AJ Farrington Allows Summary Judgment on CD and Severance Damages

In Nickles v 628810 Alberta Ltd., 2025 ABKB 212 (Farrington, AJ), the Alberta Court of King’s Bench granted an application for summary judgment in a constructive dismissal case, and held that the reasonable notice damages would be determined as part of the summary judgment application.

This has sometimes been possible in Alberta for some time.  However, it is very significant that Applications Judge Farrington in particular granted this application, because prior cases of his have stood as some of the main arguments against summary judgment applications in wrongful dismissal cases.

This case is important because it addresses and provides some direction on a number of important employment law issues, including work from home arrangements and reasonable notice of unilateral changes in employment terms by employers.

Facts

The following were some of the pertinent facts summarized by the Alberta Court of King’s Bench:

• The plaintiff employee Margaret Nickles was the office manager of a vein clinic from 1986 to 2023
• Nickles worked largely from home for the duration of her employment
• She attended the office when needed, at her discretion
• There was a change of ownership. They started an initiative to “return” people to work at the office
• The plaintiff objected, because her position had never been an office position
• The defendant employer insisted she work in the office and gave 3 months’ notice that it would be put in place
• The plaintiff obtained legal counsel who suggested it was a constructive dismissal
• In response the employer offered her to work 2.5 days per week in the office, but under the offer, the employer reserved the right to move it to full time
• The plaintiff did not accept the offer
• The plaintiff sued for constructive dismissal, and brought an application for summary judgment to resolve it

Analysis / Conclusion

Applications Judge Farrington noted early on that the evidential record he required to decide the case was mostly in written communications rather than oral discussions.

Judge Farrington found that it was a constructive dismissal, reasoning as follows:

[15] This was not a return to work arrangement of the type that was common after the COVID pandemic. […] This was an arrangement where the work was always from home. I am satisfied that the work from home arrangements were an integral part of the plaintiff’s employment contract for the duration of her work and that she was entitled to reasonable notice of the change. The notice given was less than three months for a 37 year employee. I am satisfied that there was a constructive dismissal.

AJ Farrington went on to reject the employer’s argument that the plaintiff failed to mitigate her damages by refusing the offer of working 2.5 days per week in the office, as follows:

[17] At paragraphs 33 to 36 of Wronko v. Western Inventory Service Ltd., 2008 ONCA 327 the Ontario Court of Appeal held:

[33] […] three options that are available to an employee when an employer attempts a unilateral amendment to a fundamental term of a contract of employment […]

[…]

[35] Second, the employee may reject the change and sue for damages if the employer persists in treating the relationship as subject to the varied term. This course of action would now be termed a “constructive dismissal” […]

[…]

[18] This case engages consideration of the second option referenced above (paragraph 35 of Wronko). The employer insisted that the new term be part of the contract (working fixed hours in the office), and the employee resisted. To foist that term upon the employee instead by way of a mitigation obligation would be to ignore the options available to the employee that arise from the fundamental change. The employer would indirectly get what it wanted notwithstanding the constructive dismissal. [underline added]

AJ Farrington explicitly referenced his famous prior case of Coffey v Nine Energy Canada Inc., 2017 ABQB 417 which had suggested that unliquidated damages in wrongful dismissal cases should be dealt with in summary trials, not summary judgment applications.  He noted that the more recent caselaw of Justice Marion in McDonald v Sproule Management GP Limited, 2023 ABKB 587 was part of the more “modern tendency to apply the summary judgment rule broadly to include assessments as part of summary judgment applications”.  He noted that he was going to assess damages on this case by way of summary judgment on that basis.

Judge Farrington noted, however:

[25] […] I do, however, remain of the view that there is a difference between summary judgment and summary trial procedures, and how to define and delineate those differences will likely require further guidance and discussion.

My Take

This case covers more important topics in employment law than it appears at first glance.  Here are most of the ones covered:  (1) Working from home as a term of employment (2) Forcing work in the office as a trigger for constructive dismissal (3) Reasonable notice required to change a term of employment (4) the interaction of constructive dismissal and working for the same employer (5) summary judgment for assessment of severance pay damages in wrongful dismissal.

Judge Farrington’s decision to explicitly throw support behind Sproule and away from Coffey v Nine Energy might move the employment law bar closer to consensus on the law of summary judgment in employment law.

Time will tell.

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Bow River Law is a team of knowledgeable, skilled and experienced employment lawyers handling employment law, human rights (discrimination) and labour law matters.  Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.