Ayalew v The Council for the Advancement of African Canadians in Alberta, 2023 ABKB 113

Court of King’s Bench of Alberta Citation: Ayalew v The Council for the Advancement of African Canadians in Alberta, 2023 ABKB 113 Date: 20230227 Docket: 1803 11169 Registry: Edmonton Between: Tesfaye Ayalew Plaintiff/ Defendant by Counterclaim - and - The Council for the Advancement of African Canadians in Alberta Defendant/ Plaintiff by Counterclaim Corrected judgment: A corrigendum was issued on March 13, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Justice M. J.

Lema _______________________________________________________ I. Introduction [ 1 ] Can a without-cause dismissal be recharacterized later as for cause when the material circumstances were known to the employer before the dismissal? [ 2 ] The answer is no.

[ 3 ] Mr. Ayalew is entitled to 14 months of reasonable-notice pay, with the employer receiving credit for the severance paid to date. Its claim for repayment of the existing severance is dismissed. [ 4 ] No aggravated damages are warranted here. II. Background [ 5 ] Mr. Ayalew served as the executive director of The Council for the Advancement of African Canadians in Alberta (Africa Centre or AC) for approximately ten years. [ 6 ] In late 2017, the Africa Centre’s accountant resigned, alleging various mistreatment at the hands of Mr.

Ayalew. [ 7 ] The board of directors retained an employment lawyer to conduct an investigation into those allegations and others that surfaced from other employees. [ 8 ] In January 2018, it suspended Mr. Ayalew without pay. [ 9 ] In mid-March 2018, when the board had received the particulars of the various allegations against Mr. Ayalew from three employees or former employees (in part from them directly and in part from an interim report prepared by the investigator), it decided to terminate Mr.

Ayalew’s employment. [ 10 ] Per the associated board resolution and the termination letter provided to him, the dismissal was expressly “without cause.” [ 11 ] The letter also provided that the board would pay Mr. Ayalew eight weeks’ severance (in light of his ten-year employment, per the Employment Standards Code ) immediately. It offered a further one month’s severance if he released the board from all claims relating to the dismissal. [ 12 ] Mr. Ayalew did not sign the release and so did not obtain the additional payment. He did receive the base severance amount. [ 13 ] In response to Mr.

Ayalew’s later lawsuit for additional severance, the Africa Centre defended on the basis of just cause. [ 14 ] The recent trial largely focused on the existence or not of such cause. [ 15 ] Which raises the threshold issue of whether, having dismissed Mr. Ayalew in the manner it did, and being aware of all the allegations against him, the board can effectively “change horses” and defend on the basis of just cause. [ 16 ] If just cause is made out, the AC seeks to recover the severance amount paid to Mr.

Ayalew. [ 17 ] If just cause is not made out, the issues of the reasonable notice period, mitigation, and aggravated damages must be addressed. [ 18 ] I turn first to the threshold issue i.e. whether the AC can assert just cause having first dismissed without cause. III. Cause raised after dismissal without cause A. Dismissal in March 2018 was indeed on a without-cause basis. [ 19 ] Mr.

Ayalew’s foundational position was that he was dismissed without cause on March 16, 2018 (statement of claim, paras 11 and 26). [ 20 ] Here are the key factors on the nature of the March 2018 dismissal. [ 21 ] First, the minutes of the AC board’s meeting of March 15, 2018 state (in part): After a series of discussions and deliberations, the board decided that there is a need for a change in the leadership of the organization. Motion: to terminate the employment of Tesfaye Ayalew as Executive Director on a “without cause” basis .

Moved by [movers] – carried. [emphasis added] [ 22 ] Second, the termination letter given to Mr. Ayalew on March 16, 2018 states (in part) that the dismissal was “without cause”: The Board of Directors of the Council for the Advancement of African-Canadians (“CAAC”) regrets to inform you that your employment with CAAC is terminated without cause effective immediately. [emphasis added] [ 23 ] Third, the letter makes no reference to the AC having any cause for dismissal or to any actual or perceived shortcomings in his performance as executive director.

More generally, no evidence showed that the AC communicated any such message to Mr. Ayalew before he was dismissed on March 16, 2018. To the contrary, for example, in a January 10, 2018 letter advising Mr. Ayalew that he was being put on “administrative leave” (with full pay and benefits) pending completion of the investigation, the Board advised that it “has taken no position on the veracity or otherwise of [certain] complaints [against Mr. Ayalew] ...” and also that “[t]his administrative leave is not disciplinary ....”

[ 24 ] Fourth, as noted, the dismissal was stated as “effective immediately” i.e. no postponement or deferral of the dismissal decision pending the receipt of further information from the investigator or otherwise. [ 25 ] Fifth, the termination letter also stated: Pursuant to Alberta’s Employment Standards Code (“ ESC ”), CAAC is only obligated to provide you with eight (8) weeks of pay in lieu of notice for your ten (10) years of employment. [emphasis added] [ 26 ] That obligation comes from ss 55(1) ESC : An employer may terminate the employment of an employee only by giving the employee 1. a termination notice under

section 56, 2. termination pay under section 57(1), or 3. a combination of termination notice and termination pay under section 57(2). [ 27 ] Per s 56, where the employee has been employed for 10 years or more , the employer must, to terminate the employment, give written termination notice of at least 8 weeks (para 56(f)). [ 28 ] Or, per ss 57(1), “[i]nstead of giving a termination notice, an employer may pay an employee termination pay of an amount at least equal to the wages the employee would have earned if the employee had worked the regular hours of work for the applicable termination notice period.” [ 29 ] In this case, the Africa Centre took the termination-pay route .

Per the termination letter, the Africa Centre advised that it would pay Mr. Ayalew: “eight (8) weeks of net pay in lieu of notice in the amount of $9,948.88, to be paid as a lump sum immediately.” [ 30 ] It also stated (via that letter) that, “without prejudice to [the Africa Centre’s] right to rely on

section 56(f) [ ESC , described above] and other relevant provisions of the [ ESC ]”, it was offering an: ... additional two (2) weeks of net pay in the amount of $2,487.22 as a gratuitous gesture to assist your transition to new employment, to be paid in a lump sum on the condition that you accept, sign and send [an] attached Release ... to [the Africa Centre] within five (5) business days of the date of this letter.

