affect Brandt’sproductivity. He did so, when he knew, or, I find, ought to have known, that many of the employees working at Brandt would discoverhis trickery.

Were he only to be verbally reprimanded, or otherwise progressively disciplined, I accept Brandt’s assertion that it wouldhave legitimate concerns that this would incite others to attempt to follow suit if they, in turn, were not given the leave that they sought.I am satisfied that Brandt would be hard-pressed, if Mr. Abdon remained in their employ, to ever accept, at face value, any explanationthat Mr. Abdon might raise for conducting himself contrary to the employee rules that Brandt has established – particularly as it relatedto illness or injury. [60] There is no question in my mind that Mr.

Abdon’s conduct met the test of insubordination when he took unauthorized leave whentold repeatedly not to do so; when he failed to give sufficient notice of that leave; and, when he then failed to complete the necessarymedical leave statements. In addition, I am satisfied that his conduct was deceitful when he attempted to manufacture an injury andsubstantiate it with medical certificates obtained by misleading at least one doctor if not both. Were his deceit not caught, it is arguablethat his sick leave would have been authorized.

This abuse of a sick leave policy is, in my view, a further aggravating insubordinate act. [61] Is this conduct reconcilable with sustaining the employment relationship? I do not think so. Other cases have considered factssomewhat similar to the case at hand. In Gonzalo v Moores The Suit People Inc., 2006 SKQB 263, 282 Sask R 266 the plaintiff had beenemployed as a seamstress for fifteen years. She was terminated when she took an unauthorized vacation after having been told that wereshe to do so, she would be terminated.

Hunter J. concluded that the plaintiff was fully aware of her obligation to attend work on specificdates; that the rules regarding leave had been circulated; that the plaintiff was aware of the rules; that they had been consistently enforcedin the past; that employees were aware that they could be terminated if the rule was breached; and that the rule was reasonable. Theplaintiff’s termination was upheld. [62] In Medstar Ventures Inc. and HSAS, Re, at para 84 (SK LA), the arbitrator noted: An employer has the legitimate right to expect an employee to attend work regularly and on time.

Otherwise the employer is in theunfortunate position of having to scramble to find other employees to cover for the missing employee. This is an inconvenience to all. To

the employer, in addition to the extra effort, often there is an increased cost; to the other employees who cover, there is added work loadand often a disruption to their personal schedule. Most understand when the failure to attend a work is a “one off” situation resultingfrom factors beyond control. But if the non-attendance is self-induced, there is little understanding or tolerance. [63] In Canada Safeway Ltd. and United Food and Commercial Workers International Union, Local 2000 (Falbo greivance) (1998), (BC LA), 71 LAC (4th) 107 (BC, Arbitrator: Sanderson) a deli

section clerk was off work due to a motor vehicleaccident. He was dismissed when he advised his employer that he was incapable of performing certain duties when videotape evidenceconfirmed otherwise. Despite his 17 years of service his termination was upheld. The arbitrator considered a number of cases on theissue of deterring employees falsely claiming an inability to work and noted: [34] I agree with the views I have quoted on the subject of deterrence and on the vital importance of honesty and trust in theworkplace.

In my view, a measure of trust between employers and their employees is an essential lubricant that is required to enableemployment machinery in any workplace to function properly for their mutual benefit. [64] When an employee is advised of the importance of their attendance at work on several occasions and they have previously beenverbally warned, and then warned in writing that repeated unauthorized absences may result in termination, I do not think it is open to theemployee to argue that he need not heed those warnings, in the future, because the misconduct has been erased from their employmentrecord.

When an employee is then told on at least seven occasions that they will not have their leave authorized and that their choice is toresign or show up at work; and when they have an employee manual that speaks to termination as a consequence of unauthorized leaveof three days or longer, I am satisfied that they either know, or should know of the critical importance that their employer places onunauthorized absences.

When that same employee then feigns injury and manufactures medical documentation to substantiate thatfeigned injury, in order to obtain that leave regardless of the lawful instructions of their employer - and in so doing ignores sick leavepolicy - I am satisfied that this constitutes insubordination, and disobedience, and deceit. In the instant circumstances, I accept thatBrandt could not, in the face of this, trust Mr.

Abdon in the future, and I acknowledge its concerns - that to follow a progressivediscipline protocol would not be conducive to the company if other employees may, seeing this misconduct being treated as minor only,attempt to try the same thing. I conclude, therefore, that termination without notice was proportionate to Mr. Abdon’s transgressions dueto an irreparable breach of the trust relationship. For these reasons, I dismiss his claim. [65] Even though Mr. Abdon’s claim is dismissed, I may subsequently be found on appeal to be in error.

Therefore, I am obliged tomake a provisional award of damages. [66] In assessing a reasonable period of notice, I refer to the factors set forth in Bardal v Globe and Mail, Ltd. (1960), (ON SC), 24 DLR (2d) 140 (Ont (H Ct J)). This Court should give consideration to, at minimum: the character of the employment;the length of service; the age of the employee; and the availability of similar employment. The character of the employment isspecialized labour; the length of service was just under 8 years; Mr.

Abdon was 37 years old at the time of dismissal; and according tothe evidence there were at least four other welding jobs available in or around the City of Regina in the eight months following Mr.Abdon’s termination. Because the nature of the work is not particularly specialized; because the length of service was not particularlyextensive; because Mr. Abdon is relatively young and otherwise in good health; and because other equivalent type of work wasreasonably available, I find that the length of notice should have been six months.

