Executive Summary: Key Legal and Evidentiary Issues

• Employer bore the onus to prove just cause but showed only a suspicious circumstance (a stationary vehicle in GPS records) rather than proof that the plaintiff was sleeping or failing to perform his duties.

• The HR investigation showed significant problems, including tunnel vision, failure to review GPS data before termination, destruction of dispatch records, and selective treatment of hearsay about radio use.

• The court rejected Suncor’s argument that the plaintiff’s failure to personally drive and inspect roads throughout the shift was a serious safety breach justifying dismissal, noting the absence of evidence of a clearly defined and communicated requirement and of comparative practice.

• Applying the Bardal factors to the plaintiff’s age, 11 years of service, and supervisor role, the court fixed reasonable notice at 16 months and included salary, benefits, location index, shift-related payments, and unscheduled overtime in the damages calculation.

• The Annual Incentive Program bonus was excluded for the 2021 notice period under the plan terms, but the court awarded $9,328 as the amount of the 2020 AIP award that should have been paid, reduced for the plaintiff’s time on medical leave.

• Suncor’s housing subsidy counterclaim was allowed in the amount of $7,341.18 after excluding housing subsidy payments made during the plaintiff’s medical leave and paid investigative leave.

Factual background and employment history

Michael O’Driscoll was hired by Suncor on April 19, 2010. He was promoted to Shift Supervisor at the Base Plant in Fort McMurray on January 19, 2018. At the time of his termination in February 2021, he was 55 years old and held a leadership role supervising a multi-skilled, unionized workforce. The evidence estimated that 20 to 30 employees reported directly to him in his role as Shift Supervisor. In the field, he worked with other supervisors and shared responsibility for all employees working in the assigned area.

In January 2020, Suncor placed him on a Performance Improvement Plan because of concerns that he was inconsistent and rushed through preparation and execution of tasks. As an example, the employer identified a date when a dozer in his area of supervision was not used for an eight-hour period and reminded him that supervisors were required to manage resources, equipment and assets to maximize utilization and drive efficiencies.

The plaintiff went on medical leave from April 2, 2020, to October 2, 2020, for stress and anxiety he attributed to workplace bullying by a former supervisor. When he returned, the PIP was extended and his direct supervisor became Matthew Brown in late November 2020. The reasons state that no further concerns were raised about his performance before the January 2021 night shift.

Events on the January 11–12, 2021 night shift and GPS data

On the night shift of January 11–12, 2021, the plaintiff worked at the mine and returned from the work site to the complex a few minutes early at the end of the shift. Shift supervisors had some discretion about the timing of shift change, but Brown, seeing him earlier than expected, became concerned and reviewed vehicle GPS logs. Those logs showed that the plaintiff’s truck had been immobile from 11:45 p.m. until 6:53 a.m. Brown was concerned because the plaintiff’s area of supervision included not only a pit site but also some roads near that pit, and Brown’s concern was that if the plaintiff was stationary in one area, he was not supervising all of the roads. Brown described it as a concern if “an individual [was] parked off out of the way and not in their work area or – or observing their work area,” although the court noted there was no evidence that the plaintiff was parked “off out of the way” or outside his work area, and the GPS records showed otherwise.

Brown reviewed GPS logs not only for the January 11–12, 2021 night shift but also for the plaintiff’s December 28–29, 2020, December 29–30, 2020, December 30–31, 2020, January 9–10, 2021 and January 10–11, 2021 night shifts.

At the start of the next shift on the evening of January 12, 2021, Brown interviewed the plaintiff. Before telling him that GPS logs had already been reviewed, Brown asked what the previous night had been like. The plaintiff said that he first went to check edges on a grader and then parked in Kame pit. He told Brown he did not tour the areas because “they just needed sand and the graders looked after it,” and that he remained in Kame pit because he did not need to be on the roads and “1007 is important,” a reference to a hydraulic shovel. He described the night as not a normal night, said he “just wanted it to go smooth, so I watched the shovel,” and explained that he lined up graders on the radio but did not check on them in person. The reasons state that all of this is consistent with the GPS data.

