Buchanan v Weiss-Johnson Sheet Metal Ltd, 2023 ABCJ 207

In the Alberta Court of Justice Citation: Buchanan v Weiss-Johnson Sheet Metal Ltd, 2023 ABCJ 207 Date: 20230921 Docket: 2190302376 Registry: Edmonton Between: Lee Buchanan Plaintiff - and - Weiss-Johnson Sheet Metal Ltd. Defendant Reasons for Decision of The Honourable Justice L.D. Young INTRODUCTION AND BACKGROUND [ 1 ] The Plaintiff has sued the Defendant for wrongful dismissal. The amount of the Plaintiff’s Claim as set out in his Civil Claim is $38,943.82.

The claimed amount was subsequently reduced as set out later in this decision. [ 2 ] The Defendant disputes the Plaintiff’s Claim and alleges that the termination of the Plaintiff’s employment was for just cause by reason of what it has set out in its Dispute Note, being: a. “on the date of termination of the employment of [the Plaintiff], he was repeatedly told by the most senior management of [the Defendant], to properly wear a mask while on company property. [The Plaintiff] refused to be compliant with the law, despite repetitive warnings”; and b. that, the Plaintiff’s “insubordination . . . directed at senior management and witnessed by numerous others, was a fundamental breach of the employee-employer relationship and that lost trust could not be cured at that time.” The Defendant also set out in its Dispute Note that: “after the events that occurred on or about November 26, 2020, [the Plaintiff] had numerous opportunities to apologize for his egregious misconduct and insubordination, and he has steadfastly refused to do so.

An apology by [the Plaintiff], at that time, plus a firm commitment by him to always practice social distancing, including wearing a mask on company property in compliance with the law, would have been the best way for [the Plaintiff] to mitigate any damages that he now claims to have suffered. An earnest apology by [the Plaintiff], at that time, could have gone a long way to mitigate all the damages he now claims to have suffered, in their entirety.” [ 3 ] Throughout the Dispute Note, the Defendant makes reference to the termination of the Plaintiff.

However, in argument at the conclusion of the trial in this action, Counsel for the Defendant took the position that the Plaintiff had repudiated his contract of employment with the Defendant by his actions. This will be specifically addressed later in this decision but the Court of Justice Civil Procedure Regulation makes clear that “at a trial, unless the Court is satisfied that sufficient cause is shown, and permits otherwise, the parties are confined to the particulars set out in their pleadings.” 1 At trial, the Defendant did not seek any amendment to its Dispute Note.

[ 4 ] The Defendant also included in its Dispute Note allegations that the Plaintiff “knowingly disparaged the reputation of [the Defendant] to many third parties” and that as the [now] Court of Justice (Civil) is not the appropriate forum for actions alleging defamation”, the Defendant would be retaining counsel to file an application to transfer this action to the [then] Court of King’s Bench. That application was never brought and an Order issued by Judge K.

Haymour (as he then was) on May 24, 2022, (the “Haymour Order”) required the Defendant to amend its Dispute Note to remove its allegation of defamation, which was never done. Prior to the commencement of the trial, Counsel for the Defendant confirmed to the Court that any allegation respecting defamation would not be pursued at the trial. [ 5 ] For context, in terms of the proceedings that took place in this action prior to trial, I outline the following. [ 6 ] The action was scheduled to proceed to a mediation on October 12, 2021.

There appears to have been some disagreement and confusion between the parties as to whether or not the mediation would proceed on that date, as Counsel for the Plaintiff had requested that the mediation be cancelled and the action be scheduled before a Judge (now Justice) of this Court for a pre-trial conference. It would appear that the mediation did not get cancelled and as it turned out, the Plaintiff attended on the date of mediation but the Defendant did not.

I read nothing into the Defendant’s failure to attend at the mediation as it appears from the correspondence on the Court file that there was indeed some disagreement and confusion as to whether or not the mediation would proceed. It further appears from the Court file that the Defendant was agreeable to a mediation but ultimately, a pre-trial conference was scheduled and proceeded before Assistant Chief Judge G.W. Sharek (as he then was) on January 25, 2022. [ 7 ] The clerk’s endorsement from the pre-trial conference reflects that the conference lasted more than one hour.

There was no resolution at the pre-trial conference and an Order was issued by then Assistant Chief Judge G.W. Sharek (the “Sharek Order”) respecting, among other things, the disclosure of records by the parties no later than February 17, 2022. The Sharek Order granted leave to the Defendant to file an amended dispute note to add a counterclaim, but no such amended dispute note was ever filed. The Sharek Order scheduled the trial of the action for May 24, 2022.

At this pre-trial conference, the Plaintiff and his Counsel appeared, as did Scott McConaghy, representing the Defendant as its agent, without Counsel. [ 8 ] Prior to the trial, the parties exchanged certain correspondence with each other, which correspondence Mr. McConaghy sent to the Court on May 19, 2022, together with a letter dated that same date, requesting an adjournment of the trial and indicating that in correspondence from Counsel for the Plaintiff, the Plaintiff was also requesting an adjournment of the trial.

An adjournment of the trial based on the written request of the parties, or one of them, was not granted and the parties attended before Judge K. Haymour (as he then was) on May 24, 2022, as I have already referred to above. The Haymour Order reflects that it was the Defendant who requested an adjournment, which adjournment request was granted, with the Defendant having to pay costs and a penalty as set out in the Haymour Order. Both the costs and penalty were paid. The Haymour Order also scheduled a new trial date, being August 26, 2022, and that date was made peremptory on the Defendant.

As was previously the case, the Plaintiff was represented by Counsel and Mr. McConaghy appeared as the agent for the Defendant. [ 9 ] The Defendant appealed the Haymour Order to the Court of Queen’s Bench (as it was then known). The appeal was first scheduled to be heard on September 9, 2022, then subsequently scheduled to be heard on October 13, 2022. As a result, the scheduled trial date of August 26, 2022, appears to have been adjourned sine die 2 . This Court was thereafter advised that the Defendant had abandoned the appeal and that this action should once again be scheduled for trial.

By way of a Notice of Trial dated March 28, 2023, the trial was scheduled for one (1) day, for July 20, 2023. Just prior to the trial, on July 17, 2023, a Notice of Change of Representation was filed with the Court setting out that the Defendant was no longer self-represented and was now represented by Counsel.

