The Alberta Court of King’s Bench has dismissed an employer’s appeal in a wrongful dismissal case, reinforcing that an employment contract’s termination clause must be “clear and unambiguous” before it can displace an employee’s common law right to reasonable notice.
The decision, delivered by Justice C.B. Thompson, confirms a 10-month notice award for the worker and rejects the employer’s arguments that the employee’s damages should be reduced for insufficient mitigation efforts.
In this case, Associated Engineering Alberta (AEA) appealed a decision by Justice D.B. Higa from September 2023 which found that the termination clause did not limit C.P.’s entitlement to common law notice. The original trial concluded that C.P., who worked for AEA from May 21, 2012, until his termination without cause on April 28, 2022, was entitled to 10 months’ pay in lieu of reasonable notice rather than the statutory minimum provided under Alberta’s Employment Standards Code.
Contractual provision in the spotlight
The central issue on appeal was whether a contractual provision governing terminations — referred to as “Clause 4(c)” —clearly restricted the dismissed employee’s right to receive common law notice. The clause stated that AEA could end the employment relationship “without cause upon providing the Employee with notice as may be mandated by the Employment Standards legislation or such additional notice as the company, in its sole discretion, may provide or, at our option, pay in lieu of such notice.”
AEA argued that this language was sufficient to oust the common law presumption of reasonable notice, contending it established a clear upper limit at the statutory minimum. However, Justice Thompson disagreed. Citing established principles, the Court found that minimum standards set by legislation do not automatically negate an employee’s common law entitlements.
According to the ruling, “Courts have repeatedly asserted that there is no magic formula to limit termination notice … unless the contract language is clear and unequivocal.” The Court concluded that the wording in Clause 4(c) fell short: it referenced the statutory minimum, acknowledged the possibility of additional notice, but never explicitly excluded the common law right.
Justice Thompson emphasized that “the minimum notice periods set out in the Act do not operate to displace the presumption at common law of reasonable notice.” The judge noted that, pursuant to section 3 of the Code, nothing prevents an employee from pursuing a civil remedy for wrongful dismissal if the contract does not expressly and unambiguously preclude it. The Court stated, “Where an employment contract does not meet this threshold, an employee remains free to pursue common law remedies.”
AEA tried to distinguish previous decisions cited by the trial judge, claiming the language at issue was unique. But the Court held that comparisons to existing precedents, such as Bryant and Holm, showed a consistent theme: simply pointing to statutory minimums or offering the possibility of discretionary additional notice does not clearly remove an employee’s entitlement to common law notice. The Court said, “The wording in Clause 4(c) … does not contain any language to limit or extinguish [C.P.’s] common law rights.”
Notice period
Once it was established that C.P.’s right to common law notice remained intact, Justice Thompson turned to the length of the notice period. The original trial court had awarded 10 months, considering factors like the nearly 10-year duration of employment, C.P.’s specialized role as a civil engineering technologist, and his age at termination (33).
The Company argued that this period was too long, claiming it fell outside a reasonable range. The Court of King’s Bench disagreed, noting that determining reasonable notice involves applying the well-established Bardal factors, including length of service, age, and type of employment. The decision stated, “Courts will not interfere with the decision of the Trial Judge as to the reasonable notice period unless … inordinately high or low.”
The Court found no error with the 10-month award. Referencing the trial judge’s reasoning, it stated that the employee “was employed … as a Civil Engineering CAD Technologist for nine years and eleven months,” and that this was his sole employer since attending college. Given these facts, and no identified misapplication of principle, the Court upheld the 10-month notice period.
Mitigation
The final issue on appeal was whether C.P.’s damages should be reduced for failing to mitigate. At trial, the Court acknowledged that the employee waited nearly six months before starting to apply for new positions and made a relatively small number of applications. Even so, the AEA bore the burden of proving that with reasonable efforts, C.P. “would likely have found a comparable position within the reasonable notice period.”
Quoting established law, Justice Thompson reiterated that “if it is the employer’s position that the employee could reasonably have avoided some part of the loss claimed, it is for the employer to carry the burden.”
AEA pointed to C.P.’s testimony that “there were civil engineering technologist positions available, ‘a few here and there’,” but the Court considered this evidence insufficient to establish that C.P. would probably have secured a suitable position if he had tried harder. Justice Thompson wrote, “The Court received no evidence that there was comparable employment of any nature available to [C.P.].” A plaintiff’s lack of effort alone, the judge stressed, cannot satisfy the employer’s onus to show that the employee’s breach of the duty to mitigate caused a measurable reduction in available damages. Without concrete proof of a vibrant job market or a likely prospect C.P. would have obtained employment, the Court concluded that “the Defendant has failed to satisfy the second part of the test.”
After rejecting all three main grounds of appeal—contractual interpretation, notice period assessment, and mitigation—the Court also dismissed the final argument that the decision was otherwise unreasonable. The ruling declared, “For the reasons set out below, I dismiss the Company’s Appeal and uphold the Trial Decision.”
As a result, the original judgment in C.P.’s favour stands, confirming a 10-month notice entitlement and no reduction in damages for failure to mitigate. The Court invited the parties to attempt to agree on costs and post-judgment interest. If they cannot, a schedule for written submissions on costs was provided in the decision.
For more information, see Plotnikoff v Associated Engineering Alberta Ltd, 2024 ABKB 706 (CanLII).
