Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sued for wrongful dismissal, alleging unjust cause and procedural unfairness in termination by MacKay Contracting Ltd.

• The central evidentiary dispute revolved around unsubstantiated allegations of misconduct relied upon by the employer without direct witness testimony.

• Sherritt International was named as a co-defendant under the “common employer” theory, which was ultimately rejected.

• The plaintiff made a pre-trial settlement offer that exceeded the eventual award, raising issues around cost consequences under Rule 9-1.

• The court evaluated whether MacKay’s litigation conduct justified special or uplifted costs but stopped short of awarding special costs.

• Allocation of costs between co-defendants and the plaintiff involved detailed analysis of duplicative legal efforts and minimal separate involvement by Sherritt.

Facts and outcome of the case

Kristopher Kenneth Liivam brought an action against his former employer, MacKay Contracting Ltd., claiming he was wrongfully dismissed from his employment without just cause. He also named Sherritt International Corporation as a co-defendant, alleging that both entities operated as common employers. The plaintiff was terminated after allegations of misconduct surfaced, but MacKay failed to provide any witnesses with direct knowledge to support those claims at trial.

The court dismissed the claim against Sherritt, finding insufficient evidence to establish that it was a common employer. Despite internal emails and references to joint involvement, the court concluded Sherritt lacked sufficient day-to-day control over the plaintiff’s employment to qualify as a common employer. The failure to compel necessary witness evidence further undermined the plaintiff’s case against Sherritt.

Against MacKay, however, the court found in favor of the plaintiff. Justice Veenstra ruled that MacKay's termination of the plaintiff was unjustified and based on inadequately investigated allegations. The employer failed to meet the standard required to dismiss an employee for cause, particularly in the absence of admissible supporting evidence. The plaintiff was awarded damages exceeding $111,000, not including costs.

On the matter of costs, the court declined to award special or double costs to the plaintiff. Although MacKay maintained allegations of dishonorable conduct without evidence, the court did not find its conduct rose to the level of being “reprehensible” to justify special costs. However, due to the nature of the defense and the added burden placed on the plaintiff to respond to unsupported claims, the court found that ordinary costs would be unjust and ordered uplift costs—calculating the tariff at 1.5 times the standard Scale B.

Sherritt was awarded only 10% of its costs due to its minimal and largely duplicative role in the proceedings. The court rejected the plaintiff’s request for a Sanderson or Bullock order that would have shifted Sherritt’s costs onto MacKay. Each party was left to bear its own responsibility based on their relative success and involvement.

Ultimately, the plaintiff prevailed in his primary wrongful dismissal claim against MacKay, while Sherritt succeeded in defending against the common employer allegation. The result reflects the court’s careful weighing of evidentiary preparation, litigation conduct, and procedural fairness.