Court of Queen’s Bench of Alberta  
Citation: Benke v Loblaw Companies Limited, 2022 ABQB 461  
Date: 20220705  
Docket: 2101 02629  
Registry: Calgary  
Between:  
Michael Benke  
Plaintiff  
- and -  
Loblaw Companies Limited  
Defendant  
_______________________________________________________  
Reasons for Judgment  
of the  
Honourable Mr. Justice Colin CJ Feasby  
_______________________________________________________  
Introduction  
[1] For parts of 2020 and 2021, employers, municipalities, and public health authorities  
mandated the wearing of face masks in public places of business to mitigate the transmission of  
the virus that causes COVID-19. During that time, the Plaintiff, Michael Benke, did not want to  
wear a mask when attending grocery stores as part of his responsibilities working for the  
Defendant, Loblaw.  
[2]  
Mr. Benke sought an exemption to the requirements to wear a face mask based on an  
undiagnosed medical condition. Mr. Benke’s doctor provided him with a certificate stating that  
he did not have to wear a mask in the early stages of the COVID-19 pandemic so that he could  
be exempted from complying with the City of Calgary mask by-law (“Mask Bylaw”).  
[3]  
Mr. Benke later sought additional notes from his doctor so that his exemption from  
compliance with the Mask Bylaw could continue and so that he could be exempted from  
Loblaw’s mask policy (“Mask Policy”) which applied to all Loblaw stores nationally. On these  
occasions, the doctor declined to state that Mr. Benke’s request to be exempted from wearing a  
mask had a medical justification.  
Page: 2  
[4]  
Loblaw put Mr. Benke on indefinite unpaid leave because he refused to wear a mask in  
stores without medical justification and thereby did not comply with the Mask Bylaw and Mask  
Policy. He claims that this constitutes constructive dismissal and that he is entitled to substantial  
damages in lieu of notice. I reject this position. Mr. Benke’s inability work was the consequence  
of a voluntary choice that he made. Loblaw had no obligation to accommodate Mr. Benke  
because there was no medical justification for a mask exemption. Loblaw also had no obligation  
to pay Mr. Benke for not working. For the reasons that follow, the action is dismissed with costs  
payable to Loblaw.  
Appropriateness for Summary Trial  
[5]  
The Plaintiff set this matter down for a summary trial. The Defendant did not object to  
the matter proceeding by summary trial, but said, “[i]f the Court is concerned that it is unable to  
decide between [the] contradictions [between the testimony of the Plaintiff and the Defendant’s  
witnesses] or it would be unjust to do so, it could decide that a full trial is required under Rule  
7.9(2) of the Rules of Court.”  
[6]  
This raises a common problem that afflicts civil litigation in Alberta. The perception  
amongst the civil litigation bar is that attempting to proceed by way of summary trial, even with  
the agreement or non-objection of the opposing party, is fraught with risk because the Court may  
decide after counsel have put in the work to prepare for the summary trial and clients have made  
corresponding and sometimes significant financial outlays that the matter is not suitable for  
summary judgment. This is something that I experienced as counsel. There are examples in the  
caselaw to the contrary where the Court has proceeded with summary trials in the face of  
conflicting evidence and credibility issues; however, decisions not to proceed with a summary  
trial are much less likely to result in written reasons. The perception that summary trial is a risky  
procedure, even when both parties agree, has caused it to be under utilized.  
[7]  
Under utilization of the summary trial process contributes to the problem discussed by  
Feehan and Wakeling JJA in Hannam v Medicine Hat School District No. 76, 2020 ABCA in  
the context of summary judgment. Feehan and Wakeling JJA observed that “conventional trials  
are expensive and plagued by delay”: Hannam at para 46. The length of time that civil matters  
take to get to trial, they noted, is pushing matters into arbitration. “Until this trend is reversed,  
Alberta litigants will have a high interest in having access to a workable expedited dispute  
resolution procedure – summary judgment or summary trial. Or they will continue to take their  
commercial business elsewhere – private dispute resolution”: Hannam at para 48.  
[8]  
Some people might shrug and say “so what?” Who cares if parties opt for arbitration for  
private dispute resolution? But it matters a whole lot. If private litigants vote with their feet in  
large numbers and opt out of using the court system, it will undermine the legitimacy of the  
courts. Why should anyone trust the courts if those who have resources overwhelmingly opt to  
resolve their disputes elsewhere?  
