In Tudor v Accurate Screen Ltd., 2026 ABKB 237 (Yamauchi, J), the Court found an employer had just cause to dismiss an employee who made misrepresentations on his resume.
This case is important for a number of reasons: (1) it discusses the propriety of streamlined trials in a just cause employment law case (2) it considers the obligations of employees and employers when it comes to an employee misrepresentation (3) its (provisional) assessment of reasonable notice is somewhat novel, and (4) it considers entitlement to bonus where only a portion of the bonus year was worked.
Facts
The following were some of the pertinent facts summarized by the ABKB:
- The plaintiff employee Mr. Tudor was hired at the employer Accurate Screen into the position of VP, Business Development
- The plaintiff was not induced into the position – he applied to it and sent his resume
- The job posting for the VP Business Development role stated that ideally, the applicant would have an MBA
- His resume indicated that his Masters of Business Administration (“MBA”) was “expected in 11/2023” and was “Currently Ongoing”. At the time of applying he had not taken any MBA courses, and was not enrolled in any MBA courses
- The employee did not explicitly state that he had an MBA or that he was in school for the MBA program. His explanation for the references to the MBA on his resume was that he was planning on enrolling. He advised the employer he intended to enroll in the “mini MBA Programme” and told the employer he had commenced the initial process for registering for the program for April of 2023, but had not explicitly told the employer how little he had done towards obtaining an MBA. All he had done was create an online account with McGill University
- The employer’s evidence was that they would not have hired the employee if they had not understood he was going to obtain an MBA in November of 2023, and that they did not discuss education during interviews because they trusted the resume and considered it demeaning and unprofessional to inquire into the accuracy of an executive’s resume
- After being hired, the employee was able to do some of his assigned tasks, but struggled with some tasks they had thought he would have been able to handle
- About 6 months after being hired, the employer questioned his progress through the MBA program. His responses to the inquiries were evasive, but within a few weeks he did tell the employer he was not enrolled in and had not completed the MBA program
- The employer terminated his employment a few weeks later – around 7 months after he started – alleging just cause. He was 37 years old at the time. He sued for wrongful dismissal and reasonable notice
- The employer argued that it had just cause to dismiss the employee for misrepresenting his educational qualifications during the hiring process
- The employee argued that an MBA was not a job requirement and he had not been dishonest with the employer about his MBA status
- The employee was unemployed for a relatively short period of four months after dismissal
- The case proceeded by way of Streamlined Trial. Prior to the Streamlined Trial itself, the parties had obtained a Court Order from Justice Malik outlining what evidence the parties could rely on and how much time they each had to argue their case at the Streamlined Trial. The parties relied on affidavits, transcripts from cross-examinations, and an Agreed Statement of Facts.
Analysis / Conclusion
Justice Yamauchi noted that streamlined trial was ordered in this case despite there being credibility contests, which the Court said may have prevented it from proceeding under the old summary trial rules. The choice of the streamlined trial procedure appears to have been by consent of both parties. Here were the Court’s comments on this:
[73] The parties satisfied Justice Malik that a streamlined trial was the way in which to deal with this matter, such that they met the two-part test articulated in Rules r 8.25(1). As mentioned earlier, the parties disagree on certain facts. Under the old summary trial rules, this might have caused Justice Malik not to allow the parties to proceed with a streamlined trial. […]
[…]
[75] Rules r 8.25(3) appears to contemplate that there might be disputed questions of fact when it said, “A streamlined trial shall not be considered as a disproportionate process solely because … issues of credibility may arise.” In the case at bar, the parties raised certain issues of credibility in their written and oral arguments. As will become clear in what follows, this Court concluded that it was able to make the necessary findings of fact on the record before it and the parties’ oral submissions sufficient to deal with the fundamental issues that are before it.
In analyzing whether Accurate Screen had just cause to dismiss Mr. Tudor, the Court was focused on the level of culpability Mr. Tudor had for his representations about the status of his MBA.
