Plotnikoff v Associated Engineering Alberta Ltd., 2023 ABCJ 200

In the Alberta Court of Justice Citation: Plotnikoff v Associated Engineering Alberta Ltd., 2023 ABCJ 200 Date: 20230912 Docket: P2290101633 Registry: Calgary Between: Christopher Plotnikoff Plaintiff - and - Associated Engineering Alberta Ltd. Defendant Reasons for Judgment of the Honourable Justice D.B. Higa [ 1 ] Mr. Plotnikoff was employed by Associated Engineering Alberta Ltd. (“AE”) for almost ten years. His employment was terminated without cause on April 28, 2022. Upon termination he was paid $7,163.37, an amount determined pursuant to Sections 56 and 57 of the Employment Standards Code , RSA 2000 c.

E-9 (“ Code ”). [ 2 ] Mr. Plotnikoff claims he was not provided with adequate notice of termination of his employment pursuant to common law and implied terms of his employment contract. [ 3 ] AE asserts that Mr. Plotnikoff’s legal entitlements were wholly paid and satisfied in accordance with the terms of an employment agreement executed by Mr. Plotnikoff on May 21, 2012 (“Agreement”). [ 4 ] Clause 4(

c) of the Agreement states, Termination without Cause : The Company may terminate employment without cause upon providing the Employee with notice as may be mandated by the Employment Standards legislation or such additional notice as the Company, in its sole discretion, may provide or, at our option, pay in lieu of such notice. Issue 1 Does clause 4(

c) of the Agreement extinguish Mr. Plotnikoff’s common law right to receive reasonable notice? [ 5 ] In Bryant v Parkland School Division , 2022 ABCA 220 , the Court of Appeal comments at paragraph 14,

Another relevant and long-standing principle is that employment contracts are presumed to contain an implied term requiring an employer to provide reasonable common law notice of dismissal: ... While it is open to an employer to include language in the contract rebutting that presumption, the language must be “clear and unambiguous” to be effective.

Courts have also said the contract must contain language that is “clear and unequivocal”, or that meets a requirement for a “high level of clarity”, to extinguish the common law right to reasonable notice: ... [ 6 ] At paragraph 15, the Court continues, The starting point, then, is that there is a presumption of an implied term requiring the employer to provide reasonable common law notice on dismissal.

Only where the employment contract unambiguously limits or removes that right will the presumption be rebutted, and the implied term ousted. ... [ 7 ] Additionally, the Code provides at Section 3(1) , Nothing in this Act affects (

a) any civil remedy of an employee or an employer; [ 8 ] On a general basis the Court of Appeal in Bryant stated at paragraph 13 , Interpretive principles have therefore evolved to protect employees. One such principle is that “in employment law, uncertainty ought to be resolved in favour of the employee”: Holm at para 34. The Ontario Court of Appeal put it this way: “[F]aced with a termination clause that could reasonably be interpreted in more than one way, courts should prefer the

interpretation that gives the greater benefit to the employee”: ... [ 9 ] In Bryant , the Court considered the following clause, This contract may be terminated by the Employee by giving to the Board thirty (30) days or more prior written notice, and by the Board upon giving the Employee sixty (60) days or more written notice. [emphasis added] [ 10 ] The chambers judge dismissed the employees claim for notice beyond 60 days.

The Court of Appeal disagreed and concluded the clause was, ...not sufficiently clear, unequivocal and unambiguous to remove or limit the presumed common right of the employees to reasonable notice. The reading more favourable to the employee must prevail. [ 11 ] The Court of Appeal’s reasoning was provided at paragraphs 16 and 17, When these interpretive principles are properly applied, it is clear the clause does not unambiguously limit the employee’s right to common law reasonable notice. The clause does not clearly fix the employee’s notice entitlement.

It does not impose an upper limit on the amount of notice an employee is entitled to receive. It does not suggest that 60 days is the maximum notice to which an employee is entitled. To the contrary, it explicitly provides that an employee can be entitled to more notice. The inclusion of the words “or more” recognizes a longer notice period as a realistic possibility. The chambers judge noted that “if the contract contained only the words ’60 days’ it would be abundantly clear that [the employer] had fixed its notice at 60 days”. We agree. Such language would have been clear and unambiguous.

But that is not what the clause says. The chambers judge concluded the employer had given itself the discretion to decide the amount of notice owing to an employee. That seems a questionable conclusion. If that was intended the employer could have written the contract to clearly say so. Another, and more reasonable,

interpretation is that the employer intended the notice period to be in accordance with common law standards, subject to a minimum notice period of 60 days. [ 12 ] Paragraphs 16 and 17 of Bryant could almost be repeated in relation to the facts of this action and the wording of clause 4(

c) of the Agreement. [ 13 ] Clause 4(

c) does not clearly and unambiguously limit Mr. Plotnikoff’s right to common law reasonable notice. Clause 4(

c) does not clearly and unambiguously set or impose an upper limit on Mr. Plotnikoff’s notice entitlement. It does not state that the Code requirements are the maximum notice to which Mr. Plotnikoff is entitled. If that is what AE intended, it could easily have drafted such language. [ 14 ] If AE intended that clause 4(

c) was to extinguish Mr. Plotnikoff’s common law entitlement and oust the implied term in his employment contract it could have included such language in the Agreement. The Agreement contains no such language. [ 15 ] What clause 4(

c) provides is for a minimum period of notice as determined by the Code “... or such additional notice as the Company, in its sole discretion, may provide...”. [emphasis added] [ 16 ] As the Court of Appeal determined in Bryant , inclusion of the words in clause 4(c) “or such additional notice”, recognizes that a period of notice extending beyond the Code requirement is a realistic possibility. [ 17 ] AE submits the words in clause 4(c) “with notice as may be mandated by the Employment Standards legislation” is a distinguishing factor. [emphasis added] I disagree. In my view, those words simply establish Mr.

Plotnikoff’s minimum period of notice and compliance with statutory requirements under the Code . [ 18 ] Additionally, AE argues that clause 4(

c) is different than the clauses found in the authorities submitted by Mr. Plotnikoff, as any additional notice is in AE’s sole discretion. I do not accept that inclusion of those words is of consequence. Again, clause 4(

c) expressly contemplates that additional notice is a realistic possibility. The ultimate decision to set and increase Mr. Plotnikoff’s notice,

will be that of the employer, whether or not it is expressly stated. [19] The additional authorities provided by Mr. Plotnikoff further support the Court’s determination of the primary issue in thisaction. In Kosowan v Concept Electric Ltd., 2007 ABCA 85, the relevant clause stated, The company reserves the right to terminate your employment at any time. Should you be terminated for cause, then you will not beentitled to any advance notice of termination or severance pay in lieu thereof.

Should you be terminated for reasons other [than] causethen you will be entitled to advance notice or severance pay thereof in accordance with the Employment Standards Act of Alberta. [20] Succinctly, in one paragraph the Court of Appeal resolved the issue, The question to be decided is whether the termination clause in the letter agreement renders inapplicable s. 3(1) of the Code.

As we readit, the term of the agreement provides only that in the event of termination without cause, the Appellant is entitled to severance pay “inaccordance with the Employment Standards Act of Alberta”. (It is conceded here that the reference is to the Code.) The clause doesnot, on its face, confine the Appellant to compensation pursuant to ss. 56 and 57(1) of the Code. On the contrary, the choice of languageleaves open to the employee the ability to pursue an action.

To do so, in our opinion, would be “in accordance with the EmploymentStandards Code.” The provision is clear and unambiguous. [21] Again, the wording in clause 4(

c) provides that Mr. Plotnikoff will receive notice “as may be mandated by the EmploymentStandards legislation”. This is similar to the wording in Kosowan where severance is determined “in accordance with the EmploymentStandards Act of Alberta”. [22] As illustrated in Kosowan, clause 4(

c) does not confine Mr. Plotnikoff’s entitlement to the employer’s obligations set forth inss. 56 and 57 of the Code. Clause 4(

c) does not reference s. 3 of the Code. Clause 4(

c) does not contain language to limit or extinguishMr. Plotkinkoff’s common law rights. [23] What clause 4(

c) does provide is that Mr. Plotnikoff will receive notice as may be mandated by the Code. In addition to therequirements of ss. 56 and 57, the Code also states and mandates in s. 3(1) that civil remedies of an employee are not affected. Accordingly, as concluded by the Court in Kosowan, the wording of clause 4(

c) leaves open the ability of Mr. Plotnikoff to pursue hiscommon law entitlements. [24] In Holm v AGAT Laboratories Ltd., 2018 ABCA 23, the clause read, 2(2) In the event we wish to terminate your employment without just cause, we agree that we will give you notice of the termination ofyour employment, or at our absolute discretion, we will pay you, in lieu of such notice, a severance payment equal to the wages only thatyou would have received during the applicable notice period.

This will be in accordance with the provincial legislation for the provinceof employment. [emphasis added] [25] The Court of Appeal agreed with the chambers judge that the clause lacked clear limiting language and the employee wasentitled to pursue common law damages. [26] At paragraph 29, the Court of Appeal stated, This contractual wording establishes a floor-section 57 of the Act requires pay in lieu of notice to be “at least” equal to the wages theemployee would have earned during the applicable notice period.

Put another way, in order to be Act-compliant in this case, the amountof compensation paid to the respondent in lieu of notice must be at least one week, not less than this amount. The contractualrequirement that notice or payment in lieu of notice be “in accordance with the provincial legislation for the province of employment”does not, however, create a ceiling that legally limits the respondent’s notice entitlement to only the statutory minimum noticerequirements.

Despite the appellant’s contention to the contrary, in our view, section 2(2) of the Agreement does not bar the respondentfrom pursuing payment in lieu of reasonable notice at common law. [27] Additionally, at paragraphs 34 and 35, At best, the contractual wording of

section 2 of the Agreement is ambiguous. In employment law, uncertainty ought to be resolved infavour of the employee. Wood v Fred Deeley Imports Ltd, 2017 ONCA 158 at para 28. Moreover, contra preferentem mandates thatcontractual ambiguities ought to be resolved against the party that drafted the contract. In this case, therefore, uncertainty and ambiguityought to be resolved against the appellant. At its essence, an enforceable employment contract must contain clear and unequivocal language to extinguish, or limit, an employee’scommon law rights.

Where a chambers judge concludes that an employment contract does not meet this threshold, as here, and that as aresult an employee remains free to pursue common law remedies, that does not engage an area of determination for which no deferencewould apply. [28] Again, with a few small changes, the comments of the Court of Appeal in Holm could form the reasons in the case at bar. [29] The reasoning of the Court of Appeal in Bryant, Kosowan and Holm support the conclusion that it is not clear andunambiguous that clause 4(

c) extinguishes Mr. Plotnikoff’s common law right to reasonable notice and that he is limited to the amountpaid by AE. [30] The authorities provided by AE are not persuasive and are distinguishable. In Nutting v Franklin Templeton InvestmentsCorp., 2016 ABQB 669 , 2016 ABKB 669 the applicable clause is clear and unequivocal that notice or pay in lieu is restrictedto the applicable employment standards legislation and that no claim in common law is permitted stating, Additionally, your employment may be terminated at any time without cause upon the provision by FTIC of the minimum notice of

termination, or pay in lieu of notice, benefits, and, if applicable, severance pay prescribed by applicable employment standardslegislation in the province in which you were employed.

The provision of such notice or pay in lieu of notice, benefits and severance payconstitutes full and final satisfaction of all rights or entitlements which you may have arising from or related to the termination of youremployment (including notice, pay in lieu of notice, severance pay, etc.) whether pursuant to contract, common law or otherwise.[emphasis added] [31] In Inayat v Vancouver Career College (Burnaby) Inc. (Eminata Group), 2017 ABPC 124 the clause at issue states, The Instructor is not entitled to any additional notice or payment in lieu of notice in excess of what is required to be given or paid underthe provisions of the Alberta Employment Standards Code and the Employment Standards Regulations, as amended. [emphasis added] [32] The inclusion of that language specifically states and clearly identifies that no additional notice will be provided.

That clearand unambiguous wording is not contained in clause 4(c). Clause 4(

c) expressly contemplates that additional notice may be provided. [33] Lawton v Syndicated Services Inc. 2022 ABPC 3 is not binding on the Court. Significantly, the Justice in Lawton did notconsider nor mention Bryant, Kosowan or Holm, significant decisions of the Alberta Court of Appeal. Issue 2 What is the appropriate notice period to be afforded Mr. Plotnikoff? [34] Mr. Plotnikoff submits he is entitled to 12 months reasonable notice. AE submits the period of reasonable notice is 6 months. It may appear that the Court is splitting the difference between the positions advanced by the parties.

However, upon noting andconsidering the factors stated in Bardal v Globe & Mail Ltd., [1960] ONSC 294, the Court concludes that Mr. Plotnikoff is entitled toten months reasonable notice of termination of his employment. [35] Mr. Plotnikoff was 33 years old at the date of termination. He attended Lethbridge College and completed a two-yearprogram to become a civil engineering technologist. He was not trained as an engineer and did not perform engineering type duties. Hiswork consisted of preparing drawings and designs for municipal infrastructure projects. Mr.

Plotnikoff had no managerial or supervisoryduties. [36] Of significance is Mr. Plotnikoff’s almost ten-year period of employment and that AE was his sole employer since attendingLethbridge College. Also of significance is the restricted nature of Mr. Plotnikoff’s employment duties, categorized as a “singularexperience for a singular employer”. [37] At the time of termination, Mr. Plotnikoff was working on an approved reduced

schedule basis and he wished to continueworking on a reduced schedule. [38] The Court has also considered the authorities submitted by Mr. Plotnikoff in relation to determining the appropriate period ofnotice. The two authorities submitted by Mr. Plotinikoff awarding 12 months notice are distinguishable. [39] In Chann v RBC Dominion Securities Inc., (ON SC), the plaintiff was an MBA graduate, hadspecialized skills and was responsible for day-to day responsibilities for five major life insurance clients.

Further, the plaintiff’scompensation was significant. [40] In Carter v Packall Packaging Inc., (ON SC) the plaintiff was categorized by the judge as a specializedemployee and in a position of responsibility. Significantly, Carter relied on Wallace v United Grain Growers Ltd. (SCC), [1997] 3 SCR 701 and the Court increased the notice period finding bad faith conduct on the part of the employer. Wallace is nolonger the law and accordingly, Carter is of limited assistance. [41] Again, the period of reasonable notice that Mr. Plotnikoff was entitled to is ten months. Issue 3 Did Mr.

Plotnikoff fail to mitigate justifying a reduction in the period of reasonable notice? [42] The law of mitigation in employment matters is summarized in Lake v La Presse, 2022 ONCA 742. The Ontario Court ofAppeal stated at paragraphs 11 and 12, The leading authority is Red Deer College v Michaels, (SCC), [1976] 2 SCR 324. The duty to mitigate is based on thepremise that the defendant is not responsible for losses that a plaintiff could reasonably have avoided.

If it is the defendant’s positionthat the plaintiff could reasonably have avoided some part of the loss claimed, “it is for the defendant to carry the burden of that issue,subject to the defendant being content to allow the matter to be disposed of on the trial judge’s assessment of the plaintiff’s evidence onavoidable consequences’: at p. 331. The burden is on the defendant to show the plaintiff “either found, or, by the exercise of properindustry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities”: at p.332.

The burden is “by no means a light one, for this is a case where a party already in breach of contract demands positive action fromone who is often innocent of blame”. At p. 332.

While a terminated employee has a duty to take reasonable steps to mitigate, the onus is on the defendant to demonstrate that the plaintiffcould reasonably have avoided a loss or that she acted unreasonably in failing to do so: Gryba v Moneta Porcupine Mines Ltd. (2000), (ON CA), 5 CCEL (3d) 43 (Ont CA) at para. 57.

The defendant must prove: (1) that the plaintiff failed to takereasonable steps to mitigate her damages; and (2) that if she had done so she would have been expected to secure a comparable positionreasonably adapted to her abilities: Link v Venture Steel Inc. 2010 ONCA 144. [43] Significantly, in relation to the facts at bar, the Ontario Court of Appeal in Lake emphasizes at paragraph 32 that, The second part of the test on mitigation requires that the court be satisfied that, if reasonable steps had been taken, the terminatedemployee would likely have found a comparable position within the reasonable notice period. [44] Again, the burden falls on the defendant to prove the first and second part of the tests enumerated at paragraphs 12 and 32 ofLake. [45] Further in Lake the Court of Appeal commented at paragraph 19 that, ...The obligation of a terminated employee in mitigation is to seek “comparable employment”, which typically is employment that iscomparable in status, hours and remuneration to the position held at the time of dismissal. ... [46] Mr.

Plotnikoff’s mitigation activities were conducted in a rather leisurely manner. His employment ended April 28, 2022. The first entry in his job search log was June 19 when he reviewed websites of potential employers. He did not complete his resumeuntil August 4, over three months after termination. He continued to review and reformat his resume for two more months. Mr.Plotnikoff’s resume is one page in length. [47] The first position Mr. Plotnikoff applied for was sent on October 12, 2022, almost six months after termination.

In a span ofapproximately 10 months from the date of termination, he applied for only seven positions. Although the positions applied for were forfull time positions, he advised potential employers that he was seeking only part time employment. [48] In answer to the question why he did not apply for any jobs prior to October 2022, Mr. Plotnikoff responded he was “gettingmy resume ready and getting references from my last job”. [49] Mr.

Plotnikoff further testified that there were civil engineering technologist positions available, “a few here and there” and“one to two positions would arise one to two months after”. There was no evidence submitted that Mr. Plotnikoff made any effort toobtain information regarding potential opportunities in his field of endeavour. He did not apply for any available opportunities. [50] In the Court’s view, Mr. Plotnikoff failed to take reasonable steps to mitigate his damages. [51] However, that does not end the discussion on mitigation. As stated in Lake, the defendant must also demonstrate that hadMr.

Plotnikoff taken reasonable steps to mitigate he “would likely have found a comparable position within the reasonable noticeperiod”. [52] The Court received no evidence that had Mr. Plotnikoff taken reasonable mitigation steps he would have found a comparableposition within the notice period. The only evidence received regarding engineering technologist employment opportunities came fromMr. Plotnikoff and his comment there were at times 1 to 2 positions available. The Court received no specific information regardingthose opportunities and whether there actually were engineering technologist positions available.

The Court received no evidence thatthere was comparable employment of any nature available to Mr. Plotnikoff. [53] AE has failed to satisfy the second part of the test enumerated in Lake and Red Deer College. Accordingly, there will be noreduction to the 10-month period of reasonable notice. Issue 4 How are Mr. Plotnikoff’s damages to be calculated? [54] Mr. Plotnikoff submits his damages are to be calculated on a 35-hour work week being the average of his actual hours workedfrom the last week of January 2022 through the end of April 2022.

AE submits damages should be calculated at 25 hours per week,being the agreed hourly work

schedule pursuant to the Reduced Working Hours Request/Agreement. [55] The Court does not accept that damages should be calculated at 35 hours per week. Mr. Plotnikoff requested a reduced hourwork schedule, agreed at 25 hours per week. In his job search he sought part time employment. He wanted to continue with a reducedhour work schedule. For the first 8 to 9 weeks of his new reduced work schedule, Mr. Plotnikoff generally worked 25 hours per week. Some weeks that increased to 30 and 33.5 hours. [56] Most certainly, Mr.

Plotnikoff was agreeable to and did work more than 25 hours per week, if circumstances dictated. In thelast six weeks of his employment, Mr. Plotnikoff worked from 40 to 59 hours. However, the circumstances of those significant increasesto his work

schedule were not explained. Further, the Court received no evidence that those hours would continue. [57] The evidence the Court received is that Mr. Plotnikoff agreed to a 25 hour per week work schedule, with additional hours asrequested by AE. Again, Mr. Plotnikoff’s employment search was for part time/reduced hours employment. A work week of 40 to 59hours per week, is not a reduced hours work schedule.

[ 58 ] Damages will be calculated at 30 hours per week at a salary of $38.70 per hour, for a ten-month period, less amounts paid by AE. Thirty hours per week is based on the agreed 25-hour work week, with an allocation for additional work that may have been periodically requested. [ 59 ] Mr. Plotnikoff is also entitled to the $1,000.00 Christmas/year end bonus and fitness allowance of $250.00. Mr. Plotnikoff is further entitled to compensation for the monthly employer contributions paid towards his benefits and pension.

As suggested, the Court leaves the calculation of damages for counsel to determine. [ 60 ] Should the parties be unable to agree on costs, written cost submissions may be submitted. Submissions must be filed with the Clerk of the Court within 30 days from the date of these reasons. Submissions shall not exceed three pages. The Court reminds counsel of the Court’s Tariff of Recoverable Costs . Heard on the 29 th day of August, 2023. Dated at the City of Calgary, Alberta this 12 th day of September, 2023. D.B.

Higa A Justice of the Alberta Court of Justice Appearances: Counsel, Dylan Snowdon for the Plaintiff Counsel, Craig Neuman for the Defendant