[9]  
A large-scale exodus from the courts also creates a rule of law problem. The law that  
governs commerce is, in significant part, the product of the courts. This is true whether the  
reasons produced by judges are part of the common law or interpretations of statutes. Public  
reasons are a public good. Arbitration, which is typically conducted in private and sometimes  
shielded by confidentiality agreements, rarely produces public reasons. Without a steady  
Page: 3  
caseload in the courts, commercial law will cease to develop in tandem with our ever-changing  
society.  
[10] My comments should not be understood as an attack on arbitration. Arbitration has an  
important role to play resolving private disputes. And it is critically important to recognize that  
arbitration needs the courts to continue to produce the public reasons that form the law which  
arbitrators use to decide disputes. Courts should not abdicate their role and allow arbitration to  
entirely occupy the field of commercial law.  
[11] So how should the courts go about remaining a relevant and viable option for parties to  
resolve their disputes? Hryniak v Mauldin, 2014 SCC 7 gives the answer at para 2 where  
Karakatsanis J demanded a “culture change” in order “to create an environment promoting  
timely and affordable access to the civil justice system.” The Court of Appeal made it clear in  
Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 that in  
Alberta Hryniak should be understood as a general admonition that summary processes should  
be more available in Alberta, but the Court was also careful to note that Hryniak did not change  
the words in the Alberta summary judgment rule. The Ontario summary judgment rule  
considered in Hryniak was meaningfully different from the Alberta summary judgment rule  
because it permitted findings of credibility.  
[12] In Alberta, summary trials are an important part of the answer, though not the whole  
answer, to the question of how courts can provide more timely and affordable civil justice. The  
main reason that summary judgment is not more widely used in Alberta is that credibility  
findings are not permitted: Weir-Jones at paras 35 & 38. A requirement to make credibility  
findings has been held by the Court of Appeal to also be a factor that weighs against using the  
summary trial procedure: SHN Grundstuecksverwaltungsgesellschaft MBH & Co v Hanne,  
2014 ABCA 168. The conventional wisdom that credibility is an obstacle to proceeding by way  
of summary trial is seen in the remarks in Lehr v Lehr, 2021 ABQB 538 para 2 where the trial  
judge observed that “summary trials are often not an appropriate venue for determinations of  
credibility.” We need to move past this mindset.  
[13] Starting with first principles, it must be observed that “[a] summary trial is a trial”: Weir-  
Jones at para 18 citing Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 at para 14. A  
defining characteristic of a trial is that credibility findings are made. The fact that credibility  
findings must be made cannot be a reason for refusing to hear a summary trial. Recently, the  
Court of Appeal in Weir-Jones suggested that this is the correct position. The Court of Appeal  
explained at para 212 that:  
[a] summary trial or a determination of an issue may be appropriate if a dispute  
has features that promote a just resolution without accessing all aspects of the trial  
protocol – no need for questioning, for example. A dispute may largely turn on  
the resolution of a credibility issue or simply require the application of a known  
legal standard to an agreed fact pattern, the outcome of which is not obvious.  
Sometimes a final disposition is the most important dimension of a dispute. An  
adjudicator will decide these contests using the balance of probabilities standard.  
[14] The Court of Appeal in obiter dicta reiterated its view in Rudichuk v Genesis Land  
Development Corp, 2020 ABCA 42 at para 34 scolding the parties for not using the summary  
trial procedure. The Court wrote “this wrongful dismissal action, which involves a significant  
credibility contest between a small group of people and some novel legal claims, might have  
Page: 4  
been more efficiently addressed by way of a summary trial rather than three years of litigation on  
a motion to strike and a summary judgment application, both of which were ultimately dismissed  
at considerable expense to the parties and cost to the system.”  
