Ian Edgar Thomas Appellant (Plaintiff) v. Saskatchewan Indian Gaming, 2021 SKCA 164

Court of Appeal for Saskatchewan Docket: CACV3844 Citation: Thomas v Saskatchewan Indian Gaming Authority Inc. , 2021 SKCA 164 Date: 2021-12-15 Between: Ian Edgar Thomas Appellant (Plaintiff) And Saskatchewan Indian Gaming Authority Inc. Respondent (Defendant) Before: Schwann, Leurer and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Leurer On appeal from: QBG 1833 of 2018, Saskatoon Appeal heard: November 4, 2021 Counsel: Davin R. Burlingham for the Appellant Robert J.

Frost-Hinz for the Respondent Kalmakoff J.A. I. INTRODUCTION [ 1 ] Ian Thomas worked for Saskatchewan Indian Gaming Authority Inc. [SIGA] for more than eight years. In October of 2018, SIGA terminated his employment without notice. He then sued SIGA for wrongful dismissal, seeking pay in lieu of an appropriate notice period, and aggravated damages in relation to SIGA’s conduct in the course of the dismissal. The matter proceeded to trial in the Court of Queen’s Bench. The trial judge dismissed Mr.

Thomas’ claim, holding that SIGA had just cause to dismiss him, and that it had not acted unfairly or in bad faith in doing so ( Thomas v Saskatchewan Indian Gaming Authority Inc. (12 May 2021) Saskatoon, QBG 1833/2018 (Sask QB) [ Trial Decision ]). [ 2 ] Mr. Thomas appeals against the Trial Decision . He asserts that the trial judge made several legal and factual errors in reaching the conclusions that he did. Mr.

Thomas invites this Court to set aside the Trial Decision , find that he was dismissed without just cause, determine an appropriate notice period, and award damages. [ 3 ] For the reasons that follow, I would dismiss the appeal. II. BACKGROUND [ 4 ] Mr. Thomas began working for SIGA in August of 2010. From early 2011 until his employment was terminated, he held the position of procurement process support officer. [ 5 ] In the late summer of 2018, Mr. Thomas applied for promotion to a management position in the procurement process department.

He was one of three candidates short-listed for the position. [ 6 ] On October 10, 2018, Mr. Thomas met with Martin Hryniuk, SIGA’s director of procurement, to discuss training opportunities. During the meeting, Mr. Thomas inquired as to whether a decision had been made about the position he had applied for. Mr. Hryniuk advised Mr. Thomas that the position had been awarded to another candidate, a woman. [ 7 ] Upon being informed of this, Mr. Thomas became angry and aggressive. He accused Mr. Hryniuk of being a racist who did not support the advancement of Indigenous men.

He said words to the effect that he would have had a better chance of being promoted if he had “cut his own balls off”. Another supervisor, Herman Bugler, was called into the meeting by Mr. Hryniuk. Mr. Thomas continued with his aggressive actions and tone after Mr. Bugler entered the room. He leaned in towards Mr. Hryniuk and shook his finger at him. He called the explanations given by Mr. Hryniuk for awarding the promotion to another candidate “bullshit”. By the time Mr. Thomas left the meeting, Mr. Hryniuk was quite shaken up, to the point that he drove around aimlessly after leaving work, for fear that Mr.

Thomas may come to his home. [ 8 ] Mr. Hryniuk filed a complaint with SIGA’s Employee Relations Department [ERD]. The ERD investigated the matter. On October 15, 2018, Mr. Thomas was placed on leave and instructed by SIGA not to communicate with other employees pending the conclusion of the investigation. On his way out of the building, after having just received this instruction, Mr. Thomas encountered two other SIGA employees. He volunteered to them that he had been placed on leave and told them it was because he had “told [Mr. Hryniuk] how he really felt”. Mr.

Thomas also contacted another SIGA employee the next day, by telephone and text message. In those conversations, he referenced the investigation and asked the other employee to download certain SIGA tender templates and e-mail them to him.

[ 9 ] On October 22, 2018, SIGA advised Mr. Thomas, by way of a letter, that his employment would be immediately terminated, with cause. The letter was co-written by Mr. Hryniuk and read, in part, as follows: The decision has been made after a thorough assessment of your conduct which has breached SIGA’s Employee Code of Conduct Policy A04-601, and SIGA’s Anti-Harassment & Workplace Violence Policy A04-611. In addition to breaching these policies, you have also violated the expectations that SIGA has towards yourself in the position of Procurement Process-Support Officer.

The following is an outline of the findings: Conduct and Behavior Policy Violation: Employee Code of Conduct A04-601 • On October 10, 2018 you were called into a meeting at approximately 4:30 p.m.. During this meeting … you continued to question me with respect to the recent employment competition with which you participated in. • You were advised that you were unsuccessful in this competition, where you immediately began to show frustration, anger, and resentment towards me in the position of Director of Procurement.

During this altercation you belittled my position within the department, you antagonized me with respect to the decision that was made, you uttered threats to me, and you placed me in a very awkward position. • The inappropriate comments that were made during this altercation were a direct violation to SIGA’s Employee Code of Conduct Policy, and SIGA’s Anti-Harassment Policy. Your comments and demeanour were unprofessional and not in-line with what SIGA values in each employee. … [ 10 ] The letter also stated that Mr.

Thomas had breached SIGA’s directions regarding communication with other employees and confidentiality respecting the investigation, and that he had requested SIGA property from a colleague while on administrative leave, which “placed this employee in an extremely difficult position, questioning your motives towards the employee and the organization”. [ 11 ] Mr. Thomas appealed the termination to SIGA’s Senior Vice-President of Finance and Administration. His appeal was unsuccessful; the termination was upheld. [ 12 ] Mr. Thomas filed a statement of claim with the Court of Queen’s Bench on November 19, 2018.

In it, he alleged that his employment had been terminated without just cause. He sought to recover the wages he would have earned during the appropriate notice period. [ 13 ] Mr. Thomas also claimed aggravated damages on the basis that SIGA had “engaged in conduct during the course of the dismissal that was unfair and in bad faith by being untruthful, misleading and unduly insensitive”, which had caused him to “suffer mental distress, psychological harm, and damage to his reputation”. Mr. Thomas based this claim on two allegations: (

i) that SIGA had falsely accused him of threatening, belittling and intimidating a supervisor; and (ii) that SIGA had sent out a public notice of his termination before the end of the period during which he could appeal the decision. [ 14 ] SIGA defended the claim on the basis that it had just cause to immediately terminate Mr. Thomas’ employment, on three grounds: (

i) multiple breaches of employment policies; (ii) breaches of the common law duties of confidentiality and good faith (i.e., communicating with other employees about the investigation and attempting to acquire SIGA property from one of them); and (iii) harassment and insubordination towards a supervisor. [ 15 ] The action proceeded to trial in the Court of Queen’s Bench. As noted above, the trial judge dismissed Mr. Thomas’ claim, finding that SIGA had just cause to terminate his employment, based on his conduct during the October 10, 2018, meeting with Mr. Hryniuk.

In that respect, the trial judge wrote: [32] I return, then, to a consideration of whether Mr. Thomas, during the meeting, “engaged in misconduct that is incompatible with the fundamental terms of the employment relationship”. I conclude that he did. [33] I find that Mr. Thomas became angry and aggressive. He elevated the tension in the room to the point where Mr. Hryniuk, his supervisor, felt threatened. As pleaded by SIGA, he directed frustration, anger and resentment towards his supervisor, Mr. Hryniuk. He belittled Mr.

Hryniuk, attacking him on a point (dealing with First Nations men) of fundamental significance to SIGA (as a First Nations organization) and to Mr. Hryniuk (as a white person working in a First Nations organization). Overall, he was insubordinate to Mr. Hryniuk. [34] The employer-employee relationship could not continue after Mr. Thomas engaged in this conduct. The relationship had been irretrievably severed. The relationship requires a fundamental trust between employer and employee, and a capacity to work together. Mr. Thomas' conduct destroyed both that fundamental trust and the capacity to work together. Mr.

