In the Court of Queen’s Bench of Alberta decision of Benke v. Loblaw Companies Limited,[1] Feasby J. considered the appropriateness of deciding a constructive dismissal dispute by way of summary trial. In so doing, he also considered the relationship between arbitration and the courts.
Background
The plaintiff, Michael Benke, (the “Plaintiff”) began working for Loblaw Companies Limited (the “Defendant”) in 2002. After several promotions, he oversaw 61 grocery stores in Alberta and British Columbia, and his role was partly remote work and partly in-store work.
During the COVID-19 pandemic and effective August 1, 2020, the City of Calgary passed a bylaw that required people in public premises to wear a mask to mitigate the spread of COVID-19 (the “Bylaw”). The Bylaw contained several exemptions, including one for “persons with an underlying medical condition or disability which inhibits their ability to wear a face covering.”
On July 28, 2020, the Plaintiff’s family doctor completed medical certificate that stated that the Plaintiff was “unable to wear a face mask as per City of Calgary bylaw due to illness”. The illness was not identified nor was an explanation provided. The Defendant accepted the medical note and allowed the Plaintiff to continue in his role and work without a mask when he was required to work on site.
Loblaw adopted a mandatory mask policy as of August 29, 2020 (the “Policy”). Employees who were unable to wear a mask based on the noted exemptions were to speak with their manager regarding their accommodation needs.
Shortly after the Defendant received a completed exemption request from the Plaintiff, Ms. Nelson, an occupational health nurse employed by the Defendant, followed up with the Plaintiff concerning his exemption form with a view to obtaining more information. Ms. Nelson said that the Plaintiff told her that his request for an exemption from the Policy was “not medical”. The Plaintiff denied saying this.
The Plaintiff was subsequently placed on indefinite unpaid leave because he refused to wear a mask in stores without medical justification. He asserted that by placing him on unpaid leave, the Defendant constructively dismissed him.
The Plaintiff set the matter down for a summary trial, and the Defendant did not object.
The court’s decision
The action was dismissed with costs payable to the Defendant.
Feasby J. held that it would not be unjust to decide this case by way of summary trial. The cost to the parties of litigating this dispute was not proportional if a full trial was required.[2]
Feasby J. held that the fact that, even at this summary trial, the Plaintiff adduced no evidence of a medical condition or disability that prevented him from wearing a mask strongly suggested that there was no medical basis for his exemption request and that the Plaintiff was candid about this with Ms. Nelson.[3] The Plaintiff’s family doctor could not and did not say that the Plaintiff had a valid medical reason to be exempted from the requirements of the Bylaw or the Policy.[4]
The Plaintiff’s refusal to abide by the Bylaw and the Policy was a repudiation of his employment agreement. The Defendant, however, did not accept the repudiation and put the Plaintiff on unpaid leave. The Defendant acted reasonably in so doing. The Plaintiff was not constructively dismissed; he resigned. Any losses that he suffered from being put on unpaid leave were self-inflicted and not the responsibility of the Defendant.[5]
Conclusion
While this was an employment law case that did not involve an arbitration, the case is nevertheless of interest to the arbitration community.
Feasby J. stated that underutilization of the summary trial process in Alberta, due to the perception that summary trial is a risky procedure, contributes to the problem discussed in Hannam v. Medicine Hat School District No. 76[6] in the context of summary judgment, wherein Feehan and Wakeling JJA observed that “conventional trials are expensive and plagued by delay,”[7] and that the length of time that civil matters take to get to trial is pushing matters into arbitration.[8]
A large-scale exodus from the courts would create a rule of law problem, as the law that governs commerce is, in significant part, the product of the courts. Public reasons are a public good. Arbitration, which is typically conducted in private and sometimes shielded by confidentiality agreements, rarely produces public reasons. Without a steady caseload in the courts, commercial law will cease to develop in tandem with our ever-changing society.[9]
While Feasby J. stated that arbitration needs the courts to produce the public reasons that form the law which arbitrators use to decide disputes, he also stated that arbitration has an important role to play in resolving private disputes,[10] and therefore implied that the courts also need arbitration.
[1] 2022 ABQB 461; available online at https://www.canlii.org/en/ab/abqb/doc/2022/2022abqb461/2022abqb461.html.
[2] Ibid., para. 23.
[3] Ibid., para. 39.
[4] Ibid., para. 48.
[5] Ibid., paras. 65-67.
[6] 2020 ABCA 343, available online at https://www.canlii.org/en/ab/abca/doc/2020/2020abca343/2020abca343.html.
[7] Ibid., para. 46.
[8] Supra note 1 at paras. 6-7
[9] Ibid., para. 9.
[10] Ibid., para. 10.