At the end of that interview, Brown sent the plaintiff home and told him not to report to site until contacted by management or Human Resources. A formal investigation was then commenced. On February 3, 2021, after that investigation, the plaintiff was terminated. The HR investigator, Jessica Polson, concluded that he had been sleeping on the job.

Presence of other supervisors and the plaintiff’s account

Three other shift supervisors were working in the same mine area on the night of January 11–12, 2021. GPS data and subsequent expert analysis confirmed that those supervisors were near the plaintiff’s vehicle for much of the shift. Stephen Murphy’s vehicle arrived next to the plaintiff’s at 10:36 p.m. and was still there when the plaintiff’s vehicle was moved a short distance at 11:44 p.m. Murphy left at 11:59 p.m., at the same time another supervisor, Anthony Cornish, arrived at the plaintiff’s truck. Cornish’s vehicle remained parked next to the plaintiff’s for over three hours, until 3:08 a.m. During part of that time, Mike Giles was also present from 2:25 a.m. until 2:58 a.m. The judgment notes that there was only a period of 3 hours and 44 minutes when the plaintiff’s truck was stationary and he was not in the company of other supervisors.

The plaintiff’s evidence was that he was not sleeping during the shifts in question. He testified that he was supervising equipment operators, monitoring the radio and addressing safety concerns, especially involving a bulldozer operator, Bob Cox. He said that his logbooks, which could have corroborated his activities, were left in his truck and were not returned to him after his suspension.

Cornish’s evidence corroborated the plaintiff in several respects. Cornish was interviewed by Polson on January 20, 2021, and on October 21, 2024, he provided an affidavit in this action attaching the notes of that interview as his past recollection recorded. Cornish confirmed that there was a stuck truck that night that required extraction. He also confirmed that the plaintiff had expressed concerns about Cox, including Cox’s lack of confidence on the equipment, in a discussion about who to “keep an eye on” and “pay extra attention to.” Cornish further confirmed that he was visiting with the plaintiff during the shift, which was also supported by the GPS data.

Problems with the HR investigation and missing evidence

The plaintiff argued that the HR investigation was flawed because the investigator failed to interview all relevant witnesses, did not preserve radio recordings and did not consider the GPS evidence showing the plaintiff’s proximity to other supervisors. The judge agreed that there were significant problems with Polson’s investigation and her conclusions, describing her evidence as showing tunnel vision and a determination to draw inferences against the plaintiff.

Polson testified that in concluding that the plaintiff had been asleep for the 7 hours and 7 minutes his truck did not move, she relied on an inference from someone else’s interview of Cornish. She had notes recording Cornish as having seen the plaintiff around 12:00–1:00 a.m. in Kame pit. When questioned about that, Polson testified: “This comment does not say that they spoke. [...] And I believe it means to say he didn’t see or hear from him the rest of the night.” The judge noted that she ignored notes from an interview of Mike Giles that suggested he had stopped and talked with the plaintiff around 1:00 a.m., and that she completely ignored GPS data showing that the supervisors were together with the plaintiff from midnight until 3:00 a.m.

Polson also testified that she never looked at GPS records before the plaintiff’s termination, even though the GPS records had triggered Brown’s concern and caused the matter to be referred to her.

As to radio evidence, Polson relied on hearsay that the plaintiff’s radio ID had not been picked up on the dispatch system that night to support her conclusion that he was untruthful in claiming that he had been on the radio all night. She treated this second-hand information as reliable evidence against him but chose to disregard the same hearsay evidence of radio communications when it was inconsistent with Bob Cox’s account. She considered Cox to be credible even though his evidence did not align with the conclusion that the plaintiff had not used the radio.

The reasons record that Suncor failed to preserve dispatch records that could have corroborated or contradicted accounts of what radio communications occurred on the night in question and what supervisors were saying over the radio. Polson testified that Suncor destroyed the dispatch records. The court also noted that Suncor had the ability, if it wanted, to use GPS data to confirm or dispute information such as whether there was a stuck truck, which vehicles were involved in extracting it and how long the extraction took, but that Suncor chose not to tender any such evidence.

Legal principles on just cause and wrongful dismissal

The court summarized the applicable legal principles. The onus was on the employer to prove just cause for termination on a balance of probabilities. The assessment of just cause required a contextual analysis, including the nature and seriousness of the alleged misconduct and whether it could be reconciled with continuing the employment relationship, with reference to authorities such as McKinley v BC Tel and Baker v Weyerhaeuser Co.

The reasons state that a finding of misconduct does not, by itself, give rise to just cause. The core question is whether the behaviour was such that the employment relationship could no longer viably continue. Progressive discipline or alternative sanctions should be used before terminating an employee for misconduct, except in the most serious circumstances.

The measure of damages for wrongful dismissal was described as the salary and benefits the employee would have earned during the reasonable notice period, with the purpose being to put the employee in the position he would have been in if proper notice had been given, following decisions such as Carroll v ATCO Electric Ltd. The Alberta approach treats damages as flowing from the breach of the implied term to provide payment in lieu of notice, rather than from the termination itself, as in Styles v AIMCO.

The reasons also summarized the Bardal factors: the character of employment, length of service, age and the availability of similar employment having regard to the employee’s experience, training and qualifications. Where bonuses, overtime or other variable compensation are integral to an employee’s compensation and there is no clear contractual limitation, they should be included in the damages calculation, typically based on historical averages. The duty to mitigate was not disputed in this case; the defendant accepted that the plaintiff had taken reasonable steps and obtained other employment.

Court’s findings on cause and Suncor’s theories of misconduct

The defendant argued that the plaintiff was terminated for cause because of a gross breach of his duties as Shift Supervisor, specifically an alleged failure to actively supervise and ensure safety on two shifts when his vehicle was stationary for long periods. It relied on GPS data to show that the plaintiff’s truck did not move for lengthy stretches and argued that inferences of a failure to perform duties should be drawn from what it described as inconsistent explanations for the GPS data.

The plaintiff argued that the defendant was, in effect, reversing the onus by requiring him to prove that he had not been sleeping or derelict in his duties. The court stated that the burden remained on the employer to prove just cause on a balance of probabilities.

The reasons note that although the plaintiff had been on a PIP, Polson testified that the PIP did not play any role in the termination decision. The stationary vehicle concern was treated by the employer as a new issue, and there was no evidence that the plaintiff was warned or that progressive discipline was considered for it.

The court found that the plaintiff’s explanations for his inactivity were not significantly inconsistent. It acknowledged that details developed during the litigation but held that from his first statement to Brown on January 12, 2021, his core explanation remained the same: he did not tour the areas and stayed at the Kame pit because he considered that location important, he watched operations there to avoid problems and he managed the roads through radio communications.

The plaintiff’s account was confirmed in part by GPS data and Cornish’s evidence. The absence of other corroborating evidence, such as dispatch records and logbooks, was attributed in the reasons to the defendant’s failure to preserve relevant evidence.

The court concluded that the defendant’s position relied heavily on inferences drawn from a selective view of the evidence that ignored exculpatory material and assumed that the plaintiff was sleeping. No witness had observed the plaintiff asleep, and the evidence instead suggested interactions with others during much of the shift. The court found that the defendant had shown little more than an initial basis for suspicion and had attempted to shift the onus to the plaintiff while having failed to preserve evidence that might have corroborated his version of events. The reasons state that all the defendant had really shown was that a vehicle assigned to the plaintiff was stationary for lengthy periods on two occasions about a month apart, which fell short of proving that he was sleeping or derelict in his duties. The court held that Suncor had not met its onus to establish just cause on a balance of probabilities.

The defendant also argued that even if the plaintiff was not sleeping and was in fact supervising an employee whose abilities required close supervision and assisting with extraction of a stuck bulldozer, just cause could still be supported. Suncor advanced a theory that the plaintiff’s duty to supervise roads required him to personally drive the roads and inspect their condition, regardless of other supervisory demands, weather conditions or the availability of reliable information from drivers. It characterized the failure to have personal “eyes on the roads” frequently throughout the shift as a serious safety breach justifying termination.

The court found that this was not the actual basis for the plaintiff’s termination and that it had not been the theory guiding the preparation of evidence. No evidence was led of a clearly identified and communicated duty to personally inspect roads at particular intervals, of standard practices of others in the plaintiff’s position or of any analysis of supervisors’ general driving practices using GPS data.

