Canada: Alberta Employment Law Update: Winter 2013


  • Employee's Mitigation. The Alberta Court of Queen's Bench deducted two months from a 24-month notice period for the potential that a 50-year-old professional engineer would be able to mitigate his losses after judgment. The Court reasoned that, notwithstanding the plaintiff employee's attempts to mitigate his loss had not been successful in the ten months following his dismissal, it remained a realistic possibility he would find suitable employment within the notice period.
  • Solicitation and the Fiduciary Relationship. The Alberta Court of Appeal upheld a trial decision that a sports agent owed a fiduciary duty to his employer, and breached it by indirectly soliciting clients immediately following his dismissal. The employee's status as fiduciary stems from the responsibilities entrusted to him by the employer and his resulting ability to affect the economic interests of the company. The Court also held that termination of employment does not automatically relieve an employee of their fiduciary obligations.


Hansen v Altus Energy Services Partnership, 2010 ABQB 820, [2011] AWLD 682 ("Hansen")

Hansen is an Alberta decision where the Court of Queen's Bench concluded a deduction of two months, from an award of 24 months, was appropriate as there was "certainly a realistic possibility that Hansen will find alternate employment within the notice period provided for" (at para 54).

The plaintiff in Hansen was a 50-year-old professional civil engineer who had worked for Altus Energy Services Partnership ("Altus") and its predecessors for 29 years. Over time, he had risen to the position of General Engineering Manager for which he received a salary of $160,000, a company vehicle, and an annual bonus. Leading up to his dismissal, Altus had reduced the hours of operation and the salaries of its employees by 20% and Mr. Hansen had accepted this reduction with the expectation that such reduction would only be temporary. Although Mr. Hansen's hours returned to their original level later on, his salary remained at the reduced level, notwithstanding a significant promotion. Despite several attempts to speak to Senior Management, his salary was never restored to its original amount and, soon after his promotion, Mr. Hansen was dismissed without cause or notice.

The Court awarded a notice period of 24 months in light of the plaintiff's years of service, his age, and his expertise. Justice J. H. Goss also concluded that taking three months to construct a resume, using the services of two headhunting firms, and regularly using the website of one of the headhunting firms to search for employment over a period of ten months following dismissal were sufficient to demonstrate the employee had fulfilled his duty to mitigate.

The trial took place within the notice period and Altus argued the notice period ought to be reduced to reflect the contingency that Mr. Hansen would find suitable employment before the expiry of the 24 months. The Court applied a contingency of two months to the notice period but provided little analysis with respect to how it reached the conclusion that two months was sufficient. Justice Goss cited only a "positive and long track record with the defendants" (at para 54*) as an indication of the "realistic possibility" Mr. Hansen would find and obtain suitable employment.

As of the date of publication, Hansen has not been reversed or distinguished. Matusiak v IBM Canada Ltd., 2012 BCSC 1784 ("Matusiak") is a more recent decision which provides very general guidance for determining deductions for contingency. In Matusiak, the trial took place within six months of the dismissal, and over half of the notice period remained. The Supreme Court of British Columbia held the employee was entitled to a notice period of 14 months, but agreed with the employer that "In the event the court determines that a reasonable notice period meets or exceeds 10 months... any award for reasonable notice should be reduced by one month to reflect the contingency that the plaintiff may secure alternative employment prior to the expiration of the notice period" (at para 47*).

Evans v Sports Corp., 2013 ABCA 14, 2013 CarswellAlta 19 ("Evans")

The appellant in Evans was a sports agent with The Sports Corporation ("TSC") and his contract was not renewed following the 2004-2005 NHL lockout. Mr. Evans claimed for bonus money, compensation and payment for the five-day period between when he was given his notice and the end of his contract. TSC counterclaimed, arguing Mr. Evans had breached the restrictive covenant prohibiting solicitation following his termination and, in the alternative, Mr. Evans owed a fiduciary duty to TSC which he breached when he solicited clients following his termination. TSC's counterclaim succeeded at trial and Mr. Evans appealed.

Prior to the termination of his contract, Mr. Evans discussed his departure from TSC with certain valuable clients and contacts, and asked whether they would follow him if he left TSC. Among those he approached were Jaromir Henys and Peter Kadlecek. Mr. Henys and Mr. Kadlecek have been instrumental in developing TSC's European connection by recruiting young players from Slovakia and the Czech Republic, and introducing them to TSC. Following Mr. Evans' termination, Mr. Henys and Mr. Kadlecek, as well as a number of clients, left TSC to join Mr. Evans. Mr. Henys and Mr. Kadlecek supplied the majority of Mr. Evans' new clientele.

On appeal, Mr. Evans argued the Trial Judge erred by concluding he was a fiduciary. Further, Mr. Evans argued he was not in breach of any of his duties because first, he did not directly solicit clients, and second, any applicable fiduciary obligations ended upon his termination.

Although Mr. Evans had never occupied a managerial or supervisory position, the Court of Appeal reasoned since he "was the face and voice of TSC in North America" and because he had been "entrusted with the primary responsibility for the development of these players" (at para 33*) the element of vulnerability fundamental to any fiduciary relationship was present in this case. There was no undertaking by Mr. Evans to assume the obligations of a fiduciary, but the Court of Appeal stated an undertaking was not required to demonstrate a fiduciary relationship existed. Instead, the Court of Appeal concluded the existence of a fiduciary relationship "relates to the responsibilities entrusted to an employee, including an attendant power to affect the economic interests of the company" (at para 34*). Mr. Evans' solicitation of TSC's clientele was ultimately characterized as "the appropriation of a corporate opportunity" (at para 35*) for his own benefit.

The Court of Appeal in Evans effectively reversed ADM Measurements Ltd. v Bullet Electric Ltd., 2012 ABQB 150, 59 Alta LR (5th) 278 [ADM], which was discussed in the Davis LLP Summer 2012 Employment and Labour Bulletin.

In ADM, the Court of Queen's Bench stated the element of vulnerability alone was not sufficient to establish a fiduciary relationship exists. In addition to the element of vulnerability, there must be an undertaking by the employee. ADM relied on the statement in Alberta v Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 SCR 261 ("Elder Advocates"), that to be a fiduciary, the employee must provide an undertaking to act in the best interests of the employer (at para 30*). Evans however, restores the more expansive approach to the characterization of fiduciary duty.

On appeal, Mr. Evans cited ADM as authority for the principle that even if a fiduciary relationship did exist, his fiduciary obligations ended once he was dismissed. The Court of Appeal reversed ADM on this point as well, expressly rejecting "the view that a termination of employment will automatically relieve a former employee of ongoing fiduciary obligations" (at para 37*) and concluding that "TSC's relatively minor breach of contract is irrelevant to Evans' ongoing fiduciary obligations, and does not serve to relieve him of them"(at para 37*).

The Court of Appeal concluded that while Mr. Evans did not solicit business directly from TSC's clients, he solicited clients indirectly through Mr. Henys and Mr. Kadlecek. Mr. Evans had done indirectly what he was prohibited from doing directly. Although in this case, the Court of Appeal held that indirect solicitation was a violation of fiduciary duty, its conclusion was largely based on the Trial Judge's findings of credibility and it remains to be seen whether this particular aspect of Evans will be distinguished.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions