Calgary HR Law

The appeal body reiterates the test for reconsideration of an appeal of a disciplinary action complaint. It’s not the same test used for reconsideration for decisions under the Labour Relations Code, but the test from Wilson v Grande Yellowhead Public School Division (Board File No. OHS2019-5): Gugumus v West Fraser Mills Ltd., 2025 ABOHSAB 6

The Federal Court grants an application to strike a proposed class action brought on behalf of three groups who died or were hospitalized and either ventilated or treated with oxygen due to Covid-19 largely because the court could not find the claim articulated a legally defined objective standard for assessing whether the federal COVID-19 strategy struck the right balance between medical, economic and social priorities: Perron v. Canada, 2025 FC 356

The Board dismisses a duty of fair representation complaint brought by the complainant who was fired from her job at a long term care facility. The union grieved her termination and was successful at arbitration. The complainant was not interested in reinstatement so only monetary awards were explored. Despite success at arbitration, the complainant took issue with the union not hiring independent counsel for, not providing a translator, and with how the union handled settlement negotiations and the arbitration process generally: Smykalski v The Alberta Union of Provincial Employees, 2025 ALRB 24

The Board reviews the law regarding statutory freeze periods and finds the elimination of a handful of bargaining unit positions (in a unit of approximately 30,000 employees) as part of Alberta health care restructuring fit within the “business as usual” exception: United Nurses of Alberta v Alberta Health Services, 2025 ALRB 25

Arbitrator Sims upholds a series of employer grievances against the union and employees who refused to enter repayment arrangements for money that the employees were overpaid: Atco Electric Ltd. v Canadian Energy Workers Association, 2025 CanLII 15303

The Human Rights Tribunal decides that the complainant may have a support person present during his hearing, but not necessarily his choice of support person. The person of his choice was scheduled to be a witness at the hearing so the request was denied to ensure the Tribunal receives the best evidence possible, protects the fairness of the process for all parties, and does not prejudice the respondent’s ability to call its case: Elliott v Imperial Oil Limited, 2025 AHRC 24

In this appeal, the British Columbia Court of Appeal confirmed the duty of honest performance of contract described by the Supreme Court of Canada in Bhasin v. Hyrnew, 2014 SCC 71 and C.M. Callow Inc. v. Zollinger, 2020 SCC 45 does not apply to dishonest conduct in pre-contractual negotiations where the dishonesty over entitlement to extended benefits coverage was intended to influence the class of plaintiffs to enter into a casual employment agreement with the defendant: Ocean Pacific Hotels Ltd. v. Lee, 2025 BCCA 57

The complainant appealed the dismissal of his disciplinary action complaint. The appeal body agreed that the report prepared by the OHS officer, which found that the complainant was not subject to disciplinary action, was not rational and coherent. The report used an incorrect definition of “disciplinary action” and was not consistent with the three-part test under s. 18 of the Occupational Health and Safety Act for addressing disciplinary action against complainants. The decision is a reminder that compliance with the Act merely has to be “a reason” (rather than “the reason”) for disciplinary action to find a breach and that “just cause” for discipline or termination is not something that the Act considers in the analysis: Barnson v Global Power Technologies, 2025 ABOHSAB 5

The Court of Appeal considered the application of the Arbitration Act in ongoing wrongful dismissal and oppression litigation between a company and its former CEO: Sivitilli v PesoRama Inc, 2025 ABCA 56

The Supreme Court of British Columbia declined to order an interlocutory injunction sought in a dispute over restrictive covenants in a share purchase agreement finding that although the enforceability of the restrictive covenants and potential breach thereof was a serious issue to be tried, the applicants failed to provide evidence of irreparable harm that was not compensable in damages and the balance of convenience favoured maintaining the status quo and not issuing the injunction: Northam Distributor Ltd. v Roman Hardware Inc., 2025 BCSC 238

The complainant was terminated on the day she returned from a medical leave. This lead to an inference that her disability was a factor in the termination and she filed a human rights complaint. The Director summarily dismissed the complaint at the screening stage and the complainant’s appeal was dismissed. The timing of the termination was the only evidence presented to support her complaint, but the respondent provided evidence of the employee’s past disciplinary record along with evidence it had conducted three separate investigations into more recent workplace issues involving the complainant which all supported summary dismissal for reasons unrelated to a protected ground: Amies v Lethbridge Family Services, 2025 AHRC 19

The Alberta Human Rights Commission found the veracity of the evidence collected by the Director did not clearly lend support to one account of the facts over the other and therefore overturned the Director’s decision to dismiss and directed the complaint to a hearing: Christiansen v His Majesty the King in Right of Alberta (Children and Family Services), 2025 AHRC 17

The applicant union argued that the City of Edmonton was either the true employer or the successor employer for a group of employees working for the Ford Edmonton Management Company. The application was brought in 2019 and came to a hearing over various dates between 2021 and 2023. After a thorough review of the facts, the Board considered in detail the test for common and successor employer as well as whether the application should have been dismissed because of delay (not delay related to the almost five years it took for the application to be decided, but delay related to bringing the claim in the first place as the union knew about this issue, allegedly, for over 10 years before they filed their application) before ultimately dismissing the application: CSU 52 and CUPE, Local 30 v Edmonton (City) and Fort Edmonton Management Company, 2025 ALRB 22