The Court found that the resume was not “fairly accurate” respecting MBA. It was inaccurate. The Court found that the employer was not obligated to make a “deep dive” to determine academic qualifications. The duty was on the employee to provide accurate information from the start. The Court found that the employee made an intentional misrepresentation regarding his MBA status.
The Court ultimately concluded the employer had just cause for dismissal, reasoning as follows in the final stage of just cause analysis, proportionality:
[124] […] Should the interviewer or Mr. Hilsenteger have to take a “deep dive” into Mr. Tudor’s represented academic qualifications? Mr. Hilsenteger felt such a “deep dive” would be demeaning to a candidate who had made representations in his Resume. This Court agrees. A potential employer should be able to take a candidate who is applying for an executive position at their word. A potential employer can reasonably be expected to be able to rely on the honesty of a potential employee concerning that potential employee’s academic qualifications.
[…]
[128] […] given his intentional misrepresentation in the Resume, neither this Court nor Accurate Screen should need to look into the substance of that programme. He had neither enrolled in nor commenced that programme despite his representation to the contrary.
[129] This misrepresentation is “sufficiently serious that it strikes at the heart of the employment relationship.” Accordingly, Accurate Screen has shown that it had just cause to dismiss Mr. Tudor from his employment.
Although the employee was not entitled to any severance as a result of just cause dismissal, the Court considered what the reasonable notice period would have been if it had been a wrongful dismissal.
The Court noted that the caselaw suggested a reasonable notice period of 2.5 months to 11 months for someone in a Vice President or equivalent job. The Court awarded 4 months’ reasonable notice, reasoning that this is how long it took Mr. Tudor to actually find comparable employment. See “My Take” for commentary on this reasoning.
The Court then considered whether Mr. Tudor was entitled to a bonus for the period he worked between May 2023 and January 2024. The evidence was that Mr. Tudor received portion of an annual bonus when he was hired, and the fiscal year ran to March of 2024. Other executives received a bonus for that period, months after Mr. Tudor’s termination of employment.
The Court awarded Mr. Tudor a pro-rated portion of the bonus, to cover the portion of the fiscal year he actually worked. The Court directed the parties to determine what that amount was, or failing that, appear again in Court.
My Take
The decision finding there was just cause to dismiss the employee is not surprising to me, because the employer did seem to place value on the MBA, and the Court found the employee had intentionally misrepresented the status of his MBA. I suspect the decision may have turned out differently if the Court had not found the misrepresentation was intentional, but its hard to say.
The Court’s comments about the employer’s obligations to inquire were a bit surprising to me. On the facts of this case it made sense to me that the employer was not obligated to do more in order to find there was just cause. However, I am left wondering if the Court would have made the same comments about the employer’s duties to inquire about education if there had been less evidence of evasive behavior by the employee. I think the caselaw usually imposes at least some level of responsibility on the employer on things like this.
To illustrate what I mean, consider for instance that there have been many cases in employment law (and labour) where an employer has attempted to assert after-acquired just cause based on misconduct they knew (or ought to have known) something about while the employee was employed, but did not investigate, discipline or reference in a termination letter. In many of these cases the employer is prevented from relying on that misconduct to establish just cause. The reasoning varies, but I think the gist is generally that it is inconsistent for an employer to say that something is of critical importance to the employment relationship when they seemed to have little interest in it while the person was employed.
Finally, my comments regarding the calculation of reasonable notice. There are a high volume of cases which have held that the reasonable notice period is determined at the time of termination of employment, and not with reference to how long it actually takes the employee to get a job. It’s called “reasonable notice” because the Court is deciding what it thinks would be a reasonable period to find comparable employment based on what circumstances exist at the time of termination of employment.
There are some cases where long periods of unemployment have resulted in longer notice periods. There are very few cases which have found that a short period of unemployment can result in a shorter notice period in the way Tudor seems to have done. Short unemployment is typically only considered in mitigation and damages analysis – with the severance damages being reduced by other income (from the new job) in the reasonable notice period.
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