Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff's employment was governed by a series of fixed-term contracts that automatically terminated upon expiration, rather than representing indefinite employment entitled to reasonable notice.
• The Human Rights Commission had previously adjudicated and dismissed the plaintiff's discrimination and harassment allegations on their merits, creating issue estoppel that barred relitigation in civil court.
• Plaintiff secured new employment at substantially higher compensation within seven weeks of contract termination, satisfying the legal obligation to mitigate damages.
• Procedural non-compliance by the self-represented plaintiff—failure to file affidavits, witness statements, or responsive evidence—left all defendants' factual assertions unchallenged.
• No legal cause of action existed for the individual defendants as they acted within the scope of their employment roles at the organization.
• The fixed-term contract characterization was established precedent that precluded entitlement to wrongful dismissal damages or reasonable notice payments.

Background and employment history

Andrew Saa Gbongbor immigrated to Canada as a refugee from Sierra Leone in June 2004 and began working with the Multicultural Association of Fredericton (MCAF) in July 2005. Between July 2005 and January 2016, he worked in casual and part-time positions with variable hours that depended on funding availability and seasonal needs. During this initial period, the plaintiff experienced several gap periods lasting weeks or months when he did not work at all. In January 2016, the plaintiff's employment status changed when he began full-time employment with MCAF through a series of fixed-term employment contracts. These contracts varied in length, duties, pay, and work hours, with the initial contract commencing on January 11, 2016, and expiring on March 31, 2016, corresponding to MCAF's fiscal year-end. The plaintiff signed each contract, confirming in writing that he understood and accepted the terms. From March 2016 until March 31, 2020, the plaintiff's contracts were renewed on a roughly yearly basis, again aligned with MCAF's fiscal calendar.

Fixed-term contract characterization and terms

The employment contracts at issue contained explicit fixed-term language with automatic termination provisions. Beginning in March 2020, the plaintiff accepted shorter fixed-term contracts necessitated by the restrictions imposed during the COVID-19 pandemic, with terms of varying lengths. The 12-month fixed-term contracts resumed with the April 1, 2021 offer of employment, and the plaintiff continued on such contracts through March 31, 2023. The contracts expressly provided for automatic termination unless the term was extended by written agreement. The plaintiff's last fixed-term contract was dated April 1, 2022, and had a termination date of March 31, 2023. In an email response dated April 1, 2022, the plaintiff explicitly acknowledged the contract terms, stating "I have read carefully," thereby demonstrating his understanding and acceptance of the fixed-term arrangement. The evidence established that MCAF, as a non-profit organization relying on external funding for its operations, offered fixed-term contracts to most of its employees as standard practice because hours of work, wages, and position availability varied on a year-to-year basis and could not be guaranteed.

Performance concerns and non-renewal decision

In or around February 2023, MCAF received three written complaints regarding the plaintiff's conduct. The complaints addressed his cancellation of a planned outing at the last minute and incidents of his leaving children in his care unattended. Based on these performance and disciplinary issues, a decision was made by MCAF's Executive Director Lisa Banford DeGante, Director of Human Resources Nikol Ralcheva, Mrs. Caporossi, and Donna Gordon (Chair of MCAF Human Resources Committee and Vice-President of the Board of Directors) not to renew the plaintiff's contract. On March 30, 2023, Ms. Ralcheva and Ms. Banford DeGante met with the plaintiff and explained that his contract would not be renewed due to performance concerns. Significantly, MCAF did not allege or assert cause for the plaintiff's termination; rather, it exercised its contractual right not to renew the fixed-term arrangement.

Post-termination employment and mitigation

After the termination of his contract on March 31, 2023, the plaintiff commenced employment with St. Thomas University as of May 17, 2023, with an annual salary of $56,551.00. This represented a significant increase from his MCAF salary of $45,000.00 per year and occurred only seven weeks after his MCAF employment ended. The plaintiff had also brought a separate complaint against MCAF alleging breaches of the Employment Standards Act. To resolve that complaint, MCAF made a without-prejudice payment to the plaintiff totaling $3,533.09, which was equivalent to four weeks' pay. On October 28, 2024, counsel for the defendants made an offer of further payment to the plaintiff of $1,913.32 in exchange for discontinuance without costs, intended to represent the remaining three weeks between when the plaintiff left MCAF and when he started his new position. The plaintiff rejected this offer and returned the cheque.

Human rights complaint and issue estoppel

Contemporaneously with the non-renewal of his contract, the plaintiff filed a complaint with the Human Rights Commission (HRC) on July 12, 2023, alleging that Ms. Banford DeGante, Ms. Ralcheva, and MCAF discriminated against him based on colour, national origin, race, and social condition. While allegations falling outside the one-year limitation period were dismissed via the HRC's refusal to extend the time limit, the remaining allegations proceeded to adjudication, focusing on allegations of racial and social discrimination and harassment. The HRC ultimately dismissed the remainder of the complaint for lacking merit. Contemporaneously with filing the HRC complaint, the plaintiff commenced the civil action on July 24, 2023, seeking both general damages and punitive damages based on allegations of workplace discrimination, harassment, racism, and bad faith in connection with his termination.