In this rather unique set of facts, the complainant alleged that she was discriminated against because she was sexually harassed and sexually assaulted during her employment at a liquor store by one of the owners of the store. The store was owned by a married couple. The respondents argued that the complainant and the husband-owner were in a consensual sexual relationship at the relevant time. Credibility was a key issue. At the hearing, it came to be known that that the complainant’s sister-in-law was concerned that the complainant was having an affair with her boss and hired a private investigator to find out. The private investigator had taken video which captured much of the incident in question. The Tribunal ordered production of the video which seemed to show consensual activity which generally corroborated the respondent’s story. The Tribunal found that the complainant was not being honest and dismissed the complaint: Pujji v 1819010 Alberta Ltd. o/a Liquor King Spruce Grove, 2025 AHRC 15

Forgot to hit “publish” on this one last week. My bad…

The Alberta Court of Appeal considered whether a wrongfully dismissed employee should receive compensation for any loss from his participation in a shareholder profit sharing program over the reasonable notice period. The terms of the agreement governing the plan purported to give the employer the right to buy back the employee’s shares at any time on 90 days’ notice. In the employee’s termination letter, the employer exercised its right to buyback the shares. At trial, the employee argued that but for his wrongful dismissal he would have retained the shares and received payments under the profit sharing plan during the reasonable notice period. The trial judge applied Matthews v Ocean Nutrition and found the profit sharing plan was part of the employee’s compensation and would need to be accounted for over the reasonable notice period. However, the 90 day buyback provision unambiguously limited the employee’s common law right to damages for losses related to the shares and profit sharing program. The Court of Appeal dismissed the employee’s appeal and found the buyback provision limited the employees’ damages related to the profit share plan to just that 90 day period rather than the entire reasonable notice period (which was earlier determined to be 20 months): Kirke v Spartan Controls Ltd, 2025 ABCA 40

The British Columbia Labour Relations Board dismissed a duty of fair representation complaint on jurisdictional grounds brought against the “Staff Representatives’ Union” because the Board had not previously recognized the SRU as a union: Ginette Talbot, 2025 BCLRB 28

In another case out of British Columbia, the Court of Appeal dismissed an appeal of the lower court’s decision to dismiss a proposed class action proceeding. The proposed class had argued that a clause in a since-revised Tim Horton’s franchise agreement contained a “no hire clause” which resulted in a conspiracy by franchisees to harm employees by limited their mobility: Latifi v. The TDL Group Corp., 2025 BCCA 45

In a somewhat rare turn, the Alberta Human Rights Commission overturned a Director’s decision to dismiss and referred the matter to the Tribunal for hearing. The complainant argued that her employer discriminated against her on the basis of religious beliefs when she was disciplined for not complying with their COVID-19 policy. The complainant submitted evidence of her religious beliefs, including notes from the complainant’s own Pastor, and the reviewing Member could not find that there was no reasonable prospect of success: Goman v Canadian Natural Resources Limited, 2025 AHRC 14 

The Ontario Superior Court followed Dufault to hold a without cause termination provision unenforceable because it purported to let the employer terminate employment at “any time.” The court concluded with this interesting observation which I’m sure many employment counsel can relate:

I have no doubt that the defendant, advised by capable counsel, intended only to comply with the ESA. While I take no issue with the law and logic of cases such as Wood and Rossman, they set an exacting standard that many employers and knowledgeable counsel have failed to attain despite their good faith and best efforts.

Baker v. Van Dolder’s Home Team Inc., 2025 ONSC 952

Who you got for the Big Game on Sunday? I think we know who Pat Riley is hoping for...

In 2023, Purolator’s COVID-19 Safer Workplaces Policy was struck down by Arbitrator Glass. The British Columbia Supreme Court dismissed Purolator’s application for judicial review finding the arbitration decision was transparent, intelligible and justified and therefore reasonable: Purolator Canada Inc. v Canada Council of Teamsters, 2025 BCSC 148

The Human Rights Tribunal of Alberta dismissed a father’s application for review of the Director’s decision to dismiss the human rights complaint he filed on behalf of his daughter. He alleged that the respondent ringette association discriminated against her in the area of goods, services, accommodation or facilities on the ground of family status (i.e., being related to her dad). It was alleged her membership in the ringette association was terminated because of the actions of her father. The Commission dismissed the application for review and briefly outlined some of the behaviour that caused the ringette association to terminate membership, including this portion of an email sent by the father:

All you have achieved is the annoyance of somebody who is driven to push you from your ivory tower…

If you punish my daughter for the words and actions of her father, for which she has no control…. I make this solemn and truthful warning to all, I will bring a cascade of holy hell and legal lawsuits to your door…

…I beg you please do not test the depths to which I will go to make my daughter’s life better.

The father claimed that this was not threatening, but the ringette association and the Commission did not agree: LO obo LO v The St. Albert Ringette Association, 2025 AHRC 11

In this lengthy decision, the Human Rights Tribunal of Alberta dismissed the complaints brought by two former employees against the Brazeau Seniors Foundation. The complainants alleged they were discriminated against on the grounds of race, colour, ancestry, place of origin, gender, and family status. They also brought a retaliation complaint against their former employer. The decision touches on a number of issues including the scope of the Tribunal’s authority to grant remedies against employees of the respondent (and others), issue estoppel for those matters related to settled grievances brought by the complainants under a collective agreement, whether the protected characteristics were “a factor” in the adverse impact they suffered, retaliation, and credibility. This matter has a long history and a number of related decisions and likely is not over as Member Scott invited submissions on costs and asked the respondent to address two recent Tribunal decisions on that topic: Stephen and Julien v Brazeau Seniors Foundation, 2025 AHRC 10

