Brown et al. v. Asurion Canada Inc., 2013 NBCA 13

• Judge: Drapeau, C.J.N.B., Larlee and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 16, 2012
• Jurisdiction: New Brunswick
• Citations: 2013 NBCA 13;(2013), 401 N.B.R.(2d) 92 (CA)

Brown v. Asurion Can. Inc. (2013), 401 N.B.R.(2d) 92 (CA);

    401 R.N.-B.(2e) 92; 1041 A.P.R. 92

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. FE.031

Renvoi temp.: [2013] N.B.R.(2d) TBEd. FE.031

Asurion Canada Inc. (appellant) v. Barry Brown and Gabriel Cormier (respondents)

(64-12-CA; 65-12-CA; 2013 NBCA 13)

Indexed As: Brown et al. v. Asurion Canada Inc.

Répertorié: Brown et al. v. Asurion Canada Inc.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Larlee and Green, JJ.A.

February 14, 2013.

Summary:

Résumé:

Brown and Cormier were summarily dismissed for what their employer identified as violations of its workplace internet acceptable use policy. They brought separate actions for wrongful dismissal which were heard at the same time. The trial judge ruled against the employer in the two actions. In his view, McKinley v. BC Tel (2001 SCC) required "deceitful" misconduct for the dismissals to be legally justified. The trial judge concluded that the employer had not established misconduct of that nature and, as a result, its defence of "just cause" could not prevail. The trial judge also found that, in any event, dismissal constituted a disproportionately severe penalty for the misconduct at issue, being the receipt and viewing on company-issued computers of email-attached images which the trial judge described as "pornographic". The employer launched separate appeals which were consolidated.

The New Brunswick Court of Appeal dismissed the appeals. While the trial judge erred in stating that the employer was required to prove "deceitful" conduct in this case, the trial judge did not err with respect to his finding of disproportionality. The court awarded each respondent employee costs on appeal of $4,500, a quantum designed to provide substantial indemnity for legal fees incurred.

Master and Servant - Topic 7510

Dismissal of employees - General principles - Summary dismissal - [See Master and Servant - Topic 7582.1 ].

Master and Servant - Topic 7529

Dismissal or discipline of employees - Grounds - General - Company policy - [See Master and Servant - Topic 7582.1 ].

Master and Servant - Topic 7550

Dismissal of employees - Grounds - Cause or just cause defined - [See Master and Servant - Topic 7582.1 ].

Master and Servant - Topic 7582.1

Dismissal or discipline of employees - Grounds - Personal use of employer's property (incl. computers) - Cormier and Brown received more than a dozen emails through their work computers, all unsolicited, to which were attached images described by the trial judge as "pornographic" - The emails and attachments were sent by a common "friend", a non-employee, apparently for humorous purposes - The emails and attachments were either promptly deleted or transferred to a personal email address - They were not shared with anyone at work - Brown and Cormier were summarily dismissed for what their employer identified as violations of its workplace internet acceptable use policy - They sued for wrongful dismissal - The trial judge allowed the actions - The employer appealed - The New Brunswick Court of Appeal dismissed the appeals - The trial judge erred in stating that the employer was required to prove "deceitful" conduct - Although proof of "deceitful" conduct was required where the claimed "just cause" was based on employee dishonesty, it was not required where the predicate misconduct was a breach of the employer's internet acceptable use policy - The court questioned whether the employer had established a violation of the policy provision upon which it relied, based on what the court saw as ambiguity in the provision's wording considered contextually - Ultimately, however, the court confirmed the judgment under appeal on the ground that the trial judge's finding, that dismissal constituted a disproportionately severe penalty for the misconduct at issue, was untainted by reversible error - Applying the contextual approach to proportionality adopted in McKinley v. B.C. Tel (2001 SCC), the trial judge found the employees' "misconduct", assessed objectively, did not reach the level of seriousness required to constitute just cause for summary dismissal - The employer failed to show that that finding resulted from a palpable and overriding error, or was otherwise unreasonable - See paragraphs 18 to 37.

