Just when you thought employment law was complicated enough, there is a whole other element with the Workers Compensation Board. The WCB is a statutory no fault system, designed to limit employer liability. In exchange, employees get some compensation without having to face the courts to do so. The WCB in Alberta is focused on injury or death occurring in the workplace. Surprisingly, workplace injuries caused by a number of different issues ranging from assaults in the workplace to bullying in the workplace has been found to be covered by the WCB (although constructive dismissal can still be a ..read more

One of the most difficult areas to navigate for employees who have been wrongfully dismissed in Alberta is mitigation. When people are wrongly terminated, there is a general understanding that in many instances they can be entitled to monetary sums in the form of pay in lieu of notice. There is a catch, unfortunately. Employees have to take active steps to look for similar job. They should also take a similar job if it is offered to them. In practice, some employers will hold off on settling these claims to see how mitigation affects the claim. In some settlements, employers will try to insert ..read more

A factor that employees are often not aware of (and conversely employers often are aware of) is mitigation of damages. When you are fired, the Courts here expect you to take steps to find another job. You have to actively look for a job. You should keep a record of that job search. If you don't actively look for another job, then you can be found to have not mitigated your damages. If in the course of your job search you find a similar job to the one you had, then you might need to take it. However, you do not need to take any job whatsoever. When in doubt check with your lawyer. Mitigation ha ..read more

Solicitor Client Privilege means that information shared with a lawyer by a client cannot be shared (except for in certain situations), including by court order. The Alberta Court of Appeal looked at this issue in the case of 0678786 BC Ltd v Bennett Jones LLP, 2021 ABCA 62. The Court said at paragraph 21: [21]Solicitor and client privilege is a well-established feature of Canadian law. It is considered to be a substantive principle of fundamental importance to the Canadian legal system, because it allows clients to fully and frankly discuss their legal issues with their counsel, without fear ..read more

Lawyers owe fiduciary duties to their clients. So what exactly are they? In the case of Hodgkinson v. Simms [1994] 3SCR377 the Supreme Court of Canada defined fiduciary duties as follows: .... In the famous case of Lloyds Bank Ltd. v. Bundy, [1975] Q.B. 326, Sir Eric Sachs of the English Court of Appeal stated the fiduciary principles as follows, at p. 341: Such cases tend to arise where someone relies on the guidance or advice of another, where the other is aware of that reliance and where the person upon whom reliance is placed obtains, or may well obtain, a benefit from the transaction or h ..read more

Mortgage prepayment penalties are commonly included in mortgages. These clauses require a payment to be made if the mortgage is ended before the term ends. These penalties can end up being quite large. Unfortunately this area is not directly regulated, so banks may do what they wish. The very concept of prepayments is nebulous and the court in 2598508 Ontario Inc. v. 2394049 Ontario Inc. o/a Goodman Green Solutions, (2021 ONSC 5293) indicated that there is no common law definition of "prepayment", "prepayment clause" or "prepayment charge", so the mortgage documentation itself will have to be ..read more

The Case of Coffey v. Nine Energy 2018 ABQB898 had the effect of removing summary judgment as a remedy in Employment Law in Alberta for determining pay in lieu of notice. Summary Judgment is a way of deciding a case with affidavit evidence without having a full trial. It can be a much cheaper mechanism for deciding things. As a lawyer practicing in this area, the decision was disappointing as it appeared to remove a mechanism for obtaining justice in this Province. Master Schlosser has come out with a well reasoned rebuttal to Coffey in the case of Kubersky v Pomeroy (Pomeroy Group), 2021 ABQB ..read more

Non-compete clauses are sometimes included by Employers in their employment contracts. So what happens if you fired? If you are fired with cause, arguably they are still enforceable. If you are fired without cause however the courts can take a different approach. In the case of Specialized Property Evaluation Control Services Ltd v Les Evaluations Marc Bourret Appraisals Inc, 2016 ABQB 85, the Court said at paragraph 25: [25] Wrongful dismissal repudiates the employment agreement and terminates the contract, thereby discharging parties from future obligations: Windship Aviation Ltd. v deMeulle ..read more

Repudiation is a theory that can allow parties out of contractual obligations. The Court of Queen's Bench looked at this issue in Acden Environment Limited Partnership v Environmental Metal Works Ltd, 2021 ABQB 160. The Court said at paragraph 63: [63]...A party may be found to have repudiated a contract if he or she commits an anticipatory or a fundamental/substantial breach: It is essential to distinguish a “mere breach” of contract from a total repudiation of a party’s obligation thereunder. Unless a party’s obligation is expressly conditional upon prior performance by the opposite party, t ..read more

Lawsuits have a process they have to follow. A Statement of Claim is drafted and filed - generally within 2 years of the events giving rise of the lawsuit. In Alberta claimants then have 1 year to serve the Defendants. Service is carried out by giving the filed Statement of Claim to the Defendants. However it's not always that simple. What happens if the Defendants can't be found or have moved? The clock can tick quite relentlessly on the 1 year for service. Thankfully the Courts in Alberta have developed a mechanism to deal with this. Rule 11.28 of the Alberta Rules of Court allows substituti ..read more