The reasons state that there was no basis in the evidence to conclude that the plaintiff failed to make a reasonable decision in prioritizing supervisory duties at a particular site when weather conditions were such that reliable road reports could be obtained from drivers. The judgment adds that if failure to personally drive roads at specific intervals had truly been viewed by the employer as a significant dereliction of safety procedure, one would have expected Suncor to articulate that concern at the time of termination and to have made relevant inquiries about it during the internal investigation. Further, if the true concern had been poor prioritization of duties, and there was no prior history of that type of concern, coaching rather than termination would have been the appropriate response.

Reasonable notice and components of compensation

The court then considered reasonable notice and damages. The plaintiff was 55 at termination, had 11 years of service and was a supervisor who directly supervised 25 to 30 employees. The reasons note that there is no formula or grid for reasonable notice and no fixed guideline categories, and that each case must be decided based on the Bardal factors.

In Nelson v Champion Feed Service Inc., after reviewing comparator cases, the court there had found “a range of 15 to 24 months, for management-type employees with lengthy service.” In this case, after assessing the plaintiff’s circumstances and considering the authorities cited by counsel, the judge determined that a notice period of 16 months was appropriate. The parties had agreed on the amounts of various undisputed components of compensation, which were to be calculated for that 16-month period.

The reasons record that the plaintiff regularly earned substantial amounts in unscheduled overtime, averaging $59,599 per year in the three years before termination. The court held that these amounts were significant components of the plaintiff’s overall compensation and that unscheduled overtime should be included in the damages calculation, based on the average calculated by the plaintiff. The court rejected Suncor’s argument that unscheduled overtime was discretionary and should be excluded, and also rejected the suggestion that working-notice termination would have made the plaintiff ineligible for overtime, noting that there was no evidentiary foundation for such an inference.

Annual Incentive Program (bonus) and the 2020 award

The plaintiff sought damages for what he called a “supervisor’s bonus.” The defendant identified this as an Annual Incentive Program (AIP). The evidence showed that AIP awards were paid in the first quarter of the year following the performance year. For example, an AIP amount of $29,074 was part of the plaintiff’s 2019 compensation, based on a 2018 performance rating of “successfully meets expectations,” and an AIP amount of $18,656 was part of his 2020 compensation, based on a 2019 performance rating of “partially meets expectations.” The average of these two amounts is $23,865.

The court applied the two-step analysis from Matthews v Ocean Nutrition Canada Ltd. First, it asked whether, but for the termination, the plaintiff would have been entitled to the AIP during the reasonable notice period. Second, it considered whether there was anything in the plan that clearly removed or limited that entitlement.

Polson’s evidence described AIP terms and the effect of various employment status changes on eligibility. The relevant clause provided that in cases of involuntary termination without just cause, the employee is not eligible for an award for the performance year. The judge concluded that if the plaintiff’s employment had been properly terminated with notice or pay in lieu, he would not have been eligible for an AIP award for 2021, the year of termination. The reasons state that the AIP award therefore did not form part of the plaintiff’s total compensation for purposes of calculating the 16-month notice-period damages.

However, when the plaintiff was terminated in January 2021, he did not receive his AIP award that would have been based on 2020. The program terms did not indicate that an employee should be denied an award for a year in which the employee was employed and working, although they did provide that periods on leave were not eligible. The court treated the 2020 AIP as compensation earned in the year before termination, even if paid out in the year of termination.

The plaintiff had been on a medical leave of absence for six months in 2020. The reasons state that he ought to have received half of the annual AIP award for 2020. The evidence about how AIP awards were calculated came from his Employee Compensation Summaries for 2019 and 2020, which showed that individual performance was only one factor, weighted 20%, and that corporate and business unit performance made up the remaining 80%. The court noted that it had no evidence about corporate performance in 2020 and that the defendant had not provided evidence of AIP awards or the relevant corporate and business unit metrics.

In these circumstances, and taking into account that the plaintiff was on a PIP as of January 2020, the court treated the 2019 AIP award of $18,656, which had been based on a “partially meets expectations” rating, as a fair comparator. An amount of $9,328 (half of $18,656) was added to the total calculation of damages, reflecting the loss of the 2020 AIP award that the plaintiff had earned before his termination.