Should [the Centre] not receive the signed release from you within the period ..., you will not receive the additional two (2) weeks of pay. [ 31 ] The evidence showed that the Africa Centre paid Mr. Ayalew the base ESC amount but not the extra two weeks, with Mr. Ayalew not signing the release. [ 32 ] Critically, the ESC provides, in ss 55(2), that “[t]ermination notice is not required (

a) if the employment of the employee is terminated for just cause.” [ 33 ] In other words, payment of the eight-weeks pay to Mr. Ayalew squared with, and reflects, a without-cause dismissal. [ 34 ] This is further confirmed by the noted reference to “[the Africa Centre’s] right to rely on

section 56(f)” i.e. to limit the pay-in- lieu-of-notice amount to the statutory eight weeks i.e. with the Centre implicitly acknowledging that

section 56(

f) applied i.e. that the Centre was required, in the context of a without-cause dismissal, to pay him eight weeks’ pay. [ 35 ] Further, the Centre expressly differentiated between the “gratuitous gesture” (i.e. the extra two weeks’ pay) and the implicitly “non-gratuitous” payment of the ESC amount i.e. again reflecting the without-cause nature of the dismissal. [ 36 ] I find that the base amount paid to Mr.

Ayalew was indeed severance i.e. not a gratuitous payment. [ 37 ] Overall, I find that the March 2018 dismissal was indeed on a without-cause basis. [ 38 ] In any case, the parties’ agreed statement of facts at the trial itself reflects the without-cause nature of the March 2018 termination (paras 12 and 13). B. Onus on Africa Centre to show recharacterization of dismissal possible [ 39 ] In response to Mr. Ayalew’s eventual action seeking additional severance (i.e. beyond the ESC base amount), the Africa Centre asserted that Mr.

Ayalew’s dismissal had actually been for cause. [ 40 ] Accordingly, the AC bore the onus of showing that, in the face of the without-cause dismissal on March 16, 2018, it could “change horses” and assert just cause later. [ 41 ] The AC made two main arguments here: first, that it made a mistake in dismissing without cause and, second, that (in any case) it discovered new information about Mr. Ayalew’s pre-termination conduct that constituted just cause to dismiss him. [ 42 ] I first review its mistake position. C. Per statement of defence, AC initially relied on “all clear” investigative report

[ 43 ] The AC’s “mistake” theory is outlined in its statement of defence: Prior to dismissing [Mr. Ayalew] from his employment, the [AC Board] received information from employees, former employees, and others that suggested that [Mr. Ayalew] was bullying, harassing, sexually harassing, discriminating against, or otherwise mistreating subordinate employees of the [AC]. As a result of receiving this information, the Board ... retained an investigator to investigate the complaints and issue a report. The investigator undertook his investigation and reported to the Board ... that [Mr.

Ayalew] had not undertaken bullying, harassment, [sexual] harassment, discrimination, [or] other mistreatment of employees of the [AC]. As a result of receiving the investigator information , the Board ... decided to dismiss [Mr. Ayalew] without just cause, which it did effective March 16, 2018. Following termination of [Mr. Ayalew], thinking that [the AC] did not have just cause to dismiss [him], the [AC] paid [him] the sum of $18,591.80, before deductions, as pay-in-lieu of notice. ... After dismissing [Mr.

Ayalew] from his employment, the Board ... obtained additional information regarding [his] conduct while employed as the Executive Director. The additional information received by the Board ... indicated that, contrary to the report of the independent investigator: A. [Mr. Ayalaw] had in fact [bullied], harassed, sexually harassed, discriminated against, and otherwise mistreated subordinate employees of the [AC]; B. [his] conduct was ongoing and egregious; and C. the [AC] had just cause to summarily dismiss [Mr. Ayalew] with just cause [sic].

The information and reports provided by the investigator to the Board ... which indicated that [Mr. Ayalew] did not undertake the misconduct attributed to him, was incorrect. The [AC] did not learn that the information and reports provided by the investigator [were] incorrect until after the [AC] dismissed [him] . ... In response to the whole of the Statement of Claim, the [AC] had just cause to summarily dismiss [Mr. Ayalew] without notice or pay- in-lieu of notice. As such [he] has no claims or basis for any of the claims set out in the Statement of Claim.

In response to paragraphs 11 to 24 of the Statement Claim [outlining the particulars, per Mr. Ayalew, of the dismissal], the [AC] undertook the investigation of the allegations against [him] appropriately and properly. The reports of the investigator during and following the investigation, however, were incorrect , as the investigator wrongly stated to the Board ... that [Mr. Ayalew] was not guilty of any significant wrongdoing. In specific response to paragraphs 25-27 of the Statement of Claim [per Mr. Ayalew, his entitlement to reasonable notice], [Mr.

Ayalew] was dismissed for just cause and as such has [no] right or entitlement to reasonable notice of dismissal as alleged or at all. [paragraphs 4- 9 and 11-13] [ 44 ] In other words, per the AC, it mistakenly relied on the investigator’s “all clear” report in dismissing Mr. Ayalew without cause in March 2018 and paying severance to him. [ 45 ] However, the evidence did not bear out this position. D.

Board had interim but not final report when deciding to terminate [ 46 ] First, the evidence is clear that the board had the investigator’s interim report, issued earlier on March 15, 2018, when it held its meeting to consider Mr. Ayalew’s termination (and other matters) later that day. [ 47 ] It is also clear that the investigator’s final report was issued on March 23, 2018 i.e. one week after the board had terminated Mr.

Ayalew’s employment on a without-cause basis. [ 48 ] The thrust of both reports (interim and final) was that the investigator was unable to find corroboration for the principal allegations against Mr. Ayalew (made by the accountant who resigned), leading the investigator to conclude that Mr. Ayalew had not abused, harassed or otherwise mistreated that person. [ 49 ] The board chair, John Gaye, who was the sole witness speaking to the board’s involvement, including its decision to terminate Mr.

Ayalew’s employment, confirmed that the board had received and reviewed the interim report before its meeting on March 15, 2018 and that the final report came after that decision. E. Board did not actually rely on the interim report [ 50 ] Critically, after outlining at trial what the board apparently perceived as shortcomings with the final report, he stated: “As a matter of fact, our decision – the Board’s decision – [to terminate] was not based on the report of the investigator.” [ 51 ] One of the perceived shortcomings, as described by Mr.

Gaye, was that “... what was in [the final report] was no different than what was in the interim report” – in other words, the Board did not accept the core conclusion of both reports i.e. no material abuse,

harassment or other mistreatment. [52] See also this cross-examination exchange between Mr. Gaye and Mr. Ayalew’s counsel on this “not relying on report” aspect: Q: Now I heard you say earlier in your testimony that you didn’t rely on the report of the investigator to make the decision toterminate Mr. Ayalew’s employment. Do you recall that? A: Yes. The board did not ... that’s what I said. Q: Yes. Okay. So the Board did not. A: That’s why [the] termination was without cause ... Q: Right.

A: ... and later on it was changed to – after consulting with our lawyer – it was changed to with cause. [53] Here I stress the sequencing outlined above: when it decided to terminate, the board had the interim report only, not the finalreport (issued afterwards). Accordingly, I infer that, when Mr. Gaye said in direct that the board’s termination decision “was not basedon the report”, he was necessarily referring to the interim report, which was the only report it had when weighing the terminationdecision. And same in cross: he was necessarily referring to that report. [54] In any case, as noted above, per Mr.

Gaye, the board took the same (dim) view of the final report as of the interim report i.e.with the board disagreeing with the (same) core conclusion of both. [55] This may not explain why the board decided to terminate without cause. But it undercuts the statement-of-defence positionthat the board relied on the interim or any investigative report in deciding to terminate. F. Board did not explain why dismissal without cause [56] Beyond stating (as explained above) that the board did not rely on the investigator’s interim (or any) report in deciding toterminate, Mr.

Gaye did not actually say why the board decided to terminate without cause. The only questioning in direct evenapproaching that point was this: Q: After receiving [the interim report], [as] reflected in the [board-meeting minutes], ... you decided to terminate his employment ona without-cause basis. A: Correct. [57] Mr. Gaye was not asked for or about the board’s reasons for terminating on a without-cause basis.

And he did not volunteerany such information. [58] And, as noted above, the board minutes only state that “there is a need for a change in the leadership of the organization”,with no detailing or elaboration of the “discussions and deliberations” preceding that decision. G. No “mistake” by Board shown [59] The AC asserted in its written and oral argument at trial that it “mistakenly dismissed Mr. Ayalew on a without-cause basis,including paying severance, when in fact it did have just cause to dismiss Mr.

Ayalew on a just cause basis” and that “[i]n light of the[“all clear”] conclusions of the investigator, the [AC’s] decision to dismiss Mr. Ayalew without cause is understandable. That decisionwas, however, a mistake, as the [AC] indeed did have just cause to summarily dismiss Mr.

Ayalew with just cause ....” [60] I disagree. [61] As already explained, the board did not rely on the investigator’s interim (or final) report in deciding to terminate, let alone toterminate without cause, or in paying severance. [62] As also found, the board did not actually explain why it decided to terminate that way, including paying severance. [63] For instance, Mr. Gaye did not offer evidence to the effect that “while we did not rely on the interim report i.e. we looked atthings on our own as a board, we reached the conclusion that the various allegations surrounding Mr.

Ayalew did not, even if proved,amount to just cause, so we decided to dismiss him without cause.” Or, “we were sure the allegations if proved would constitute justcause, but we were not sure we could prove them, so we decided to proceed without-cause.” Or anything else that might ground anassertion of a mistaken decision. [64] With no explanation offered or even suggested, it is possible the board believed it had a just-cause basis for dismissal butdecided, for its own reasons, to dismiss without cause.

An employer aware of just cause is obviously not compelled to dismiss for cause:Abrams v RTO Asset Management, 2020 NBCA 57 (paras 6, 7, and 60-67) (SCC leave denied – ). [65] With no explanation offered, the board’s “mistake” position has no anchor. To advance that position, it had a practical onus toprovide evidence of the asserted mistake. As noted, it provided no such evidence. H. Even if mistake shown, AC-cited cases do not support its position

[66] In any case, even if a “mistake” were shown (e.g. the board came to the view (whether as a result of its own deliberations or,in theory, the “all clear” report) that the allegations could not be proved or would not constitute just cause, when in fact they could andwould), the AC did not explain why such a mistake would allow it to disavow its without-cause approach. [67] The AC’s written argument on this (recharacterization) aspect was limited to the following: As ... stated in Foerderer [v Nova Chemicals Corporation, 2007 ABQB 349 (Topolniski J.) at para 63(f)], “Ground for dismissal do nothave to be shown at the time of the dismissal, provided they can be subsequently established.

Further, the grounds stated at the time ofdismissal need not be those alleged at a later time.” [68] Topolniski J. drew there from the Supreme Court of Canada’s decision in Lake Ontario Portland Cement v Groner, (SCC), [1961] SCR 553, 28 DLR (2d) 589 at 598. Here is the key passage from that case: The fact that the appellant did not know of the respondent’s dishonest conduct at the time when he was dismissed, and that it was firstpleaded by way of an amendment to its defence at the trial does not, in my opinion, detract from its validity as a ground for dispensingwith his services.

The law in this regard is accurately summarized in Halsbury’s Laws of England, 2nd ed., vol. 22, p. 155, where it issaid: It is not necessary that the master, dismissing a servant for good cause, should state the ground for such dismissal; and, provided goodground existed in fact, it is immaterial whether or not it was known to the employer at the time of the dismissal.

Justification of dismissalcan accordingly be shown by proof of facts ascertained subsequently to the dismissal, or on grounds differing from those alleged at thetime. [emphasis added] [69] Foerderer involved a dismissal for cause upheld in the decision i.e. had nothing to do with a without-cause dismissal latersought to be recharacterized as for cause. [70] In Lake Ontario Portland Cement itself, per a term of the employment agreement, the employer could dismiss terminate onten days’ notice, regardless of cause or not.

The employer invoked that clause to dismiss the employee, making no reference to causeor the absence of cause. Later, the employer discovered misconduct predating the dismissal.

The focus of the above excerpt was theemployer’s ability to also rely on the after-discovered cause i.e. on top of the neutral-on-cause contractual term. [71] In other words, like Foerderer, Lake Ontario did not involve a without-cause decision later sought to be recharacterized asfor cause, let alone on the basis of known-before-dismissal information and let alone accompanied by the payment of severance. [72] The AC did not cite any other cases in support of its “mistake” theory. I.

Conclusion on AC’s “mistake” argument [73] In the end on this aspect, we have an unexplained but incontrovertible decision on March 15, 2018 to terminate Mr. Ayalewwithout cause, with no evidence it was the result of a mistake. [74] Armed with all the material allegations against Mr.

Ayalew, the AC Board decided, on its own, to dismiss him without cause. [75] The Board’s counsel at the time had advised early on (January 8, 2018) that he had no background in employment law andhad recommended (as reflected in minutes of a Board meeting on January 9, 2018) that “the board [get] a lawyer with experience inemployment law.” [76] The Board apparently took that advice but only after terminating Mr. Ayalew’s employment. (The Board minutes of theMarch 15, 2018 meeting, at which Mr.

Ayalew was terminated, reflect (among other motions) a motion “to immediately hire a legalcounsel for the organization.”) [77] One of the members of the board was a practicing lawyer. Per John Gaye’s evidence in cross, that person was the board’s“point of contact” with the investigator, he was “basically heading whatever we are doing on this investigation ... because of his legalexpertise”, and “we had [that lawyer], a legal expert, on the board ... he spear-head[ed] things [here].” [78] In any case, as noted, the AC offered no evidence of why it terminated Mr.

Ayalew’s employment (beyond the generic andneutral “needed change in leadership”) or, in particular, that its without-cause approach was the result of a mistake. [79] I find that the AC did not prove a mistake or (by extension) its mistake theory. [80] The AC’s other main rationale for recharacterization – after-acquired information – is reviewed next. J.

No after-acquired information here [81] The AC asserted, per its statement of defence, that it acquired post-termination information reflecting just cause for dismissal. [82] But here too the evidence did not bear out this position. [83] Instead, the evidence showed that the Board had received the full particulars of the accountant’s allegations against Mr.Ayalew, whether by receiving copies of her submissions to the investigator, via (possible) direct submissions to one or more Board

members, via the interim report, some combination, or otherwise. [ 84 ] It also showed that the Board or individual board members had received the material particulars of the allegations of abuse, harassment and mistreatment made by two other employees or former employees, whether via information presented directly by those complainants to the Board, via the investigator’s report, some combination, or otherwise. [ 85 ] This was confirmed in the cross of Mr. Gaye: Q: Mr. Gaye, what new information after terminating Mr.

Ayalew’s employment did you discover about allegations of abuse or harassment? [And] when I say “you”, I mean the Board, not limited to you. A: I cannot officially tell you in my personal capacity, but prior to the termination a lot of people made ... came to the Board, so .. talk about new information, I .. we wouldn’t have names that we wanted to know if the investigator could speak to these people, but he didn’t speak to them. That was the letter of April, the April 20 th letter [in which the AC asked the investigator to (in part) review other matters]. So at that point there was nothing new.

We’ve heard so many things already, things in the media, things that were – people call individual board members to speak to them personally. So we have already heard all of those things. Q: That’s what I’m at, sir. That is what I am suggesting to you. A: But that was prior to – Q: Yes. A: -- the termination, not after. Q: Yes. That’s what I’m suggesting. We talked about it when we looked at exhibit 7, the January 9 th meeting minutes, when we went through the information that ID had shared, you confirmed that he had shared information about [one complaining party], for example.

So these things were already known before you received the interim report. A: Yes. Q: And therefore they were known before your board meeting on March 15 th . A: Yes. Q: So there weren’t really any new allegations of abuse or harassment that came up after the decision to terminate Mr. Ayalew’s employment.

A: I can tell you there were new allegations that came but none came directly to the Board, like .. officially brought to the Board and said, saying ... you know I am making this allegation against your former executive director. [ 86 ] No details of the last-mentioned allegations were addressed in redirect examination of Mr. Gaye or otherwise. [ 87 ] And the AC did not call any witnesses beyond the three individuals whose complaints the Board was aware of, with material particulars, as of March 15, 2018 i.e. when it decided to terminate Mr.

Ayalew’s employment. [ 88 ] All to say: no evidence supports the AC’s position that, post-termination, it came into new information bearing Mr. Ayalew’s conduct or in any case bearing on possible just cause for his dismissal. [ 89 ] Instead, all the alleged misconduct by Mr.

Ayalew testified to by the three complaining individuals -- i.e. everything put forward to establish just cause – was known to the Board at the time of dismissal. [ 90 ] In these circumstances, the principles of “after-acquired cause” or “subsequently discovered cause” have no application. [ 91 ] Finally in this section, I examine the AC’s claim to a freestanding right to recharacterize the dismissal decision as for cause. K.

Recharacterizing a without-cause dismissal as for cause, generally [ 92 ] The AC finally argued that, regardless of the existence of a mistake or after-discovered information, the only question is whether, at the time of dismissal, just-cause grounds existed, even if known by the employer at the time and severance is paid.

In other words, that an employer has a freestanding right in such circumstances to later recharacterize the dismissal as for cause. [ 93 ] The AC did not point to any case standing for that proposition either i.e. beyond pointing to Foerderer and Lake Ontario Portland Cement , which do not support it. [ 94 ] The absence of supporting cases from the AC is not surprising, given the principle of condonation or waiver, which would appear to engaged where an employer, with full knowledge of the circumstances, decides to terminate without cause and pays severance in accordance with that decision and otherwise shows an intention to dismiss without cause, which are the circumstances here: see the discussions of this point in Just Cause – The Law of

Summary Dismissal in Canada , R. S. Echlin and M. L. O. Certosimo, Canada Law Book (Thomson Reuter) (loose-leaf edition updated to March 25, 2022),

section 7.23 (pp 7-56 to 7-58); The Law of Dismissal in Canada, Third Edition , H. A. Levitt, Thomson Reuters Canada) (loose-leaf edition updated to October 29, 2018),

section 7:10.50 (pp 7-8 to 7- 10); and Can Employers Forgive and Forget?: Employer Condonation and Wrongful Dismissal in Canada , A. P. Marcotte, (1998) 8 Windsor Rev of Legal and Social Issues 3-22. (In passing, I note the suggested just-cause-with-gratuitous-payment dismissal letter

at

section 7:10:50 of the Levitt text (p 7-10).) [95] The AC acknowledged the severance character of its payment to Mr. Ayalew (para 7, statement of defence; para 108 of itsargument brief).

In any case, it did not argue that the payment should be treated as gratuitous or as otherwise inconsistent with a without-cause dismissal, as seen in some of the cases reviewed in the noted texts. [96] It did not assert that its intention in March 2018 was other than to dismiss without cause. [97] In any case, no evidence points to any uncertainty or ambiguity about the nature (without cause) of the March 2018 dismissal. [98] The AC obviously recognized the threshold obstacle to its just-cause position in this case i.e. its March 2018 without-causedismissal of Mr. Ayalew featuring the payment of severance.

That is obviously why it raised its argument of mistake and after-acquiredinformation i.e. to try to justify disavowal of the without-cause dismissal. [99] With Mr.