[15] Credibility contests sometimes require viva voce evidence. The Court of Appeal affirmed  
in 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49 at para 8 that viva voce evidence may be  
called in a summary trial. The practical difficulty that arises is that counsel may not plan to call  
viva voce evidence but the judge hearing the summary trial may consider it necessary to decide  
the matter. Judges are often not aware that they have been assigned a summary trial until late in  
the week before it is to be heard and may not receive the materials concerning the case until a  
day or two before it is to be heard. The present case is an instructive example as counsel did not  
plan to call viva voce evidence and I received the evidence and the parties’ briefs on the Friday  
before the Tuesday on which the summary trial was to be heard. Had I concluded after reading  
the materials that viva voce evidence was required (which I did not), it would have been difficult  
and perhaps impossible to proceed as scheduled. The answer to this problem is not refusing to let  
matters proceed by summary trial; that would be letting the tail wag the dog. The answer lies in  
improvements to the process by which the court triages and schedules summary trials.  
[16] The Court of Appeal in JN v Kozens, 2004 ABCA 394 at para 40 held that “[t]he test for  
whether a summary trial is appropriate is twofold: 1) can the court decide disputed questions of  
fact on affidavits or by any of the other proceedings authorized by the Rules for a summary trial?  
2) would it be unjust to decide the issues in such a way?” This test was framed before Hryniak  
and before the foundational rules of the current Rules of Court were adopted which both  
emphasize the principle of proportionality. The test in Kozens must be viewed now through the  
lens of proportionality.  
[17] The Court of Appeal in Weir-Jones, following Hryniak, explained at para 20 that  
“[s]eeing a trial as the default procedure is ... not realistic.” The Court further explained that  
“[w]e have to strive for a ‘fair and just process’ recognizing that ‘alternative models of  
adjudication are no less legitimate than the conventional trial’: Hryniak v Mauldin at para 27.”  
Though this was said in the context of a discussion of summary judgment, it is equally applicable  
to the question of whether a summary trial or a full trial is more appropriate. The default is not a  
full trial.  
[18] The first question in the Kozens test – can the court decide disputed questions of fact? –  
can often be answered in the affirmative. The real reason why some judges answer in the  
negative is that they are anchored to past practice and have an instinctive sense that they should  
not decide disputed questions of fact in a summary procedure because a full trial is a more robust  
process that is more likely to get at the truth. After Hryniak and Weir-Jones, the burden should  
be on the party seeking a full trial (or on the court if acting on its own motion) to explain why the  
disputed questions of fact cannot be decided using the summary trial process. And credibility  
issues alone, for the reasons previously explained, cannot be the justification.  
[19] Proportionality requires the second question in the Kozens test – would it be unjust to  
decide the issues in such a way? –to be viewed in a broader context. The Court must look beyond  
simply what it may consider to be an optimal truth-seeking process to consider what is a fair and  
reasonable use of the resources of both the Court and the parties in light of the significance of the  
matters in dispute to the parties. Taking up significant Court time and burdening parties with the  
Page: 5  
expense of a full trial when only marginal gains may be obtained from a full trial process is not  
just.  
[20] The Court may, as counsel for Loblaw invited me to do, decide on its own motion that a  
matter is inappropriate for disposition by way of summary trial. The Court of Appeal observed in  
Kozens at para 46 that “[g] iven the importance of credibility in this case, it may well have been  
inappropriate to invoke the summary trial procedure, notwithstanding counsel’s election to do  
so.” To what extent, should the parties’ agreement or non-objection to the summary trial process  
affect a judge’s discretion to refuse to proceed by way of summary trial? A judge assigned to a  
case for a matter of days must approach the case with a certain amount of humility and  
understand that counsel who have been working on a case for months or years are likely to have  
a far better understanding of the factors that determine what is a proportionate process. Indeed,  
counsel are well placed to assess the relative importance of the nature of the dispute resolution  
process and the cost of that process to the parties. While deference to the parties’ choice of  
procedure will often be appropriate, the Court retains the discretion to refuse a summary trial  
where it is obviously the wrong procedure.  
[21] The key piece of disputed evidence in the present case is whether Mr. Benke said to  
Loblaw’s occupational health nurse, Ms. Nelson, that his objection to wearing a mask was “not  
medical.” Ms. Nelson reports that he said it and Mr. Benke denies that he said it. Both Ms.  
Nelson and Mr. Benke were questioned on the point and the transcripts are before the Court.  
[22] Can the Court decide the disputed question of fact? Yes. Whether Ms. Nelson or Mr.  
Benke is telling the truth may be determined by looking to other communications that occurred  
at around the same time. My analysis of those communications is set out below in paras 38-44.  
[23] Would it be unjust to decide the disputed issue by way of summary trial? No. This case is  
worth somewhere between $75,000 and $200,000 if the Plaintiff is successful depending on  
whether the Plaintiff’s or Defendant’s estimates are accepted. A full trial with the same four  
witnesses who provided affidavits would likely be scheduled for three days. Based on my  
relatively recent experience as counsel, I would not be surprised if the aggregate legal fees of the  
two sets of counsel for a full trial would be an incremental $50,000 or more above what the  
parties have spent to date. The cost to the parties of litigating this dispute is not proportional if a  
full trial is required.  
Mr. Benke’s Employment History  
[24] Mr. Benke began as a part-time employee of Loblaw in April 2002. In August 2003, he  
became a full-time employee. He initially worked in the produce department of a single store.  
Over the years he was promoted several times. By 2020, his title was Customer Experience  
Specialist – Produce.  
[25] His responsibilities as Customer Experience Specialist – Produce included overseeing the  
produce and floral departments of Loblaw’s 61 Superstores in Alberta and British Columbia. Mr.  
Benke acted as a liaison between store departments and broader company management.  
[26] As a Customer Experience Specialist – Produce, Mr. Benke was provided with a  
company car, which was available only to Loblaw employees who were required to drive more  
than 28,000 km annually for work.  
Page: 6  
[27] Mr. Benke’s role was partly remote work and partly in-store work. Loblaw maintains that  
Mr. Benke was responsible for spending 50% of his time in stores. Mr. Benke disputes this and  
says that after 2017 his amount of time in stores was less than 50% and that in 2020 he made few  
store visits.  
[28] Regardless of the precise percentage of time that Mr. Benke spent in stores after 2017,  
visiting stores was an essential part of his role as Customer Experience Specialist – Produce. The  
fact that he was provided with a company car on the premise that he was to drive more than  
28,000 km annually visiting stores across Alberta and British Columbia shows that even if he  
spent less than 50% of his time visiting stores, it was still an important part of his role.  
[29] Beginning in early 2019, Mr. Benke started to experience health issues. Despite seeing  
his family doctor and specialists, there was no diagnosis nor was he given any treatment. Loblaw  
accommodated Mr. Benke by allowing him to be absent from work when he had doctor’s  
appointments.  
The Mask Bylaw, Mask Policy, and Mr. Benke’s Exemption Requests  
[30] In March 2020 when the COVID-19 pandemic came to Canada, Loblaw directed Mr.  
Benke and similar employees to cease store visits and to work remotely until further notice.  
Sometime later in 2020, the expectation that Mr. Benke would make store visits resumed.  
[31] On July 21, 2020, the City of Calgary passed a bylaw that provided effective August 1,  
2020 people in public premises were required to wear a mask to mitigate the spread of COVID-  
19.1 The Mask Bylaw contained several exemptions, including an exemption for “persons with  
an underlying medical condition or disability which inhibits their ability to wear a face  
covering.”  
[32] A week later, on July 28, 2020, Mr. Benke’s family doctor, Ingemaud Gerber, completed  
a “Work Absence Certificate” that stated that “[t]his letter is to certify that Michael Benke was  
assessed in this office and is unable to wear a face mask as per City of Calgary bylaw due to  
illness.” The illness was not identified nor was an explanation provided as to why the illness  
prevented Mr. Benke from wearing a mask.  
[33] Loblaw accepted the medical note and allowed Mr. Benke to continue in his role and  
work without a mask when he was required to be on site. During the period between August and  
November 2020, he performed store visits without wearing a mask.  
[34] Loblaw adopted a mandatory Mask Policy that applied to all its stores in Canada on  
August 29, 2020. The Mask Policy applied equally to customers and employees. The mask  
policy provided for exemptions for:  
(1) Children under the age of two;  
(2) Persons with an underlying medical condition which inhibits their ability  
to wear a mask;  
(3) Persons who are unable to place, remove, or use a mask without  
assistance; and  
1 For much of the time relevant to this case, there was a similar mask by-law in Edmonton and a provincial mask  
mandate in British Columbia.  
Page: 7  
(4) Persons who are reasonably accommodated by not wearing a mask under  
applicable Human Rights legislation.  
[35] The Mask Policy provided: “[Employees] are expected to comply with the requirement to  
wear a mask while at work. [Employees] unable to wear a mask based on any of the above noted  
exemptions should speak with their manager or human resources regarding their accommodation  
needs. Medical services will provide support to stores, where required, for accommodation needs  
based on a medical condition.”  
[36] Sometime between September and November 2020, Mr. Benke participated in a  
conference call where the Mask Policy was discussed. Following the conference call, Mr. Benke  
spoke to Loblaw Senior Human Resource Director, Lopa Parikh, to discuss obtaining an  
exemption to the Mask Policy. Ms. Parikh provided Mr. Benke with a blank form to request an  
exemption from the Mask Policy. Ms. Parikh explained to Mr. Benke that he was not required to  
disclose his medical condition but that his doctor was required to state on the form that he has “a  
disability that exempts [him] from wearing a mask.”  
[37] On November 25, 2020, Mr. Benke returned the exemption request form completed by  
Dr. Gerber. The form had a check mark beside the statement “is unable to wear a face mask” but  
the words “due to the following medical condition/s or disabilities” were crossed out. Mr. Benke  
says that the words were crossed out by the doctor because he told her that he was not required to  
disclose his medical condition.  
[38] Shortly after Loblaw received the completed exemption request form from Mr. Benke,  
Jody Nelson, an occupational health nurse employed by Loblaw followed up with Mr. Benke  
concerning his exemption form to obtain more information because the words “due to the  
following medical condition/s or disabilities” were crossed out. Ms. Nelson says that Mr. Benke  
told her that his request for an exemption from the policy was “not medical.” Mr. Benke denies  
saying this. Ms. Nelson says that she then asked him if he could wear a plastic face shield instead  
of a mask and he said that he could not.  
[39] Should Ms. Nelson’s version of her discussion with Mr. Benke be accepted? A little over  
two weeks after her conversation with Mr. Benke, Ms. Nelson wrote down her account of the  
conversation in an email to Ms. Parikh. Ms. Nelson’s written account is substantially the same as  
the account provided to the Court in her affidavit and questioning evidence. While her written  
account of the conversation is not a contemporaneous recording, the fact that it was made a little  
more than two weeks after the event provides some support to her version of the conversation.  
Her account also makes sense given the communications from Dr. Gerber in December and  
January discussed below which show that Mr. Benke knew that his medical condition did not  
qualify him for an exemption from the Mask Bylaw or the Mask Policy. The fact that, even at  
this summary trial, Mr. Benke has adduced no evidence of a medical condition or disability that  
prevents him from wearing a mask strongly suggests that there was no medical basis for his  
exemption request and that Mr. Benke was candid about this with Ms. Nelson. I accept Ms.  
Nelson’s evidence that Mr. Benke told her that his exemption request was “not medical.”  
[40] Dr. Gerber authored two documents after completing the form on November 25, 2020.  
The first is dated December 23, 2020 and the second is dated January 11, 2021. It is not clear  
whether they are separate medical notes intended for Loblaw or whether the December 23, 2020  
note is an internal record from the clinic that was generated as part of the process leading to the  
Page: 8  
January 11, 2021 letter. Regardless, both were faxed to Mr. Benke’s lawyer on January 11, 2021  
and provided subsequently to Loblaw.  
[41] Dr. Gerber’s December 23, 2020 note provides as follows:  
In consultation with Dr. Strother, I responded to the lawyer’s request stating that I  
would be able to properly reply during the first week of January.  
There are very limited reasons for people to be exempt from wearing masks in  
indoor public places at this time. Unfortunately, Mike does not fall into one of  
these categories and I have to stay in compliance with the Medical Officer of  
Health orders [emphasis added].  
I recognize that I already wrote a note dated July 28, 2020, stating that the patient  
does not need to wear a mask due to illness, as per patient request. The pandemic  
and the rules are continually evolving and today I do not have any reason to say  
that the patient should be exempted from wearing a mask given the current Public  
Health orders and the clearly stated exemptions.  
