Executive Summary: Key Legal and Evidentiary Issues

• Scope of Rule 7-9 of The King’s Bench Rules, particularly when a statement of claim may be struck as disclosing no reasonable cause of action and as frivolous or vexatious.
• Treatment of overlapping statutory and common law rights in employment, including the distinction between unpaid wage claims under The Saskatchewan Employment Act and a common law wrongful dismissal claim for reasonable notice.
• Assessment of “bad faith” and dishonesty allegations in pleadings, and when such allegations become scandalous for lack of evidentiary foundation.
• Limits on personal liability of a corporate principal and the circumstances in which the corporate veil may be pierced in an employment dismissal context.
• Appellate review of factual findings (palpable and overriding error) and evidentiary rulings, including conflicting affidavit evidence about whether a text message was received.
• Approach to disproportionate and non-compensable damages claims (mental distress, punitive damages, consequential financial losses) in very short-term employment and their role in characterizing an action as vexatious.

Background and employment relationship

Waboshi Nakihimba was hired by Madazen Foods Inc. on December 20, 2022, to work in its commercial kitchen. There was no written employment agreement and he worked only three shifts, totalling 19 hours, before the business shut down for a Christmas break. His employment was hourly, short-term and non-union, with an agreed wage of $16 per hour. In early January 2023, after the Christmas closure, Mr. Nakihimba did not return to work at 9:00 a.m. on January 3 as scheduled. He later said he was ill and that he sent a text message that afternoon to Madazen’s principal, Darren Zawryucka, advising of his illness. On January 6 he was diagnosed with a urinary tract infection and began antibiotic treatment. On January 14 he emailed Mr. Zawryucka apologising for his absence and explaining his medical situation.

Events leading to termination

On January 16, 2023, while on vacation in Central America, Mr. Zawryucka emailed Mr. Nakihimba to advise that his employment was being terminated because the employment relationship was not working out. According to Mr. Zawryucka’s affidavit, he had no record of any communication from Mr. Nakihimba about his absence until that time and was unaware of his medical condition when the decision was made to terminate. He deposed that the sole basis for the dismissal was Mr. Nakihimba’s failure to attend work for an extended period. Mr. Nakihimba, by contrast, asserted that he had texted on January 3 and that this meant his absence was justified and known to his employer. He attached a photograph of his phone showing the text as sent, and argued the only reasonable inference was that the message had been received and ignored. The Chambers judge, however, accepted that it was open on the record to find that the text may have been sent but not received, particularly as Mr. Zawryucka was likely out of the country when it was transmitted. The Court of Appeal held this was not a palpable and overriding error; it was one reasonable way to reconcile conflicting affidavit evidence without finding either witness dishonest.

Administrative proceedings before civil litigation

Following his dismissal, Mr. Nakihimba first pursued statutory and human rights avenues. He filed a complaint with the Employment Standards Division of the Ministry of Labour Relations and Workplace Safety seeking unpaid wages. Through that process he was paid approximately $300 in outstanding earnings for his 19 hours of work, including holiday pay. He also filed a discrimination complaint with the Saskatchewan Human Rights Commission. That complaint was unsuccessful and is referenced in the appeal decision only as background; the Commission’s dismissal was not on appeal in this case. Importantly, Employment Standards dealt only with the outstanding wage claim. There was no finding by that office on whether Madazen Foods had just cause, nor on any claim for common law reasonable notice, nor on any alleged bad faith or mental distress.

The wrongful dismissal action and pleaded claims

Acting on his own, Mr. Nakihimba then commenced a civil action in the Court of King’s Bench against both Madazen Foods and its principal, Darren Zawryucka. Against Madazen Foods, wrongful dismissal was the primary cause of action, seeking pay in lieu of notice at common law, as his tenure was too short for statutory notice under The Saskatchewan Employment Act. He also alleged that Madazen owed and breached: (i) a duty not to dismiss him in a bad faith manner, and (ii) a duty not to lie or knowingly mislead him by not honouring its commitment to employ him. The remedies sought from Madazen Foods were extensive. They included $6,379 in alleged lost wages between his dismissal and the date he first received pay from a new employer, $50,000 in damages for mental distress, $25,000 in aggravated damages for mental distress, and $400,000 in punitive damages. He also sought orders requiring production of a record of employment, and rectification of the oral employment contract to add a term that he could not be dismissed without notice if he became ill, although he did not seek reinstatement. In addition, he advanced a wide range of consequential damages tied to the period between January 16 and roughly March 10, 2023, when he first received income from new employment. These included claims for more than $6,600 in personal living expenses, compensation for supposed lost contribution room in his tax-free savings account when he redeemed shares to fund expenses, $1,000 for inconvenience caused by delay in issuing a record of employment, and about $284 in loss and financing charges from pawning a video game console.