Hryniuk cannot work with Mr. Thomas, and it is not realistic or reasonable to think that any other person in a supervisory or management role with SIGA could do so. Effectively, Mr. Hryniuk was aggressive and insubordinate not only to Mr. Hryniuk but also to SIGA itself and its managers and supervisors. [35] Despite Mr. Thomas' many years of service with SIGA, and despite SIGA's previously-expressed hope that with continued training Mr. Thomas would advance within the organization, his conduct during the meeting struck at the heart of the employment relationship. [36] Furthermore, with that conduct Mr.

Thomas breached SIGA policies that he knew applied to him. He has acknowledged that he was bound to follow the policies, and that he had been aware of the content and effect of the policies. In particular, his conduct during the meeting breached: (

a) the Employee Code of Conduct policy, in that he did not treat Mr. Hryniuk and Mr. Bugler with dignity and respect, and he did not conduct himself appropriately and professionally; and

(

b) the Anti-Harassment & Workplace Violence policy, in that he engaged in disruptive behaviour towards Mr. Hryniuk. [37] SIGA had just cause to dismiss Mr. Thomas without notice or pay in lieu thereof. [16] The trial judge also concluded that Mr. Thomas had breached SIGA’s instruction not to communicate with other employeesduring the course of the investigation and that he had breached the Employee Code of Conduct regarding confidentiality by trying toobtain proprietary documents belonging to SIGA for the use of another organization.

He found that neither of these two misdeeds werecause for dismissal on their own but, when taken together with Mr. Thomas’ conduct in the October 10, 2018, meeting, they supported theconclusion that SIGA had just cause for dismissal, because “[t]he irreparable rift in the employer-employee relationship was made evendeeper by Mr. Thomas having breached the direction and by Mr. Thomas having requested the tender documents” (Trial Decision, at para51). [17] The trial judge also considered and dismissed Mr. Thomas’ claim for aggravated damages. He found that nothing in the mannerin which SIGA had dealt with Mr.

Thomas could be described as being unfair or in bad faith and that “[n]othing that it did is demonstratedto have been untruthful, misleading or unduly insensitive” and, moreover, the evidence did not establish that the loss and upset that Mr.Thomas experienced had resulted from the manner of the dismissal as opposed to the fact of the dismissal (Trial Decision at paras 55–56). III. THE ISSUES [18] In light of the facts, the arguments advanced by the parties, and the applicable law, the resolution of this appeal is determinedby answering the following questions: (

a) Did the trial judge err in concluding that SIGA had just cause to dismiss Mr. Thomas without notice? (

b) Did the trial judge err in awarding costs to SIGA on Column 2 of the Tariff? IV. ANALYSIS A. Did the trial judge err in concluding that SIGA had just cause to dismissMr. Thomas without notice? [19] The trial judge found that SIGA had just cause to dismiss Mr. Thomas without notice. Mr. Thomas asserts that, in reaching thatconclusion, the trial judge committed several errors, including: (

a) finding that Mr. Thomas’ conduct in the October 10, 2018, meeting with Mr. Hryniuk amounted to insubordination; (

b) finding that Mr. Thomas had breached the anti-harassment and workplace violence policies without having made adetermination that Mr. Hryniuk’s fear of Mr. Thomas was reasonable; (

c) finding that Mr. Thomas’ complaints about perceived discrimination were a form of misconduct; (

d) finding that a single act of misconduct was sufficient to amount to just cause for dismissal; and (

e) finding that Mr. Thomas had violated the instruction not to contact other employees supported SIGA’s position, when theinstruction was neither lawful nor clear; [20] I will address each of these arguments in turn but, before doing that, it may be useful to briefly review some of the legalprinciples applicable to the question of dismissal for cause. 1.

Dismissal for cause – the governing legal principles [21] The determination of whether an employee’s alleged misconduct amounts to just cause for dismissal involves a contextualanalysis with an eye to proportionality (McKinley v BC Tel, 2001 SCC 38, [2001] 2 SCR 161 [McKinley]; Balzer v Federated Co-operatives Ltd., 2018 SKCA 93 at paras 19 and 50, [2019] 1 WWR 411; Retail, Wholesale Department Store Union v YorktonCooperative Association, 2017 SKCA 107 at paras 37 and 40).

