Executive Summary: Key Legal and Evidentiary Issues

• Robert-Shaka Kushner brought claims against his former employer, the First Nation of Na-Cho Nyäk Dun (FNNND), alleging wrongful dismissal, constructive dismissal, negligent misrepresentation, unconscionability, assault and battery, and defamation, and seeking aggravated and punitive damages.
   
• FNNND applied to strike portions of the Amended Statement of Claim as vexatious and disclosing no reasonable claim, and separately sought security for costs of $20,000 on the basis that Mr. Kushner is not a Yukon resident.
   
• The court determined that Mr. Kushner's claim is one of wrongful dismissal, not constructive dismissal, as the pleadings allege FNNND terminated him rather than that he resigned due to intolerable conditions.
   
• Allegations of employer mistreatment, while generally not relevant to wrongful dismissal liability, may support claims for aggravated and punitive damages where the manner of dismissal involved unfair or bad faith conduct.
   
• Claims of negligent misrepresentation regarding long-term employment and working conditions were struck because those representations had been incorporated into the employment contract, making breach of contract the proper cause of action.
   
• Both the unconscionability claim and the application for security for costs were dismissed, with the court declining to order security for costs at this stage.

Facts of the case

Robert-Shaka Kushner was hired by the First Nation of Na-Cho Nyäk Dun (FNNND) as a Communications Officer on August 8, 2023, and was terminated on November 21, 2023. Following his termination, Mr. Kushner — who appeared on his own behalf — filed a Statement of Claim (later amended) against FNNND and ten individual defendants: Karen Clark-Marlow, Robert Gillian, Teresa Samson, Adrienne Hill, Eileen Peter, Ronalda Moses, McGarry Selbee, Geri-Lee Buyck, Peter Idoko, and Joella Hogan. The Amended Statement of Claim alleged that employees and supervisors at FNNND harassed, assaulted, defamed, and discriminated against him, and that colleagues interfered with his work to the point that he was unable to perform his duties. The claim asserted causes of action in wrongful dismissal, constructive dismissal, negligent misrepresentation, unconscionability, and assault and battery, and also sought aggravated and punitive damages.

Policy terms and contractual provisions at issue

FNNND argued that the negligent misrepresentation claim was defeated by an entire agreement clause in Mr. Kushner's employment contract, which would preclude liability for representations made before the contract was signed. The Amended Statement of Claim alleged that FNNND represented, prior to or at hiring, that employment would be long-term and that the position, conditions, and work relationships and environment would be "cooperative and pleasant" (para. 7). It also alleged misrepresentations about living conditions in Mayo, including transportation between Mayo and Whitehorse, the availability of car dealerships and rentals, medical transportation, utility costs, and the provision of a rental unit. The court noted that some of these representations — particularly those about employment being long-term and the work environment being pleasant — were incorporated into the contract itself, making them a matter of breach of contract rather than negligent misrepresentation. The unconscionability claim was pleaded at paragraph 74 of the Amended Statement of Claim, alleging the employment contract was unconscionable.

Reasoning and analysis

Justice Wenckebach applied Rule 20(26)(a) and (b) of the Supreme Court of Yukon Rules of Court, under which a court may strike a claim that discloses no reasonable claim or is vexatious. On a motion to strike, pleadings are read generously and allegations accepted as true, and the claim is only struck where the action is certain to fail.

On the wrongful versus constructive dismissal issue, the court found that the Amended Statement of Claim alleged FNNND "unjustly terminated [Mr. Kushner's] employment in November 2023" — framing that squarely placed the claim as one of wrongful dismissal. Constructive dismissal, by contrast, arises where an employer's conduct makes continued employment intolerable and the employee resigns. Because the claim alleged a direct termination rather than a resignation, the constructive dismissal framing could not stand.

On the question of which mistreatment allegations should be struck, the court drew a careful distinction: while allegations of bad employer behaviour are generally not relevant to whether a wrongful dismissal was justified, they are relevant to the manner of dismissal for the purposes of aggravated and punitive damages. Several paragraphs were ordered retained because they could support those damages claims — including allegations that employees interfered with Mr. Kushner's work, that he was accosted and insulted, and that he was harassed by a non-employee about which FNNND took no action. Other paragraphs were ordered struck as irrelevant, including those alleging that certain employees had criminal records, allegations about another employee's misfeasance, and paragraphs containing bald statements or evidence rather than material facts.

On negligent misrepresentation, the court concluded that representations about the nature of employment and the work environment had been incorporated into the contract, making the proper claim one of breach of contract. The claim in respect of living conditions in Mayo was struck because the Amended Statement of Claim did not allege that Mr. Kushner detrimentally relied on those representations — a required element of negligent misrepresentation. Leave to amend that aspect of the claim was granted, however, as the court found it was not certain to fail if properly pleaded.

On unconscionability, the court found the claim failed because the Amended Statement of Claim did not allege that the contract itself was unreasonable — a necessary element of unconscionability alongside inequality of bargaining power. Paragraph 74 was therefore struck.

On assault and battery, paragraph 57 of the Amended Statement of Claim included a specific allegation that Mr. Kushner was criminally harassed, accosted, and assaulted at the December 2023 Firemen's Ball community event in Mayo by Teresa Samson, Joella Hogan, and Ronalda Moses. That core allegation was retained. Irrelevant details, names of non-parties, and evidentiary material within the paragraph were struck.

On security for costs, FNNND sought $20,000 on the ground that Mr. Kushner resides outside Yukon. The court found no Yukon case law on Rule 60(44)(a) and declined to order security at this stage, noting that out-of-jurisdiction residency does not create a prima facie right to security and that the court must weigh multiple factors, including the plaintiff's ability to pursue the claim. The application was declined without prejudice to renewal.

Ruling and overall outcome

The application was partially granted. Justice Wenckebach ordered that paragraphs 5-6, 12-13, 22, 38, 39, 40, 41, 42, 45, 53, 71, 74, 75, and 77 of the Amended Statement of Claim be struck in their entirety. Paragraph 16 (except subparagraph 16(c)), and portions of paragraphs 57 and 73, were partially struck. Paragraph 47 was struck with leave to amend, with Mr. Kushner granted 30 days from the date of the decision to replead that aspect of his claim. The claim of unconscionability and the application for security for costs were both dismissed. Neither party emerged with a complete outcome: FNNND achieved the striking of several paragraphs and the unconscionability claim, while Mr. Kushner retained his wrongful dismissal, defamation, and assault and battery claims, and was granted leave to amend the negligent misrepresentation claim regarding living conditions. No costs order is recorded in the decision.