The Human Rights Tribunal of Alberta dismissed a complainant’s request for review of the Director’s decision to dismiss her complaint on the basis that she rejected a fair and reasonable settlement as a binding settlement agreement had been reached with respect to the complaint. After negotiating settlement, the complainant objected to the confidentiality and non-disclosure terms of the proposed settlement agreement arguing the public ought to know about the nature of the alleged discrimination involving a public educational institution that works with vulnerable populations. The Commission dismissed the request for review finding that settlement agreement clauses addressing non-disclosure and non-disparagement have been found to be “reasonable and legitimate” and the clause in this case is reasonable: C.S. v Respondent, 2025 AHRC 9

In another request for review decision, the Human Rights Tribunal of Alberta dismissed this application because the complainant failed to bring evidence that demonstrated his employment was terminated because he raised awareness about systemic racism on campus and because the matter had already been litigated in several grievances filed by his union: Kirumira v University of Alberta, 2025 AHRC 8

The Federal Court of Canada was asked to review the decision of the Canadian Human Rights Commission dismissing the complainant’s human rights complaints at the screening stage. Some of the complaints were dismissed as being filed out of time while the rest were dismissed because the Commission concluded further inquiry was not warranted. Note that this matter has a long history. Some of the allegations of wrongful conduct began in 2007 and this complaint was filed in 2013. The Federal Court set aside the Commission’s decision finding that the complainant was not afforded procedural fairness. The investigation into the complaint did not consider core aspects and the decision to dismiss was therefore unreasonable. The court directed that the matter be reinvestigated by a different investigator and then a fresh consideration whether the complaint should proceed to inquiry should be made: Curtis v. Bank of Nova Scotia, 2025 FC 207

The employee argued that he had been constructively dismissed. The employer argued the employee was working towards a planned retirement and had resigned. It also brought a counterclaim against the employee (which was dismissed). Ruling on several motions, the motion judge found the employee retired and was not constructively dismissed, awarded damages for unused vacation, deferred bonuses and the value of lost stock options, and held that the employer was estopped from now asserting just cause (based on allegations that largely overlapped with those originally set out in its counterclaim). The Ontario Court of Appeal dismissed the employer’s appeal noting that just cause was not relevant to any of the amounts awarded by the motion judge and found the decision was reasonable: Boyer v. Callidus Capital Corporation, 2025 ONCA 79

In this duty of fair representation complaint, the complainant took issue with the union’s handling of his matters including concern over the union’s lack of responsiveness, reluctance to follow up on disclosure issues, and its decision to accept the employer’s settlement offer. The Alberta Labour Relations Board found that all but one of the allegations against the union were outside the time limit for filing a DFR complaint and there were no compelling reasons to permit late filing. Notwithstanding that, the Board found all of the complaints lacked merit and did not justify a hearing: Reid v Canadian Union of Public Employees, Local 2157, 2025 ALRB 15

I missed this one last year when it was released right before Christmas, but in this decision the Canadian Human Rights Tribunal rules on how to apply the statutory cap on an award of general and special damages. The complainant argued unsuccessfully that the Tribunal could make an award up to the statutory maximum “per incident” or repeated instance within a single discriminatory practice. The decision confirms that the cap applies to substantiated discriminatory practices as that term is defined in the Canadian Human Rights Act: Peters v. United Parcel Service Canada Ltd. and Gordon, 2024 CHRT 140

In a decision unrelated to employment matters, the Alberta Court of King’s Bench provides some insight into solicitor-client privilege, common interest privilege, and proper objections to questions like “who did you speak with to prepare this affidavit?”, “who wrote your affidavit?”, and “did you speak with any of the other affiants to prepare your affidavit?” during questioning: Carbone v Dawes, 2025 ABKB 41

The Alberta Labour Relations Board dismissed the employer’s objections to the union’s certification application. The employer had argued the union’s current application was substantially the same as a prior application the union filed and withdrew in the last 90 days and is therefore untimely and/or an abuse of process: Canadian Union of Public Employees, Local 417 v Town of Didsbury, 2025 ALRB 18

The majority in this Alberta Court of Appeal decision allowed the appeal and found the lawyer involved in the transaction did not discharge his fiduciary duties and the relevant employment agreement is therefore unenforceable. In a separate opinion, Justice Wakeling agreed with the disposition of the appeal but set out his reasoning in greater detail along with some general statements on the law regarding lawyers doing business with their clients that the majority did not endorse: Brown v Sprague, 2025 ABCA 41

Another appeal of a decision to dismiss a case for long delay in a wrongful dismissal and shareholder oppression action. This time, the court deals with Rule 4.31 and inordinate and inexcusable delay resulting in significant prejudice to the defendant. In allowing the case to proceed, the court also looked at whether a release signed as part of a shotgun clause share purchase barred the wrongful dismissal action: Ranger v Precision Geomatics Inc., 2025 ABKB 45

A decision on costs involving an application for an injunction where the respondents were successful in resisting the expansion of a commercial injunction barring, solicitation, competition and disclosure of confidential information. Here, the court considers when something more than Schedule C costs would be warranted: Great North Equipment Inc v Penney, 2025 ABKB 42

Application for leave to appeal to the Supreme Court of Canada was denied in this action brought by dozens of plaintiffs against the federally-regulated employees, many of whom were part of a union and fell under the Federal Public Sector Labour Relations Act, who suffered negative employment consequences because of a mandatory COVID-19 vaccination policy. Plaintiffs were granted leave to amend their claim in accordance with the reasons of the Federal Court of Appeal: Karen Adelberg, et al. v. His Majesty the King, et al.