The question to be addressed is whether, in the circumstances, thebehaviour of the employee was such that the employment relationship could no longer viably exist (McKinley at para 29). In Dowling vOntario (Workplace Safety and Insurance Board) (2004), (ON CA), 246 DLR (4th) 65 (Ont CA), Gillese J.A.summarized the principles emerging from McKinley as follows: [49] Following McKinley, it can be seen that the core question for determination is whether an employee has engaged in misconductthat is incompatible with the fundamental terms of the employment relationship.

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

3. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response). [ 22 ] Whether misconduct amounts to just cause for dismissal is a question of mixed fact and law ( Lau v Royal Bank of Canada , 2017 BCCA 253 at para 35 ; Steel v Coast Capital Savings Credit Union , 2015 BCCA 127 at para 31 , 383 DLR (4th) 481). This means the applicable standard of review is one of palpable and overriding error, unless an extricable error of law or principle is identified ( Housen v Nikolaisen , 2002 SCC 33 at paras 36–37 , [2002] 2 SCR 235). 2. The principles applied to Mr.

Thomas’ arguments [ 23 ] Mr. Thomas’ first line of attack is that the trial judge erred by finding, as he did in paragraphs 33 and 34 of the Trial Decision , that Mr. Thomas had been insubordinate to Mr. Hryniuk during the October 10 meeting. Citing Henry v Foxco Ltd. , 2004 NBCA 22 at para 76 , 269 NBR (2d) 63 [ Henry ], he contends that insubordination means “an employee’s intentional refusal to obey an employer’s lawful and reasonable orders”. He argues that, while the trial judge’s factual findings may have supported a conclusion that he was insolent towards Mr.

Hryniuk, they did not support a finding that he had been insubordinate, because he had not disobeyed any lawful and reasonable orders during the October 10 meeting. Mr. Thomas submits that this error provides a basis for appellate intervention because insolence is generally seen as a less serious form of misconduct than insubordination, and it was a legal error or an error in principle for the trial judge to have conflated the two concepts. [ 24 ] I would not give effect to this argument. As I will explain, even though the trial judge may have been incorrect to describe Mr.

Thomas’ conduct during the October 10 meeting as insubordination, when the Trial Decision is read as a whole, it is apparent that this error had no impact on the bottom-line result. [ 25 ] In its statement of defence, SIGA had pleaded that Mr. Thomas’ conduct during the October 10 meeting amounted to “[h]arassment and insubordination towards a supervisor”. However, when those pleadings are read in light of all of the evidence, including the dismissal letter, it is apparent that SIGA was really asserting that Mr. Thomas had been insolent.

Insubordination and insolence on the part of an employee are each capable, on their own, of giving just cause for dismissal, and both are frequently used interchangeably (see, generally, David Harris, Wrongful Dismissal , loose-leaf (Rel 10, October 2021) vol 1 (Toronto: Thomson Reuters, 2021) at §5.54 [Harris]; and Henry at para 34 ). As I read McKinley , the particular label attached to the category of misconduct does not govern the determination.

The requisite contextual analysis calls for consideration of the degree of the misconduct that is said to justify dismissal and an assessment of whether, having regard to all the circumstances, it is of such a nature as to destroy the employment relationship. [ 26 ] In my view, the trial judge correctly instructed himself on the law with respect to what amounts to just cause for dismissal. Indeed, Mr. Thomas does not assert legal error with respect to the trial judge’s identification of the applicable law.

In the paragraphs that followed the reference to insubordination, the trial judge’s reasons demonstrate that, regardless of whether the proper label was applied to Mr. Thomas’ misconduct, he kept his focus in the right place, namely, the seriousness of the misconduct and its effect on the continuing viability of the employment relationship. [ 27 ] Mr. Thomas’ second argument is that the trial judge erred by finding that he had breached SIGA’s Anti-Harassment and Workplace Violence policy. The relevant portion of this policy reads as follows: 4. Policies 4.1 Harassment and Workplace Violence 1. Policy a.

SIGA has zero tolerance and is committed to providing a safe and healthy work environment free from violence, threats of violence, harassment, intimidation and disruptive behaviours for all our employees, contractors and patrons. SIGA strictly prohibits harassment or violence that affects the workplace. … 3. Employees - Employees shall not engage in the harassment of, or violence towards, any co-worker, contractor or patron… … 5.

Definitions 5.1 Harassment 1. Harassment means any inappropriate conduct, comment, display, action or gesture by a person that constitutes a threat to the health or safety of a worker. … 5.2 Workplace violence 1. The attempted, threatened or actual conduct of a person that causes or is likely to cause injury, and includes any threatening statement or behaviour that gives a worker reasonable cause to believe that the worker is at risk of injury. 2. Incidents of violence include:

a. Attempted or actual assaults; and b. Any threatening statement or behaviour which gives the employee reasonable cause to believe that he/she is at risk of injury [ 28 ] The basis for Mr. Thomas’ argument on this point is that the trial judge found as a fact that, during the October 10 meeting, Mr. Thomas had not uttered an explicit threat to Mr. Hryniuk, but only that “Mr. Hryniuk felt threatened by Mr. Thomas” ( Trial Decision at para 31). Mr. Thomas points out that the trial judge accepted that Mr.

Hryniuk “was hurt, and that he felt threatened, and that he was fearful to the point of deferring his departure from the SIGA building and deferring his arrival at his own home” because of Mr. Thomas’ conduct in the meeting (at para 29), but no finding was made about whether Mr. Hryniuk’s fear was reasonable, or whether it was simply an overreaction. Mr. Thomas says that, in the absence of an explicit threat, or a finding that Mr.

Hryniuk had reasonable cause to believe that he was at risk of injury, it was an error for the trial judge to have found that he had breached the Anti-Harassment and Workplace Violence policy, because his conduct did not meet the definition of workplace violence. [ 29 ] I would also not give effect to this argument, in large measure because it is based on an improperly narrow reading of one portion of the policy. This narrow reading ignores both the policy’s full wording and the trial judge’s findings of fact. As set out above, the policy clearly prohibits “harassment, intimidation and disruptive behaviours”.

The trial judge found that, during the October 10 meeting, Mr. Thomas had become angry and aggressive with Mr. Hryniuk (including physically leaning toward him and pointing his finger at him), had directed anger and resentment towards him, and had elevated the tension in the room to the point that Mr. Hryniuk felt threatened. He also found that Mr. Thomas had used profane language and belittled Mr. Hryniuk on a point of fundamental significance to SIGA. [ 30 ] It is important to note here that the trial judge did not rely solely on the evidence of Mr.

Hryniuk in making those findings; there was also the testimony of Mr. Bugler, which he explicitly accepted. Mr. Bugler testified that, during the incident in question, he briefly thought that Mr. Thomas “might take a swing” at Mr. Hryniuk. He also said that, even though he had dealt with many angry employees during his career, he had never before seen anything like what he observed in Mr. Thomas that day. In the face of that evidence, I can see no error in the trial judge’s conclusion that Mr. Thomas’ actions amounted to “disruptive behaviour towards Mr.

Hryniuk” that violated the Anti-Harassment and Workplace Violence policy ( Trial Decision at para 36(b)). In light of that conclusion, there was no need for the trial judge to make a specific finding about whether Mr. Hryniuk reasonably feared for his safety, so as to engage the definition of “workplace violence” on that basis as well. [ 31 ] Mr. Thomas’ third argument is that the trial judge effectively punished him for complaining to his supervisors about what he perceived as discriminatory treatment. It was an error, says Mr.

Thomas, for the trial judge to have found this to be misconduct. [ 32 ] I reject this argument as well. As I read the Trial Decision , the trial judge did not find Mr. Thomas’ conduct during the October 10 meeting to be problematic because he had raised a complaint about perceived discrimination. The motivation for Mr. Thomas’ actions was not the issue; his actions and his conduct towards Mr. Hryniuk were the problem. To put that another way, it was the manner in which Mr.

