Edited by Amanda Kostek
Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Nickles v 628810 Alberta Ltd., 2025 ABKB 212
Return to office initiative | Impact on Employment contract
Frog Lake First Nation v 2250657 Alberta Ltd, 2025 ABKB 206
Court filing delays resulting in missed deadline
Salame v Chimayt, 2025 ABKB 205
Costs | Unfounded allegations of fraud
Nickles v 628810 Alberta Ltd., 2025 ABKB 212
The Plaintiff commenced her employment in 1986 and for the duration of her employment largely worked from home. Ownership of the employer changed, and post COVID the employer commenced a “return to office” initiative. The Plaintiff took the position that her job had always been a work from home position and she was constructively dismissed. The Court distinguished this case from other typical post COVID return to office situations. The Court concluded that the Plaintiff was entitled to reasonable notice of the change and less than 3 months for a job she held for 37 years did not meet the required notice period. As a result, she was constructively dismissed.
Frog Lake First Nation v 2250657 Alberta Ltd, 2025 ABKB 206
On the last day of an appeal period counsel sent an email containing the Notice of Appeal to the Clerk’s office after business hours. The Clerk’s office did not stamp the appeal for 7 weeks, which was substantially beyond the 30 days period for appeal. Notably the appeal period expired January 2, 2025. Although the Court was operating a holiday schedule that day, filing was available. The chronology is as follows:
- The Notice of Appeal and Supporting Affidavit were originally submitted from counsel’s office in Saskatchewan on January 2, 2025, at 6:06 p.m. local time.
- The submission was first acknowledged by the Clerk’s Office on January 13, 2025, with a rejection because Form 8 was not concurrently submitted.
- Form 8 was submitted on February 5, 2025. On that date, counsel was asked to resubmit her documents again, this time with the correct form of affidavit.
- She resubmitted on February 16, 2025.
- The documents were rejected again on February 24, 2025, because they were not submitted through the King’s Bench Civil Filing Digital Service.
- On February 25, 2025, counsel for 225 advised the Clerk’s Office that she did not have an ID number from the Law Society of Alberta that would enable her to use the Digital Service.
- She was advised later that same morning to file her documents using the email filing process (as she originally had).
The Arbitration Act does not define when an appeal is “commenced”. The Court accepted that commencement must mean “lodging the proper documents in the proper form, with the Clerk of the Court and receiving some kind of acknowledgement from the Clerk that they are received, and an action number is assigned.” The Court noted that the clerk’s office had created barriers to filing. There was no requirement for a Form 8 or compliant Affidavit with the initial filing. However, that does not explain why the Notice of Appeal was sent in at 5:06 pm Alberta time. The Court noted that simply pressing send on an email creates uncertainty if that is the time used to determine the time of filing. The Court commented that an imminent limitation expiry required desperate measures, and suggested filing on January 2nd in various ways such as calling the clerk, or making an urgent application before a duty Justice.
[32] An imminent limitation expiry sometimes calls for desperate measures. 225’s counsel could have tried on January 2, 2025 to file the appeal documents, during business hours, in various ways. She could have called the Clerk’s Office to say that a Notice of Appeal was coming in by email right away and to watch for it because it had to be filed that day. She could have filed the appeal documents in-person through an agent. At worst, if the Clerk’s Office was insisting on email filing, it was an option on January 2, 2025 for counsel to make an urgent application on a without notice basis (in-person, by agent or even by telephone) to the Duty Justice for a direction or fiat that the Clerk’s Office immediately file a commencement document about to be sent or presented in-person, because a limitation period was set to expire at the end of the day. I cannot think of a reason why such an application would be refused. Applications of that nature are sometimes made in-person in regular Civil Chambers.
Nothing the clerk did resulted in the filing after hours on January 2nd. If counsel had attended in person at that time, she would have found the filing desk closed. The Court concluded that sending an email after hours is the equivalent of sliding it under the door. The staff have gone home, and it is unlikely that it will be retrieved until the next business day. As a result, the Court concluded that the filing was out of time.
Salame v Chimayt, 2025 ABKB 205
In Salame v Chimayt, 2025 ABKB 205 lack of evidence to support allegations of breach of fiduciary duty or conspiracy to employ fraudulent or deceitful means to enter into a share purchase agreement, and the Plaintiff’s insistence on maintaining those allegations since the Statement of Claim, a public document, was filed in 2020 resulted in solicitor client costs being awarded in favour of the lawyer sued:
[86] The nature of the allegations made by Salame against Makuch, a practising lawyer, and maintaining those allegations without the information to support the claims in negligence, breach of fiduciary duty, fraud, and conspiracy warrants payment of solicitor and client full-indemnity costs.
In rendering the decision the Court noted that proportionality is not dependent on ability to pay, but rather, on the factors listed in Rules 10.2 and 10.33:
[90] Proportionality is not dependent on ability to pay. See para 84 of A.G. Clark: “Proportionality is contemplated by rules 10.2 and 10.33 in the list of factors the court may consider in determining the reasonable amount a lawyer is to be paid for services and in making an award for costs by one party to another.”