In the Court of Appeal of Alberta

Citation: Roberts v. Edmonton Northlands,2019 ABCA 229

Date: 20190607
Docket: 1903-0032-AC
Registry: Edmonton
Between:

Janet A. Roberts,Lorianne Marie Wooldridge, Teresa Gail Hooper-Troudt,

Sonia Jean Phillips, Tammy Lynne Lockwood,Mary Gaye Gray, Denise Dion,
Kathryn Ann Millar, Monique Elise M.Labonte, Sarah Esther Pollard,
Donnagail Nally, Karen Gail Carlson,Sherry Elaine Chaba, Margaret Burton,
Annette Margaret Martin, Ashley Elizabeth Carlson, Angela Karen Pegg,
Judith Marlaine Hryniw and Annie Mary Handfield

Respondents
(Plaintiffs)

- and -

Edmonton Northlands and Tim Reid

Appellants
(Defendants)

The Court:
The Honourable Madam Justice Sheila Greckol
The Honourable Madam Justice Jo'Anne Strekaf
The Honourable Madam Justice Ritu Khullar

Memorandum of Judgment

Appeal from the Order by

The Honourable Mr. Justice J.T. Neilson
Dated the 4th day of January, 2019
Filed on the 23rd day of January, 2019
(2019 ABQB 9, Docket: 1603 04883)
 Memorandum of Judgment

The Court:

[1] Edmonton Northlands and Tim Reid (Northlands) appeal a decision of a chambers justice
dismissing their application for partial summary dismissal of claims for defamation brought by all
19 plaintiffs and a claim for constructive dismissal brought by Janet Roberts. Northlands did not
apply for summaryjudgment ofthe wrongful dismissal claims brought by the plaintiffs(excluding
Janet Roberts). All ofthe claims relate to a decision by Northlands on October 5,2015 to terminate
all of the cashiers who worked for its parking services, including the plaintiffs. The termination of
the employment of all the plaintiffs was on a "without cause" basis, and Northlands provided the
statutory minimum payment in lieu of notice to them.

[2] However, on October 5, 2015, Northlands posted a notice and sent an email to its
approximately 2500 employees and 1100 volunteers advising ofthis decision(Notice). The Notice
stated, among other things:

We have made an important business decision to contract out our parking cashier
services effective immediately.

Over the past three months an internal audit and external independent audit was
performed on Parking Services. The result of these audits provided compelling
evidence that theft within the department was occurring on between 12-19% of all
transactions. In short, it was in excess of$1 million annually.

Although not everyone may have been part ofthe problem,it was evident that many
ofthe people in the department were participating in the thefts or aware ofthe issue.

Effective immediately Northlands has outsourced all services related to Parking.

Cashiers only.

We must stress that this decision was not to provide budget reliefor savings on staff
expense; it was purely to manage our business to the highest fiduciary standards.

[3] The Notice went on to explain that instead of spending money to further investigate to
identify who was involved in the theft, Northlands decided to, effective immediately, outsource all
services relating to parking cashiers and then transition to an automated parking system as soon as
possible.
 Page: 2

[4] Upon becoming aware of what was being said about them in the Notice, some of the
plaintiffs contacted the media to defend their reputations. This resulted in certain media outlets
contacting Northlands, and Northlands essentially repeating the contents of the Notice in various
media interviews.

[5] The chambers justice dismissed the claims for summary dismissal. He found that
Northlands had not established:

• the defamation claim had no merit merely because no individual plaintiff was identified in
the notice, given the law on group defamation;

• the defence ofqualified privilege would succeed because, given the scope ofthe distribution
of the email, there were triable issues relating to the limits and duty to communicate; and
even if it did apply, there was a triable issue as to whether the allegation of theft was made
with malice; and

• the claim for constructive dismissal by Ms. Roberts would fail as there were triable issues of
fact and credibility with respect to the scope ofthe duties she performed historically, and the
impact of the new policy on those duties, which would determine whether the new policy
amounted to fundamental change to her employment contract.

[6] On appeal, Northlands argues that the chambers justice erred in the test for summary
judgment, erred in his application ofthe test for group defamation, and erred in his application of
the test for constructive dismissal. Northlands is not appealing the conclusion on qualified
privilege.

[7] The evidence establishes that Northlands initially retained KPMG in April 2015 to do a
business optimization assessment which recommended an automated parking system as a means
for Northlands to reduce its labour costs. Northlands then did an internal audit and a subsequent
independent audit ofits parking services by the Edmonton International Airport(EIA). Both audits
identified issues with a number of non-cash transactions that were undocumented under
Northlands procedures for cashiers and identified a number offollow up questions(such as trying
to determine the number of parking passes being issued and used). Notably, as the chambers
justice points-out at paragraph 40 of his reasons, neither the internal or EIA audit mention theft by
cashiers. While the Board ofNorthlands made the decision to terminate all cashiers and outsource
its parking services on September 16,2015, this was not announced until October 5, 2015. In the
meantime, on September 18, 2015 Northlands changed its procedures for parking cashier
supervisors which required Ms. Roberts to change the way she did herjob,resulting in her leaving
work at the end of the first day ofthe changes. The effect and scope of these changes is at the root
of the constructive dismissal claim.

[8] The Chambers Justice did not have the benefit of this Court's decision in Weir-Jones
Technical Services Incorporated v Purolator Ltd, 2019 ABCA 49, but found that whichever test
 Page: 3

was applied, summary judgment failed. Weir-Jones confirms that the party moving for summary
Judgment must prove there is "no merit" to the claim. This means that Northlands must prove the
factual elements ofits case on a balance ofprobabilities and that there is no genuine issue requiring
trial. There is no burden on the resisting party, the plaintiffs in this case, to prove their case. Rather
the resisting party need only demonstrate "the record, the facts, or the law preclude a fair
disposition, or, in other words, that the moving party has failed to establish there is no genuine
issue requiring a trial" {Weir-Jones at para 32).

[9] With respect to the defamation claim,the key question is the application ofthe principles in
Bou Malhab v Diffusion Metromedia CMR inc., 2011 SCC 9. In order to establish defamation, a
plaintiff must prove that the alleged defamatory words were published to at least one other person
besides the plaintiff; that they would tend to lower the reputation of the plaintiff in the eyes of a
reasonable person; and that the words refer to the plaintiff. Ifthese three elements are established,
falsity and damage are presumed and the onus shifts to the defendants to escape liability: Grant v
Torstar Corp,2009 SCC 61 at para 28.

[10] Since none of the plaintiffs are individually identified in the Notice or any other relevant
communication, Northlands argues that the plaintiffs cannot succeed in their defamation claim.
Further, it argues that the chambers justice erred in applying the principles from Bou Malhab and
when individuals who form part ofa named group can bring a claim for defamation. The Supreme
Court of Canada in Bou Malhab specifically noted that attacks on a group can affect the reputation
of an individual member ofthe group. A judge must analyze the impugned comments taking into
account all of the circumstances in which they were made. This includes, but is not necessarily
limited to: the size of the group; the nature of the group; the plaintiffs relationship to the group;
the real target ofthe defamation; the seriousness or extravagance ofthe allegation; the plausibility
ofthe comments and tendency to be accepted; and extrinsic factors {Bou Malhab at paras 57-78).
"Ultimately, the court must not conduct a compartmentalized analysis or seek to find all of the
relevant criteria. What must be determined is whether an ordinary person would believe that the
remarks, when viewed as a whole, brought discredit to the reputation ofthe victim"{Bou Malhab
at para 79). It is important to recall that in defamation, damage to reputation is presumed once all
of the elements have been established.

[11] We see no reviewable error in the chambers justice's analysis on this point. Having
considered both the size and nature ofthe group, he concluded that Northlands failed to establish
that the defamation claim was without merit. His conclusion about whether the group is strictly
organized and homogenous is to be considered within the context ofthe record in this case, and is
a question of mixed fact and law to which deference is owed. His failure to address each factor
identified in Bou Malhab to come to this conclusion is not an error in law, but rather an exercise in
judicial restraint. Having determined that a triable issue was raised on the first two factors it was
not necessary to consider the remaining factors.
 Page: 4

[12] With respect to the claim by Ms. Roberts for constructive dismissal, the chambers justice
correctly cited the applicable legal principles from Potter v New Brunswick Legal Aid Services
Commission. 2015 SCC 10. His review of the evidence lead him to the conclusion that the claim:

[Mjust be assessed in the context of her history ofemployment as supervisor of the

cashiers, the scope of the duties which she normally performed, the steps that were
taken by the employer to determine that an automated parking system would be
installed and the entire cashier group would be terminated, and the specific changes
to parking procedures that Ms. Roberts was expected to follow pursuant to the
memorandum of September 18. 2015. These are issues of fact and credibility that
can only be determined by a trial judge considering the factual matrix that will be
established in evidence and assessment of the credibility of the individual
witnesses.

(Chambers judge's reasons at para 46)

[13] We agree.

[14] While the burden of proving constructive dismissal is on the plaintiff at the trial, in the
application below, the burden was on Northlands to establish that the constructive dismissal claim
was without merit. The chambers justice did not reverse the burden in his analysis in concluding
that there were triable issues with this claim.

[15] For the forgoing reasons the appeal is dismissed.

Appeal heard on June 3, 2019

Memorandum filed at Edmonton, Alberta

this "7 day of June. 2019

Greckol J.A

JUN 0 7 2019

Strekaf J.A

0/

Khullar J.A.
 Page: 5

Appearances:

G.L. Pidde
for the Respondents

D.D. Risling/J.N. Kruhlak

for the Appellants