There is no evidence that the COVID pandemic playeda negative role in finding work. At best, it provided Mr. Abdon with an alternative income stream through a federal governmentprogram. In assessing a six-month notice period I give due consideration to Brown v Arbutus Manufacturing Ltd., 2000 BCSC 1475,which is on the low side, and in which a labourer/machine operator who was 32 years old, and who had worked for his employer for tenyears, was entitled to three months’ notice.

In Murphy v Williams Operating Corp., [1998] OJ No 5444 (QL) (Ont Ct J (Gen Div)),which is on the high side, a labourer/miner who had worked for seven years was given ten months’ notice. In each of Danroth v FarrowHoldings Ltd, 2005 BCCA 593 and Neufeld v Westburne Industrial Enterprises Ltd. (1998), (MB CA), 129 Man R(2d) 148 (Man CA), a labour/carpenter with seven years’ service, and a 44 year old electrician with ten years’ service were respectivelyentitled to six months’ notice. [67] The evidence before me suggests that Mr.

Abdon would likely have earned $4,696.58 per month if he had continued to work atBrandt. Together with a 5% pension adjustment, this would equate to $4,931.40 per month. Multiplied by six months this would equateto $29,588.45. However, I am of the view that Mr. Abdon failed to mitigate his damages by not accepting a position with Vale Industrieson April 23 of that year, earning a potential $23.00 per hour over a 40 hour work week.

In my view, it is unreasonable for a 37 year-oldman who has to provide for three children and a spouse, to decline this job simply because his commute is extended by thirty minuteseach way to work and then back home. Even if this job had been taken for a limited period of time until closer work could be found, themitigation effort should have been undertaken. [68] Had Mr. Abdon taken this job, Mr. Abdon’s first quantification of loss of income would have been for a period of 76 days, or10.8 work weeks, at the rate of $27.00 per hour – this to reflect the time period form February 7 until April 23.

I calculate this loss to be

$12,683.46. However, for reasons which will soon follow, I find that this would have to be reduced by CERB payments received by him under the COVID Pandemic Federal Government assistance program, which he sought and obtained, worth $2,000. This would reduce his damages award (up to April 23) to $10,683.46. [ 69 ] Had Mr. Abdon accepted the Vale Industries job, then from April 23, through until the balance of his period of notice - which would be until August 6 – Mr. Abdon would have earned $23.00 per hour which equates to $920.00 per week based on a 40 hour work week.

The weekly differential in pay would have been $254.39 over a 14 week period. This equates to $3,561.53. However, in mitigating his loss to take the Vale job, he would have had to, in my estimation, incur additional gasoline expenses of approximately $18.00 per day or $90.00 per week over that 14 week period. This works out to an additional $1,260.00. I have come up with this figure by concluding that Mr. Abdon would likely use about three gallons more fuel every day to drive to and from Indian Head.

These sums, combined with his pre-April 23 loss, would equate to $15,504.99. [ 70 ] I have set off the CERB payment after due consideration of the Court’s decision in Hogan v 1187938 B.C. Ltd ., 2021 BCSC 1021 . In that case, the Court concluded that CERB payments constituted a compensating advantage that the plaintiff received in the absence of any obligation to pay for it, directly or indirectly, and which was received as an indemnity for wage loss arising from the loss of a job. I have chosen not to follow Iriotakis v Peninsula Employment Services Limited, 2021 ONSC 998 .

That Court appears to have based its decision on equitable considerations, and, unfortunately, this Court does not have the type of equitable jurisdiction that would, presumably, authorize it to rule in that fashion. [ 71 ] Prejudgment interest on the sum of $15,504.99, running from February 7, 2020 would equate to $64.73. Had he been successful, Mr.

Abdon would have been entitled to his costs, and under the circumstances, because a formal offer had been served which sought less than the amount he would have received, I would have granted him general costs equal to ten percent of the amount awarded - equal to the sum of $1,550.00, together with $186.26 for special costs relating to filing fees, service fees, photocopying and other disbursements. In total, the plaintiff would have received judgment in the sum of $17,241.25. [ 72 ] Because the defendant was successful, it is entitled to its costs.

Section 36(3) of The Small Claims Act, 2016 , SS 2016, c S-50.12 sets out a number of factors for the Court to consider in granting an award of general costs. None of those considerations play a significant factor in these proceedings. Had the defendant served an offer of settlement which offered to pay more than what the plaintiff received I would have exercised my discretion to grant general court costs equal to 10% of the amount claimed. As they did not, I am following my standard procedure of granting only 5%. As the plaintiff sought $30,000.00, general costs are awarded in the sum of $1,500.00.

Special costs related to filing fees are added to that amount, for a total costs award of $1,550.00. Judgment shall issue in that amount in favour of the defendant. [ 73 ] I would be remiss if I did not comment on the hard work of each of Ms. Butler, counsel for Brandt, and Ms. Quangtakoune, counsel for the plaintiff. Each of them provided detailed, thoughtful, and articulate written briefs. They were gracious, courteous, and respectful during trial. They were articulate and prepared.

As I mentioned following final argument, it is a rare event that I have the opportunity and the pleasure of watching relatively young counsel conduct litigation in such a consummately professional manner. While litigation invariably results in undivided success, their respective clients should appreciate their competence and their skill. _____________________ P. Demong, J