The Alberta Human Rights Tribunal finds the complainant did not advise his employer about his religious views in opposition to a COVID-19 vaccination policy prior to his termination so the employer’s decision could not be discriminatory and upheld the Director’s decision to dismiss the complaint: Cowan v Canadian Natural Resources Limited, 2025 AHRC 7

Here, the Alberta Human Rights Tribunal upholds the Director’s decision to dismiss the complaint because the complainant refused a fair and reasonable settlement offer: Thatcher v Servus Credit Union Ltd., 2025 AHRC 5

Stephen Dugandzic’s urgent application to stay his human rights hearing so that he can pursue an application for judicial review of certain interlocutory decisions made by the Alberta Human Rights Tribunal in that same hearing is denied by the Alberta Court of King’s Bench: Dugandzic v Alberta (Human Rights Commission), 2025 ABKB 49

Arbitrator James Casey finds an employer was not justified in dismissing an employee who, though there was no evidence of impairment at work, nonetheless breached the drug and alcohol policy by attending work while exceeding concentration limits for THC. Under the circumstances, reinstatement was not appropriate and damages in an amount to be determined would be ordered: CST Canada Coal Limited v United Mine Workers of America, Local 2009, 2025 CanLII 5367 (AB GAA)

The one where a union representative’s behaviour is so offensive to the employer that he’s banned from the worksite: EPCOR Utilities Inc. v Civic Service Union 52, 2025 CanLII 5351 (AB GAA)

Still another week left in January after today? How long is this month?

Unless the Supreme Court of Canada agrees to take up his case, it looks like this is the end of the line for Mr. Chen. He claimed unemployment benefits after an arrangement he had with a roommate (she bought groceries, he cooked the meals) came to an end. All along the way, it was held that he was not an employee, did not have insurable earnings, and was therefore not entitled to employment insurance benefits: Chen v. Canada (Attorney General), 2025 FCA 18

The employer’s bid to seek judicial review of the remedy imposed after a finding of unjust dismissal (after the matter had been sent back to the adjudicator for reassessment once already) is denied by the Federal Court. The decision to order reinstatement and not consider the employer’s frustration argument (during the years this matter was fought, the employee was on disability and would have likely been unable to work even if she hadn’t initially been dismissed) was reasonable: Miwapukek Band v. Howse, 2025 FC 86

An interest arbitration award setting the terms for a new collective agreement between ATCO Gas and Pipelines Ltd. and the Natural Gas Employees’ Association (“NGEA”) resulted in a 4% and 3.4% increase in wages in 2024 and 2025 respectively. A good deal of time was spent arguing over the impact of the COVID-19 pandemic on previous negotiations and how that would affect the replication principle. The majority of the panel (with the employer nominee dissenting) accepted the NGEA’s argument that this contract should help “catch up” for the lack of an increase during the last contract, although the panel did not award an increase as large as the NGEA sought: Atco Gas and Pipelines Ltd. v Natural Gas Employees’ Association, 2024 CanLII 135359

Normally, a complainant has 90 days to file a duty of fair representation complaint with the Alberta Laobur Relations Board concerning the conduct of their union. Late filing may be accepted based on the factors described in Nevill Toppin v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 488, [2006] Alta. L.R.B.R. 31. Here, the complainant filed the DFR complaint February 2024 concerning allegations that stretched back as far as 2020. The panel applied the Toppin factors and dismissed as untimely all but those allegations that arose in November 2023. The panel then dismissed the remaining allegations in the complaint as there was no reasonable prospect of success: Complainant v Health Sciences Association of Alberta, 2025 ALRB 10

In December 2022, UFCW Local No 401 alleged, among other things, that Civeo was either the true employer, a successor employer, or a common employer of its catering staff along with Buffalo Catering Employees Limited Partnership (“BCE”). Details of the procedural history and relevant facts were described in an earlier decision of the Board. Here, BCE and Civeo apply to summarily dismiss the application on the basis that they lack particulars that could establish any arguable grounds for finding that a business or part of a business transferred from BCE to any Civeo entity. The Board summarily dismissed the successor employer application, but sought further submissions from the parties about whether it has jurisdiction to summarily dismiss a common employer application brought as a preliminary objection prior to a hearing on the merits. The Board wanted further submissions because it was not an issue the parties could have foreseen and did not address it at the hearing: United Food and Commercial Workers Canada Union, Local No. 401 v Buffalo Catering Employees Limited Partnership et al., 2025 ALRB 12

Does the magnitude of an asserted claim determine or affect the level of costs payable on an application not raising monetary issues on its own? Given the ultimate value of the main claim (over $2M), Column 5 costs would normally apply, but because of the entirely procedural nature of the present application, should Column 1 costs apply instead? Unfortunately for us, the court avoids these questions and rules because the respondent acquiesced to Column 5 costs in its submissions, Column 5 costs will be awarded: LAPP Corporation v Alberta, 2025 ABKB 33

On appeal from a decision of an Applications Judge to dismiss a claim for long delay under Rule 4.33, the court considers whether the actions of the defendant engage the exception in Rule 4.33(2)(b) where a matter will not be dismissed if: “an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing”. In this case, questioning occurred in December 2018, answers to undertakings provided in March 2019, and several rounds of correspondence arguing about the adequacy of those answers ended in September 2020. Nothing happened until an application to compel answers to undertakings was filed in February 2023. The application was adjourned to accommodate the schedule of the defendant’s counsel. It was adjourned once more for the defendant to prepare a responding affidavit and a further adjournment sine die was granted to allow counsel to explore resolution. Delay was not raised until after the first few adjournments. The Applications Judge found there was a clearly a delay of more than 3 years and dismissed the action. They ruled that the filed but unheard application to compel undertakings could not be a step that advanced the action and participation in that proceeding did not have the quality of acting as participation or acquiescence for the purposes of Rule 4.33(2)(b). However, on appeal, the court found that the defendant’s participation in the application to compel answers to undertakings warranted the action to continue. The court said the affidavit filed by the defendant in response to the application was more or less an admission that the earlier answers to undertakings were inadequate and, in and of itself, the response in the affidavit was also inadequate. Had the application gone ahead when initially scheduled, the plaintiff likely would have won. Between this and the defendant’s actions after the application was filed, the defendant therefore participated in the proceeding in a manner that warranted the action to continue. Note that the Applications Judge did not address the defendant’s application to dismiss under Rule 4.31 and that decision was not appealed so the court did not consider any arguments in that regard at this hearing: Secan Association Inc. v Cannan, 2025 ABKB 38

The Federal Court of Appeal dismissed an application for judicial review of a decision of the Canadian Industrial Relations Board (“CIRB”) to decline consideration of an unjust dismissal complaint related to an alleged constructive dismissal resulting from age and race-based discrimination and harassment. The CIRB found, and the Federal Court of Appeal agreed, that the proper forum for the complaint was the Canadian Human Rights Commission because human rights allegations lay at the core of the complaint. Under s. 242(3.1)(b) of the Canada Labour Code, no complaint will be considered by the CIRB if a procedure for redress is provided under any other Act of Parliament. The general provisions in the Code to address unjust dismissal could not prevail over the clear and mandatory provisions in s. 242(3.1)(b). The complainant also argued that she would suffer prejudice if she was forced to file a human rights complaint so long after the fact and could not get the remedies there that she sought from the CIRB. The court ruled that the complainant could have filed a human rights complaint when the CIRB first wrote to her raising the possibility of dismissing the unjust dismissal complaint under s. 242(3.1)(b), but chose not to. Further, the remedies available from the Canadian Human Rights Commission need not be the same as or better than those under the Code, but they simply had to offer a “real remedy”: Kaseke v. Toronto Dominion Bank, 2025 FCA 8

Alberta recently introduced extensive amendments to the Occupational Health and Safety Code which included updates to workplace violence and harassment requirements for employers. At this time, parties may comply with either the new version of the Code or the prior one, but everyone will have to be compliant with the new Code by March 31, 2025. Start updating those violence and harassment policies and prevention plans now.

The Alberta Human Rights Tribunal determined that the respondent treated the complainant, a well-known transgender activist, in a hurtful manner when she was misgendered and treated unprofessionally but that conduct did not result in a breach of the Alberta Human Rights Act: Panas v Edmonton Police Service, 2025 AHRC 3

The Federal Public Sector Labour Relations and Employment Board ordered reinstatement in a case involving the termination of a civilian employee. The decision was released back in November, but I just found it this week so sue me. Any way, the employee was convicted of two counts of sexual interference in 2015, served time in jail, and then returned to the workplace. In 2019, he was convicted of sexual interference and sexual assault and served more time in jail. He had probation orders following both convictions and was placed on the sex offender registry for life. Both incidents occurred in the same time frame in 2014 and involved the same complainants (the daughters of his then common law partner). It was only after the second conviction that the employee, who had worked without incident since returning after the first conviction, was terminated: A.B. v. Treasury Board (Department of National Defence), 2024 FPSLREB 153

In this case, the Federal Court considers appeals brought by both the employer and the former employee concerning the calculation of damages following a successful unjust dismissal complaint. Among other things, the decision looks at the complainant’s entitlement to loss of salary or back pay prior to reinstatement (which would have been extensive given how long these matters take to reach a hearing): Kouridakis v. Canadian Imperial Bank of Commerce, 2025 FC 60

In a lengthy decision involving complicated facts where the plaintiff alleged “wrongful competition” against several former employees, the Ontario Superior Court of Justice dismissed the matter finding the relevant contractual terms and the relationship between the plaintiff and the former employees did not support the plaintiff’s ownership of the book of business at the heart of the dispute: Tar Heel Investments Inc. v. H.L. Staebler Company Limited et al, 2025 ONSC 240

An arbitration board dismissed a grievance brought by the union on behalf of an employee who was terminated for cause (or employment was frustrated) because she had been sentenced to two years incarceration. The union argued that an unpaid leave of absence would be an appropriate response in light of the employee’s long service. Upon review of the decision, the Alberta Labour Relations Board found the arbitration board’s decision was reasonable and dismissed the application for review: Civic Service Union 52 v EPCOR Utilities Inc., 2025 ALRB 8

The employer agreed to provide lodging for its out of town employees while working on a particular project in Calgary. The employer paid the employees late and in incorrect amounts. After the union successfully applied for certification, the employer cancelled those employee accommodations. The union alleged that the failure to pay the employees properly and the cancellation of accommodations were impermissible changes to the terms of employment during a freeze period. The Alberta Labour Relations Board agreed that cancelling accommodations violated the freeze period. The arbitrary pay practices, however, was not something done in response to the union’s application for certification and not a violation of the freeze period because it was “business as usual” for the employer: Pile Drivers, Divers, Bridge, Dock & Wharf Builders Local Union 2404 v Pentor Pile Driving Ltd., 2025 ALRB 7

