Van den Boogaard v. Vancouver Pile Driving Ltd., 2014 BCCA 168

• Judge: Newbury, Frankel and Stromberg-Stein, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 26, 2014
• Jurisdiction: British Columbia
• Citations: 2014 BCCA 168;(2014), 354 B.C.A.C. 228 (CA)

Van den Boogaard v. Vancouver Pile Driving (2014), 354 B.C.A.C. 228 (CA);

    605 W.A.C. 228

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. MY.006

Kirk Van den Boogaard (appellant/plaintiff) v. Vancouver Pile Driving Ltd. (respondent/defendant)

(CA041303; 2014 BCCA 168)

Indexed As: Van den Boogaard v. Vancouver Pile Driving Ltd.

British Columbia Court of Appeal

Newbury, Frankel and Stromberg-Stein, JJ.A.

May 1, 2014.

Summary:

Van den Boogaard was employed as a senior project manager responsible for the safety of a job site in a high risk, safety-sensitive, heavily regulated industry. His core duties included workplace safety, safety training, and enforcement of drug-prohibition policies. He participated in the creation of a core value statement for the company and created policies in respect of safety, legal and regulatory risks for the employer. The employer terminated Van den Boogaard's employment without cause and paid him four weeks' base salary in lieu of notice. Van den Boogaard sued for damages for wrongful dismissal. The employer responded by alleging after-acquired cause, including that Van den Boogaard sent a series of text messages to a direct subordinate to solicit illegal drugs. The action proceeded by way of summary trial. Van den Boogaard admitted to soliciting and procuring drugs from the subordinate.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 2105, dismissed the action, holding that Van den Boogaard's solicitation of illegal drugs from an employee under his supervision was misconduct that went to the heart of the employment relationship and created a conflict of interest. Van den Boogaard appealed.

The British Columbia Court of Appeal dismissed the appeal. The misconduct went to the root of the employment relationship which could not be restored.

Master and Servant - Topic 7522

Dismissal or discipline of employees - Grounds - Consideration of total situation - See paragraphs 17 to 23.

Master and Servant - Topic 7525

Dismissal or discipline of employees - Grounds - General - Grounds learned after dismissal - See paragraphs 24 to 38.

Master and Servant - Topic 7561

Dismissal or discipline of employees - Grounds - Conflict of interest - See paragraphs 24 to 38.

Master and Servant - Topic 7568

Dismissal or discipline of employees - Grounds - Criminal conduct - See paragraphs 24 to 38.

Cases Noticed:

McKinley v. BC Tel et al. (2001), 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161; 2001 SCC 38, refd to. [para. 10].

Panton v. Everywoman's Health Centre Society (1988) (2000), 144 B.C.A.C. 179; 236 W.A.C. 179; 2000 BCCA 621, refd to. [para. 17].

Bank of Montreal v. Payne (2013), 443 N.R. 253; 2013 FCA 33, refd to. [para. 26].

Carroll v. Emco Corp. (2007), 238 B.C.A.C. 312; 393 W.A.C. 312; 2007 BCCA 186, refd to. [para. 26].

Davey v. Syncrude Canada Ltd., [2004] A.R. Uned. 93; 33 C.C.E.L.(3d) 50; 2004 ABCA 190, refd to. [para. 27].

Rodgers v. West Fraser Mills Ltd., [2006] B.C.T.C. Uned. 218; 2006 BCSC 467, dist. [para. 27].

Nicholls v. Columbia Taping Tools Ltd., [2013] B.C.T.C. Uned. 2201; 2013 BCSC 2201, dist. [para. 27].

Leung v. Doppler Industries Inc. (1995), 10 C.C.E.L.(2d) 147 (B.C.S.C.), refd to. [para. 27].

Lewis v. M3 Steel (Kamloops) Ltd., [2006] B.C.T.C. 681; 2006 BCSC 681, refd to. [para. 32].

Henry v. Fox Ford (2004), 269 N.B.R.(2d) 63; 707 A.P.R. 63; 2004 NBCA 22, refd to. [para. 32].

Lake Ontario Portland Cement Co. v. Groner, [1961] S.C.R. 553, refd to. [para. 33].

Doucet et al. v. Spielo Manufacturing Inc. et al. (2011), 372 N.B.R.(2d) 1; 961 A.P.R. 1; 2011 NBCA 44, refd to. [para. 35].

Counsel:

M. Sheard and C. Beneteau, for the appellant;

C. Keri and M. Prohl, for the respondent.

This appeal was heard at Vancouver, British Columbia, on March 26, 2014, by Newbury, Frankel and Stromberg-Stein, JJ.A., of the British Columbia Court of Appeal. Stromberg-Stein, J.A., delivered the following reasons for judgment for the court on May 1, 2014.