Ayalew’s statement of claim raising the fact of the without-cause dismissal, and with the AC’s statement of defenceitself recognizing the without-cause nature of the March 2018 dismissal, and in any case with that fact acknowledged via the AgreedStatement of Facts, and with the statement of defence and the ASF also acknowledging the payment of severance (“pay in lieu ofnotice”), and as reflected in its mistake and after-acquired-information positions, the AC was very much alive to the “elephant in theroom” i.e. how the AC could disavow that dismissal. [100] All to say: Mr.

Ayalew did not have to plead his case otherwise or take any particular steps i.e. for the AC to be alive to his coreposition i.e. that he had been dismissed without cause and paid severance accordingly and that the AC could not disavow that dismissal. [101] It accordingly fell to the AC to show how it could so disavow or at least try to.

And when it comes to its last-ditch argumentabout a freestanding right to disavow, regardless of the payment of severance, it had the onus of unearthing case law supporting that rightor, in any case, of offering some persuasive rationale for disavowal in these circumstances. [102] It did neither, failing to show any basis for disavowal of the without-cause dismissal in March 2018. L. Conclusion on cause [103] In the end: • the Board dismissed Mr. Ayalew on March 15, 2018 without cause; • it offered no particular reason(

s) for why it decided to dismiss on that basis; • accordingly, it has no basis to argue that that decision was a mistake; • the Board did not come into any new information, post-termination, bearing on the existence of cause at the time of termination;and • the Board did not explain why it would have a freestanding right to recharacterize in the circumstances here. [104] Accordingly, I find that Mr. Ayalew was dismissed without cause and that the Board cannot now recharacterize the dismissal asfor cause on the basis of mistake, new information or otherwise. IV.

Reasonable-notice period [105] A useful starting point is the Bardal factors, as confirmed in Wallace v United Grain Growers, (SCC), [1997]3 SCR 701: In determining what constitutes reasonable notice of termination, the courts have generally applied the principles articulated by McRuerC.J.H.C. in Bardal v Globe & Mail Ltd. (1960), (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.), at p. 145: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases.

The reasonableness of the noticemust 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 andqualifications of the servant. This Court adopted the foregoing list of factors in Machtinger v. HOJ Industries Ltd., (SCC), [1992] 1 S.C.R. 986, at p.998. ... Bardal, supra, does not state, nor has it been interpreted to imply, that the factors it enumerated were exhaustive: see e.g.Gillespie v.

Bulkley Valley Forest Industries Ltd., (BC CA), [1975] 1 W.W.R. 607 (B.C.C.A.); Corbin v. StandardLife Assurance Co. (1995), (NB CA), 15 C.C.E.L. (2d) 71 (N.B.C.A.); Bishop v. Carleton Co-operative Ltd. (1996), (NB CA), 21 C.C.E.L. (2d) 1 (N.B.C.A.). Canadian courts have added several additional factors to the Bardal list.The application of these factors to the assessment of a dismissed employee’s notice period will depend upon the particularcircumstances of the case. [paras 81 and 82] [emphasis added] [106] In his statement of claim, Mr. Ayalew asked for 24 months.

At the trial, he asked for 18 months, citing the following cases:

McMichael v The New Zealand and Australian Lamb Company, 2018 ONSC 5422 (Diamond J.): plaintiff age 63 on dismissal; vice-president of large commercial operation (US sales of $200 million annually); 12.5 years of service; annual base salary ($190,000 USD) –awarded 22 months of severance; McLean v Audiovox Corp, (BCCA): plaintiff 62 on dismissal and 2.5 years away from retirement; “very responsibleposition”; 15 years of service; “relative unavailability of a similar position in the same field” – 20 months (“upper end of the range”); Wilkinson v Valgold, 2021 BCSC 572 (Warren J.): plaintiff 63 on dismissal; president and CEO of publicly traded mining company;most recent salary of $227,000; “almost 12 years of service”; “dearth of equivalent alternate employment opportunities”; Wankling v Saskatchewan Urban Municipalities Assn, (SKQB) (Wedge J.): plaintiff 61 on dismissal; executivedirector of association; 11.5 years of service; position unique in province and “highly unlikely that at his age, now 63, he will obtain anexecutive job in one of the other corresponding associations across Canada” – 18 months; Moran v Atlantic Co-operative Publishers, (NSSC) (Grant J.): plaintiff age 62 at time of dismissal; managing editorof monthly publication for co-ops and credit unions; 8 years of service; “specialist’s employment – not that many jobs available in thatfield” – 18 months. [107] On the notice period, the AC submitted this chart: A.

Notice Period [108] I also note these cases: Martin v Children’s House Child Care Society, 2006 ABQB 937 (Langston J.): plaintiff 53 years old at time of trial; executive directorof society for virtually entire employment; 18 years of service – 18 months awarded; and Beatty v Canadian Mill, 2003 BCSC 1053 (Joyce J.): plaintiff 50 on dismissal; CEO of forestry companies association; 11.5 years ofservice; $105,000 salary; “specialized nature of his expertise” and “transferability [of expertise] to senior positions outside the [forestry]industry is limited” – 15 months awarded. [109] In light of all these cases and focusing here particularly on Mr.

Ayalew’s age at the time of dismissal (62 per an agreedstatement of facts), his length of service (10 years per the ASF), his leadership role at the AC, the specialized nature of the AC and,accordingly, the necessarily limited stock of equivalent positions to pursue, in part reflected by Mr. Ayalew’s eventual decision(discussed further below on mitigation) to leave the community-organization world and the leadership zone to work as a taxi driver, Ifind that 14 months is the appropriate reasonable-notice period. B. Salary [110] At the time of his dismissal, Mr.

Ayalew’s salary was $83,130. [111] He argued that his salary should be enhanced by 5 per cent to reflect an employer-matching-RRSP-contributions program at theAC. [112] Here I accept the AC’s arguments that this program, conceived in 2013 and approved by the AC board that year, never actuallylaunched, that in any case Mr. Ayalew never made any contributions of his own (i.e. with nothing for the AC to match), and that anyclaim by Mr.

Ayalew based on an asserted breach of the AC’s duty to launch the program is long since time-barred under the LimitationsAct. [113] I do note that, per the ASF (para 13), in addition to his base severance amount, Mr. Ayalew was paid vacation pay ($2,859.67). [114] Mr. Ayalew is entitled to the applicable amount of vacation pay (whether set by statute or in line with his employment contract,or both) for the 14-month severance period. [115] The AC is entitled to credit against its severance obligations the amounts already paid to Mr. Ayalew as base severance andvacation pay.