Thomas had gone about voicing his displeasure (which included profane language, belittling comments and physically intimidating actions that caused his supervisor to be fearful), that led to the finding of just cause, not the subject matter that he had raised. I do not accept Mr. Thomas’ assertion that upholding the trial judge’s reasoning would amount to a finding that employees cannot raise legitimate concerns about discrimination without fear of giving cause for dismissal.

Regardless of the subject matter of a complaint, the manner in which it is raised is a relevant and important component of the contextual analysis when considering whether there is just cause for dismissal. [ 33 ] Mr. Thomas’ fourth argument zeroes in on the fact that his conduct on October 10, 2018, was an isolated incident, which ended when he left the meeting of is own accord, and that he had no prior history of misconduct. He also notes that Mr. Hryniuk agreed that the incident was very much out of character. In light of all this, Mr.

Thomas asserts that the trial judge erred by finding that a single act of misconduct was sufficient to amount to cause for

summary dismissal. [ 34 ] In particular, Mr. Thomas contends that the trial judge failed to have proper regard for the relevant jurisprudence, citing Gjema v Mercury Specialty Products Inc. , 2012 MBQB 83 , 277 Man R (2d) 199; Shakur v Mitchell Plastics , 2012 ONSC 1008 ; and Phanlouvong v Northfield Metal Products

(1994) Ltd. et al , 2014 ONSC 6585 , as examples of decisions in which more egregious acts of workplace violence were held to be insufficient to amount to cause for dismissal. I understand this to be an assertion that the trial judge overlooked such important factors as the relative lack of actual physical violence involved in Mr. Thomas’ outburst, and SIGA’s failure to consider whether there were reasonable alternatives to dismissal. [ 35 ] Once again, I do not find this argument persuasive.

In my view, it misses one of the central points of the decision in McKinley , namely that, under the contextual analysis, the question of whether an employee’s misconduct is sufficient to amount to cause for

summary dismissal is largely factual in nature. It is fair to say that in many – perhaps even most – cases, a single incident of misconduct in the nature of insubordination or insolence will be insufficient to justify immediate dismissal. But it would be incorrect to say that a single incident of such misconduct can never justify immediate dismissal. The determining factor is whether the nature of the misconduct causes irreparable damage to the employment relationship. That determination must be rooted in the particular facts of each case, as Robertson J.A. observed in Henry : [111] A review of the jurisprudence leads me to conclude that a single incident of insolence will justify

summary dismissal of an employee in one of three circumstances: (1) the employee and superior are no longer capable of maintaining a working relationship; (2) the incident undermined the supervisor’s credibility in the workplace and, correlatively, his or her ability to supervise effectively; or (3) that because of the incident the employer suffered a material financial loss, a loss of reputation or its business interests were seriously prejudiced. I confess that these three possibilities do not constitute discrete tests to be applied independently of one another.

They may overlap and other exceptional circumstances may exist: see generally Ellen E. Mole, The Wrongful Dismissal Handbook (Toronto: Butterworths, 1997) at pp. 75-76. [112] The impact of the misconduct on the working relationship between the two persons involved in the verbal exchange is a necessary consideration. Depending on what was said, the ability of the two employees to continue working together must be addressed. As well, the impact that the confrontation had on other employees who witnessed the incident is equally pertinent.

A supervisor’s ability to manage effectively can be undermined, if his or her credibility is destroyed in front of other employees. Finally, the misconduct may be prejudicial

to the employer’s legitimate financial interests. [113] Admittedly, the above framework is not entirely objective. An element of subjectivity exists because of the need to drawinferences from primary findings of fact. The decision-maker must draw his or her own inferences based on the totality of the evidence. … (Emphasis in original) [36] Harris also notes that a single violent outburst by an employee, whether verbal, physical or both, against an employer orsupervisor “will frequently provide cause for

summary dismissal”, because “[i]t is obvious that such conduct carries a high risk ofdestruction of the employment relationship” (at §5.55). [37] There are also several examples in the jurisprudence of cases in which a single incident of insolence, not involving physicalviolence, has been found to amount to cause for immediate dismissal. One such example is Bennett v Cunningham (2006), (ON SC), 55 CCEL (3d) 304 (Ont Sup Ct [Bennett]). In that case the plaintiff, a junior lawyer, was employed by a senior lawyer ina two-person practice.