The Law Society of Alberta accepted the resignation and undertakings given by a prominent employment lawyer facing a complaint over his conduct involving a former client: Law Society of Alberta v Samfiru, 2025 ABLS 1

Do workers’ compensation policies that state it is effective on a certain date and applies to all decisions made on or after that date apply retroactively? In this particular case, the answer is yes: Alberta (Workers’ Compensation Board) v Alberta (Appeals Commission for the Alberta Workers’ Compensation), 2025 ABKB 26

We’re back from the Christmas break and so are the courts and tribunals…

The Alberta Court of King’s Bench upheld a termination clause in an employment contract and found that, despite alleging just cause for termination, the employer could rely on that clause at trial. The clause in question read:

The Company will be entitled to terminate your employment:

(a)               Immediately for just cause;

(b)               By providing you with notice of termination, or pay in leu of such notice in accordance with notice provisions as described in the Offer of Employment letter dated 09/05/2013.

[The Offer of Employment Letter said: “90 days’ notice to terminate to be provided by the employee and a 90 days’ notice period for the employer”]

In this lengthy decision, the Federal Court of Appeal granted judicial review of a decision rendered by the Canadian Human Rights Tribunal on the basis that the hearing was procedurally unfair, adopted the wrong test for bias, and that an Addendum submitted by the panel member demonstrated bias against the complainant: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2025 FC 18

The Court put considerable weight on the fact that the employee was sophisticated, had considerable bargaining power, negotiated the terms of his contract, and that the employer agreed to the termination provision sought by the employee: Singh v Clark Builders, 2025 ABKB 3

The Alberta Human Rights Commission released a pair of decisions to start the year involving the same complainant. The complaint involved an allegation that the complainant was discriminated against on the grounds of religious belief when his employment was terminated during the probationary period after he had cancelled two shifts in order to attend the funeral rites of his ancestral king that had recently passed away in Nigeria. The Tribunal found that the complainant did not raise religious grounds at the time he cancelled the shifts so the termination was not in any way related to a religious ground. Instead, the Tribunal found the complainant was subject to legal restrictions that would not allow him to perform his job as a security guard and that was the reason he cancelled his shifts: Shodunke v Paladin Security Group Ltd., 2025 AHRC 1

That decision on the merits of the complaint was followed by a decision considering the respondent’s application for costs against the complainant. The Tribunal found that the complainant was dishonest in his dealings with the Tribunal and the respondent. He failed to report a criminal charge that would impact his ability to do his job and withheld a key document document. He failed to cooperate with the Tribunal, didn’t respond to emails, did not follow the Bylaws, and caused unnecessary delays in the hearing process. The complainant in his closing submissions quoted verbatim the evidence of witnesses, counsel, and the Chair raising suspicions that he had recorded the hearing without permission. When given an opportunity to explain himself, he provided no evidence that he didn’t record the hearing and tried to deflect by submitted:

To show to this Tribunal my proficiency in shorthand and fast writing (which I did to jot down relevant points during the hearing for my defence and response to Paladin – in my written submission) and profound comprehension in my brilliant brain, permit me to refer you to only one of the stories that I published in (my) Gateway Mail on July 15, 2018….

Last year, the Tribunal ordered a disruptive respondent to pay three individual complainants $10,000. The respondent in this case sought “at least” $20,000 in costs. In a rare case of the Tribunal ordering costs against a complainant, the Tribunal ordered costs in the amount of $25,000: Shodunke v Paladin Security Group Ltd., 2025 AHRC 2

The Alberta Labour Relations Board dismissed a duty of fair representation complaint at the documentary review stage, as is typically the case. What makes this decision somewhat interesting is the fact that the Board considered whether the union failing to properly investigate and advise the complainant about a deadline to apply for a COVID payment constituted a breach of the duty of fair representation. Unions are allowed to make mistakes without breaching the duty, however, serious negligence is a different story. Here, the Board found that the union’s mistake was not a gross error and therefore not serious negligence. No breach of the duty of fair representation resulted: Power v Health Sciences Association of Alberta, 2025 ALRB 5

The employee in this matter was terminated in 2019. After grieving the termination, the employee was reinstated following a hearing in 2023. The employer was ordered to compensate the employee for lost wages and benefits during the time he was out of work. This decision considers how to apply an employee’s earnings in mitigation as well as what to do about income the employee received from performing a second job that he had been also been doing on the side prior to his termination. The employer argued that all of this income should be deducted from what it owes the employee. The union argued that none of it should be deducted. Ultimately, the arbitrator did some math and adopted a pattern-based approach to carve out an amount that would have reflected how much the employee earned in this role prior to his termination: Purolator Inc. v Teamsters Local Union 938, 2025 CanLII 47 (CA LA)

An application to dismiss a class action brought against the Crown by federal public service employees (including members of the RCMP) who suffered employment consequences as a result of the imposition of a COVID-19 vaccination policy was granted in part. Parts of the claim that could be heard through the grievance process were struck and leave was granted to amend the claim to clean up issues concerning plaintiffs that did not have grievance rights: Payne v. Canada, 2025 FC 5 

Return to the office mandates were in the news recently. Many departments of the federal government were reported to have failed to meet their targets for return to the office policies. As of January 2 this year, Amazon’s 8,000 corporate employees based in Canada are required to work in the office five days per week ending a hybrid practice that had been in place since 2023.