Housing subsidy program and the counterclaim

Suncor counterclaimed for repayment of a housing subsidy the plaintiff received under Suncor’s Wood Buffalo Housing Program.

In 2014, the plaintiff was approved for the housing subsidy and began receiving bi-weekly payments of $602.50 starting January 24, 2014. These payments continued in that amount through January 2016, with varying amounts thereafter. There was no dispute about the total subsidy amounts paid, which were summarized in a Subsidy Payment Summary Sheet in evidence.

The judgment explains that although only Suncor employees were eligible for the housing subsidy, the program was not an employment benefit forming part of overall compensation. Rather, it was a separate contract, with eligibility and termination linked to employment. Section 4(b) of the agreement required repayment to Suncor, upon demand, of all payments advanced during the most recent 24 months of employment, excluding periods of long-term leave approved by Suncor, on the basis described in the guidelines.

Suncor’s position was that because the employment termination date was February 3, 2021, and the clause referred to the 24 months prior to ceasing to be employed, the plaintiff had to repay all subsidy payments made after February 3, 2019. The total subsidy payments between February 3, 2019 and February 3, 2021 were $9,361.86.

The plaintiff did not dispute the agreement, the repayment clause or the total received in the 24 months prior to February 3, 2021. He argued, however, that the 24-month period should be counted from the end of the reasonable notice period he should have received and that, if he had been given 16 months of working notice, the relevant 24-month period would begin on June 3, 2020. He also pointed out that he had been on approved medical leave until October 2, 2020 and that clause 4(b) excluded leave periods from repayment, so that only subsidy payments after October 2, 2020 should be repayable. The subsidy payments after October 2, 2020 totaled $1,130.84.

The court found that the housing subsidy program, while linked to employment, was not part of the employment contract and was a separate and independent contract. The 16-month reasonable notice period was used to calculate damages for breach of the employment contract but did not affect the terms of the subsidy contract. The reasons state that to adopt the plaintiff’s approach would be to treat the subsidy as part of compensation and to alter the repayment clause by deeming a different date as the date he “ceased to be employed by Suncor.” The court rejected the argument that an implied condition of the subsidy contract was that he would not be terminated without just cause, noting Supreme Court authority that where parties have already dealt expressly with the relevant event, a contrary implied term should not be read in.

The court held that the plaintiff was required to repay amounts under the subsidy in accordance with clause 4(b). At the same time, it held that Suncor’s repayment calculation of $9,361.86 did not properly account for periods of long-term leave, which the clause expressly excluded. During the plaintiff’s medical leave from April 2 to October 2, 2020, he received $1,557.22 in subsidy payments. During the paid leave of absence from January 12, 2021 until February 3, 2021 (the investigation period), he received $463.46 in subsidy payments. The court deducted these leave-period amounts (totaling $2,020.68) from Suncor’s figure of $9,361.86.

As a result, the court allowed Suncor’s counterclaim in the amount of $7,341.18.

Final damages, mitigation, and overall result

The reasons summarize the damages at the end of the decision. The court held that the plaintiff was wrongfully dismissed and that his damages were to be calculated on the basis of a 16-month notice period. The judgment sets out the agreed components and their 16-month equivalents as follows:

• Base salary of $117,436 × 1.33: $156,189.88

• Fort McMurray location index of $16,441.04 × 1.33: $21,866.58

• Bi-weekly shift differential of $2,685.54 × 1.33: $3,571.77

• Shift changeover premium of $6,812 × 1.33: $9,059.96

• Bi-weekly shift overtime of $11,743.68 × 1.33: $15,619.09

• Savings plan contributions of $1,334.58 × 1.33: $1,774.99

• Benefits of $8,052.20 × 1.33: $10,709.16

• Unscheduled overtime of $59,599 × 1.33: $79,266.67

These amounts total $298,058.10. From this figure, the court deducted the plaintiff’s acknowledged mitigation income of $143,476.75, leaving damages of $154,591.35.

In addition, the court awarded $9,328 as the amount of the AIP award that should have been paid in 2021 for the 2020 employment period. Adding that to $154,591.35 resulted in total damages of $163,909.35.

Separately, the court allowed Suncor’s counterclaim on the housing subsidy in the amount of $7,341.18.