C. Mitigation [116] Mitigation-wise, Mr. Ayalew testified to difficulties in finding employment in the community-organization sector, in light of theadverse (for him) publicity surrounding his dismissal and the uncertainty arising from his outstanding (now concluded) litigation againstthe AC. He said that, by mid-August 2019 (i.e. about 17 months after his AC dismissal), he decided that his best option was driving ataxi. [117] The AC did not cross-examine Mr. Ayalew about his mitigation steps or raise any question at trial about the adequacy of thoseefforts. [118] In these circumstances, I find Mr.

Ayalew’s mitigation efforts were adequate. V. Aggravated and punitive damages A. Pleadings [119] Per his statement of claim, Mr. Ayalew claimed aggravated and punitive damages of $200,000 and $100,000, respectively. Onthe former, his claim alleged various mistreatment by the AC (paras 28-32). [120] His counsel’s argument (written and oral) at the close of the trial did not reference punitive damages. I infer that he abandonedthat claim. [121] Per its statement of defence (para 14), the AC asserted hat “[it] treated [Mr. Ayalew] fairly and properly at all times and in allrespects.” B.

Plaintiff’s evidence on aggravated damages [122] At trial, Mr. Ayalew gave evidence on some, but not all, of the statement-of-claim-alleged instances of mistreatment. [123] Here is a synopsis of his direct (i.e. examination in chief) evidence bearing on entitlement to aggravated damages: It was very difficult to get a [new] job because my name had been tarnished all over the newspapers [with references to] sexualharassment. Every [potential] employer would google me and find out who I am.

I went to a number of colleagues e.g. directors of otherorganizations who know my contributions in the community to see if they could give me some opportunity [to work]. ... All of themsaid (effectively): “This is already in the courts now ... this should be settled before we go further. ... [Concerning an application to workwith an unidentified disabled-persons organization], “they did not even call me.” [Concerning working again in the African community,in particular on an unspecified proposal], “they told me ‘you can’t use this space here.’ They [were] afraid because my name was all overthe newspapers ...

I do not blame them ... that’s what happened. That’s how I was destroyed ... everything I built for 25 years was shattered in one blow [in part by] them throwing my name out there. How [could] I get a [new] job? [Concerning his emotional perspective since the termination], it was hell. ... [Concerning his encounters and dealings with national, provincial and municipal political and other community leaders], that was mysocial capital ...

I [now] have nothing ... [the AC] shattered it with one blow ... if they believe those stories. ... [Concerning his health], it is not me [meaning, as far as I can tell, “I am not myself”]. Stress, and no sleep, and so on. For the last fiveyears. I went on medication. And skin changes ... that’s what happened. It was real. [Asked if he had anything else to add], it [was] the systematic spread of issues through newspapers ... who is going to talk to me [now]?... [124] The AC did not cross-examine Mr. Ayalew on this evidence. [125] In his written and oral argument at trial, Mr.

Ayalew’s counsel made these submissions on aggravated damages: The Alberta Court of Appeal in Elgert v. Home Hardware Stores Limited, stated the following in relation to Aggravated damages: Aggravated damages in wrongful dismissal cases are compensatory in nature. In Honda, the Supreme Court reviewed the history of thelaw relating to damages in cases of employment termination, noting that aggravated damages must be considered in the context of abreach of the employment contract.

The Court held that aggravated damages are recoverable for breach of contract if such damages werecontemplated by the parties at the time they formed the contract. As an employment contract is inherently subject to cancellation onnotice, or payment in lieu of notice, “without regard to the ordinary psychological impact of that decision” (para 56), damages formental distress caused merely by the dismissal are not in the contemplation of the parties because “dismissal is a clear legalpossibility”: ibid.

As such, distress or hurt feelings ordinarily resulting from the fact of termination are not compensable: Hondaat paras 54-57 (emphasis added). Damages resulting from the manner of dismissal (as opposed to the fact of dismissal) are available, however, if damages arise outof the conduct of the employer in the course of termination. To be compensable, such conduct must be unfair or in bad faith, in thatit is “untruthful, misleading or unduly insensitive”: Honda at para 57; Wallace v United Grain Growers Ltd, (SCC),

[1997] 3 SCR 701, 152 DLR (4th) 1 at para 98 .

There is an “expectation by both parties to the contract that employers will act in good faith in the manner of dismissal” and failure to do so “can lead to foreseeable, compensable damages”: Honda at para 58. […] In Mulvihill v Ottawa (City) , 2008 ONCA 201 at para 51 , 90 OR (3d) 285, the Court held that “baseless, unfounded or fabricated allegations of misconduct sufficient to constitute cause are, by definition, untruthful, misleading and insensitive.” However, the “mere fact that cause is alleged, but not ultimately proven, does not automatically” entitle the employee to aggravated damages.

Provided that the employer has a “reasonable basis” on which to base its belief that it may dismiss an employee for cause, the employer “has the right to take that position without fear that failure to succeed on the point will automatically expose it to a finding of bad faith”. -- Elgert v. Home Hardware Stores Limited , 2011 ABCA 112 at paras. 72-73 , 77. [ 126 ] A

summary of the Africa Centre’s bad-faith conduct (per Mr. Ayalew) is as follows: • the [AC] unnecessarily confiscated Mr. Ayalew’s keys and phone; • the [AC] left Mr. Ayalew on suspension for more than two months , despite the fact that Ms. Nabafu had already left; • the [AC] ignored the report issued by Mr. Chak and terminated Mr.

Ayalew’s employment at a time where the termination would surely be seen publicly as being disciplinary in nature; • the [AC] maintained allegations of “ongoing and egregious” acts of sexual harassment for 5 years when it knew that said allegations were unfounded, in an attempt to avoid paying Mr. Ayalew the pay in lieu of notice to which he is owed; and • the [AC] counterclaimed for return of the small amount of pay in lieu of notice that was actually paid. • while Mr.

Ayalew has not produced his medical file , he has testified to medical issues and significant mental distress arising from the manner of termination. Those medical issues include diabetes, high blood pressure and skin discoloration. • it is respectfully submitted that the Africa Centre is liable to Mr. Ayalew for aggravated damages in the amount of $50,000.00 . [emphasis added] C.

AC offered no arguments against aggravated damages [ 127 ] In its written and oral argument, the AC did not address aggravated damages. [ 128 ] In these circumstances, with the AC apparently counting on a just-cause defence of the dismissal, I can and will decide on aggravated damages with no input from the AC i.e. I am not obliged to seek additional submissions from the AC in light of the above ruling against its just-cause position. [ 129 ] On the other hand, my role is not simply to rubber-stamp Mr.

Ayalew’s request for aggravated damages. [ 130 ] On these no-submissions points, I cite and adopt the analysis of Ball J. in L’Heureux v Deegan , 2022 BCSC 382 : Apart from a submission about the purported effect of R. 15-1, counsel for the defendants made no submissions dealing with specific heads of damages, or submissions on the authorities advanced by counsel for the plaintiff.

Notwithstanding the fact that defence counsel neglected to make submissions either for or against case authorities, a party is entitled to determine how to define the issues in dispute, and to present evidence and argument as they see fit.

As Robert Sharpe stated in Good Judgment: Making Judicial Decisions , (Toronto: University of Toronto Press, 2018) at 135, “[if] a litigant decides not to advance an issue or an argument, judges almost always respect the litigant’s choice, even if the judge would have presented the case differently.” In the case at bar, damages were clearly a live issue in dispute for which the parties both sought a ruling. Opportunity was provided to both parties to present oral and written submissions on the issue of damages.

The late Harvey McGregor noted that “even if the defendant fails to deny the allegations of damage or suffers default, the claimant must still prove his loss” ( McGregor on Damages, (London: Thompson Reuters, 2014) at 1953–54). In the case at bar, counsel for the plaintiff made submissions on damages in open court. Those submissions and the cited authorities must be considered to determine whether the plaintiff has met its burden. Defence counsel was present throughout the plaintiff’s submissions, including the claim for damages.

While defence counsel made general submissions concerning the effect of R. 15-1, counsel did not provide alternative cases or give any further submissions regarding damages or their assessment. I do not accept defence counsel’s submission that damages must be limited by R. 15-1 to $100,000, as this Court has established in Rakic and Lensu . Further, R. 15-2(3) states that “[n]othing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of $100,000”.

Defence counsel’s only submissions on damages are therefore of limited assistance in determining the appropriate quantum of damages. Case law supports the proposition that even if counsel does not take the opportunity to provide submissions on a live issue before the court, is appropriate for the presiding judge to decide the issue without soliciting further submissions. In Cuff v. Cuff , 2021 NLCA 31 [ Cuff ], the Court heard submissions on spousal support. One party’s submission was that there was no entitlement to spousal support.

The Court concluded that spousal support was appropriate and determined the level and commencement date of that support. An appeal

was launched on the basis the court should have required a further hearing or called for further submissions on a commencement date forspousal support. The Court of Appeal upheld the trial judge as both parties had the opportunity to be heard and “[no] furtherhearing or submissions would have been expected or required in this context” (Cuff at paras. 62–63). This context is similar to the case at bar, where the issue of damages was clearly before this Court.

While the argument ofdefence counsel in the case at bar was that there was no liability, defence counsel nevertheless had the opportunity to make anargument in the alternative regarding the appropriate quantum of damages should liability and causation be established. In fact,the submission made by defence counsel that liability had to be limited by R. 15-1 to an amount not in excess of $100,000, suggests thatdamages were due to the plaintiff in a sum fixed by the court. Based on the reasons aforesaid, it is open to this Court to make awards on the quantum of damages based on the submissions ofthe parties.

The Court is also aware that it should avoid filling in gaps in submissions made by counsel. [paras 173-182] [emphasis added] [131] On this subject, see also the helpful comments of Kent J. in Sahota v Slupskyy, 2019 BCSC 2215: I also commend the recent comments of my colleague Justice Power in Cummings v. Tellier, 2019 BCSC 2067 at paras. 70-71. InCummings, Justice Power suggests it would be “constructive advocacy” (i.e. helpful for the Court) if counsel would include in theirfinal argument “submissions in the alternative” on matters of substance just in case a party's primary submission does notprevail.

For example, instead of submitting only that “the plaintiff's claim for loss of future earning capacity has not been proved on theevidence”, it would be helpful for counsel to also make submissions in the alternative concerning quantification in the event the Courtholds otherwise. In this fashion, the Court will have the benefit of the alternative argument in assessing appropriate damages. [para 199][emphasis added] [emphasis added] D. Case law on aggravated damages [132] Before assessing Mr.

Ayalew’s aggravated-damages claim, I note and adopt, in addition to the principles outlined by the ABCAin Elgert, its discussion of aggravated damages in Gerling v Camrose Regional Exhibition & Agricultural Society, 2022 ABCA 210: The Supreme Court in Wallace v United Grain Growers Ltd, (SCC), [1997] 3 SCR 701, paras 91-95, 98, 103, 152 DLR(4th) 1, determined that an employer has an obligation of good faith and fair dealing when terminating an employee as a result of thepower imbalance between the two, the breach of which justifies an extension to the reasonable notice period.

Resulting damages arecommonly known as “Wallace damages”. In the course of dismissal, “employers ought to be candid, reasonable, honest and forthright . .. and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or undulyinsensitive.” In Honda Canada Inc v Keays, 2008 SCC 39, paras 50-56, [2008] 2 SCR 362, the Supreme Court determined such injuries would not becompensated in the form of an extension to the notice period, but calculated as a stand-alone sum.

It said that such damages would notarise from the “normal distress and hurt feelings resulting from dismissal” but only if the conduct of the employer at the time ofthe dismissal was egregious or outrageous. The shift from the Wallace to Keays approach represents a tightening of the circumstancesin which employees may be awarded such damages.

For example, in Lavallee v Siksika Nation, 2011 ABQB 49, paras 141-142, [2011] 6WWR 122, the court refused to award additional damages, despite the method of dismissal being disproportionately severe, as there wasno evidence the employee had suffered mental distress as a result of the employer’s misconduct.

What is clear, however, is that Wallace/Keays damages specifically arise in the context of the employer-employee relationship, and theduty of an employer not to act capriciously or egregiously with the employee during the time of dismissal. ... ... even, if this was an employment relationship, Wallace/Keays damages are not awarded for unproven allegations in pleadings. Inthis case there is nothing concerning about the method of termination; there is no evidence of bad faith, or unfair dealing in theissuance of the contract termination letter.

Wallace/Keays damages are only triggered by the method of termination: Lau v RoyalBank of Canada, 2017 BCCA 253, paras 60-63, 415 DLR (4th) 166. Merely being mistaken about whether there was cause to terminatethe contract is not enough. Here, the trial judge was concerned about allegations in the statement of defence and termination letter which were exaggerated andincluded grounds for termination of the contract which were not proven, but most particularly that Mr Gerling had acted in a dishonestmanner.