The plaintiff sent a letter to the senior lawyer that was highly critical of the way the office was run and questionedthe senior lawyer’s integrity. After being dismissed without notice, the plaintiff sued for wrongful dismissal. The trial judge dismissed theaction, finding that the employer had just cause to terminate the plaintiff. In that respect, the trial judge observed that “a single incident ofinsolence will justify

summary dismissal if the employer and employee are no longer capable of maintaining a working relationship” andthat “the comments and accusations in the letter undermined the confidence” that the employer had in the plaintiff and “destroyed theemployment relationship” (at paras 34 and 42).

The Ontario Court of Appeal ultimately upheld the trial decision, finding that “the trialjudge’s conclusion in this regard is essentially factual in nature, and, absent palpable and overriding error, will not be overturned onappeal” (Bennett v Cunningham, 2012 ONCA 540, at para 17, 296 OAC 343). [38] Another example is seen in Wise v Broadway Properties Ltd., 2005 BCCA 546, 218 BCAC 204. In that case, the plaintiff hadworked for approximately 10 years as resident caretaker of an apartment block.

In a letter to his employer, he threatened to bring an actionagainst the employer to recover the value of work for which he believed he was entitled to be paid, and compared himself to Jewish peoplewho had been forced to perform unpaid labour for various corporate entities in Germany during the Second World War. The plaintiff’sprincipal, a Jewish man, was understandably deeply offended by this. The plaintiff’s employment was terminated without notice and hesued for wrongful dismissal.

The trial judge dismissed the action, finding that the insult in the letter had destroyed any chance of aworkable relationship between the plaintiff and his employer. The British Columbia Court of Appeal upheld the trial decision, saying“[t]he trial judge’s conclusion about the effect of the insult on the employment relationship is bound up in his appreciation of the evidenceand it is not palpably wrong. That being so, we cannot interfere with the result” (at para 20). [39] In the present case, as set out above, the trial judge drew several key conclusions about Mr. Thomas’ conduct.

Most pointedly,he found that Mr. Thomas’ conduct in the October 10, 2018, meeting was of such a nature that the “employer-employee relationship couldnot continue” because it “had been irretrievably severed” (Trial Decision at para 34). The trial judge held that what Mr. Thomas had donein the meeting had “destroyed both that fundamental trust and the capacity to work together” that was pivotal to the employmentrelationship, and that it was “not realistic or reasonable to think that any other person in a supervisory or management role with SIGAcould” work with him. Accordingly, the trial judge concluded that Mr.

Thomas’ misconduct “struck at the heart of the employmentrelationship” (at paras 34–35). These were all factual findings and I see no palpable or overriding error in any of them. As such, they areentitled to deference. [40] Moreover, I see no error in the trial judge’s application of the law to his factual findings. He instructed himself properly withrespect to the governing law and applied the contextual approach in the way that McKinley directs. In short, there is no proper basis tointerfere with his conclusion on this point. [41] Mr.

Thomas’ final argument is that the trial judge erred by finding that he had committed misconduct by violating theinstruction not to contact other employees during the investigation, because the instruction was neither lawful nor clear. [42] I would also not give effect to this argument. Even if I were to assume, for the sake of argument, that the trial judge had erred inthis respect, such an error could not be said to have had an impact on the bottom-line conclusion. The trial judge found that just cause fordismissal had been established on the basis of Mr. Thomas’ conduct in the October 10, 2018, meeting alone.

Whether or not Mr. Thomashad violated SIGA’s instruction not to communicate with other employees during the investigation had no bearing on that determination. [43] In the result, I find no basis to interfere with the trial judge’s conclusion that SIGA had just cause to terminate Mr. Thomas’employment without notice. That conclusion, as Mr. Thomas conceded before this Court, also precludes any interference with the trialjudge’s determination regarding aggravated damages. B. Did the trial judge err in awarding costs to SIGA on Column 2 of the tariff? [44] After dismissing Mr.

Thomas’ claim, the trial judge awarded costs to SIGA on column 2 of the Tariff of Costs. He gave noexplicit reasons for doing so. Mr. Thomas argues that the absence of reasons, in and of itself, amounts to a legal error. He also suggeststhat neither the length nor the complexity of the matter justified a departure from assessing costs on Column 1. [45] I would reject this argument as well. Two important points guide me to this result.

The first is that costs awards are inherentlydiscretionary in nature and, as such, appellate courts will interfere only where the judge who made the award “misapplied some governingprinciple or rule or disregarded some critical fact or other consideration” or if the “costs award is itself ‘so obviously unjust as to inviteintervention’” (Wongstedt v Wongstedt, 2017 SKCA 100 at para 41, [2018] 4 WWR 82).

The second important point is that a lack ofreasons for a costs award is not, standing alone, a justification for appellate intervention (K.R. v J.K., 2018 SKCA 35 at para 101). [46] Rule 11-1 of The Queen’s Bench Rules speaks to a judge’s discretion to award costs. The general rule is that the successfulparty in an action is entitled to costs. Rule 11-1(3)(

a) provides that the court may “fix all or part of the costs with or without reference tothe Tariff”. Rule 11-1(4) lists a number of factors that the court may consider in exercising its discretion as to costs. Among others, theyinclude the result of the proceedings, the amounts claimed and recovered, the importance of the issues, the complexity of the proceedings,

and the conduct of the parties within the proceedings. As with the decision of whether to award costs, the decision as to which column of the Tariff should be used involves an exercise of discretion. In 1348623 Alberta Ltd. v Choubal , 2016 SKQB 200 , 94 CPC (7th) 210, Danyliuk J. succinctly described the factors to be considered in that respect: [28] There is no “magic” rule to apply to determine costs.

As stated in Northland Material Handling Inc. v Parkland (County) , 2012 ABQB 586 at para 26 , 77 Alta LR (5th) 150 : “Rather than one principle, the weight of the case law establishes that the facts and circumstances of each particular case must be assessed to determine whether a higher column or a multiple of a column is appropriate in that case”. I agree. … [30] Our Queen’s Bench Rules list some factors to consider in deciding what cost award to make. There is no corresponding list to determine which column of the tariff to use once that cost order is made.

The tariff itself clearly imports complexity as the dominant consideration in selection of a column. [31] Distilling the cases and considering the nature of our Rules and tariff, it strikes me that in determining on which column party-and- party costs ought to be awarded, the following factors should be considered: (

a) Complexity of the case. … (

b) Importance of the case. … (

c) The duration and conduct of the proceedings. … (

d) The urgency of the matter. … (

e) The amount at issue. … (

f) Whether experts were involved. … (

g) Parity and expectations. … (

h) Access to justice. … (

i) Discretion and reasonableness. … (

j) Any other relevant matter. … (Emphasis in original) [ 47 ] In the present case, the issues cannot be described as particularly complex and the amount of money at issue was not large by contemporary litigation standards. That said, the case concerned a matter of fundamental importance to both Mr. Thomas and SIGA. It also involved a trial that lasted three days, during which each side called and examined several witnesses and tendered documentary evidence.

As SIGA points out, comparable cases in which actions for wrongful dismissal have proceeded to trial have resulted in costs awards on Column 2 (see, for example, Kraus v S3 Manufacturing Inc. , 2020 SKQB 175 ; and Compton v Partners in Motion Pictures Inc. , 2005 SKQB 310 , 42 CCEL (3d) 35. Taking all of that into account, I see no basis to conclude that the trial judge misapplied a governing principle or that he disregarded a material fact or other material consideration in the exercise of his discretion regarding costs. Nor am I persuaded that the costs award is obviously unjust.

Accordingly, deference is warranted. V. CONCLUSION [ 48 ] For the foregoing reasons, the appeal is dismissed. SIGA is entitled to the costs of the appeal, calculated in the usual way. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Leurer J.A.” Leurer J.A.