Executive Summary: Key Legal and Evidentiary Issues

• Central issue was whether Ms. Falkenberg was a casual or regular employee from 1996 to 2018, which determined the length of reasonable notice owed.

• The Applications Judge classified Ms. Falkenberg as a casual, part-time employee based on inconsistent salary records and lack of evidence for regular market-value wages, awarding six months’ notice.

• On appeal, the Court found that written employment agreements and the nature of Ms. Falkenberg’s duties supported her status as a regular employee.

• The Court determined that Ms. Falkenberg’s employment with SAS was continuous from July 1996 to December 2020, despite salary waivers and changes in company ownership.

• Reasonable notice was reassessed, with the Court finding 18 months appropriate based on the Bardal factors, including her age, tenure, and managerial responsibilities.

• Judgment was for $90,000 (18 months at $5,000/month), less the one month already paid and any additional amounts previously paid.

Background and employment history

Colleen Falkenberg was employed by Stephen Avenue Securities Inc. (“SAS”) as a Registered Representative as defined by the Investment Industry Regulatory Organization of Canada (“IIROC”). She also served as compliance officer and corporate secretary. SAS terminated her employment in December 2020, at which time she was working part-time, three days per week, earning $5,000 per month. Upon termination, SAS paid her one month of salary in lieu of notice.

Initial decision and findings

Ms. Falkenberg commenced a wrongful dismissal claim against SAS and applied for summary judgment. The Applications Judge determined that her employment was terminated without cause, entitling her to reasonable notice or pay in lieu. The Judge found that while Ms. Falkenberg had been employed since 1996, she was a casual, part-time employee for much of that period, based on evidence such as periods with no salary and redacted salary amounts on T-4 slips. The Judge awarded her six months’ pay in lieu of notice, less the one month already paid, resulting in judgment for five months’ pay at $5,000 per month.

Appeal and legal analysis

Ms. Falkenberg appealed, arguing that she was a regular employee and entitled to a longer notice period due to her age, length of service, and the nature of her employment. The appeal focused on whether she was a casual employee and the assessment of her tenure. The Court reviewed the definition of “casual employee” and the relevant factors for such a determination, noting that no single factor is determinative.

The Court found that the written employment agreements in 2018 and 2020 did not fundamentally change her duties, which had always been integral to SAS’s operations. The evidence established that Ms. Falkenberg’s employment commenced in July 1996 and continued until December 2020. The Court accepted the affidavit and testimony of Karen O’Connor, SAS’s CFO from 2005 to 2020, confirming Ms. Falkenberg’s continuous employment. The Court also noted that Ms. Falkenberg’s role as a registered representative required her to be an employee throughout her tenure. Salary waivers or non-payment in certain years were attributed to SAS’s financial circumstances and did not interrupt her employment.

Determination of reasonable notice and outcome

The Court concluded that Ms. Falkenberg was not a casual employee and that her employment with SAS was continuous from July 1996 through December 2020. The Court applied the Bardal factors, considering the nature of her employment, length of service (24 years), age (59 at termination), and managerial responsibilities. The Court found that a reasonable notice period was 18 months. The Court noted that while Ms. Falkenberg argued for 24 months, a reduction was warranted because she was aware, following the sale of SAS, that her employment would not be indefinite.

Final judgment

The Court ordered judgment in the amount of $90,000, representing 18 months’ salary at $5,000 per month, less the one month already paid at termination and any additional amounts already paid pursuant to the earlier judgment. Ms. Falkenberg was the successful party, and the exact amount awarded was $90,000 minus prior payments.