[42] Dr. Gerber’s January 11, 2021 letter indicated that Mr. Benke had “ongoing medical  
concerns” and stated that AHS stipulated “very specific reasons for people to be exempted from  
wearing a mask.” Dr. Gerber then said that she was “not in a position to make a final decision  
whether the patient should be forced to wear a mask or not….” She concluded by saying that “it  
is in the best interest of the patient not to be in public at this time and that if at all possible,  
continue to do his work from home.”  
[43] Dr. Gerber’s January 11, 2021 letter reads as if she is trying to be respectful of her patient  
by validating his as yet undiagnosed medical condition while, at the same time, not transgressing  
any professional standards by misrepresenting to Loblaw that Mr. Benke qualified for a medical  
exemption from legal and employer policy requirements to wear a mask in public. To be clear,  
Dr. Gerber does not say in her January 11, 2021 letter that Mr. Benke has a medical condition  
that prevents mask use or that he qualifies for a medical exemption to the Mask Policy or the  
Mask Bylaw.  
[44] Ms. Parikh’s evidence is that the Mask Policy was rescinded in Alberta on March 1, 2022  
and in British Columbia on March 11, 2022 “as a result of provincial mask mandates ceasing to  
apply.”  
Duty to Accommodate  
[45] The present case is a constructive case, not a dismissal claim. Nevertheless, Mr. Benke’s  
claim is, in part, that he was constructively dismissed because Loblaw failed to accommodate his  
disability (medical condition) by providing him with alternative modes of working. Mr. Benke’s  
counsel submits that he could have been assigned different responsibilities, allowed to work part-  
time, or permitted to work remotely as he had for several months in 2020.  
[46] Where a facially-neutral policy has the effect of discriminating against employees with a  
disability an employer has a duty to accommodate: Stewart v Elk Valley Coal Corporation, 2015  
ABCA 225 para 97. Absent discrimination, there is no duty to accommodate. The Ontario Court  
of Appeal in Filice v Complex Services Inc, 2018 ONCA 625 considered whether a casino  
worker who had lost his gaming license was entitled to an alternative work arrangement with the  
Page: 9  
casino that did not require him to hold a gaming licence. Nordheimer JA observed at para 50 “the  
respondent was unable to point to any authority that stands for the proposition that an employer  
has an obligation to relocate an employee to another position, in these circumstances.”  
[47] Complainants asserting discrimination on the basis of a disability must establish on a  
prima facie basis that they have a disability. Justice Abella, writing for the Court, in  
Moore v British Columbia (Education), 2012 SCC 61 at para 33 explained that “complainants  
are required to show that they have a characteristic protected from discrimination under  
the Code; that they experienced an adverse impact with respect to the service; and that the  
protected characteristic was a factor in the adverse impact. Once a prima facie case has been  
established, the burden shifts to the respondent to justify the conduct or practice, within the  
framework of the exemptions available under human rights statutes.”  
[48] Mr. Benke did not show to Loblaw nor did he prove to the Court at this summary trial  
that he has a disability or medical condition that affects his ability to wear a mask. I conclude  
that Mr. Benke did not have a disability that required accommodation because his doctor could  
not and did not say that he had a valid medical reason to be exempted from the requirements of  
the Mask Bylaw or the Mask Policy.  
[49] Since Mr. Benke did not show even on a prima facie basis that he had a disability, there  
was no reason for Loblaw to pursue the matter further or seek confirmation through an  
independent medical examination. I find that there was no discrimination and, accordingly,  
Loblaw had no duty to accommodate Mr. Benke. In the absence of a duty to accommodate, the  
hypothetical alternative work scenarios posited for Mr. Benke are irrelevant.  
Was Mr. Benke Constructively Dismissed?  
[50] After advising Ms. Nelson that his reasons for seeking an exemption to the Mask Policy  
were “not medical”, Mr. Benke was placed on unpaid leave on December 3, 2020. He asserts that  
by placing him on unpaid leave, Loblaw constructively dismissed him.  
[51] The Supreme Court of Canada set out the standard for constructive dismissal in two  
cases: Farber v Royal Trust Co., [1997] 1 SCR 846 at para 26 and Potter v New Brunswick  
(Legal Aid Services Commission), 2015 SCC 10 at paras 32-39. The Court must determine: (1)  
whether the employer has imposed unilateral substantial changes that constitute a breach of the  
employment contract; and (2) if a reasonable person in the employee’s position would have felt  
that the breach substantially altered an essential term of the employment contract. The onus is on  
the employee to establish the first part of the test and the second part of the test is to be assessed  
objectively: Irvine v Jim Gauthier Chevrolet Oldsmobile Cadillac Ltd, 2013 MBCA 93 at para  
46.  
