JIM KETCH PLAINTIFF - v. –, 2023 SKKB 241

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 241 Date: 2023 11 07 Docket: QBG-SA-00915-2016 Judicial Centre: Saskatoon BETWEEN: JIM KETCH PLAINTIFF - and – MEADOW LAKE MECHANICAL PULP LTD. DEFENDANT Counsel: Marcus R. Davies for the plaintiff Jennifer D. Wiegele for the defendant ___________________________________________________________________________ JUDGMENT R.S. SMITH J. November 7, 2023 ___________________________________________________________________________ [ 1 ] On May 25, 2016, Jim Ketch [plaintiff], a shift supervisor, with Meadow Lake Mechanical Pulp Inc. [MLM], was dismissed for cause.

His letter of termination (Exhibit C1, pages 247-248) read: Dear Jim, Further to our discussion today, we write to confirm that your employment with Meadow Lake Mechanical Pulp Inc. (the “Company”) is terminated effective today for just cause for the following reasons. Last year, you began a relationship [with] Mikayla Vidal, a 21 year old summer student and the daughter of Roy Vidal and brother [ sic ] of Matt Vidal, both of whom are your co-workers. You did not disclose that relationship to Company management when it began.

Since that time, the relationship has caused significant interpersonal difficulty between you and Roy Vidal in the workplace. The tension caused by your relationship with Mikayla Vidal culminated in a serious altercation between you, Jim Ketch and Roy Vidal on April 27, 2016 (the “Altercation”). Following the Altercation, we have undertaken an investigation into the circumstances which gave rise to this incident. During our investigation, we have, uncovered several troubling facts.

First, we learned that on a regular basis, you and Mikayla would engage in bow hunting for gophers on Company property during working hours. When we put this to you during our

investigation, you admitted to doing this maybe once or twice, but the weight of evidence from our investigation indicates that it occurred with some regularity. As a Team Lead, you hold a position of authority and trust at the mill. You are expected to lead by example and uphold company policies and rules, not flagrantly violate them with a subordinate employee. Further this behaviour constitutes time theft and is aggravated by the fact that you included another employee in this misconduct.

Second, we uncovered further instances of dishonest and deceptive conduct which are unacceptable for an employee in a position of authority and trust. First, we learned that you inappropriately interfered with Mikayla Vidal’s 2016 job application process by submitting a late applicant/crew request conflict and second, that you misrepresented your job title in a Return to Work form. Third, during our investigation, we learned that your attendance and job performance have deteriorated significantly in the past year. Finally, your conduct during our investigation was deeply troubling.

You were highly agitated during your investigation interview which caused us concern for the safety and well being of the Company’s employees. Further, you did not appear to appreciate the seriousness of your misconduct or take any ownership of your actions. Equally, you demonstrated no indication of contrition or remorse. Your conduct has irreparably undermined the relationship of trust and made it impossible to continue the employment relationship.

In particular, your attitude during the investigation gave us no confidence that you could continue to fulfill the duties of your position properly and with the honesty and integrity required of a Team Lead. Consequently, we believe your conduct gives us cause for your dismissal. As such, we are under no further financial obligation to you. You will receive your outstanding wages and vacation pay, less statutory and applicable withholdings, up to an [ sic ] including today, and your Record of Employment within the week. All employment benefits cease immediately.

You may contact Manulife for details on conversion options for your life insurance to a personal plan; you must do this within 30 days of your termination. Health care plans may be offered on a private basis you will need to contact Manulife directly for any details. Your pension plan options will be given to you directly by Manulife following our notice to them of your last day of employment. You must immediately account for and report any and all identification cards, keys, or items made available to you by Meadow Lake and any other Meadow Lake property in your possession.

Yours sincerely, Kim Levesque, Human Resources Manager CC: Employee file [ 2 ] At the time of his dismissal, the plaintiff’s annual salary was $128,317.54. The plaintiff takes great umbrage at his treatment by MLM. He asserts MLM had no cause to fire him, a shift supervisor with 24 years’ experience and a clean discipline record. He seeks damages for wrongful dismissal. MLM resists. Background [ 3 ] The plaintiff began working at MLM in 1992. He started as a floor operator and in 2009 became a relief team leader (assistant supervisor). In 2010, he was promoted to a full team leader (supervisor).

At that time his relief team leader was Roy Vidal [Roy], a man he came to know shortly after joining MLM. They were friends. Jim often socialized with Roy and his family. He also bow hunted from time to time with Roy, his two sons and his daughter Mikayla. [ 4 ] MLM is an excellent locale for summer students in the Meadow Lake area. Mikayla got hired in the summer of 2014 and worked on the plaintiff’s shift along with her father, Roy. There were no problems. [ 5 ] In 2015, Mikayla was hired again for the summer. Again, she was working on the plaintiff’s shift with her father.

In 2015, it became clear that there was some type of blossoming relationship between Mikayla and the plaintiff. It was arguably unexpected as in 2015 the plaintiff was 45 years old and Mikayla, 20. [ 6 ] They would take lunches together and sometimes breaks – or even extended breaks – where they would go to a nearby warehouse known at MLM as Heavy Stores. There were many bow hunters at MLM and the plaintiff had set up a target in Heavy Stores. They would sometimes practice bow shooting. [ 7 ] After her summer job, in September 2015 Mikayla returned to school at the University of Saskatchewan, in Saskatoon.

The plaintiff from time to time had reason to be in Saskatoon and he would take Mikayla to lunch or dinner, or sometimes give her a ride back to Meadow Lake so she could see her folks. [ 8 ] By December 2015, it became clear to the plaintiff and Mikayla that their relationship was blossoming into something much more than simply a friend of the family and young woman of the family. [ 9 ] There was talk between them of becoming a couple. The plaintiff, to his credit, said to Mikayla that he did not want to take that step until he had talked to her father, Roy, about it and laid out the reality to him.

The two of them agreed that the plaintiff should attend to that task as soon as possible and he indicated he would try to have a discussion with Roy some time in early January.

[ 10 ] In early January, the plaintiff met with Roy and disclosed that he and Mikayla had developed a real affection for each other and that they were going to start dating and be a couple. [ 11 ] The plaintiff allowed that Roy’s reaction was very quiet, seemingly stunned or taken aback. The meeting ended with nothing much more said, the two of them went back to living their lives. [ 12 ] Roy quickly evolved from his initial silence to a campaign of shock and awe slander against the plaintiff. [ 13 ] Exhibit C1, page 76, is an email dated February 4, 2016 from Roy to Mikayla.

It warned her against wasting her life with the plaintiff and “your life is being flushed down the toilet with this bum”. He accused the plaintiff of being a predator and grooming Mikayla and only being interested in using her. [ 14 ] Roy was also busy at work where he carried on with a multi-front offensive against the plaintiff by speaking to his co-workers. He suggested the plaintiff routinely employed prostitutes and likely had a sexually-transmitted disease. [ 15 ] All of this prompted a response, not only from the plaintiff but from his former partner, Lisa Carbert [Lisa], who also worked at MLM.

Both of them, in mid February 2016, sent a complaint about Roy’s “campaign” to the head of MLM’s Human Resources Department, Kim Levesque [Ms. Levesque]. (See Exhibit C1, pages 60 and 64). [ 16 ] Ms. Levesque did meet with Roy on February 16 to advise him of the formal complaint filed by Lisa and the plaintiff. Essentially, she told him to stop his campaign of disparaging the plaintiff.

It should be noted there was no disparagement by Roy of Lisa, but she was the plaintiff’s former partner and she thought she was being slandered by way of collateral damage because of all the allegations of sexual misconduct. [ 17 ] Ms. Levesque delivered Roy a letter confirming her instructions to him. (See Exhibit C1, page 192). Both the plaintiff and Lisa confirm that the letter had no effect.

Roy’s slanderous campaign continued at the workplace and in some respects was dialed up. [ 18 ] In February, Mikayla was living in Saskatoon and was unmoved by her father’s petition that she ignore and walk away from the plaintiff. She resolved to move home to Meadow Lake in April 2016. I expect this may have been the triggering event for the Vidal clan.

With a view to saving their daughter/sister, they took a page from the Hatfield/McCoy Saga and decided a physical intervention was warranted. [ 19 ] On April 27, Roy, his wife and his two sons went to the plaintiff’s house, where Mikayla was now living, and walked in uninvited and started fighting the plaintiff.

The incident has been called, in subsequent documents, an altercation by officers at MLM, but it was in fact the Vidals administering a beating to the plaintiff. [ 20 ] The police were called, the Vidals left, statements were made to the police (Exhibit C1, page 228) by Mikayla and by the plaintiff (pages 230-235). Those statements also found their way to Human Resources at MLM.

Exhibit C1, pages 236, 237 and 238 reflects letters from MLM, Human Resources, to Roy, his son Matt (also a MLM employee) and the plaintiff suspending them by reason of the “incident” pending an investigation by the company. [ 21 ] When the Vidals were interviewed by the police, they said, among other things, that the plaintiff had threatened to shoot them. The plaintiff categorically denies this. In any event, the police response was to go to the plaintiff’s house and seize all his guns. [ 22 ] Human Resources at MLM moved promptly. Roy was interviewed on April 30, 2016 and the plaintiff on May 10, 2016.

Suffice it to say, it did not go well for the plaintiff. I conclude that there was a considerable chasm between the expectations of Human Resources and the plaintiff as to what the interview would focus on. [ 23 ] I expect that the plaintiff assumed the interview would be somewhat commiserative because of the beating he received at the hands of the Vidal clan.

What, in fact, took place bordered on cross-examination with respect to his activities from the previous summer, 2015, and specifically questions about the excessive time he spent with Mikayla. [ 24 ] Of course, in 2015, the plaintiff and Mikayla were not actually dating. Although I concede the relationship was more than just two employees at MLM. [ 25 ] Ms.

Levesque’s notes of the meeting and her testimony reflect that in her opinion the plaintiff became somewhat agitated and unhelpful towards the end, and she decided to terminate the meeting. [ 26 ] In due course, management of MLM, no doubt on the advice of Ms. Levesque at Human Resources, decided to terminate the plaintiff, as reflected in the letter of termination (Exhibit C1, pages 247-248) reproduced in the introduction. [ 27 ] I find MLM’s rush to termination somewhat surprising. Ms.

Levesque testified that MLM has a discipline policy and it is five stages, namely: (1) talk; (2) document; (3) warn; (4) suspend; and finally, (5) dismiss.

However, Ms. Levesque said that the company always reserves the right to dismiss any time if the conduct of the employee is soegregious as to demand immediate dismissal. [28] Roy Vidal received a five-day suspension. Those five days were served by a revocation of holidays which hewould otherwise have had coming. Roy’s son was not disciplined as he was then no longer at MLM. (See Exhibit C1, page 251). [29] It goes without saying that the unfolding of events did not heal the rift between the Vidals and Mikayla and theplaintiff.

However, the fact that Mikayla was, by late April 2016, pregnant softened her mother’s view somewhat and she communicatedto Mikayla that she wanted to help with the pregnancy and her help was accepted. Although the relationship was still somewhat strainedbetween her mother and the plaintiff, it was essentially non-existent between the plaintiff and the balance of her family. [30] The plaintiff and Mikayla got married on July 8, 2018. It was a modified elopement; Jim’s family was present,Mikayla had only three friends from university. [31] The plaintiff and Mikayla now have four children, ages 6, 4, 2 and 1.

In 2017, Mikayla and the plaintiff movedto Moose Jaw where the plaintiff obtained a job at K + S Potash mine. [32] There is nothing like the presence of four grandchildren to spread the balm of Gilead upon familial sores. By2018, the relationship between her parents and the plaintiff had improved and her brothers had apologized for their

part in the beating,although it was still slightly strained. [33] However, each year it improved. By the time the youngest child was born, it was virtually normal. Mikayladescribes her relationship currently as good. [34] In the summer they often go to her parents’ cabin at Emma Lake (north northwest of Prince Albert) where theplaintiff will spend his two-week summer holidays. When he returns to Moose Jaw, Mikayla will stay for extra time with the fourchildren at the cottage. [35] The plaintiff would have lingering unhappy contact with MLM.

In July 2016, someone (likely using a high-powered rifle) shot out a power pole supplying power to the MLM mill. The mill had to shut down while the matter was investigated andfinally found and fixed. MLM guestimates its loss at $500,000. [36] Someone (many suspect Roy) contacted the RCMP and accused the plaintiff of being the culprit.

MLM’sresponse was to commence an action in Queen’s Bench (now King’s Bench Court) against the plaintiff for $500,000 and more. [37] The plaintiff defended the action, and in his testimony pointed out that as a result of Roy’s statement to theRCMP at the time of the beating, all of his guns were seized and were not returned to him until September 28, 2016, well after the powerpole had been shot. [38] Exhibit D3 is correspondence to Ms. Levesque from Meadow Lake RCMP dated January 2017. It confirms thatthere will be no charge against the plaintiff with respect to the power pole shooting.

It cites the reason as the plaintiff was not willing toparticipate in a polygraph examination. [39] When the plaintiff was questioned about that, he advised that his lawyer told him that a polygraph was notadmissible in a trial and recommended that he not take it. He followed his lawyer’s advice. The civil suit was settled with everyone justfolding their tents and going home. With respect to the guns that the RCMP seized from the plaintiff, they did charge him with improperstorage of firearms, but in the end thought the best result was staying that charge.

The plaintiff’s guns were eventually returned. [40] The power pole shooting was big news in Meadow Lake as MLM is a large employer. The plaintiff allowed andit was not contested, that it was generally known throughout the community, which is small (5,500 citizens), that he was a suspect. Heconcluded that he was unemployable in Meadow Lake and eventually sought out solid employment at K + S Potash mine in Moose Jaw. Analysis [41] Counsel for MLM fairly dealt with the law relating to just cause for dismissal in her brief. Starting at paragraph33, MLM outlines and relies on: 33.

Just cause is defined as follows: Just cause is conduct on the part of the employee incompatible with his or her duties, conduct which goes to theroot of the contract with the result that the employment relationship is too fractured to expect the employer to provide a second chance [.] Payne v. Ducky Day-care Co-operative (1999), (SK KB), 175 Sask. R. 290 (Q.B.) at para.43 [Payne], citing Leung v. Doppler Industries Inc. (1995), (BC SC), 10 C.C.E.L. (2d) 147 (B.C.S.C.) aff’d (1997), (BC CA), 27 C.C.E.L. (2d) 285 (B.C.C.A.) 34. A helpful

summary of the principles underlying the just cause analysis is found in Swidrovich v. Saskatchewan PlaceAssociation Inc. (c.o.b. Credit Union Centre), 2019 SKQB 50, as follows: Where an employer asserts that the employee was dismissed for just cause, it bears the burden of proving, on thebalance of probabilities, that there are reasonable grounds to justify the dismissal. In meeting this burden, it is not sufficient simply forthe employer to prove some form of misconduct on the part of the employee.

The employer must demonstrate that dismissal is theproportionate response to the alleged misconduct in question, having regard to all the surrounding circumstances. Swidrovich v. Saskatchewan Place Association Inc. (c.o.b. Credit Union Centre), 2019 SKQB 50, para.

119 35. A supervisor may be held to a heightened standard of conduct in considering whether an employer had cause for termination. In Gillam v. Waschuk Pipe Line Construction Ltd. , 2011 SKQB 308 , the Court concluded the conduct of the plaintiff in engaging in repeated name calling, bullying and aggressive behaviour toward three female employees constituted cause for dismissal. Among the factors considered by the Court in arriving at that conclusion was the plaintiff’s role as a supervisor at the worksite. As stated at para. 51: Mr. Gillam’s misconduct occurred in the presence of employees who reported to him.

As a supervisor Mr. Gillam had a responsibility to ensure the work place ran smoothly, to maintain an appropriate work place and to ensure there was an appropriate work environment. Mr. Gillam acknowledged that the type of language used by him could create a hostile work place and that this language was not appropriate. 36. An inappropriate workplace relationship may also be a factor that can form part of the grounds for

summary dismissal. In Dillon v. Dillon Hillstead Melanson CGA Prof Corp , 2015 SKQB 18 , the Court dismissed a former employee’s claim of wrongful dismissal. The employee in question had engaged in a consensual sexual relationship with a subordinate, which led to “turmoil and chaos” amongst the staff and had a “significant effect” on workplace operations (para. 204). 37. The fact that the employee in Dillon was then overtly dishonest when questioned about the relationship then gave rise to a breakdown in the employment relationship.

The Court found this dishonesty, in combination with the inappropriate relationship, was “directly inconsistent” with the employee’s obligations to his employer (para. 207). As stated at para. 202: … the existence of a truly consensual sexual relationship between a manager and a subordinate is not sufficient, on its own, to justify a dismissal with cause, but it is a factor that can form part of the grounds for dismissal. Dillon v.

Dillon Hillstead Melanson CGA Prof Corp , 2015 SKQB 18 , para. 202 . [ 42 ] It is worthwhile to revisit that the conduct seized upon by MLM was that of the plaintiff and Mikayla in 2015. At that juncture, they were not even dating. They were not a couple. Their co-workers would have known the plaintiff was a friend of the Vidal family and often went bow hunting with the group. [ 43 ] For the purposes of argument, if we accept that the plaintiff was spending too much time with Mikayla during lunch breaks and work breaks, that would hardly meet the misconduct threshold for just cause immediate dismissal.

It may well trigger the five-step gradual disciplinary process, which likely would have led to a happier ending. [ 44 ] It is appropriate to examine the letter of termination (Exhibit C1, pages 247-248) and compare it to the evidence at trial. In the second paragraph, Ms. Levesque, in the letter of May 25, 2016, outlined: Last year, you began a relationship [with] Mikayla Vidal, a 21 year old summer student and the daughter of Roy Vidal and brother [sic] of Matt Vidal, both of whom are your co-workers. You did not disclose that relationship to Company management when it began.

Since that time, the relationship has caused significant interpersonal difficulty between you and Roy Vidal in the workplace. [ 45 ] As stated, alleging a “relationship” may be something of an overstatement. The parties themselves did not discuss becoming a couple until December 2016, long after Mikayla’s summer term had ended. In the summer of 2016, in my view, there was nothing to disclose, either to MLM or Roy. [ 46 ] The fourth paragraph of the termination letter provides: During our investigation, we have, uncovered several troubling facts.

First, we learned that on a regular basis, you and Mikayla would engage in bow hunting for gophers on Company property during working hours. When we put this to you during our investigation, you admitted to doing this maybe once or twice, but the weight of evidence from our investigation indicates that it occurred with some regularity. [ 47 ] Put simply, the facts did not unfold as described above. At no time did Mikayla go bow hunting for gophers during work hours or any other time. As testified to by the plaintiff and Simon Imray, MLM’s general manager, the plaintiff did ask Mr.

Imray if he could bow hunt some of the gophers that were ruining the family area that MLM set aside on its grounds. Mr. Imray said yes, although he allowed that he assumed such bow hunting would take place on the plaintiff’s own time, not company time. [ 48 ] The plaintiff did go bow hunting for gophers on two occasions shortly after that conversation. Both times there were no targets to be found, the plaintiff wondered where the prey had gone. That question was answered when he ran into two fellow workers in a company truck with a rifle.

They indicated that they had been shooting gophers in the yard from the company truck and that they had greatly solved the gopher problem. [ 49 ] To be sure, the plaintiff and Mikayla did engage in bow shooting in the Heavy Stores’ warehouse from time to time. The plaintiff concedes that this was done typically on the night shift when things were slow. It was the custom to put “boots up” when things got quiet on the night shift. [ 50 ] Mr. Imray conceded that he was aware of some people washing cars on the night shift during the downtime.

The plaintiff and Matt Vidal, Roy’s son, testified that there was a lot more personal activities than simply washing the car and bow hunting during the downtime on the night shift. The plaintiff averred that he and Mikayla would have never been bow shooting for more than an hour. [ 51 ] MLM called four employees who were on the plaintiff’s shift. All of them held various positions on the plaintiff’s crew and all were employed during the summer of 2015.

[ 52 ] All of them confirmed that the plaintiff and Mikayla would frequently have lunch together and would periodically be gone for an extended period of time. The times ranged from one hour to five hours. The evidence of the four employees had a rehearsed vibe to it. They all repeated, mantra-like, they had lost respect for the plaintiff. [ 53 ] I concede it was inappropriate for the plaintiff to take extra time to bow shoot with Mikayla, even on downtime.

The question is whether that sin would rise to a punishment of immediate dismissal for cause. [ 54 ] The evidence is also clear that the plaintiff was always available to his subordinates as he always had a radio with him. It is also worthwhile mentioning that there is no suggestion that MLM suffered any loss of production or cost as a result of the extended breaks by the plaintiff and Mikayla. [ 55 ] The plaintiff’s immediate superior, Rob Goozee, who would be intimately familiar with any losses or problems caused by the blossoming relationship between the plaintiff and Mikayla in 2015, did not testify.

The inference is there was no loss or harm done by the extended breaks. That is not to excuse them, but simply to illustrate that they caused no harm. In sum, the plaintiff’s conduct in the summer of 2015 did not remotely approach a condition that would justify dismissal for cause. [ 56 ] The sixth paragraph of the termination letter reads: Second, we uncovered further instances of dishonest and deceptive conduct which are unacceptable for an employee in a position of authority and trust.

First, we learned that you inappropriately interfered with Mikayla Vidal’s 2016 job application process by submitting a late applicant/crew request conflict and second, that you misrepresented your job title in a Return to Work form. [ 57 ] Respectfully, this represents a real misunderstanding of what went on. A summer job for a student at MLM is an excellent place to be. Mikayla was looking to join MLM on the plaintiff’s shift and again work with her father. [ 58 ] In 2016, Mikayla was attempting to complete her application online.

There was a problem with the website, and she could not complete the application online. The plaintiff phoned someone he knew at Human Resources (Caitlin) who advised she was aware of the online problem. She directed the plaintiff to ensure Mikayla completed a hard copy application and that it was in her office prior to the coming Monday. [ 59 ] Mikayla completed the hard copy application, but she and the plaintiff could not get to MLM prior to Monday.

However, they were able to get to Caitlin’s office at 5:00 a.m., well before she came into work, and left the application at that time. [ 60 ] In short, nothing sinister in any of that. Ms. Levesque did allow, on the stand, that in her view it showed bad judgment by the plaintiff for wanting to get Mikayla on his crew in the summer of 2016, given the trouble their relationship had caused. This is a fair comment. However, he did not have the authority to ensure she got on his crew and, in my view, would not in any event rise to the level of an offence worthy of

summary dismissal. [ 61 ] The second part of the above paragraph speaks to an alleged misrepresentation of his job position on the Return to Work form. Respectfully, this is an unnecessarily pejorative

interpretation. [ 62 ] MLM has a thorough documentation process with respect to an employee getting time off for injury. There is a form filled before the surgery and a form filled (by each physician involved) after surgery. The form is signed by the employee and by the doctor. It is typically completed at the doctor’s office. [ 63 ] Exhibit C1, page 197, is the form completed by the plaintiff at his family doctor’s office in Meadow Lake prior to the surgery.

The surgery was scheduled for March 9, 2016 and the family doctor estimated that the plaintiff could return to modified duties on March 28, 2016 and full duties on April 25, 2016. The form asks the employee to fill in what his Trade/Occupation is. The plaintiff wrote in Supervisor. [ 64 ] The surgery the plaintiff received was for hernia repair. It proved to be more invasive than originally thought. At Exhibit C1, pages 207 and 208, is the Return to Work form completed after surgery by the surgeon.

It indicates modified duties at April 19, 2016 and regular full duties at May 19, 2016. [ 65 ] The plaintiff indicated his Trade/Occupation was Production Operator. When asked why that was different than the previous form where he had put in Supervisor, the plaintiff explained that he had been chided by the doctor’s nurse for putting in Supervisor. She said Supervisor is not descriptive of what he does, it is a title. He then put in Production Operator. [ 66 ] At Exhibit C1, pages 205 and 206, is another Return to Work form completed the same day by another doctor involved with the surgery.

He estimated a return to modified duties of April 20, 2016 and a return to full duties, May 4, 2016. In that instance, the description of Trade/Occupation is noted as Process Operator. [ 67 ] Ms. Levesque seized on the variance of description of Trade/Occupation as some sort of a Machiavellian attempt to extract more time off for recovery than was otherwise needed.

Respectfully, there is no evidence of even remote probative value that would allow that conclusion to be drawn. [ 68 ] The next paragraph in the termination letter reads: Third, during our investigation, we learned that your attendance and job performance have deteriorated significantly in the past year. [ 69 ] There is absolutely no evidence to suggest that the plaintiff had any time off beyond scheduled holidays and surgery.

[70] Further, if there were deficits in relation to job performance, the Court would have expected to hear from the on-site manager of the plant and the plaintiff’s immediate superior, Rob Goozee. He was not called and, therefore, the Court is entitled toinfer that there was no deterioration in attendance and job performance. See Murray v City of Saskatoon, (SK CA),[1952] 2 DLR 499 (Sask CA). [71] The next two paragraphs of the termination letter read: Finally, your conduct during our investigation was deeply troubling.

You were highly agitated during your investigationinterview which caused us concern for the safety and well being of the Company’s employees. Further, you did not appear to appreciatethe seriousness of your misconduct or take any ownership of your actions. Equally, you demonstrated no indication of contrition orremorse. Your conduct has irreparably undermined the relationship of trust and made it impossible to continue the employmentrelationship.

In particular, your attitude during the investigation gave us no confidence that you could continue to fulfill the duties ofyour position properly and with the honesty and integrity required of a Team Lead. Consequently, we believe your conduct gives uscause for your dismissal. As such, we are under no further financial obligation to you. [72] As alluded to before, at this meeting, which took place May 10, 2016, with the plaintiff, Ms. Levesque and RobGoozee, it was shortly after the Vidal group had administered a beating to the plaintiff.

I expect the plaintiff assumed the focus would beon Roy and what should be done about him. Instead, the questions focused on him.

Here are a sample of some of the questions posed.See Exhibit D2. • How long have you been in the position of shift supervisor? • Why did you accept this position? • Are you aware of the company policy on harassment? • Are you aware of the company Code of Ethics? • During the summer of 2015, did you and Mikayla go to Heavy Stores with your bow? • How frequently did you do this? • Are you aware this is a theft of company time? • Are you aware this is negligence of your supervisory responsibility? • Did you invite Mikayla to your office and supply dinners for her? • Did you view hunting destinations with her in your office? [73] Again, I do not excuse the plaintiff for stretching lunch breaks and break time in order to bow shoot withMikayla, but I can understand if his response was somewhat agitated at this meeting.

For him, it would have been as if he had somehowtaken the wrong off-ramp into a Franz Kafka short story. [74] While this next issue is not mentioned in the termination letter, on the stand Ms. Levesque noted that once Mr.Goozee recognized there was trouble between the plaintiff and Roy, he decided to move the plaintiff from “B” crew to “D” crew.

Theplaintiff resisted and objected on the basis that since it was Roy that had the issue with him, then he should be the one to change crew.Respectfully, this is a perfectly natural response and hardly grounds for any type of discipline, even the most minor. [75] I am reminded of the words of my colleague, Justice Elson, in Swidrovich v Saskatchewan Place AssociationInc., 2019 SKQB 50 at para 119 [Swidrovich]: [119] … The employer must demonstrate that dismissal is the proportionate response to the alleged misconduct inquestion, having regard to all the surrounding circumstances. [76] With the greatest of respect to counsel for MLM, the evidence of the employer has fallen well short of thatmark.

In sum, I conclude the plaintiff was wrongfully dismissed. We must now move to a discussion of what is the appropriate pay inlieu of notice. Damages [77] The parties herein generally agree on the legal issues that arise when an employer terminates an employmentcontract of indefinite duration. The most significant implied term is that an employer shall give reasonable notice of an intention toterminate employment in the absence of just cause. A breach of this implied term can result in an action for damages by the dismissedemployee. See Honda Canada Inc. v Keays, 2008 SCC 39 at para 50, [2008] 2 SCR 362.

My colleague, Elson J., made the followingobservation concerning reasonable notice at para. 164 of Swidrovich: [164] Determination of reasonable notice in a given case is an individualized process, guided by four basic factors described byMcRuer C.J.H.C. in Bardal v Globe & Mail Ltd. (1960), (ON SC), 24 DLR (2d) 140 at 145 (Ont H Ct J) [Bardal]: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases.

The reasonableness of thenotice must be decided with reference to each particular case, having regard to the character of the employment, the length of service ofthe servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications

of the servant. These four factors have been adopted by the Supreme Court of Canada in Machtinger v HOJ Industries Ltd., (SCC),[1992] 1 SCR 986 and later reaffirmed in Keays [2008 SCC 39, [2008] 2 SCR 362], among other cases. These authorities also stand forthe proposition that, as a general rule, no one factor predominates over the others. See also Capital Pontiac Buick Cadillac GMC Ltd. vCoppola, 2013 SKCA 80, 417 Sask R 213. [78] I have unearthed a number of cases with reasonably similar circumstances that have provided me guidance on anappropriate notice period.

They are: Case Name Age Years ofService Position ReasonableNotice (in Months)Pohl v Hudson’s Bay Company, 2022 ONSC 5598, 83 CCEL (4th)87 53 28 Senior Supervisor 24 Keenan v Canac Kitchens Ltd., 2015 ONSC 1055, 2015 CLLC 210-025 63 & 61 25 & 32 Supervisor 26 Miller v ICO Canada Inc., 2005 ABQB 226, [2005] 9 WWR386 47 30 Special Projects Supervisor 22 Sandy v Beausoleil First Nation (2003), (ONSC), 24 CCEL (3d) 304 (Ont SupCt) 46 30 PropertyManager/ExecutiveAssistant 24 Kuny v Owens-Corning CanadaInc., 1999 ABQB 540, 246 AR 168 60 Predecessorcompany for 13; current companyfor 20 Shift Supervisor 22 [79] Having reviewed the above and the circumstances of the case, I have no hesitation in concluding that areasonable notice period is 24 months.

Adjustments [80] The analysis does not stop at setting the reasonable notice period. There are other considerations, specificallythe plaintiff is always under a duty to do the best he can to mitigate his damages after he has been terminated. To her credit, counsel forthe company did not argue that the plaintiff declined to take reasonable steps at mitigation. In short, it is not an issue. [81] As noted, the plaintiff had to relocate to Moose Jaw to get new employment. In my view, the plaintiff’sconclusion that he had to relocate from Meadow Lake was reasonable and, more to the point, correct.

Counsel for the plaintiff says thecosts involved for moving are roughly $8,000, and that damages in that amount should be awarded. I observe that counsel did not elicitany testimony from anyone on that issue. In short, I will only award nominal damages for the move at $1,500. [82] Counsel for the plaintiff invokes the decision in the Ontario Superior Court of Justice case of Rutledge vMarkhaven Inc., 2022 ONSC 3183. In that case, Justice Dow concluded the employer had acted egregiously, both in the investigationand in the course of the litigation.

He awarded the plaintiff damages in bad faith – moral damages in the amount of $50,000. Counsel forthe plaintiff invites me to reach a similar conclusion and award $20,000 in damages. I decline the invitation. [83] The employer was met with the detritus of a messy family squabble. It was reacting, and possibly overreacting,to a relationship issue. To be sure, I disagreed with a number of its conclusions, but at no time were MLM’s responses, even the ones Iregarded as wrong, motivated by a specific animus against the plaintiff.

There will be no damages for bad faith. [84] The plaintiff commenced his new employment at K + S Potash on January 30, 2017, at a salary of $93,966. Healso received $16,000 from Employment Insurance received shortly after termination. Therefore, the calculation of damages, taking intoaccount the adjustments required from his new job and Employment Insurance are as follows: Damages Calculation for Initial 12-Month Period Income at Termination $128,317.54 Income from Employment Insurance ($16,000)

Income Earned with New Employer $93,966 x .33 ($31,008.78) Damages Calculation for Initial 12-Month Period $81,308.76 Damages Calculation for the Second 12-Month Period Income at Termination $128,317.54 Income from New Employer ($93,966) Moving Expense Awarded $1,500 Damages Calculated for the Second 12- Month Period $35,851.54 Net Damages Calculated for 24-Month Period $117,160.30 [ 85 ] As the plaintiff is the successful litigant, he shall be entitled to costs under Column 1. [ 86 ] The plaintiff shall be at liberty to immediately register the judgment anywhere he thinks appropriate.

However, the plaintiff is to take no steps to enforce the judgment for 45 days from the date hereof. ______________________________J. R.S. SMITH