However, Counsel for the Plaintiff advised the Court that the Defendant did in fact have representation since just after the Haymour Order and the notice of appeal respecting the Haymour Order reflects that it was filed by counsel, being the same counsel that appeared at the trial for the Defendant. [ 10 ] Prior to the commencement of the trial, and is often the case here in this Division, the parties were invited to consider a further attempt to resolve the action prior to proceeding with the trial.

That could have been a settlement conference with a justice other than the presiding trial justice, and it could have been converting the trial into a binding judicial dispute resolution proceeding 3 . Neither option was acceptable to either or both parties. [ 11 ] As a preliminary matter, Counsel for the Plaintiff raised with the Court that Counsel for the Defendant was intending on relying on what she described as “two additional sets of documents” which had only recently been disclosed to her in breach of the Sharek Order which required disclosure no later than February 28, 2022.

That the first set of documents was not received by Counsel for the Plaintiff until July 5, 2023 and the second set of documents was not received by Counsel for the Plaintiff until, as best I can surmise from a reference to “last Wednesday evening”, that is, the Wednesday the week before the trial, which would have been on July 12, 2023. Counsel for the Plaintiff wanted me to decide, on a preliminary basis, that neither set of documents could be admitted into evidence by the Defendant.

The first set of “documents” referred to was described as a “City of Edmonton masking by-law”, which I determined a party could attempt to admit into evidence during the trial subject of course to any objections to be ruled upon by the Court and further reference to this by-law is made later in this decision.

Respecting the second set of documents, Counsel for the Defendant advised me that given the objection of Counsel for the Plaintiff, the Defendant would not be attempting to admit it into evidence. [ 12 ] Prior to the commencement of the trial, Counsel for the Plaintiff advised the Court that the Plaintiff is seeking six (6) months’ pay in lieu of notice, which, when mitigation by the Plaintiff is taken into account, amounts to a revised Claim amount of $10,915.01, plus interest and costs. [ 13 ] The trial then proceeded for one (1) day, with the Plaintiff testifying, and also, his brother, Rory Buchanan, a former employee of the Defendant, testifying for the Plaintiff.

There were two (2) witnesses for the Defendant; Vicki Wiebe, the safety manager employed by the Defendant, and Mr. McConaghy, currently the President of the Defendant, but who was, at the date of the Plaintiff’s termination, the general manager of the Defendant. EVIDENCE

[ 14 ] The parties do not dispute that the Plaintiff was employed by the Defendant for a period of approximately 7 years 4 months, from July 2013 until November 26, 2020, the date his employment was terminated. There was no written contract of employment. At the date of trial, the Plaintiff was 36 years of age and so at the date of his termination, he would have been either 32 or 33 years of age.

His position with the Defendant was that of a “lead hand HVAC installer”; HVAC being an acronym for “heating, ventilation, air conditioning.” When he first commenced employment, he was an apprentice and ultimately as a lead hand for the last few years of his employment, he then had someone who was an apprentice working under his direct supervision. His work consisted of the installation of, among other things, furnaces, air conditioners, thermostats and hot water tanks.

This installation work would have largely been completed in the homes or businesses of customers of the Defendant. [ 15 ] The Plaintiff was paid on an hourly basis at the rate of $30.00 per hour. He received health and dental benefits as part of his compensation, with the employer paying 80% of those benefits and the Plaintiff paying the remaining 20%.

Introduced into evidence by the Plaintiff were his T4 slips for the years 2017 through to and including 2020. 4 His employment income listed in those slips was: a. 2017: $68,479.18 b. 2018: $59,570.34 c. 2019: $62,207.86 d. 2020: $53,569.44 (to November 26, 2020) The latter number for 2020 conforms to the evidence of the Defendant, who entered into evidence a pay advice slip for the Plaintiff reflecting that his employment income for 2020 was $53,569.44. 5 [ 16 ] The Plaintiff testified that he had never been disciplined by the Defendant.

That there had been some performance reviews and he believed those reviews were in writing but there was no evidence he received a copy of any written performance review and none were entered into evidence at the trial. That it was his direct supervisor, a manager named Marcus Krampitz, who would have completed those performance reviews. The Court would note here that Mr. Krampitz remained the Plaintiff’s direct supervisor, including at the date of the Plaintiff’s termination, and was still employed by the Defendant at the date of trial.

During the tenure of his employment, the Plaintiff had been promoted from apprentice to lead hand and his hourly rate had increased. He also received an employee of the month award. [ 17 ] Although no specific dates were referenced in the Plaintiff’s testimony, the Court is well aware that Covid-19 was declared a global pandemic in or around March 2020.

The Court is also aware that thereafter, various measures were instituted by governments in Canada, and more particularly relevant to this action, by both the City of Edmonton and the Province of Alberta, to try to address the spread of Covid-19, including the wearing of a mask. The Court is also aware that many employers were instituting their own policies in response to both the Covid-19 pandemic and the various government instituted measures.

The Court is further aware that these government instituted measures were altered from time to time and so, were not static throughout the period of the Covid-19 pandemic and in particular, throughout the period relevant to the Plaintiff’s Claim. [ 18 ] With respect to the Defendant, there was no written Covid-19 policy prepared and disseminated to their employees. That is not in dispute. The evidence of the Plaintiff is that employees were told to wear a mask in the office part of the Defendant’s building and when entering homes to complete their work.

However, any requirement to mask was more relaxed in the warehouse part of the building, which the Plaintiff described as being a big warehouse, where the sheet metal technicians worked, which had large bay doors that opened to the outside. So far as the Plaintiff was aware, the Defendant employed approximately 200 people, and that approximately 10 to 15 people worked in the warehouse. There was no specific evidence from the Plaintiff as to when this masking requirement came into effect. [ 19 ] When asked how employees were told about the masking requirement, the Plaintiff testified that Mr.

Krampitz had talked to the employees about it and that they were told to watch and follow the “news reports.” The employees were told there would be repercussions if they did not wear a mask in the home of a customer, but were not told what those repercussions would be. The employees were told that they had to wear a mask in the office area of the building, which was upstairs from the warehouse part of the building.

The Plaintiff testified that not all of the employees were wearing a mask and that the requirement to wear a mask was much more lenient in the warehouse area than elsewhere in the building. [ 20 ] The Plaintiff was asked if he knew who Vicki Wiebe was. He said she was the safety manager for the Defendant and that from time to time, she would discuss safety issues on work sites.