In resolving objections raised by the employer in an application for certification, the Alberta Labour Relations Board considered the meaning of “office and clerical” workers and determined chemists and lab technicians did not fit that description: Unifor, Local Union No. 4050 v Air Liquide Canada Inc., 2025 ALRB 1

The Alberta Labour Relations Board dismissed an employer’s appeal of an Order of Officer awarding termination pay for an employee under the Employment Standards Code. The employer classified all of its employees as “construction” workers and applied the exception in s. 5(1) of the Regulations to avoid paying termination notice to its employees. Classifying everyone as a construction worker simplified payroll even though employees would work construction or driving truck depending on the season. The Board found that the employer had incorrectly classified the employee as a construction worker when his duties at the time of termination were that of a truck driver so the exception did not apply: Sub-Terrain Excavating & Trucking Ltd. Operating as Sub Terrain Excavating v Ross, 2025 ABESAB 1

Five more sleeps until Santa comes…

According to the latest applications report from the Alberta Labour Relations Board, the Mount Royal Faculty Association has applied to review (i.e., appeal) the arbitration decision concerning the remedy for Dr. Widdowson’s grievances. Arbitrator Jones ruled in July of this year that the University was not justified in terminating Dr. Widdowson. The November decision concerned remedy after Arbitrator Jones ruled that reinstatement was not appropriate. The decision on remedy, which is the one under appeal, can be found here: Board of Governors of Mount Royal University v Mount Royal Faculty Association, 2024 CanLII 119283 (AB GAA)

Over at the Alberta Labour Relations Board, the panel considers whether certain employees of TransED perform managerial or confidential duties that would preclude them from being part of a bargaining unit in this certification application. The Board reviews the test for determining whether an employee has management functions as well as whether these particular employees should be caught by an existing collective agreement for a different trade union. The Board ultimately finds that the employees are not working in a managerial or confidential capacity nor are they caught by the existing collective agreement: Amalgamated Transit Union, Local No. 569 v TransEd O&M Partners General Partnership, 2024 ALRB 125

The Court of King’s Bench released reasons dismissing a judicial review of a decision of the Red Deer Catholic Separate School Division that found the Applicant in breach of sanctions issued by the School Division. The first decision upheld the sanctions imposed on the Applicant by the School Division after she had posted a distasteful meme. The Court of King’s Bench upheld the decision of the School Division finding that the Applicant breached those sanctions and disqualified the Applicant from a position on the school board: LaGrange v Red Deer Catholic Separate School Division, 2024 ABKB 751

The British Columbia Supreme Court considers an application by a plaintiff for production of her employment file and the investigation report related to allegations of a breach of the employer’s drug and alcohol policy. The court determines that the investigation report is not privileged and could be produced but declines to order production because the harm to the whistleblowers who would be exposed if the report were produced outweighed the probative value of providing the report to the plaintiff: Starrs v Troczynski, 2024 BCSC 2267

The complainant was dismissed after returning from maternity leave. The employee’s right to reinstatement following leave, provisions of the Canadian Human Rights Act, and various provisions of the Canada Labour Code and subsequent amendments all played into the complex analysis. The adjudicator dismissed the complainant’s unjust dismissal complaint because of a provision in the Canada Labour Code at the time which prohibited the adjudicator from considering such a complaint when the dismissal was due to a lack of work or discontinuance of a function. The adjudicator’s decision was upheld on judicial review by the Federal Court. However, the Federal Court of Appeal set aside the decision of the Federal Court and remitted the case to a different adjudicator to be determined in accordance with the reasons of the Federal Court of Appeal concerning the section of the Code in question: Giffen v. TM Mobility Inc., 2024 FCA 213

An appeal of an OHS order must be commenced within 30 days. The time starts to run from when the respondent was served with or given notice of the Order. In this case, the date on which the Order was emailed to the respondent was considered the date of service. The fact the respondent did not see the email until sometime later was not determinative (the respondent found the email sometime later, unread, in the “deleted” folder) and a subsequent extension of a compliance date did not restart the clock for the purpose of an appeal: Sysco Canada, Inc. v Occupational Health and Safety, 2024 ABOHSAB 23

The Ontario Superior Court of Justice granted an application striking the Amended Statement of Claim in a mass tort action brought by 473 plaintiffs against multiple defendants alleging they were suspended and eventually terminated from their jobs in health care for refusing to get vaccinated against Covid-19. Pleadings were struck, with leave to amend in accordance with the Court’s reasons, for want of jurisdiction, abuse of process and failing to disclose a reasonable cause of action: Dorceus v. Ontario et al., 2024 ONSC 7087

The Supreme Court of Canada denied leave to appeal in Croke v. VuPoint System Ltd., 2024 ONCA 354: Alan Croke v. VuPoint System Ltd., 2024 CanLII 125008

The Alberta Human Rights Tribunal dismissed a complaint alleging that the employer discriminated against the complainant on the basis of disability for not granting a medical exemption from a COVID vaccination requirement. The complainant alleged that she suffered an electrolyte imbalance after receipt of the first part of a Covid-19 vaccination. The Tribunal found the electrolyte imbalance failed to satisfy the third step of the Moore test because there was a lack of evidence her electrolyte imbalance is contraindicated for the COVID-19 vaccination beyond a passing comment by one of the doctors who testified in the case. Expert evidence presented by the respondent showed there was no connection. The complainant’s argument that absence of evidence is not evidence of absence was rejected as it would reverse the onus and require the respondent to prove the complainant’s theory was incorrect: Land v Canadian Natural Resources Limited, 2024 AHRC 146