Claims against the individual principal

Despite acknowledging that Madazen Foods was his employer, Mr. Nakihimba pursued parallel claims against its principal, Darren Zawryucka. He pleaded that Mr. Zawryucka breached a duty of honesty in contractual performance by lying about not receiving the January 3 text message, breached a duty not to dismiss him in a bad faith manner, and breached a duty not to lie or knowingly mislead him in performing contractual obligations. The latter allegation focused on a handwritten note in a Christmas card welcoming him to the company and inviting him to try $50 worth of free Madazen food products, which he later did not receive. On this basis, he sought from Mr. Zawryucka various declarations, the same orders regarding the record of employment and contract rectification that he sought from Madazen Foods, and $50 in damages for the unfulfilled Christmas card promise.

Statutory framework and the distinction between statutory and common law rights

The Chambers judge observed, and the Court of Appeal confirmed, that as a short-term hourly employee, Mr. Nakihimba’s employment was governed by The Saskatchewan Employment Act. Under s. 2-43, leave entitlements require more than 13 consecutive weeks of service, and under s. 2-60, an employee is not entitled to statutory notice of termination until they have been employed more than 13 consecutive weeks. Because he had worked only 19 hours across roughly two and a half days, Mr. Nakihimba had no claim to statutory notice or leave, though he was entitled to the unpaid wages that Employment Standards ordered and that were paid. The Court of Appeal, however, corrected an important aspect of the Chambers judge’s reasoning. While the judge stated that Mr. Nakihimba’s only right on dismissal without cause was to statutory notice under s. 2-60, the appellate court emphasised that statutory notice rights and common law reasonable notice rights are distinct. Even where no statutory notice is owing, an employee dismissed without just cause can in principle seek pay in lieu of reasonable notice at common law, assessed under the well-known Bardal factors (Bardal v Globe and Mail) and later refined in cases such as Keays v Honda Canada Inc. Thus, the existence of an Employment Standards process for unpaid wage claims did not, by itself, oust the Court of King’s Bench’s jurisdiction over common law wrongful dismissal or related claims.

The Rule 7-9 striking application in the Court of King’s Bench

The defendants applied in Chambers to strike the entire amended statement of claim under Rule 7-9 of The King’s Bench Rules. They argued that the pleading disclosed no reasonable cause of action, was scandalous, frivolous or vexatious, and was an abuse of process because it amounted to a collateral attack on decisions of Employment Standards and the Human Rights Commission. The Chambers judge granted their application. He held that aspects of the claim disclosed no reasonable cause of action, that some elements were frivolous because they were groundless and incapable of success, others were vexatious because they were unknown to law, and that the statement of claim as a whole was an abuse of process because it sought to relitigate matters supposedly already determined by statutory tribunals. He also dismissed Mr. Nakihimba’s separate application to strike paragraphs of Mr. Zawryucka’s affidavit, finding that a party’s disagreement with an opposing affidavit is not a basis, in itself, to strike the evidence. Costs were awarded against Mr. Nakihimba under Column I of the Tariff of Costs, payable forthwith.

Appeal grounds and standard of review

On appeal, Mr. Nakihimba advanced at least 25 grounds, which the Court of Appeal grouped into six key issues: (a) whether the Chambers judge erred by not striking parts of Mr. Zawryucka’s affidavit; (b) whether there was any palpable and overriding error of fact; (c) whether the judge erred in striking the statement of claim; (d) whether the reasons were sufficient; (e) whether the judge was biased; and (f) whether the costs order was in error. For evidentiary rulings, the Court of Appeal applied a correctness standard, and for findings of fact based on affidavit evidence, the court applied the palpable and overriding error standard, recognising that appellate intervention is only warranted where there is an obvious error that affects the outcome.

Findings on affidavit evidence and factual errors

The appellate court upheld the Chambers judge’s refusal to strike paragraphs of the Zawryucka affidavit. The contested paragraphs contained his personal knowledge of relevant facts and were the kind of material properly included in affidavit evidence. The fact that Mr. Nakihimba disagreed with those assertions did not justify striking them; disputes in evidence are to be resolved by weighing competing accounts, not by excluding unfavourable affidavits. On the alleged factual error about whether the January 3 text message was received, the Court of Appeal held that it was open to the Chambers judge to accept that the message was sent but not received, particularly given that the employer was abroad, and that this approach did not amount to a palpable and overriding error. The court also noted that Mr. Nakihimba did not demonstrate how a contrary finding on this narrow point would have changed the outcome, especially given the broader issues with his pleading.