[52] Counsel for Mr. Benke contends that the suspension of an employee without pay  
constitutes a unilateral change in the employment relationship and a breach of the employment  
contract, unless the employer has the right, whether explicitly or implicitly, to do so. Even when  
it is within the employer’s discretion to impose such a sanction, such discretion must be  
exercised reasonably, and the employer bears the burden of showing that the suspension is  
justified.  
[53] Counsel for Mr. Benke relies upon Cabiakman v Industrial Alliance Life Insurance Co,  
2004 SCC 55 and Filice. Cabiakman is a case about an employee who was suspended without  
Page: 10  
pay by his employer after it became known that he was facing criminal charges for activities that  
took place outside the workplace. Filice concerns the suspension of an employee without pay for  
alleged misconduct in the course of the employee’s work duties. The present case is notably  
different from Cabiakman and Filice because Mr. Benke’s suspension was a result of him being  
unwilling to perform his duties.  
[54] Filice concerned an employee at a casino accused of stealing from his employer.  
Nordheimer JA observed at para 40 “at least at the very early stage of the investigation, it is  
difficult to see how the appellant could reasonably have concluded that a suspension without pay  
was warranted. The OPP investigation was ongoing. It was not then clear whether criminal  
charges would be laid. The appellant did not have any other information to suggest that a  
suspension without pay was justified. Indeed, the appellant knew that there were flaws generally  
in their lost and found procedures that went beyond the respondent’s activities.” A suspension  
without pay was not warranted in the earlier stages of the investigation because it was not clear  
that the employee was at fault.  
[55] Nordheimer JA continued saying at para 40 that “there might have been a point later in  
time when the suspension of the respondent without pay could have been justified....” What  
happened later in Filice was that, because of the incident, the employee lost his gaming licence  
so that he could no longer legally work. Had the employer in Filice waited until the employee  
lost his gaming license and became unable to work to suspend the employee without pay, the  
Court may well have found a suspension without pay to have been justified as Nordheimer JA  
intimated.  
[56] Mr. Benke was put on unpaid leave because he would not perform an essential part of his  
duties as a Customer Experience Specialist – Produce. Specifically, he would not visit stores  
because he was required to wear a mask in accordance with the Mask Bylaw and Mask Policy.  
Mr. Benke’s situation is analogous to the casino worker in Filice without a gaming license or a  
doctor who is suspended for refusing to wash her hands prior to surgery contrary to a hospital  
policy. To perform his duties, Mr. Benke was required to comply with both a legal requirement,  
a municipal bylaw, and an employer policy but he refused to do so.  
[57] By refusing to comply with the Mask Bylaw and the Mask Policy, Mr. Benke repudiated  
his employment contract. Justice Gillese explained in Roden v Toronto Humane Society, 2005  
33578 (ONCA) para 46 in the context of employees who refused to comply with an  
employer policy that “[r]epudiation … takes place when an employee refuses to perform an  
essential part of his or her job duties in the future. In such a situation, the employer is entitled to  
accept the repudiation and treat the employment relationship as terminated because the parties no  
longer agree on the fundamental terms of the contract.”  
[58] Rather than accepting a repudiation, an “innocent party” may choose to let a contract  
continue: G.H.L. Fridman, The Law of Contract in Canada, 6th ed (Carswell: Toronto, 2011) at  
599-600. That is exactly what happened in the present case. Instead of accepting Mr. Benke’s  
refusal to abide by the Mask Policy and Mask Bylaw as a repudiation of his employment  
agreement and terminating his employment, Loblaw placed Mr. Benke on unpaid leave which  
indicates an intention to continue the employment relationship. Ms. Parikh’s evidence is that at  
various points Loblaw advised Mr. Benke that it still viewed him as an employee and that it was  
willing to work with him to facilitate a return to work. Counsel for Loblaw advised the Court in  
Page: 11  
his written submissions that “Benke remains in the Loblaw system [as an employee] as of June  
2022.”  