His evidence is that he did not see her on the date of his termination, reiterating that on cross-examination. [ 21 ] The Plaintiff testified that he believes that Covid-19 exists, that he believes in public health measures, that he believes in masking and that he is vaccinated against Covid-19. He reiterated under cross-examination that he was not an “anti-masker.” [ 22 ] In cross-examination, the Plaintiff said that he was aware of some masking required by the Defendant but that he did not see signage posted outlining any masking requirements.

He said that masking was discussed at safety meetings where employees were told to wear masks in the building, and in the homes the employees were working in. He was asked if he was aware of a “City by-law” and of company policy and of Provincial policy, to which he replied yes and that it was to mask in public areas and maintain social distancing. No documents were proffered to the Plaintiff in cross-examination with respect to a “City by-law”, a company policy or a Provincial policy or mandate.

Counsel for the Defendant was reminded as to the rule in Browne v Dunn 6 (“ Browne v Dunn ”). [ 23 ] Rory Buchanan (herein called “Rory” so as to avoid confusion with the Plaintiff) testified that he did the same work for the Defendant as the Plaintiff did. That Mr. Krampitz was also his manager. He was asked if he knew of any disciplinary issues with the Plaintiff during his employment with the Defendant, he said that the only thing he knew of was that once, the Plaintiff had not been paid on time and he got excited about it. That the Plaintiff asked him to speak to Mr. Krampitz as Rory and Mr.

Krampitz were, in Rory’s

words, “tight” and he did speak to Mr. Krampitz about it. Otherwise, he was not aware of any discipline issues with the Plaintiff. [ 24 ] With respect to the Defendant’s masking policy, Rory said there had been a newsletter. No such newsletter was referred to by the Plaintiff nor entered into evidence at the trial. That mostly, the employees were told by management to follow “city by-laws” but that management did not really go over what those by-laws said.

That they were told to mask at all times in customers homes but that in the “shop area”, the masking requirement was “not as firm.” In cross-examination, he testified that they were told to wear a mask in the shop. He testified that you could lower your mask to drink water. Otherwise, that the Defendant did not really say what employees were to do respecting eating and drinking.

As to what would happen if masks were not worn, his evidence was that if a mask was not worn in a customer’s home, you would be dismissed; but there was nothing told to employees about what would happen if you were not wearing a mask in the shop area. So far as he was aware, no employee other than the Plaintiff had been terminated for failing to wear a mask. [ 25 ] Rory testified that he had never personally met Mr. McConaghy and that McConaghy was introduced to employees in a group setting but did not speak to the employees at that meeting.

He said he believed that the Plaintiff was at that meeting, but might have come late to the meeting, being at the back of the group of employees, and that he recalled the meeting took place in the spring of 2020. [ 26 ] The evidence of Mr. McConaghy is that he became the general manager for the Defendant in September 2020. That there were 250 employees at that time. That a City by-law that came into effect on August 1, 2020, required mandatory masking and that the Defendant was going to follow any guidelines, be they City or Provincial. There was no by-law proffered to Mr. McConaghy to enter into evidence.

He testified that employees were to mask at all times and that this was posted on doors and bulletin boards. No such posted notices were proffered to him to enter into evidence. [ 27 ] Mr. Conaghy testified that there were safety meetings every 2 weeks, on Fridays, and that at those meetings, updates were relayed to the employees and best practices were discussed. That the meetings would take place in the warehouse and there could be 150 employees at such a meeting. That break-out meetings could take place after that to discuss what happened in the “retro and service departments” as he described them.

That prior to August 1, 2020, the Defendant had already required employees to wear masks in customers homes, and after that date, as what he said were “further by-laws” came through, these would be communicated to the employees. [ 28 ] Vicki Wiebe testified that she is currently employed as the safety manager for the Defendant and has been in that role for 5 years. That in March 2020, due to the Covid-19 pandemic, the Defendant started to engage in what she described as sanitizing and masking practices. That masking was required for service and retro work when entering into customers homes.

She then said those practices changed when a City masking by-law came into effect on August 1 st - that is because it dealt with public places and the Defendant then required masking in their showrooms and posted signage on entrance doors respecting Covid-19 and the Defendant’s sanitizing and masking requirements. [ 29 ] Ms. Wiebe testified that she held safety meetings every 2 weeks and that attendance was mandatory and so far as she was aware, the Plaintiff attended those meetings.

That masking was discussed as being required in customers homes and that some builders also wanted the Defendant’s employees to mask in the homes that were under construction. Her evidence is that if an employee did not mask, they would be given a verbal warning and thereafter, a written warning. She testified that on November 24, 2020, what she described as a Provincial mandate came into effect requirement masking in all indoor workplaces. That as a result, she took the step of what she described was “going around to employees” to let them know.

In cross-examination, she said she did not know if she saw the Plaintiff on either November 24 or 25, 2020. [ 30 ] She testified that on November 26, 2020, she had spoken to the Plaintiff about masking. That was due to her making sure, she said, that employees in the warehouse were wearing masks. That the Plaintiff and another employee were talking to each other, neither one wearing a mask, and that she asked both employees to put on their masks, they complied, and then saw the Plaintiff head upstairs. That she had occasion to meet Mr. McConaghy that morning and told him about her interaction with the Plaintiff.

The other employee, who she said was named “Lachlan”, is still employed with the Defendant. [ 31 ] In cross-examination, Ms. Wiebe testified that at a safety meeting, she had told employees they could remove their mask to eat or drink. She also indicated that could be done in an employee’s office and that employees could lower their masks to “take a sip.” She said that the Plaintiff had not been “written up” for him failing to wear a mask in the warehouse.

Circumstances Surrounding Termination [ 32 ] The Plaintiff testified that on the date of termination, he came to work, in his work truck at approximately 7:30 a.m. That he was masked when he attended in the office part of the building to deal with what he referred to as his “paperwork”. In cross- examination, he said that he would go up to the office each day to hand in his paperwork from the previous day’s work and may pick up work assignments in the office. He testified that he had with him a cup of tea. That when he was walking down the stairs, away from the office, he pulled his mask down to drink his tea.

It was then he saw a man at the bottom of the stairs. That man asked him to put his mask on and he said he would when he was finished with his tea. In cross-examination, he said this first encounter took place at the bottom of the stairs. The Plaintiff testified that he was asked a second time by the same man, to put on a mask. In cross-examination, he said the man had followed behind him, through the warehouse. The Plaintiff said he was drinking his tea. He testified that he was then asked a third time by the same man time to put on his mask. That this occurred just as he was about to exit the warehouse.

By the third and final time of the request, the man said words to the Plaintiff to the effect of “are you challenging me”, and asked for the Plaintiff’s name, which he gave. He told the man his name and asked who he was in return, to which the man replied, words to the effect “I’m Scott, the new general manager, nice to meet you.” [ 33 ] The Plaintiff testified that two other employees, who he says are still employed by the Defendant, witnessed the interaction. He also testified that the entirety of the interaction took between 30 and 90 seconds. That he did not raise his voice or get confrontational. That Mr.

McConaghy was not wearing a name tag. He said there had been no notice posted in the building to reflect

that there was a new general manager for the Defendant. [ 34 ] The Plaintiff testified, again in his words, that he was “pretty rattled.” That he started loading his work truck to attend to his day’s work, and was 5 to 10 minutes away from the building when he was called back to the boardroom. That Mr. Krampitz was in the boardroom and then Mr. McConaghy came into the boardroom. That it was Mr. McConaghy who told the Plaintiff he was being let go for just cause due to his inability to follow company policy. Mr. Krampitz was at that meeting and according to the Plaintiff, said nothing.

The Plaintiff said he apologized multiple times, and pleaded to keep his job. That he wanted to, in his words, “fix it.” He told Mr. McConaghy and Mr. Krampitz that he was not being defiant, that he was trying to get outside the building quickly. He was told by Mr. McConaghy that while his apology was appreciated, his decision was final. During this entire meeting, the Plaintiff was fully masked. Ms. Wiebe was not at that meeting and according to the Plaintiff, did not speak to him about his termination.

In cross- examination, the Plaintiff confirmed the evidence he had given under direct examination; reiterating that he had pleaded for his job, saying he was sorry and telling Mr. McConaghy that he did not know who he was and that he was not being confrontational, was just drinking his tea and trying to get outside. [ 35 ] Subsequently, Mr. Krampitz assisted the Plaintiff in off-loading company tools from the Plaintiff’s work truck and then, Mr. Krampitz and another employee drove one truck and the Plaintiff drove his work truck home.

There, he removed his own tools from the work truck and the other employee who had travelled with Mr. Krampitz, got into the Plaintiff’s work truck and drove away. [ 36 ] Thereafter, in the mail, the Plaintiff received a document titled “Employee Information Form” 7 (what I will refer to as the “Termination Letter”). The Termination Letter stipulates that the “reason for leaving” was “dismissal” and that the “explanation” was “confrontation with Weiss-Johnsons General Manager” and “overall poor attitude.” It was signed by Mr. Krampitz.

The Plaintiff did not sign the Termination Letter, although there is a signing line for him to do so, and he testified that he had no say in it. The Termination Letter says nothing about the Plaintiff having failed to follow company policy. [ 37 ] The evidence of Mr. McConaghy respecting the Plaintiff’s conduct on the date of termination is that the Plaintiff’s mask was below his chin. That he asked him to put his mask on and the Plaintiff replied that he was drinking his tea - showing to Mr. McConaghy the cup he held in his hand. Mr. McConaghy’s evidence is that the Plaintiff was not actually drinking the tea.

That he then followed the Plaintiff and again asked him to put on his mask, to which the Plaintiff replied he would when he was finished his tea. That he had followed the Plaintiff for a total of approximately 200 feet when the Plaintiff was just about to step outside of the building and he asked the Plaintiff once again to put on his mask. At that point in time, he introduced himself to the Plaintiff. He testified he did not yell at the Plaintiff nor did the Plaintiff yell at him. [ 38 ] Mr. McConaghy testified that he then went to go up to his office when he came upon Ms. Wiebe.

That she told him that she had had an interaction with the Plaintiff in the manufacturing area of the building and had to ask him to put his mask on. As a result, Mr. McConaghy determined that there had been four (4) incidents of the Plaintiff not masking – the three (3) times he asked the Plaintiff to put up his mask and the one (1) time that Ms. Wiebe asked the Plaintiff to put up his mask. That he had Mr. Krampitz write up the Termination Letter and the Plaintiff was brought back to the office to present him with the Termination Letter. Mr.

McConaghy said that no other employees had been terminated for what he termed “mask violations.” He testified that he told the Plaintiff he was being let go for cause and that he read to the Plaintiff the Termination Letter, telling the Plaintiff his employment was terminated because of the confrontation that the Plaintiff had with him and the Plaintiff’s poor attitude. Mr. McConaghy agreed that the Plaintiff apologized and said he would comply with company policy respecting masking but Mr.

McConaghy told the Plaintiff that while he appreciated the apology, he had already made his decision. [ 39 ] Under cross-examination, Mr. McConaghy acknowledged that he was not employed by the Defendant when what is being referred to as a City masking by-law came into effect and had not been at the safety meeting where any such by-law was first discussed. He did not know if the Plaintiff was in attendance at any of the safety meetings.

He said that attendance was taken at those meetings but offered no documentation to indicate when those meetings took place, who was at those meetings or what specifically was discussed at those meetings. With respect to other meetings with whom he referred to as “management” - being himself, Ms. Wiebe, Mr. Krampitz and Teseo Barardi - there were no written records of those meetings. He agreed that the first time he had personally introduced himself to the Plaintiff was when they had their interaction on November 26, 2020.

He also agreed that he never personally discussed with the Plaintiff the Defendant’s masking policy.

He testified that there were 2 or 3 other employees within “earshot” of his interaction with the Plaintiff but could not confirm if they were still employed by the Defendant. [ 40 ] As to whether or not all of the employees were complying with the Defendant’s masking requirements, he testified that some employees were challenging the requirements, seeking exemptions and some employees were staying in their offices, presumably not masked if they either had an issue with masking or if they were not circulating amongst other employees.

He testified that employees in the warehouse were supposed to wear their masks, but acknowledged he was not in the warehouse at all times. [ 41 ] In cross-examination, Mr. McConaghy testified that he thought the Termination Letter was given to the Plaintiff at the termination meeting but learned later that that had not occurred. He does not recall if the Plaintiff was asked to sign the Termination Letter. He said that in the Termination Letter, the reference to the confrontation with him was his contribution to the Termination Letter and that it was Mr.

Krampitz who added into the Termination Letter the statement “overall poor attitude.” [ 42 ] The Plaintiff’s testimony is that he “felt terrible.” That he had been employed with the Defendant for more than 7 years, that he enjoyed working there and did not want to lose his job. That subsequent to his termination, he made multiple calls to a service manager, Mr. Barardi, who the Plaintiff says is still employed with the Defendant, asking if anything could be done and that Mr. Barardi said he would speak to Mr. McConaghy. Thereafter, Mr.

Barardi told the Plaintiff that he had asked “multiple times” and said to continue to ask “would do no good.” [ 43 ] Rory testified that the Plaintiff was upset, that he said he was fired. That he had apologized profusely and has asked for his job back. Rory then called Mr. Krampitz who said that the Plaintiff had been terminated and that not much could be done. [ 44 ] Then, approximately 1 week after his termination, the Plaintiff contacted someone he knew about getting work. He was told

he might be able to be employed in the new year, which he was, and that he started work for Flat Land Mechanical Ltd. (“Flat Land”) on January 7 or 8, 2021. That he was employed there as a sheet metal installer, at $25.00 an hour, with no benefits, bonuses or pension contributions. He continued working for Flat Land until May 23, 2021. The Plaintiff entered into evidence his payroll documentation from Flat Land. 8 His gross earnings with Flat Land totalled $20,625.03 during his period of employment.

His evidence was that he did not receive any employment insurance benefits, nor any Canadian Emergency Response Benefit (commonly known as “CERB”) after the termination of his employment by the Defendant. [ 45 ] In cross-examination, the Plaintiff was asked about his seeking new employment and his ultimate job with Flat Land. He said that he contacted Flat Land approximately 1 week after he was terminated. That he was not offered a job right away but that it would likely be in the new year. He was asked if he did any side jobs while working for the Defendant, which he said he did not do.

He was asked if he received any income from other sources in December 2020, to which he said he did not. He said he received no overtime at Flat Land. Claim for Severance Pay [ 46 ] As set out above, the Plaintiff is seeking six (6) months’ pay in lieu of notice, which, when mitigation by the Plaintiff is taken into account, results in the Plaintiff seeking an amount totalling $10,915.01.

This amount is calculated based on the Plaintiff’s four-year averaging of his annual income and benefits as set out in Exhibit 1, divided by 12 to come to a monthly average income, multiplied by 6 months, and then deducting the income he earned in those 6 months with Flat Land (which earnings are set out in Exhibit 3). ISSUES [ 47 ] Did the Defendant have cause to terminate the Plaintiff’s employment? [ 48 ] If not, what is the reasonable notice period? ANALYSIS Issue #1 [ 49 ] In cross-examination, Mr. McConaghy testified that he personally drafted the Dispute Note.

This is important in this case because Counsel for the Defendant stipulated in argument that the defence is not that the Plaintiff was terminated from his employment for cause, but rather, that the Plaintiff repudiated his employment with the Defendant, thereby allowing the Defendant to treat the employment relationship as terminated.

This gives me cause for concern on two fronts. [ 50 ] My first concern is that the Defendant, by its own admission, a company employing 250 employees, which is not a small workforce, chose to self-represent throughout these proceedings until an appeal was filed of the Haymour Order, as I have outlined earlier in my decision. Having stated that though, there was still no filed notice of representation indicating that the Defendant had retained counsel until a notice of change of representation was filed on July 17, 2023, just prior to the commencement of the trial. It was Mr.

McConaghy alone who attended at both the Pre-Trial Conference and at the adjournment application that resulted in the Haymour Order. At no time did the Defendant seek to amend its Dispute Note to allege repudiation by the Plaintiff of his employment with the Defendant, not prior to or even at the trial. [ 51 ] My second concern, as I have already noted above, is that

section 13 of the Court of Justice Civil Procedure Regulation 9 stipulates that parties are confined to the particulars set out in their pleadings. A party can seek to amend its pleading, even at trial, if, as set out in

section 13, “sufficient cause is shown” to do so and the Court permits it. No such amendment was sought. Throughout the Dispute Note, and the evidence of the parties, along with the Termination Letter, the Defendant has taken the position that it terminated the Plaintiff’s employment with cause. [ 52 ] Even if I were to consider the argument of the Defendant that the Plaintiff repudiated his employment with the Defendant, or accept that the wording of the Dispute Note may be pleading repudiation, I would find, in any event, that there was no repudiation by the Plaintiff.

As set out in paragraph 46 of Roden v Toronto Humane Society 1 0 (“ Roden ”) , a case provided to the Court by the Defendant: “. . . there is a crucial distinction between dismissal for misconduct and termination for repudiation. When an employer claims to have dismissed an employee for cause based on serious misconduct, the employer must point to conduct that took place prior to dismissal. It is then for the courts to determine whether the conduct was sufficiently serious so as to constitute cause.

Repudiation, on the other hand, takes place when an employee refuses to perform an essential part of his or her job duties in the future . In such a situation, the employer is entitled to accept the repudiation and treat the employment relationship as terminated because the parties no longer agree on the fundamental terms of the contract.” [emphasis mine] [ 53 ] There was no refusal by the Plaintiff here to “perform an essential part of his . . . job duties in the future.” There is no evidence at all to indicate that if masking was an essential part of his job, he would not mask in future.

The issue is whether or not the Plaintiff’s actions on November 26, 2020, when he was not wearing a mask, constituted sufficient cause for the Defendant to terminate the Plaintiff’s employment. [ 54 ] As set out by Assistant Chief Justice D.B. Higa in Bass v Boston Pizza International Inc. [11] (“ Bass ”) at paragraphs 14 and 15: “Termination of an employee’s employment is a serious matter. For a variety of reasons, it is all the more serious when an employer

alleges just cause. This Court has previously commented that authorities have emphasized the importance of employment to an individual, the significance of a contract of employment and the serious consequences to an individual resulting from termination of that contract.” “The law is well settled regarding the nature and degree of conduct justifying dismissal of an employee for just cause. As stated at paragraph 4.3 in Wrongful Dismissal Practice Manual Given that dismissal for just cause is an exception to the employee’s usual rights, it is clear that

summary dismissal can be utilized only for serious misconduct or breaches of a fundamental kind.” [ 55 ] Bass also sets out the requirement of this Court to proceed with the analysis as set out in the decision of the Supreme Court of Canada in McKinley v BC Tel [12] (“ McKinley ”) stating at paragraph 19 that “. . . one must assess the nature and circumstances of the alleged misconduct, employing a contextual approach and whether those actions and circumstances are reconcilable with sustaining the employment relationship.” Our Court of Appeal also referenced McKinley in the recent decisions of Baker v Weyerhaeuser [13] (“ Baker ”) stating at paragraph 52: “To reiterate, the three-step analysis from McKinley requires the court to first determine the nature and extent of the misconduct, then consider the surrounding circumstances for both employer and employee, before finally determining whether dismissal is warranted as a proportionate response.

The question to be answered is whether the misconduct is sufficiently serious that it gives rise to a breakdown in the employment relationship.” Furthermore, the onus is on the employer to show that it had cause to dismiss an employee. [14] [ 56 ] In turning to the events of November 26, 2020, the Defendant has by its pleading as set out in its Dispute Note, by the evidence of Mr. McConaghy and by the Termination Letter, made it very unclear as to precisely why the Plaintiff’s employment was terminated.

The reason for termination as set out in the Dispute Note was that “on the date of termination . . . [the Plaintiff] was repeatedly told by the most senior management . . . to properly wear a mask while on company property. [The Plaintiff] refused to be compliant with the law , despite repetitive warnings . . . and his insubordination was untenable” [emphasis mine]. However, it does not appear that “the law” was referenced in the meeting where Mr.

McConaghy terminated the Plaintiff. [ 57 ] At that meeting, the Plaintiff says that he was told he was being terminated for just cause due to a failure to follow company policy, that being the Defendant’s masking policy. Mr. McConaghy agreed that the Plaintiff apologized and said he would follow company policy. Mr. McConaghy also testified that the Termination Letter was read to the Plaintiff at that meeting. The reasons for termination as set out in the Termination Letter say nothing about “the law” or “company policy”.

Rather, it stipulates that the Plaintiff was terminated for two (2) reasons: a “confrontation with [the Defendant’s] general manager” and “overall poor attitude.” [ 58 ] As I stated earlier in this decision, no written City masking by-law, Provincial policy or Provincial mandate documents were proffered to the Plaintiff by the Defendant to be entered into evidence and I made reference to the rule in Browne v Dunn .

This is because there were references made to a City masking by-law and a Provincial policy or Provincial mandate, but whatever might have been applicable as at the date of termination, was never presented to the Plaintiff in cross-examination in order for him to have an opportunity to review and then address or explain his understanding of any such City masking by-law or Provincial policy or Provincial mandate.

This is particularly concerning given that the Dispute Note alleges that the Plaintiff “refused to be compliant with the law” and yet, the Defendant did not produce a specific City masking by-law, Provincial policy or Provincial mandate to prove what “the law” actually was at the date of termination. [ 59 ] As to the Plaintiff not following company policy respecting masking, I find that it was not made entirely clear to the Plaintiff just what that policy was. That there was no written masking policy is not in dispute. This is surprising to me as the Defendant has 250 employees.

An employer should make very clear to its employees what the employer’s policies are that employees must follow and what disciplinary consequences will follow if an employee fails to adhere to a policy. That is not the case here. As to discipline, the evidence of the Plaintiff was that employees were told that there would be repercussions if an employee did not mask in a customer’s home, but were not told what those repercussions would be. Rory’s evidence is that failing to wear a mask in a customer’s home would result in dismissal.

As to failure to wear a mask other than in a customer’s home, neither the Plaintiff nor Rory testified that they were told what would happen in such an event. [ 60 ] The evidence of the Plaintiff is that employees were told to wear masks in public areas of the Defendant’s building, in the office area and when entering customers’ homes. That they were also told to “watch and follow the news” and “comply with government directives” or words to that effect. The Plaintiff’s understanding about any such government directives was to mask in public areas and maintain social distancing.

Frankly, to tell employees to watch and follow the news and comply with any government directives in my view falls very short in terms of ensuring that a clear policy is in place that has been made known to all employees and in particular, what disciplinary measures would follow if there was any breach of that policy. [ 61 ] The evidence of both the Plaintiff and Rory is that the requirement to wear a mask in the warehouse was more lenient than wearing masks elsewhere in the building. Ms.

Wiebe testified that what she described as a “Provincial mandate” came into effect on November 24, 2020 requiring the wearing of masks in all indoor workplaces. No written “Provincial mandate” was entered into evidence, nor was anything in writing provided to employees respecting such a mandate. Ms. Wiebe said she took it upon herself to “go around to employees to let them know” or words to that effect. Ms. Wiebe said that she saw the Plaintiff and another employee in the warehouse on November 26, 2020, talking to one another, and not wearing masks. That she asked them to put on their masks and both complied.

No verbal or written warning was given to either employee as a result of them not wearing masks. [ 62 ] Ms. Wiebe also testified that employees could remove their masks to eat or drink, and then somewhat clarified that evidence to say that employees could lower their masks to take a sip of water or words to that effect. Again, without a written policy provided to employees, there seems to be some confusion on this point. In any event, Ms. Wiebe also testified that masking infractions would result in a verbal warning and for a further infraction, a written warning. The Plaintiff was given neither.

A request for the Plaintiff to put on his mask is not, in my view, a verbal warning. As to the Plaintiff drinking tea, that appears to have been acceptable to the Defendant as

lowering one’s mask to do so was not prohibited. [ 63 ] The evidence of the Plaintiff and Mr. McConaghy is not materially different as to the interaction they had with each other on the day that the Plaintiff’s employment was terminated. It was a rather brief exchange, something not exceeding 2 minutes, wherein someone who the Plaintiff says was unknown to him, asked him to put on his mask, with the Plaintiff replying he was drinking his tea and would do so once he finished drinking his tea. Although there was some evidence that Mr. McConaghy was “introduced” to employees at a meeting, Mr.

McConaghy testified that the first time he had personally introduced himself to the Plaintiff was on November 26, 2020, essentially at the conclusion of their interaction. Referring back to the Dispute Note, the Defendant alleged that the Plaintiff “was repeatedly told by the most senior management . . . to properly wear a mask while on company property” [emphasis mine] and that by refusing to do so, he was insubordinate. I am satisfied from both the evidence of the Plaintiff and Mr. McConaghy that these two individuals had not previously met before their interaction on November 26, 2020.

At the conclusion of their interaction, when asked to give his name, the Plaintiff did so and he then asked to whom he was speaking. So, I do not accept that the Plaintiff would have been aware when being asked to put on his mask, that he knew he was speaking with “the most senior management” or in fact, anyone who was in a position of authority to the Plaintiff. Yet, the Defendant alleges that the Plaintiff was insubordinate.

As set out in The Dictionary of Canadian Law [15] , insubordination is, “in the context of labour and employment law . . . contemptuous and defiant comments towards management . . .” The Plaintiff did not know who Mr. McConaghy was and there was no evidence that the Plaintiff was being contemptuous or defiant during his interaction with Mr. McConaghy with the result that there was no insubordination by the Plaintiff. [ 64 ] As to the Plaintiff having a “confrontation” with Mr. McConaghy, as set out in the Termination Letter, both the Plaintiff and Mr.

McConaghy testified that there was no yelling or raising of voices during their interaction. A confrontation is, according to Black’s Law Dictionary [16] , “a face-to-face disagreement between two people . . . esp. one involving vehemence and anger.” There was no confrontation between the Plaintiff and Mr. McConaghy. It was, as I have called it, an interaction. [ 65 ] As to the Plaintiff having an “overall poor attitude”, no evidence was led by the Defendant of any such “overall poor attitude” during the tenure of the Plaintiff’s employment.

The opposite appears to be true in that the Plaintiff was promoted to a lead hand from an apprentice and had his salary increased as a result. The Plaintiff had received at one time an employee of the month award. Mr. McConaghy testified that it was Mr. Krampitz who completed the Termination Letter and included in it the wording “overall poor attitude.” Yet, Mr.

Krampitz, despite being the Plaintiff’s direct manager, and still in the employ of the Defendant, did not testify and Counsel for the Plaintiff asked that I exercise my discretion to draw an adverse inference as a result. [ 66 ] In the case of Howard v Sandau [17] , Associate Chief Justice Wittmann (as he then was), cited with approval from the book by Mewett and Shankoff, Witnesses [18] , the factors for the Court to consider in its determination as to whether or not an adverse inference is to be drawn, namely: - whether there is a legitimate explanation for the failure to call the witness - whether the witness has material evidence to provide - whether the witness is the only person or the best person who can provide the evidence - whether the witness is within the “exclusive control” of the party, and is not “equally available to both parties” [ 67 ] In the case before me, there was no explanation, legitimate or otherwise given for the failure of the Defendant to call Mr.

Krampitz to testify. He certainly had material evidence to provide as he was the Plaintiff’s manager; a participant in the meeting at which the Plaintiff was terminated and the author of the Termination Letter.

Particularly with respect to the “attitude” of the Plaintiff and why he wrote the reasons as he did in the Termination Letter, he was the best person who could have provided evidence to substantiate such “reasons.” While perhaps he was not “within the exclusive control” of the Defendant, he remains employed by the Defendant and that makes him, in my view, much more “available” to the Defendant than to the Plaintiff. [ 68 ] Additionally, I would point out the provisions of Rule 8.15 of the Alberta Rules of Court [19] (the “ Rules ”) which deals with adverse inferences.

Rule 8.15(1) reads as follows: 8.15(1) When an adverse inference might be drawn from the failure of a party to call a person as a witness, that party may serve on every other party a notice of the names of those persons that the party does not intend to call as witnesses. The Rule then goes on to set time parameters for service of the notice and what will happen if there is or is not a response to the notice.

Of particular note is Rule 8.15(4) which reads as follows: 8.15(4) If the party on whom the notice is served does not respond to the notice of intention not to call a person as a witness, the failure to call that person as a witness is not to be considered to be adverse to the case of the party who served the notice. While I appreciate that the Rules do not have to be applied in this Court [20] , it certainly would have been open to the Defendant to serve a notice under Rule 8.15 and thereby reduce or eliminate the risk of an adverse inference being drawn.

So far as I am aware that has not been done. [ 69 ] Taking all of the foregoing into account, I do draw an adverse inference against the Defendant as a result of its failure to call Mr. Krampitz to testify. [ 70 ] Referring back to McKinley , and further to what I have set out above, I find that the Defendant did not have cause to terminate the Plaintiff’s employment. I reiterate the following. [ 71 ] The Defendant has not made clear just what the “misconduct” was that caused it to terminate the Plaintiff’s employment. I have already set this out above.

The Defendant alleged it was a failure by the Plaintiff to follow the law, but the Defendant has not

proven just what the “law” was that the Plaintiff failed to follow. The Defendant also alleged it was due to the Plaintiff’s insubordination, but I have determined that there was no insubordination. The Defendant also alleged that it was due to the Plaintiff’s failure to follow company policy, but I have determined that the company policy was unclear, not adequately disseminated to its employees and employees were not made aware of what specific disciplinary measures would follow a breach of company policy.

The Plaintiff testified there would be repercussions for failure to wear a mask in a customer’s home but did not know what those repercussions would be. Rory testified that dismissal would result from failure to wear a mask in a customer’s home. However, this is not a situation where the Plaintiff had failed to wear a mask in a customer’s home. Furthermore, the evidence of the Defendant was that infractions of any masking requirement would be firstly to give an employee a verbal warning and thereafter, for a further infraction, a written warning. Neither of those were given to the Plaintiff.

Yet further, neither failure to follow the law nor failure to follow company policy was set out in the Termination Letter as reasons for the Plaintiff’s dismissal. The Defendant also alleged it was due to the Plaintiff having a confrontation with Mr. McConaghy but I have determined that there was no confrontation. The Defendant also alleged it was due to the Plaintiff having an overall poor attitude but there was no evidence at all of that. [ 72 ] From the evidence before me, it was clear that Mr.

McConaghy took issue with the Plaintiff failing to put on or pull up his mask as he was leaving the upstairs office area to ultimately exit the building. This very short interaction, approximately 2 minutes in duration, between Mr. McConaghy and the Plaintiff, without confrontation, and without the Plaintiff knowing that Mr. McConaghy was the general manager, resulted in a meeting being called in very short order; 5 - 10 minutes later according to the evidence of the Plaintiff, that ended with the immediate termination of the Plaintiff’s seven (7) plus years of employment.

That is not, in my view, a response that is proportionate to what had transpired – be that either the Plaintiff not having his mask fully up nor him saying to Mr. McConaghy (who was unknown to the Plaintiff) that he would put his mask back up once he was finished drinking his tea (which was allowed by the Defendant). Nor was it following the Defendant’s only disciplinary policy that a verbal warning would be given followed by a written warning for a further infraction.

