A recent decision by the Alberta Court of King’s Bench in Falkenberg v Stephen Avenue Securities Inc., 2025 ABKB 485, offers important guidance on casual employment, gaps in compensation, and reasonable notice. For employers, the case is a cautionary example of how an employee’s length of service can extend further back than expected, even where work is part‑time or compensation has changed over time.
Introduction
Courts have generally accepted that casual employees are not entitled to the same notice period as regular employees upon termination. Although the term “casual employee” is often used in employment contracts, it has received limited attention from the judiciary and is not found in the Employment Standards Code, RSA 2000 c E-9.
This may present a challenge upon termination of an employee whose role is not adequately set out by way of an employment contract, thus complicating the determination of an appropriate notice period.
In Falkenberg, the Alberta Court of King’s Bench Justice RW Armstrong considered the appeal from an Applications Judge’s decision wherein a six-month notice period was deemed appropriate despite evidence of employment with the company for nearly 25 years. In granting the appeal, Justice Armstrong considered several factors and determined the Appellant was not merely a casual employee, allowed the appeal, and granted an 18-month notice period.
Background
The Appellant, Ms. Falkenberg, began working for Stephen Avenue Securities Inc. (“SAS”) in 1996. At that time, SAS was owned by Ms. Falkenberg’s husband but acquired by a third party in 2018. Throughout Ms. Falkenberg’s career, she held senior, operational roles. Her duties included financial regulatory compliance, and she also filled the role of corporate secretary. The 2018 acquisition led to Ms. Falkenberg signing her first formal employment contract that same year.
Ms. Falkenberg was 59 years old when her employment was terminated in December 2020. At that time, she was working part‑time, three days per week, and earning $5,000 per month. She received one month’s salary in lieu of notice.
On several occasions between 1996 and 2018, Ms. Falkenberg accepted a reduced salary or deferred her salary during years in which SAS experienced poor financial health. Ms. Falkenberg declined to receive a salary in 2016, and in 2017 she accepted artwork in lieu of her salary.
Ms. Falkenberg argued that she had been continuously employed by SAS since 1996. The employer took the position that Ms. Falkenberg’s employment began only in 2018, when a written employment agreement was signed, and that any earlier work was informal, sporadic, or unpaid.
In a brief written decision, the Applications Judge determined that Ms. Falkenberg’s modest salary, and at times her complete waiver of salary, was sufficient evidence of casual employment. On that basis, Ms. Falkenberg was awarded a reduced notice period of six months.
The question on appeal was if Ms. Falkenberg was a casual employee from 1996 to 2018, prior to signing her formal employment agreement.
On Appeal, the King’s Bench Court rejected the employer’s position and found that Ms. Falkenberg had been actively providing services since 1996 and that her employment had continued uninterrupted despite changes in pay structure, ownership, and written agreements.
What is a Casual Employee?
Although the term “casual employee” often finds its way into employment contracts, the Employment Standards Code, RSA 2000, c E-9, does not clarify its usage and a precise definition has not been provided by the Courts.
Justice Armstrong drew upon two cases outside of Alberta, as a result. The Federal Court of Appeal considered the term to apply to an individual who works “on call” or is employed for short periods of time to meet unforeseen or temporary needs.[1] The Supreme Court of Nova Scotia offered a similar interpretation, noting that a casual employee may have no expectation regarding work hours or scheduling. Further, a casual employee requires consideration of the employee’s “integration into the employer’s establishment, shared community of interest with other employees.”[2]
Indicators of Casual Employment
After considering these prior interpretations, Justice Armstrong offered a non-exhaustive list of factors to consider when assessing if an individual is a casual employee:
- The existence of a written employment contract and the terms of any employment contract, whether in writing or not.
- The existence or absence of a regular work schedule.
- The existence or absence of a pattern of work overtime.
- The nature of the employee’s duties and responsibilities.
- How the employee is paid, and whether the employee is enrolled in any company benefit plans.
- Whether the employee can refuse work.
- The degree of integration of the employee into the workplace.
- The expectations of the parties involved in the employment relationship.
- Any relevant regulatory issues and tax treatment.
- Any other factors that the judge may consider relevant to the question of whether the employee is a casual employee.[3]
Justice Armstrong emphasized the requirement to weigh all relevant factors, and that no single factor is determinative. The tenth factor is a reminder that this analysis remains fact-specific, and future decisions should be made on a case-by-case basis.
Decision
It was determined that the Applications Judge did not consider several relevant factors of Ms. Falkenberg’s employment. While an employee’s modest and fluctuating salary may be one factor, it was not determinative.
Applying the above principles, the Court found that Ms. Falkenberg was not a casual employee. Her work was regular and ongoing, and her responsibilities were central to the company’s governance, compliance, and regulatory functions, demonstrating her integration into the business[4] Justice Armstrong also noted the regulatory requirement of Ms. Falkenberg’s role. On a review of all relevant factors, Justice Armstrong found Ms. Falkenberg was not a casual employee, and her notice period should not have been capped on that basis. She was awarded 18 months’ notice, taking into account Ms. Falkenberg’s age, senior management role, length of service, and the limited availability of comparable employment.
Implications for Employers
While the impact of this decision on future rulings remains to be seen, it serves as a caution to employers that the assessment of casual employment requires a balanced consideration of all relevant factors. For employers, Falkenberg reinforces that changes to compensation, hours, or written agreements will not necessarily alter an employee’s length of service for notice purposes. Long‑standing service and operational integration may continue to carry significant weight, even where pay or hours fluctuate.
By AJ Macaulay, Reem Saraya and Alessia D’Aversa
[1] Canada (Attorney General) v Marinos, 2000 CanLII 17116 (FCA), [2000] FCJ No 446 at paras 20-21.
[2] Halifax (Municipality) v Nova Scotia (Pay Equity Commission Hearing Panel) (1996), 1996 CanLII 5444 (NS SC), 152 NSR (2d) 35.
[3] Falkenberg v Stephen Avenue Securities, 2025 ABKB 485 at para 15.