Procedural non-compliance and litigation conduct

The plaintiff's litigation conduct significantly undermined his case. Although initially represented by counsel, the plaintiff became self-represented in December 2023. When the action was commenced under the simplified procedure under Rule 79, the plaintiff was required to serve an Affidavit of Documents by October 18, 2023, and witness affidavits by December 18, 2023. Despite several requests, the defendants were required to bring a motion to compel delivery of the Affidavit of Documents. To date, the plaintiff has never filed any sworn evidence. The plaintiff further failed to comply with Rule 22.03, which required him to file a written brief at least four days before the hearing. The only document submitted by the plaintiff was a "Response to the Defendants' Affidavits" dated October 28, 2024, which did not comply with the Rules of Court, containing a mixture of opinion, argument, and fact without being either a proper affidavit or a formal pleading. This response was not filed in response to the motion for summary judgment itself. As a result, the plaintiff failed to put his best foot forward and indeed put no foot forward at all, leaving the defendants' factual assertions entirely unanswered and unchallenged.

Court's legal analysis

Justice Terrence J. Morrison applied the contemporary summary judgment test, which requires only that there be a genuine issue requiring a trial. The defendants advanced three principal grounds for summary judgment. First, they argued that the plaintiff was not dismissed but was a fixed-term employee whose contract was not renewed and therefore was not entitled to reasonable notice. The court found the evidence of the defendants was that the plaintiff worked for MCAF through a series of different fixed-term contracts varying in length, duties, position, remuneration, and work hours, with the fixed-term nature known and understood by the plaintiff. This evidence stood uncontradicted by the plaintiff. Relying on the precedent established in Burns v. UNB, the court concluded that an employee whose contract is not renewed at the conclusion of a fixed-term contract is not entitled to reasonable notice. The contract simply terminates without any obligation on either party to continue. The court found that the contracts were clear and comprehensive and that the plaintiff was not an indefinite hire employee but rather a contract term employee with no ambiguities to be interpreted regarding termination. This conclusion had been affirmed by the Court of Appeal in Burns v. UNB, establishing that where an employment contract is for a fixed term, the employment relationship terminates at the end of the term without any obligation on the employer to provide notice or payment in lieu of notice. The plaintiff's employment ended when his fixed-term contract was not renewed, meaning he was not terminated, wrongfully or otherwise, and was not entitled to damages for wrongful dismissal.

Mitigation and damages

Even if the plaintiff had been entitled to damages for wrongful dismissal, which the court found he was not, he had fully mitigated any losses. The plaintiff's employment with MCAF ended on March 31, 2023, and he secured new employment with St. Thomas University on May 17, 2023—seven weeks later. His annual salary at St. Thomas University was $56,551.00, which was higher than his salary at MCAF of $45,000.00 per year. In addition to this substantially increased salary, MCAF made a without-prejudice payment of $3,533.09 in September 2023, equivalent to four weeks' pay, and made a final offer of $1,913.32 intended to represent the remaining three weeks between termination and new employment. In light of the post-termination payments and offer of payment, together with the plaintiff's significantly increased salary at St. Thomas University, the court concluded it was clear that the plaintiff had fully mitigated his damages. An employee who has fully mitigated his or her damages will generally not be entitled to any further award.

Issue estoppel and the human rights allegations

Although not necessary to the court's decision, Justice Morrison addressed the issue of issue estoppel. The court agreed with the defendants' assertion that the plaintiff was barred from advancing the Human Rights Allegations on the basis of issue estoppel. The three preconditions for the doctrine were met: the Human Rights allegations were essentially the same as the allegations set out in the plaintiff's Statement of Claim; the HRC exercises a judicial function and rendered a final decision; and the parties to the Human Rights complaint before the HRC encompassed all the same defendants in the civil action. The court noted that in the similar case of Ryall v. BBM & All Affiliated Companies, a plaintiff who filed a discrimination complaint with the HRC that was dismissed for lack of merit was barred from relitigating those same discrimination allegations in civil court through the doctrine of issue estoppel. The facts of the Gbongbor case were remarkably similar. The Human Rights allegations in the plaintiff's complaint to the HRC were essentially the same as those upon which the present action was based. The court concluded that the harassment and discrimination allegations contained in the plaintiff's Statement of Claim were res judicata by way of issue estoppel, and once those allegations were removed, the plaintiff's cause of action was effectively eviscerated.

Conclusion and outcome

The court concluded that, given the analysis outlined above, the plaintiff had no realistic path to success in the action. The court was satisfied there was no genuine issue requiring a trial and granted summary judgment in favour of the defendants against the plaintiff. The defendants, as the successful parties, were entitled to costs, which the court fixed at $1,000. The defendants' motion for summary judgment was granted in its entirety, dismissing all of the plaintiff's claims against the Multicultural Association of Fredericton, Lisa Banford DeGante, and Nikol Ralcheva. No damages or compensation were awarded to the plaintiff, and the court awarded costs of $1,000 to the defendants.