This is not, as set out in McKinley and Baker, “misconduct that is sufficiently serious that it gives rise to a breakdown in the employment relationship.” There was no evidence led by the Defendant that the employment relationship was irretrievably broken.

As was the case in Baker , the Plaintiff’s “termination was quick, without a proper investigation, an assessment of his record or considering other alternatives . . .”. [ 73 ] I also express concern that the Dispute Note alleges that the Plaintiff “had numerous opportunities to apologize . . .[but] steadfastly refused to so.” This allegation is not only unsubstantiated by the evidence, but in fact the opposite is true. The Plaintiff testified that he both apologized and pleaded to keep his job but Mr.

McConaghy would have none of it; advising the Plaintiff that the decision had been made and that was the end of it. So, I am unsure as to what the Defendant means by “numerous opportunities” but there was evidence that even after the termination meeting, the Plaintiff made numerous attempts to try and get his job back. Perhaps more troubling is that Mr.

McConaghy, although setting this out in a pleading he drafted, testified that in fact the Plaintiff did apologize at the termination meeting. [ 74 ] As I have determined that the Defendant did not have cause to terminate its employment of the Plaintiff, I now turn to the issue of what is the reasonable notice period in the circumstances of this case. Issue #2: [ 75 ] Neither Counsel made reference to the Employment Standards Code [21] (the “ Code ”) either in their pleadings or in argument as to what would have been the notice period required under the Code .

In the event that the Code were applicable [22] , pursuant to

section 56, the Defendant would have been required to provide five (5) weeks notice, or pay in lieu thereof, to the Plaintiff, given the tenure of his employment. In any event though, that would be the statutory minimum. Even if the Code were to apply, the Plaintiff is not precluded from seeking an appropriate notice period based on the common law [23] . [ 76 ] What are commonly referred to as the Bardal [24] factors remain the starting point to determine the appropriate notice period.

They are the “character of the employment, the length of service . . . , the age of the [employee] and the availability of similar employment, having regard to the experience, training and qualifications of the [employee].” [ 77 ] As to the character or nature of his employment, the Plaintiff was a lead hand HVAC installer, his work consisting of the installation of, among other things, furnaces, air conditioners, thermostats and hot water tanks. As a lead hand, he would have an apprentice working under his direct supervision.

As to his length of service, it was from July 2013 to November 26, 2020; a period of close to 7.5 years. His age at termination would have been either 32 or 33 years of age. As to the availability of similar employment, there was essentially no evidence of that because the Plaintiff managed to find work quite quickly by contacting someone that he knew.

He commenced his new employment with Flat Land in early January 2021, approximately 6 weeks after the termination of his employment by the Defendant. [ 78 ] Counsel for the Plaintiff provided certain cases to support the Plaintiff’s position that he is entitled to a period of six (6) months notice. Counsel for the Defendant did not provide any case authority, but did, in argument, submit that an appropriate notice period would be in the range of four (4) to five (5) months. [ 79 ] I find that a reasonable notice period for the Plaintiff is five (5) months.

The Plaintiff was promoted to a lead hand during the tenure of his employment, he received a pay increase, he had responsibility for the supervision and by reasonable inference, some training of an apprentice, and his term of employment was not short - it was nearly 7.5 years.

It is a credit to the Plaintiff that he was fortunate to obtain employment relatively quickly after his termination by reaching out to an acquaintance, as otherwise, it is reasonable for the Court to infer that obtaining employment during that particular time period, just prior to Christmas and during the Covid-19 pandemic may have been difficult.

The case law certainly supports a determination that five (5) months is a reasonable notice period . [25] [ 80 ] With respect to mitigation, it is well settled that an employee has to take reasonable steps to find alternate employment after termination and that the employer has the onus to prove that the employee did not take such reasonable steps – in other words, failed to mitigate the loss of his employment. In this case, Counsel for the Defendant advised the Court that the Defendant was not taking issue

with mitigation, thereby deciding not to argue that the Plaintiff has failed to make reasonable mitigation efforts. [81] As to the calculation of the monies owed to the Plaintiff, as set out in the text, Individual Employment Law[26] by GeoffreyEngland, “at common law the employee is only entitled to be compensated for wages and benefits that he or she would have beencontractually entitled to during the notice period . . .” The Plaintiff’s monthly salary at termination[27] inclusive of benefits was$4,945.44[28] when multiplied by five (5) months equals $24,727.20 less the monies earned from Flat Land (January 8, 2021 to April26, 2021) of $16,002.82, results in a total damage award to the Plaintiff of $8,724.38.

CONCLUSION [82] In

summary, and for the reasons I have set out above, there was no just cause to dismiss the Plaintiff from his employment,and he is entitled to a period of reasonable notice of five (5) months which results in a judgment in his favor for the sum of $8,724.38. Interest will accrue on that sum pursuant to the provisions of the Judgment Interest Act[29] from November 26, 2020, to the date of thisJudgment. [83] With respect to costs, if the parties cannot agree on costs, they may arrange to speak to me, which is to be scheduled with thisCourt’s Trial Co-Ordinator.

If this is not so arranged within 30 days of the date of this decision, I will be at liberty to deal with costs onmy own and in such amounts as I deem advisable. Heard on the 20th day of July, 2023. Dated at the City of Edmonton, Alberta this 21st day of September, 2023. L.D. Young A Justice of the Alberta Court of Justice Appearances: M. McTague of Seveny Scott, Solicitors for the Plaintiff G. Lintz of Purdon Lintz, Solicitors for the Defendant 1

section 13, Alberta Regulation 176/2018 as amended 2

section 49, Court of Justice Act, RSA 2000, c C-30.15, provides for a stay of proceedings on an appeal 3 see

section 64.1, Court of Justice Act, supra, and

section 23, Court of Justice Civil Procedure Regulation, supra 4 Exhibit 1 5 Exhibit 4 6 (1894) 6 R 67 [HL] 7 Exhibit 2 8 Exhibit 3 9 Supra 10 (ON CA), see also Benke v Loblaw Companies Limited, 2022 ABQB 461, referred to by both Counsel, whereinJustice Feasby also makes reference to Roden and specifically, in paragraph 57, that “repudiation ... takes place when an employeerefuses to perform an essential part of his or her job duties in the future.” [emphasis mine] [29] RSA 2000 c J-1 as amended