Practice - Topic 8327.2

Costs - Appeals - Costs of appeal - Solicitor and client costs - Two employees successfully sued their employer for wrongful dismissal - The employer appealed - The New Brunswick Court of Appeal dismissed the appeals - Counsel for the employees advised that their total legal fees for appeal-related services would approximate $10,000 - The court stated that "while the appeals fail, they were ably argued and far from frivolous. Indeed, the appellant raised several significant issues, highlighting, in the process, at least one error by the trial judge (his statement that the appellant bore the burden of proving 'deceitful' conduct on the respondents' part). More generally and pertinently, the appellant has not engaged in 'reprehensible, scandalous or outrageous conduct' in the prosecution of its case in this Court. That state of affairs ruled out a principled award of costs on a solicitor-client basis ... However, in their written submissions, the respondents claimed - rightly, in my opinion - that, without an order of costs providing substantial indemnity, a significant portion of the judgment they obtained at trial would be lost, leaving them with little more than a pyrrhic victory. Hence, my concurrence with separate awards of $4,500 for costs on appeal" - See paragraphs 38 to 40.

Employeurs et employés - Cote 7510

Congédiement d'employés - Principes généraux - Congédiement sommaire - [Voir Master and Servant - Topic 7510 ].

Employeurs et employés - Cote 7529

Congédiement d'employés - Motifs - Généralités - Politique de l'employeur - [Voir Master and Servant - Topic 7529 ].

Employeurs et employés - Cote 7550

Congédiement d'employés - Motifs - Définition de cause ou de cause valable et suffisante - [Voir Master and Servant - Topic 7550 ].

Employeurs et employés - Cote 7582.1

Congédiement d'employés ou recours disciplinaire - Motifs - Utilisation des biens de l'employeur (y compris un ordinateur) à des fins personnelles - [Voir Master and Servant - Topic 7582.1 ].

Procédure - Cote 8327.2

Dépens - Appels - Dépens de l'appel - Frais entre avocat et client - [Voir Practice - Topic 8327.2 ].

Cases Noticed:

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161; 2001 SCC 38, refd to. [para. 2].

Henry v. Fox Ford (2004), 269 N.B.R.(2d) 63; 707 A.P.R. 63; 2004 NBCA 22, refd to. [para. 21].

Backman v. Maritime Paper Products Ltd. (2009), 349 N.B.R.(2d) 171; 899 A.P.R. 171; 2009 NBCA 62, refd to. [para. 21].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 23].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 23].

Hall v. Boise Alljoist Ltd. (2006), 306 N.B.R.(2d) 396; 793 A.P.R. 396; 2006 NBCA 111, refd to. [para. 31].

R. v. Morelli - see/voir R. v. U.P.M.

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 36].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 39].

Hamilton v. Open Window Bakery Ltd. et al. (2004), 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 39].

Authors and Works Noticed:

Ball, Canadian Employment Law (2011 Looseleaf), vol. 1, paras. 11:10 [para. 26]; 11:190 [paras. 32, 33]; 11:195 [para. 34].

Echlin, Randall Scott, and Certosimo, Matthew L.L., Just Cause: The Law of Summary Dismissal in Canada, (2012 Looseleaf), para. 16:310 [para. 28].

Halsbury's Laws of England (4th Ed.1992), vol. 16, paras. 298, 299 [para. 26].

Harris, David, Wrongful Dismissal (1989 Looseleaf), p. 3-71 [para. 28].

Counsel:

Avocats:

Sacha D. Morisset, for the appellant, Asurion Canada Inc.;

Enrico Scichilone, for the respondents, Gabriel Cormier and Barry Brown.

This appeal was heard on October 16, 2012, before Drapeau, C.J.N.B., Larlee and Green, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered by Drapeau, C.J.N.B., in both official languages, on February 14, 2013.