The Society did not prove that Mr Gerling provided false information to Mr Werner, and the trial judge said such allegationswere misleading and untruthful. While the specific allegations levelled against Mr Gerling were unproven, they do not rise to thelevel of an independent breach of honest performance in contractual obligations; otherwise, every action in which grounds fortermination of contract remain unproven, would be subject to such damages. There is no evidence the Society actively misled ordeceived Mr Gerling or Papa-T.

Wallace/Keays damages are not available to Mr Gerling or Papa-T, and the allegations made by the Society in terminating the contractdo not give rise to any other head of damage. [paras 45-47 and 50-52] [emphasis added] [133] See also the helpful outline of aggravated-damages principles in Lau v Royal Bank of Canada, 2017 BCCA 253 (paras 45-63). E. Application of aggravated-damages framework here [134] I find as follows on the asserted instances of aggravated-damages-triggering mistreatment:

1. confiscation of keys and phone : the AC indeed asked Mr. Ayalew to surrender those items when it placed him on paid administrative leave in January 2018 (approximately two months before he was dismissed). However, such a request is not inconsistent with such leave. (I will address his aggravated damages claim arising from the suspension itself below.) In any case, Mr. Ayalew did not give evidence of any particular hardship or difficulty arising from this dimension of the suspension; 2. maintaining suspension for two months and despite the main complainant’s resignation : that is true.

But no evidence showed that Mr. Ayalew asked to return to duty in light of that individual’s resignation or at all. As far as I can tell, while perhaps not happy about the duration of the suspension, he was content to let the investigation take its course and to participate in it, as part of (as he saw it) clearing his name. And, again, he received his full pay and benefits during the suspension; 3. AC ignored the investigator’s report : that is true. But its decision was to terminate Mr. Ayalew’s employment on a without-cause basis.

And the Board had an undisputed right to do so (albeit differences arose about the adequacy of severance); 4. the dismissal’s timing was such that it “would surely be seen publicly as being disciplinary in nature” : Mr.

Ayalew did not explain which “public” he was referring to or, in any case, how it would draw that impression from the timing here i.e. how it would necessarily know how the Board’s investigation was proceeding, what stage it was at any given point or what conclusions the Board had reached; 5. for five years, AC maintained unfounded allegations of sexual harassment : see the above comments from Gerling about the aggravated-damages focus on the manner of termination, not the employer’s pleadings or whether its pleaded just-cause allegation were proved or not.

In any case, as explained above, the outcome here did not require the exploration of the Board’s just-cause allegations i.e. they were not reviewed and rejected. Rather, they were not explored here, in light of the Board being unable to disavow its initial (without-cause) approach; and 6. AC counterclaimed for repayment of severance : that was not inherently offensive or objectionable, being congruent with the AC’s (now shown as incorrect) position that just cause could be established. [ 135 ] As for allegations the AC fanned out the news of Mr.

Ayalew’s suspension and eventual dismissal and its asserted just-cause grounds (including sexual harassment of employees), the evidence did not bear that out. [ 136 ] The only news

article put into evidence was a Diversity Magazine

article dated January 12, 2018 (exhibit 10). Per the article, an “unidentified

article was [sent] on Facebook on January 5, 2018 tagging all media in Edmonton on sexual harassment at Africa Centre. ...” [ 137 ] No evidence showed that anyone affiliated with the AC prepared, sent or otherwise played a role in researching, writing, publishing or circulating the “unidentified article.” [ 138 ] As for the AC’s comments quoted in the Diversity Magazine article, they are neutral, simply confirming the pursuit of a third- party investigation and Mr.

Ayalew being placed on administrative leave” i.e. with no confirmation or other mention of alleged sexual harassment or other grounds or even concerns. [ 139 ] While Mr. Ayalew referred to other media articles, none were put into evidence. [ 140 ] On the medical side, his counsel acknowledged that no medical evidence was put forward, but he did not explain why. [ 141 ] In any case, while I accept that Mr.

Ayalew experienced the stress, sleep and skin-condition problems he cited, his evidence did not detail the severity of those conditions, whether he sought medical attention for them, what diagnosis or diagnoses he received, what treatments, therapy or other remediation he was prescribed (if any), whether he pursued any recommended courses of treatment or other remediation, what effect(

s) they may have heard in eliminating or reducing his symptoms, whether any of his described symptoms ever prevented him from looking for replacement employment carrying on with his life generally or, after he decided to pursue taxi work, from pursuing or carrying out that work. [ 142 ] In all these circumstances, I am unable to conclude that aggravated damages are warranted here. [ 143 ] Fundamentally, the AC adopted a litigation stance that it could establish just cause. In support of that stance, it gathered information to try to build a just-cause case.

In the end, I ruled that the AC could not pursue a just-cause defence in the face of the clear without-cause dismissal accompanied by severance. [ 144 ] But that does not mean that the pursuit of that defence was outrageous, egregious, or capricious. [ 145 ] Overall, nothing in the actual manner of the dismissal supports or even suggests the availability of aggravated damages. VI. Unjust enrichment (repayment of severance) [ 146 ] As noted, the AC counter-claimed for the repayment of the severance paid to Mr.

Ayalew in March 2018 (approximately $19,000 before statutory deductions). [ 147 ] That position was premised on the AC establishing a just-cause defence. [ 148 ] With that defence not available here, the AC has no unjust-enrichment claim. The “juristic reason” for the payment was the AC’s severance obligation to Mr. Ayalew on a without-cause dismissal.

VII. Conclusion [ 149 ] For the above reasons: A. a just-cause defence is not available to the Africa Centre; B. Mr. Ayalew is entitled to the additional severance as outlined above, with the AC receiving credit for the severance already paid; C. Mr. Ayalew has no obligation to repay the already-paid severance; and D. no aggravated damages are warranted. [ 150 ] On costs, both parties asked to make costs submissions after the release of this judgment. [ 151 ] Mr.

Ayalew’s costs submissions, maximum 2 pages (aside from key extracts of any supporting cases, statements of account or any other supporting material), are due by March 10, 2023. [ 152 ] The AC’s costs submissions (same rules) are due by March 24, 2023. Heard on the 6 th day of February to the 13 th day of February 2023 Dated at Edmonton, Alberta this 27th day of February 2023. Michael J. Lema J.C.K.B.A. Appearances: Andrew R.

Fraser Taylor Jannis LLP for the Plaintiff Will Cascadden, KC and Arielle Sie-Mah Gowling WLG (Canada) LL) for the Defendant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Justice M. J. Lema _______________________________________________________ Plaintiff’s last name has been amended to reflect the proper spelling of “Ayalew” in the Style of Cause and Citation.