Smith v. Mistras Canada, Inc., 2015 ABQB 673

• Judge: Goss, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 01, 2015
• Citations: 2015 ABQB 673;[2015] A.R. TBEd. OC.098

Smith v. Mistras Can., Inc., [2015] A.R. TBEd. OC.098

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. OC.098

Lewis Anthony Smith (plaintiff) v. Mistras Canada, Inc. (defendant)

(1201 15786; 2015 ABQB 673)

Indexed As: Smith v. Mistras Canada, Inc.

Alberta Court of Queen's Bench

Judicial District of Calgary

Goss, J.

October 23, 2015.

Summary:

Mistras Canada Inc. carried on the business of non-destructive testing and inspection of oil and gas pipe and other industrial systems. Smith began working with Nomad Inspection Services in 2003. In 2008, Nomad was acquired by Mistras and Smith's employer changed, without interruption, to Mistras. Smith was originally hired in sales. Those same duties were later described as "business development". On October 26, 2011, Smith emailed a doctor's note to the Mistras office which stated that Smith would be absent "for an indefinite time period, due to medical reasons". He also sought insurance forms from the benefits person in order to get onto short term disability through the group benefit plan. Mistras terminated Smith's employment on October 28, 2011. He was 62 years old. After his termination, Smith took the Project Management Certificate Program and some business courses at Mount Royal University College. He completed the required courses, but he did not enroll to take the final examination to receive his Project Management Certificate. Smith sued Mistras for wrongful dismissal. Mistras argued that Smith abandoned his employment when he chose to leave his employment indefinitely. Given the abandonment, Mistras treated the employment contract as at an end and terminated Smith. Mistras further argued that if the employment position was not abandoned at law, Smith failed to mitigate his damages.

The Alberta Court of Queen's Bench allowed Smith's action. There was no objective basis upon which Mistras could conclude that Smith abandoned his employment. Nine months' notice was reasonable. It was not unreasonable for Smith to have chosen not to seek alternate employment once he enrolled in the Project Management Program. His failure to actively seek employment while he was in school did not amount to a failure to mitigate. Although his failure to obtain the Certificate was unreasonable, it did not have an impact on the overall notice period. The court also allowed Smith's claim for school receipts for tuition and books of $3,767.40. Smith was entitled to total damages of $59,131.61 plus pre-judgment interest.

Damages - Topic 1004

Mitigation - General principles - What constitute reasonable remedial measures - See paragraphs 53 to 72.

Damages - Topic 1005

Mitigation - General principles - Expenses of mitigation - See paragraphs 81 to 83.

Damages - Topic 6703

Contracts - Employment relationship or contract - General principles - Wrongful dismissal - See paragraphs 73 to 84.

Master and Servant - Topic 7560

Dismissal or discipline of employees - Grounds - Absenteeism or tardiness - See paragraphs 28 to 43.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - See paragraphs 44 to 52.

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - See paragraphs 53 to 72.

Master and Servant - Topic 8069

Dismissal without cause - Damages - Expenses seeking new employment - See paragraphs 81 to 83.

Counsel:

Raymond Bastedo and Sarah Lulman (Jensen Shawa Solomon Duguid Hawkes LLP), for the plaintiff;

Jeff W. Moroz (McLeod Law LLP), for the defendant.

This action was heard on September 28 to October 1, 2015, before Goss, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on October 23, 2015.