Abuse of process and collateral attack: partial error, but no reversal

The Court of Appeal took a more critical view of the Chambers judge’s reliance on abuse of process. It concluded that it was incorrect to strike the entire statement of claim on the basis that it was a collateral attack on Employment Standards and Human Rights Commission decisions. The only matter resolved by Employment Standards was the unpaid wage claim, which Mr. Nakihimba acknowledged had been paid in full. His common law wrongful dismissal and bad faith claims were never before that office. The existence of an administrative process for unpaid wages did not remove the Court of King’s Bench’s jurisdiction over those other causes of action, and there was no basis to conclude the Legislature had confined such disputes exclusively to statutory tribunals, absent judicial review. Because it was at least arguable that portions of the claim were not relitigation of the Employment Standards matter, it was not “plain and obvious” that allowing the action to continue would amount to an abuse of process. On that narrow point, the appellate court held the Chambers judge erred. However, appellate review focuses on the correctness of the result, not the soundness of every reason. The Court of Appeal ultimately found that even though the abuse of process analysis was flawed, the decision to strike the statement of claim could be sustained on other grounds.

Scandalous, frivolous and vexatious aspects of the pleading

Turning to Rule 7-9(2)(b), the Court of Appeal agreed that the bad faith and dishonesty allegations were scandalous. A pleading is scandalous where it makes degrading or baseless allegations of misconduct or bad faith. The evidence did not support any inference that Madazen Foods or Mr. Zawryucka acted in bad faith in dismissing a short-service employee by a polite email, without threats or humiliation, and with no indication of an intent to inflict mental distress. Nor was there support for the notion that the Christmas card promise of $50 worth of free products was a knowing misrepresentation; it appeared more akin to a goodwill gesture that later became irrelevant when the employment relationship ended unexpectedly. With no evidence substantiating the pleaded accusations of lying, egregious misconduct and oppression, the court held that characterising those paragraphs as scandalous and striking them was correct. The Court of Appeal also endorsed the Chambers judge’s conclusion that the entire amended statement of claim was frivolous and vexatious. Against Mr. Zawryucka personally, there was no pleaded factual foundation engaging any recognised exception to the corporate veil. Since Madazen Foods was the employer, and there were no allegations that would justify personal liability of its principal as officer, director or shareholder, the claims against him were groundless and could not succeed.

Disproportionate damages and the characterisation of the claim as vexatious

Central to the appellate court’s analysis was the scale and nature of the relief claimed. After working only 19 hours at $16 per hour (total potential earnings of about $304, aside from any notice argument), Mr. Nakihimba sought more than $490,000 in punitive, mental distress and consequential financial damages. He also claimed compensation for a constellation of financial decisions he made after losing his job—redeeming investments, incurring living expenses, borrowing from family, and pawning personal property—asserting that none of these would have occurred “but for” the termination. The Court of Appeal endorsed the Chambers judge’s observation that such a “but for” approach is not the legal test for compensable damages in wrongful dismissal. Principles of proof, causation and remoteness limit recovery to losses that flow from the breach in a legally recognisable way. Many of the amounts claimed were not, in law, recoverable in a short-service dismissal. Coupled with the very high quantum of punitive and mental distress damages being sought in circumstances where there was no evidence of harsh, vindictive or oppressive treatment by the employer, the overall damages package strongly suggested that the lawsuit was not a good-faith attempt to enforce a true legal claim for reasonable notice. Instead, the court found that, in context, the action could properly be viewed as vexatious.

Sufficiency of reasons, bias and costs

On the adequacy of reasons, the Court of Appeal held that the Chambers judge was not required to explain separately why each category of requested relief—such as $75,000 for mental distress—was refused. The motion before him was to strike the pleading, not to adjudicate remedies. His reasons adequately explained why the statement of claim was struck and allowed for effective appellate review. On alleged bias, the court rejected the argument that the judge was prejudiced against a self-represented litigant. The reasons acknowledged the need to give some latitude to a self-represented party on the adequacy of pleadings, and the mere fact that the judge ultimately accepted the respondents’ submissions did not establish bias. Finally, the appellate court upheld the costs order. A Sanderson order—which shifts costs from a successful defendant to another defendant—was not available because both defendants succeeded; there was no losing defendant to bear another’s costs. Likewise, there was no evidentiary basis for personal costs against defence counsel; the record did not support any suggestion of “sharp practice” warranting such an exceptional order.

Outcome and monetary consequences

In the result, the Court of Appeal for Saskatchewan dismissed Mr. Nakihimba’s appeal and confirmed that the amended statement of claim was properly struck as scandalous, frivolous, vexatious and disclosing no reasonable cause of action, even though it disagreed with the Chambers judge on the abuse of process reasoning. The respondents, Madazen Foods Inc. and Darren Zawryucka, were the successful parties on appeal. The court ordered one set of costs in their favour, fixed at $2,000, and no damages were awarded to the appellant. Accordingly, the total monetary amount ordered in favour of the successful parties in this appellate decision was $2,000 in costs, with no other quantifiable awards determined at this level of the proceedings.