Kucera v. Qulliq Energy Corp., (2015) 600 A.R. 129

• Judge: Berger, Rowbotham and Brown, JJ.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: April 24, 2015
• Jurisdiction: Nunavut
• Citations: (2015), 600 A.R. 129;2015 NUCA 2

Kucera v. Qulliq Energy Corp. (2015), 600 A.R. 129; 645 W.A.C. 129 (NUCA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MY.076

Sarah Kucera (appellant) v. Qulliq Energy Corporation (respondent)

(08-14-02-CAC; 2015 NUCA 2)

Indexed As: Kucera v. Qulliq Energy Corp.

Nunavut Court of Appeal

Berger, Rowbotham and Brown, JJ.A.

April 24, 2015.

Summary:

Kucera began her employment with Qulliq Energy Corporation (QEC) in July 2009. In August 2010, Kucera became concerned that she had been constructively dismissed. She wrote a letter to QEC which stated that she was "reluctantly prepared to enter into negotiations for an appropriate termination package" and would continue to "fulfil her overall responsibilities for so long as negotiations continue and appear to be making progress." QEC responded the following day by sending Kucera a letter which stated that her employment was being terminated. Kucera brought an action against QEC for damages, asserting that she was dismissed without cause and constructively dismissed.

The Nunavut Court of Justice, in a decision reported at [2014] Nunavut Cases Uned. 2, dismissed the action. The court found that Kucera's letter to QEC was a repudiation of her employment contract which QEC accepted, and that Kucera was not constructively dismissed. Kucera appealed.

The Nunavut Court of Appeal, Berger, J.A., dissenting, dismissed the appeal.

Courts - Topic 584

Judges - Duties - To determine issues - Kucera brought an action against her former employer, alleging that she had been dismissed without just cause and constructively dismissed - The trial judge dismissed the action, finding that Kucera (1) had not been constructively dismissed, and (2) had repudiated the employment contract and the employer had accepted that repudiation - Kucera appealed, arguing that the trial judge erred by failing to adjudicate on the issue of whether she was dismissed without cause - The Nunavut Court of Appeal dismissed the appeal - A trial judge was not obligated to adjudicate every issue pleaded - The statement of defence clearly raised the issue of repudiation - Given the trial judge's conclusion regarding repudiation and constructive dismissal, it was not necessary to adjudicate the remaining issues - See paragraphs 15 to 18.

Master and Servant - Topic 2264

Breach of contract - Repudiation by employer or employee - What constitutes repudiation - Kucera was employed by Qulliq Energy Corporation (QEC), a Crown corporation - After becoming concerned that she had been constructively dismissed, she wrote a letter to QEC which stated that she was "reluctantly prepared to enter into negotiations for an appropriate termination package" and would continue to "fulfil her overall responsibilities for so long as negotiations continue and appear to be making progress." - QEC sent Kucera a letter the following day which stated that her employment was being terminated - Kucera brought an unjust dismissal action against QEC - The trial judge dismissed the action, finding that Kucera's letter constituted a repudiation of the employment contract which QEC accepted - The Nunavut Court of Appeal dismissed Kucera's appeal - Kucera's letter contained a clear and unequivocal intention to terminate the employment relationship - It was not an attempt to resolve differences - Kucera's attempt to politicize the matter by copying members of the Board of Directors and the Minister of Energy was also incongruous with a continuing employment relationship - When placed in the context of Kucera's letter, QEC's letter could reasonably be construed as acceptance of repudiation - See paragraphs 19 to 26.

Master and Servant - Topic 7502

Dismissal or discipline of employees - General principles - What constitutes dismissal or discharge (incl. constructive dismissal) - Kucera alleged that she had been constructively dismissed from her employment with a Crown corporation because, inter alia, (1) her position was downgraded from grade G to F; (2) her responsibilities changed when the receipt and coordination of briefing notes for the Minister of Energy was transferred to a new division; and (3) the working environment was hostile - The trial judge found that Kucera was not constructively dismissed - First, Kucera continued to receive salary increases despite the downgrading of her position - Second, although she spent less time coordinating briefing notes for the Minister, it was not eliminated from her responsibilities and did not impact her status - Employers had to have some flexibility to restructure in response to changes and as circumstances demanded - Third, although there were difficulties between Kucera and the Director of Human Resources, there were also times when the relationship was supportive and friendly - The Nunavut Court of Appeal dismissed Kucera's appeal - There was no basis to interfere with the trial judge's conclusion - See paragraphs 27 to 33.

Cases Noticed:

Alberta Permit Pro et al. v. Booth et al. (2009), 460 A.R. 129; 462 W.A.C. 129; 2009 ABCA 146, refd to. [para. 14].

Schumacher v. Toronto-Dominion Bank et al. (1997), 30 O.T.C. 172; 147 D.L.R.(4th) 128; 29 C.C.E.L.(2d) 96 (Gen. Div.), affd. (1999), 120 O.A.C. 303; 173 D.L.R.(4th) 577 (C.A.), leave to appeal dismissed (2000), 252 N.R. 394 (S.C.C.), dist. [para. 19], refd to. [para. 42].

Potter v. Legal Aid Services Commission (N.B.) (2015), 468 N.R. 227; 432 N.B.R.(2d) 1; 1128 A.P.R. 1; 2015 SCC 10, refd to. [para. 22].

Farber v. Compagnie Trust Royal, [1997] 1 S.C.R. 846; 210 N.R. 161; 145 D.L.R.(4th) 1, refd to. [para. 27].

Danielisz v. Hercules Forwarding Inc., [2012] B.C.T.C. Uned. 1155; 1 C.C.E.L.(4th) 76; 2012 BCSC 1155, refd to. [para. 31].

Skidd v. Canada Post Corp. (1993), 47 C.C.E.L. 169 (Ont. Gen. Div.), refd to. [para. 42].

Counsel:

P.G. Hunt, for the appellant;

R.R. Beamish, for the respondent.

This appeal was heard before Berger, Rowbotham and Brown, JJ.A., of the Nunavut Court of Appeal. The following memorandum of judgment of the court was delivered on April 24, 2015, and included the following opinions:

Rowbotham and Brown, JJ.A. - see paragraphs 1 to 34;

Berger, J.A., dissenting - see paragraphs 35 to 47.