Gillespie v. 1200333 Alberta Ltd., (2012) 545 A.R. 28 (QB)

• Judge: Ross, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 13, 2012
• Citations: (2012), 545 A.R. 28 (QB);2012 ABQB 105

Gillespie v. 1200333 Alta. (2012), 545 A.R. 28 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. FE.105

Bonita Gillespie (appellant) v. 1200333 Alberta Ltd. (respondent)

(1103 09982; 2012 ABQB 105)

Indexed As: Gillespie v. 1200333 Alberta Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ross, J.

February 16, 2012.

Summary:

A 52 year old occupational therapist with extensive experience was terminated by her employer after 12 months' employment. She sued for wrongful dismissal.

The Alberta Provincial Court, in a decision reported at [2011] A.R. Uned. 427, dismissed the action. The employee appealed.

The Alberta Court of Queen's Bench allowed the appeal and held that the employee was entitled to reasonable notice of four months plus interest.

Courts - Topic 8406

Provincial courts - Alberta - Provincial Court - Jurisdiction - Monetary - The Alberta Court of Queen's Bench stated that s. 1(a) of the Judgment Interest Act defined "court" as including the Provincial Court of Alberta - As such, the Provincial Court had authority to grant Judgment Interest Act interest - Under s. 9.6(1)(a)(i)(B) of the Provincial Court Act, the Provincial Court had the jurisdiction to hear and adjudicate on any civil claim or counterclaim "for damages, including damages for breach of contract, if the amount claimed or counterclaimed, as the case may be, exclusive of interest payable under an Act or by agreement on the amount claimed, did not exceed the amount prescribed by the regulations" - As such, the Provincial Court could award pre-judgment interest even though it might raise the total value of the damage award above the amount prescribed by the regulations - The award of pre-judgment interest was, therefore, made on top of the monetary limit of the Provincial Court and was not capped by that limit - See paragraph 51.

Master and Servant - Topic 7525

Dismissal or discipline of employees - Grounds - General - Grounds learned after dismissal - A 52 year old occupational therapist with extensive experience was terminated by her employer after 12 months' employment due to communication difficulties and interpersonal conflicts - She was told to clear out her office and leave - She literally did so - She sued for wrongful dismissal - It was later discovered that some of the items removed were letters from patients, stating complimentary things about the employee - The letters constituted confidential information that the employee was not entitled to remove pursuant to non-disclosure agreements she had signed - The employer also sought to rely on this post-termination conduct to justify dismissal - The trial judge dismissed the action, finding that it was justified given the employee's post-termination conduct - The breach of the non-disclosure agreements was a breach of a material term of her employment contract which would prejudice the proper conduct of the employer's business - The Alberta Court of Queen's Bench allowed the employee's appeal - The trial judge erred in law in concluding that the employee's post-termination conduct was sufficient to ground termination for cause - The evidence of the post-termination conduct was not properly admissible - See paragraphs 17 to 32.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - A 52 year old occupational therapist (university degree) with extensive experience was terminated by her employer after 12 months' employment - She earned $83,600 (plus benefits) annually - She was unable to find comparable employment for 18 months - The Alberta Court of Queen's Bench held that reasonable notice was four months' salary and benefits less the notice already given - See paragraphs 34 to 49.

Master and Servant - Topic 8001

Dismissal without cause - Notice of dismissal - Reasonable notice - Effect of statutory requirements - An employee was terminated and given two weeks' notice - An employer's employment manual stated that a termination notice would be in accordance with Alberta employment standards - The employer provided two weeks' notice which was the one week notice required in the Code for an employee with 12 months' service - The employer argued that this provision reflected the parties' intention that the employee would be provided with the minimum notice provided under the Employment Standards Code - The Alberta Court of Queen's Bench rejected the argument - A contractual provision that the termination notice would accord with legislated provincial standards should be interpreted as an agreement regarding minimal notice, not an agreement to exclude the implied contractual term that dismissal without cause required reasonable notice - Although employers were free to make contracts that limited an employee's notice entitlement to the statutory minimums, any such agreement to exclude the employee's common law protection had to be clear and unambiguous - The employer's choice of language was not clear and unambiguous - See paragraphs 39 to 45.

Cases Noticed:

Nelson v. Champion Feed Services Inc., [2010] A.R. Uned. 516; 2010 ABQB 409, refd to. [para. 18].

Compagnie minière Québec Cartier v. Métallurgistes unis d'Amérique, local 6869, [1995] 2 S.C.R. 1095; 183 N.R. 313, refd to. [para. 22].

Lake Ontario Portland Cement Co. v. Groner, [1961] S.C.R. 553, refd to. [para. 22].

Saskatchewan Association of Health Organizations v. Canadian Union of Public Employees, Local 3967, 203 L.A.C.(4th) 1 (Sask. Arb. Bd.), refd to. [para. 22].

Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.J.), refd to. [para. 34].

Hnatiuk v. Gibson (R.W.) Consulting Services Ltd., [2005] A.R. Uned. 157; 2005 ABQB 78, refd to. [para. 36].

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 40].

Vrana v. Procor Ltd. (2004), 346 A.R. 389; 320 W.A.C. 389; 2004 ABCA 126, refd to. [para. 40].

Kosowan v. Concept Electric Ltd. (2007), 404 A.R. 8; 394 W.A.C. 8; 2007 ABCA 85, refd to. [para. 42].

Joseph v. Warren (June) Publishing Ltd., [2007] A.R. Uned. 613; 2007 ABPC 309, refd to. [para. 43].

Carrell v. Worley Parsons Canada Ltd. et al., [2008] A.R. Uned. 737; 2008 ABPC 345, refd to. [para. 44].

MacLean v. Cae Newnes Ltd., [2001] B.C.T.C. 1515; 2001 BCSC 1515, refd to. [para. 47].

Wright v. Chilliwack Community Services, [2000] B.C.T.C. 427; 2000 BCSC 972, refd to. [para. 48].

Counsel:

Robert P. James (Parlee McLaws LLP), for the appellant;

Ronald T. Smith (Duncan & Craig LLP), for the respondent.

This appeal was heard on February 13, 2012, before Ross, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on February 16, 2012.