The Ontario Court of Appeal has dismissed the appeal in Dufualt. The panel declined to revisit Waksdale and the appeal was decided solely on the basis that the “for cause” termination clause violated the Employment Standards Act, and specifically declined to comment at all on the “without cause” termination clause (which is exactly how most of us figured the case would be resolved): Dufault v. Ignace (Township), 2024 ONCA 915

The Alberta Human Rights Tribunal has not, to date, considered what constitutes the protected characteristic of “religious belief” to establish prima facie discrimination in the context of COVID-19 except in the case of requests for review of a Director’s decision to dismiss a complaint. In the first decision of its kind in Alberta, the Tribunal examines this question and found an employee who drafted a letter in support of his beliefs based on a template he found online at a “novaxxever” website and on Facebook from a “Reverend” who prepared such letters without meeting the person in question was not proof of a sincerely held religious belief sufficient to demonstrate prima facie discrimination: Lepage v Bosa Development Corp., 2024 AHRC 152

The Director’s decision to dismiss a complaint was overturned upon review and directed to proceed to a Tribunal hearing based, at least in part, on audio recordings of conversations between the complainant and members of management made without knowledge of the employer: Desta v Schnitzer Steel Canada Ltd. o/a Pick-N-Pull, 2024 AHRC 142 

Friday the 13th?

In December?

Calgary’s unemployment rate continues to trend higher than the national average. It’s not because employers are terminating workers here at a higher rate. According to this article, it’s because people keep moving here faster than they can find jobs. I’m not sure that explanation is much better than the alternative, though: https://www.cbc.ca/news/canada/calgary/calgary-unemployment-canada-1.7400168

An interesting and well-reasoned decision considering to what extent a party whose pleadings were struck as a sanction for contempt may participate in the trial of the action. Granted, this arose in the context of a family law matter, but the reasoning should be applicable to employment litigation as well: Boyer v Boyer, 2024 ABKB 727

Some of the legislation introduced by the government of Alberta the past few months that we looked at earlier has now passed final reading and some of it is in force:

• Bill 24 – Alberta Bill of Rights Amendment Act, 2024 is in force effective December 5, 2024.
• Bill 33 – Protection of Privacy Act and Bill 34 – Access to Information Act both received Royal Assent on December 5 and will come into force upon proclamation.
• Bill 36 – Miscellaneous Statutes Amendment Act, 2024 received Royal Assent on December 5 and will come into force on various dates.

Confederation College appealed a jurisdiction determination by an officer of Employment and Social Development Canada that held the Confederation College’s Aviation Centre for Excellence (“ACE”) was severable from the rest of the school and subject to federal jurisdiction because it engaged in the operation of aircraft and aircraft maintenance. In an interesting application of the functional test and the presumption of provincial regulation of labour relations, the Federal Court found the essential nature of the ACE is an educational program within Confederation College and therefore subject to provincial jurisdiction: Confederation College v. Canada (Attorney General), 2024 FC 1981

Via Professor David Doorey, Canada Post obtained an injunction prohibiting CUPW from picketing at a Purolator site in Scarborough on November 29, 2024, with written reasons released late last week: Purolator Inc. v. John Doe et al., 2024 ONSC 6812

Justice Thompson discusses language required in an employment contract to rebut the presumption an employee is entitled to reasonable notice of termination and considers the test to prove an employee failed to mitigate their damages in upholding the trial judge’s reasons on appeal: Plotnikoff v Associated Engineering Alberta Ltd, 2024 ABKB 706

Vice-Chair Scott discusses the meaning of “payroll error” and what deductions from an employee’s wage are and are not permitted: Building Works Ltd. o/a Building Works Remediation & Restoration v Nagy, 2024 ABESAB 20

The Director of the Alberta Human Rights Commission dismissed the complaint summarily. That decision was upheld by the Chief of the Commission on appeal. The Court of King’s Bench dismissed the Complainant’s application for judicial review. The Court of Appeal disagreed and ordered the matter go to a hearing with the Tribunal. The Court of Appeal found that whether the circumstances of the case gave rise to a duty to inquire is a central issue and is very fact-specific which required a hearing to resolve: Volpi v Alberta (Human Rights Commission), 2024 ABCA 401

In this decision resolving objections to a certification application, Vice-Chair Scott confirms that the Board is only concerned with determining if the proposed bargaining unit is AN appropriate bargaining unit for collective bargaining. It doesn’t need to be the MOST appropriate bargaining unit: Canadian Union of Public Employees, Local 3550 v Edmonton School District No. 7, 2024 ALRB 124

In the latest interim decisions, the Alberta Human Rights Tribunal considers whether to bifurcate the lengthy hearing to determine the merits of the claim separately from remedy and whether to grant the Respondent’s application to summarily dismiss some of the allegations in the complaint. Partial summary dismissal decision: Elliott v Imperial Oil Limited, 2024 AHRC 150 Bifurcation decision: Elliott v Imperial Oil Limited, 2024 AHRC 143

An employee was terminated for cause largely for making audio recordings of conversations with other employees without their knowledge. The employer moved for summary judgment. The Applications Judge declined to order summary judgment, finding that the matter could not be resolved on the paper record alone because of the nature of the facts and credibility issues. The decisions contains some interesting reasoning on whether secret recordings can give rise to just cause: Wan v H&R Block Canada Inc., 2024 ABKB 734

The Alberta Human Rights Commission dismisses a complaint because the Complainant refused to sign a settlement document containing a non-disclosure provision following a verbal settlement at a conciliation meeting: Singh v Bissell Centre, 2024 AHRC 149