Karmali v. Donorworx Inc.,

• Judge: Robertson
• Neutral Citation: 2015 ABQB 105
• Subject Matter: PRACTICE,CONFLICT OF LAWS,EMPLOYMENT LAW
• Citation: 2015 ABQB 105,(2015), 610 A.R. 258 (QBM),610 AR 258,(2015), 610 AR 258 (QBM),610 A.R. 258
• Date: 14 January 2015
• Court: Court of Queen's Bench of Alberta (Canada)

Karmali v. Donorworx Inc. (2015), 610 A.R. 258 (QBM)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.080

Zahra Karmali (plaintiff) v. Donorworx Inc. (defendant)

(1301 05235; 2015 ABQB 105)

Indexed As: Karmali v. Donorworx Inc.

Alberta Court of Queen's Bench

Judicial District of Calgary

Robertson, Master

February 11, 2015.

Summary:

Karmali was hired by Donorworx Inc. and began working in Alberta in March 2010. In June 2011, Karmali transferred to Donorworx's head office in Ontario. In September 2011, Donorworx terminated Karmali's employment and offered her one week's pay in lieu of notice. Karmali filed a claim with the Ontario Ministry of Labour. The Ministry held that Karmali was entitled to an additional week of pay in lieu of notice. Karmali subsequently commenced a wrongful dismissal claim against Donorworx in Alberta. Donorworx applied for summary judgment dismissing the claim.

A Master of the Alberta Court of Queen's Bench allowed the application and dismissed the claim.

Conflict of Laws - Topic 643

Jurisdiction - Submission to jurisdiction - What constitutes - [See Master and Servant - Topic 8351 ].

Conflict of Laws - Topic 646

Jurisdiction - Submission to jurisdiction - Effect of - [See Master and Servant - Topic 8351 ].

Master and Servant - Topic 8323

Employment and labour standards - Enforcement - Civil actions - [See Master and Servant - Topic 8351 ].

Master and Servant - Topic 8351

Employment and labour standards - Jurisdiction and powers of director, tribunal, referees or officers - Action against employer - When available - Karmali was hired in Alberta by an Ontario company (Donorworx) to work in various places throughout the country - Her work began in Alberta in March 2010 - She transferred to Ontario in June 2011 - In September 2011, Karmali was terminated without cause - Donorworx offered her one week's pay in lieu of notice - Karmali filed a claim with the Ontario Ministry of Labour - The Ministry held that Karmali was entitled to an additional week of pay in lieu of notice - Having brought a claim through the Ministry, Ontario's Employment Standards Act provided that she could not then bring civil proceedings - Alberta's Employment Standards Code did not contain such a restriction - Karmali commenced a wrongful dismissal claim against Donorworx in Alberta - A Master of the Alberta Court of Queen's Bench allowed Donorworx's application for summary judgment dismissing the claim - There was no express agreement as to which province's laws would apply to the employment relationship - By invoking the enforcement provision of the Ontario legislation, Karmali had attorned to the jurisdiction of the Ontario regulator's regime, and by doing so she accepted its recovery process - She could not pick and choose which provisions of the Ontario legislation applied to her - See paragraphs 36 to 61.

Practice - Topic 3604.7

Evidence - Affidavits - General - Time for filing - The employer in a wrongful dismissal action applied for summary judgment dismissing the action - The employee asked for an adjournment to provide evidence - A Master directed that it be done by an affidavit filed and served by January 7 - The hearing was scheduled for January 14 - The employee did not file and serve her affidavit until January 13 - The employer objected to the late filing of the affidavit - A Master of the Alberta Court of Queen's Bench stated "When an application has been adjourned a matter of weeks (it was about a month here, with the Christmas break intervening) expressly for the respondent to file and serve an affidavit, it will be a rare occasion when it is appropriate to serve it only the day before the return date unless that is specifically allowed by the court in advance. ... Sending a courtesy unsigned draft to the applicant's counsel in advance of receiving a sworn copy would have alleviated any prejudice or concern about the last minute service. That appears not to have been done. However, the circumstances are that this is an application for summary judgment to finally terminate the plaintiff's claim, and these circumstances dictate that her evidence should be reviewed by the court. The late filing and service may more appropriately be dealt with as a costs factor." - See paragraphs 3 to 9.

Practice - Topic 5710

Judgments and orders - Summary judgments - Evidence - [See Practice - Topic 3604.7 ].

Cases Noticed:

Wilson v. Metcalfe Construction Co., [1947] 3 D.L.R. 491 (Alta. S.C.), refd to. [para. 42].

Dallas Oilfield Contractors Ltd. v. Syroteuk, [1980] 3 W.W.R. 119 (Sask. Dist. Ct.), refd to. [para. 42].

Gagnon v. Coopérative Agricole (1985), 61 N.B.R.(2d) 181; 158 A.P.R. 181 (T.D.), refd to. [para. 42].

Flint Canada Inc. v. Bonokoski (1997), 203 A.R. 225; 145 D.L.R.(4th) 453 (Prov. Ct.), refd to. [para. 42].

Vasquez v. Delcan Corp. et al., [1998] O.T.C. Uned. 335; 38 C.C.E.L.(2d) 230 (Gen. Div.), refd to. [para. 42].

Bode v. Blitz, Barrett and Crown Masonry Ltd. (1999), 243 A.R. 262; 1999 ABPC 21, refd to. [para. 42].

Caglar v. Moore et al., [2005] O.T.C. 935 (Sup. Ct.), refd to. [para. 42].

R. v. Interprovincial Co-Operative Ltd. and Dryden Chemicals Ltd., [1976] 1 S.C.R. 477; [1975] 5 W.W.R. 382; 4 N.R. 231, refd to. [para. 46].

R. v. Royal Bank of Canada, [1913] A.C. 283 (P.C.), refd to. [para. 46].

Tottrup et al. v. Clearwater No. 99 (Municipal District) (2006), 401 A.R. 88; 391 W.A.C. 88; 68 Alta. L.R.(4th) 237; 2006 ABCA 380, refd to. [para. 49].

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. 53].

Counsel:

Jody Sutherland (McLennan Ross LLP), for the defendant;

Ugochukwu C. Ukpabi (Lacourciere Associates), for the plaintiff.

This application was heard on January 14, 2015, before Robertson, Master, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on February 11, 2015.