[59] Returning to the question of constructive dismissal, I must address the two questions  
stated in Potter. Did Loblaw unilaterally impose a substantial change that constitutes a breach of  
the employment agreement? And, if so, would a reasonable person in the employee’s position  
have felt that the breach substantially altered an essential term of the employment contract?  
[60] Loblaw’s imposition of the Mask Policy was not a substantial change and did not breach  
the employment agreement. Mr. Benke’s job responsibilities did not change; the only thing that  
was different was that he had to wear a mask by reason of the Mask Bylaw and Mask Policy. The  
Mask Policy, though imposed by Loblaw, was not a substantial change and it was co-extensive  
with legal requirements imposed by municipalities (ie. the Mask Bylaw) and public health  
authorities. Similar mask policies prompted by the COVID-19 pandemic have been found to be  
reasonable by other decision-makers: see, for example, Dickson v Costco Wholesale Canada  
Ltd, 2022 AHRC 40 at para 29.  
[61] The unpaid leave was a substantial change to Mr. Benke’s employment relationship, but  
it was not a breach of the employment agreement. The essence of the employment bargain is that  
the employee will work and the employer will pay. Given that Mr. Benke was not working by  
reason of a voluntary choice that he made, a choice not to comply with the Mask Policy and  
Mask Bylaw, it was reasonable for Loblaw to not pay him. Though it is not necessary, I conclude  
that a reasonable employee in Mr. Benke’s shoes would not have felt in the circumstances that an  
unpaid leave as a consequence of failing to abide by the Mask Policy and Mask Bylaw was a  
substantial alteration of an essential term of the employment contract.  
[62] Counsel for Loblaw says that, in the alternative, Mr. Benke resigned from his position.  
Counsel for Loblaw submits that Mr. Benke’s resignation may be inferred from his actions,  
including his return of the company vehicle in March 2021, making a human rights complaint,  
and commencing this action. Again, this submission is contrary to Loblaw’s position, discussed  
in the previous para, that Mr. Benke remains an employee in the Loblaw system.  
[63] An unsuccessful constructive dismissal claim is often treated by courts as a repudiation or  
resignation by the employee. Sometimes it is said to be a resignation by operation of law.  
Wagner J, as he then was, writing for the majority in Potter observed at para 111, “[t]his view  
certainly finds support in the traditional principles of the law applicable to constructive  
dismissal, and I have no doubt that the employee will be found to have resigned in the majority  
of failed constructive dismissal cases. However, I will leave open the question whether there are  
factual circumstances in which an employee whose constructive dismissal action is unsuccessful  
might nevertheless argue that he or she did not resign.”  
[64] Mr. Benke did not seek reinstatement in this action. In the meantime, he has also obtained  
full-time employment with a different employer. Despite Loblaw continuing to show Mr. Benke  
in their records as being on unpaid leave, there can be no doubt that he has resigned even if he  
did not explicitly communicate that to Loblaw.  
Page: 12  
Conclusion  
[65] Mr. Benke’s refusal to abide by the Mask Bylaw and Mask Policy was a repudiation of  
his employment agreement. Loblaw, however, did not accept the repudiation and put him on  
unpaid leave.  
[66] Loblaw acted reasonably in putting Mr. Benke on unpaid leave. Mr. Benke was not  
constructively dismissed from his role at Loblaw; to the contrary, he resigned. Any losses that he  
suffered from being put on unpaid leave were self-inflicted and not the responsibility of Loblaw.  
[67] Mr. Benke’s action is dismissed with costs payable to Loblaw. If the parties are unable to  
agree on costs within 30 days of these reasons, they may make submissions on costs by way of a  
letter of two pages or less accompanied by a proposed Bill of Costs and any supporting materials  
that may be appropriate.  
Heard on the 28th day of June, 2022.  
Dated at the City of Calgary, Alberta this 5th day of July, 2022.  
Colin CJ Feasby  
J.C.Q.B.A.  
Appearances:  
Charles Osuji & Lucy Mewanu-Mensah, Osuji & Smith Lawyers  
for the Plaintiff  
Thomas W.R. Ross, Q.C. and Marco Baldasaro, McLennan Ross LLP  
for the Defendant  


© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission