Dupuis v. Edmonton Cellular Sales Ltd.,

• Judge: C,Paperny,Sulyma
• Neutral Citation: 2006 ABCA 283
• Citation: (2006), 397 A.R. 376 (CA),2006 ABCA 283,397 AR 376,(2006), 397 AR 376 (CA),397 A.R. 376
• Date: 08 September 2006
• Court: Court of Appeal (Alberta)

Dupuis v. Edmonton Cellular Sales Ltd. (2006), 397 A.R. 376 (CA);

      384 W.A.C. 376

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. OC.044

Shawn Gordon Dupuis (respondent/plaintiff) v. Edmonton Cellular Sales Ltd. (appellant/defendant)

(0503-0238-AC; 2006 ABCA 283)

Indexed As: Dupuis v. Edmonton Cellular Sales Ltd.

Alberta Court of Appeal

Côté and Paperny, JJ.A., and Sulyma, J.(ad hoc)

September 8, 2006.

Summary:

Dupuis sued his former employer for damages for wrongful dismissal.

The Alberta Court of Queen's Bench, in a decision reported at [2005] A.R. Uned. 590, allowed the action, fixed the reasonable notice period at five months and held that Dupuis was entitled to an additional five months based on Wallace v. United Grain Growers Ltd. (S.C.C.) for a total of 10 months' pay in lieu of notice. The employer appealed.

The Alberta Court of Appeal affirmed the finding of wrongful dismissal, but set aside the Wallace award. The court affirmed the award of damages of five months' pay in lieu of notice.

Master and Servant - Topic 7550

Dismissal or discipline of employees - Grounds - Cause or just cause defined - Dupuis was dismissed without notice on the basis that he had inappropriately touched several female employees - Dupuis sued for damages for wrongful dismissal - The trial judge found that the conduct complained of was not sexual in nature and did not constitute sexual harassment - The trial judge found that Dupuis had engaged in the touching, but found that he had not realized the effect of his conduct - The trial judge concluded that Dupuis should have been warned, but that the conduct did not warrant immediate dismissal - The employer appealed - The Alberta Court of Appeal stated that the finding of wrongful dismissal was a question of mixed fact and law and was reviewable on a standard of palpable and overriding error - Whether the nature of the acknowledged inappropriate touching was sexual, or amounted to sexual harassment, was not determinative - Nor was Dupuis' intention - Inappropriate touching could justify immediate dismissal depending on the circumstances - A decision that rested on a finding that because the touching was not sexual, it was therefore not culpable, would be an error - However, the finding that Dupuis deserved a warning implied a recognition that the touching was culpable, but insufficiently serious to warrant immediate dismissal - Given the high standard of review, appellate intervention was not warranted - See paragraphs 1 to 8.

Master and Servant - Topic 7574

Dismissal or discipline of employees - Grounds - Sexual harassment - [See Master and Servant - Topic 7550 ].

Master and Servant - Topic 7904

Dismissal without cause - General - Circumstances when dismissal not justified - [See Master and Servant - Topic 7550 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - Dupuis was employed by Edmonton Cellular for over five years, first as a sales representative and eventually as a manager of a store - He was wrongfully terminated without notice - The trial judge stated that Dupuis suffered shock when he realized that it was practically impossible to find work in the same area - He also commented on the fact that the dismissal took place immediately upon Dupuis' return from vacation and the employer's failure to allow him to respond to complaints of inappropriate touching and the refusal to accept a resignation letter or provide a reference letter - The trial judge determined that the reasonable notice period was five months and held that Dupuis was entitled to an additional five months based on Wallace v. United Grain Growers Ltd. (S.C.C.) for a total of 10 months' pay in lieu of notice - The Alberta Court of Appeal affirmed the award of damages of five months' pay in lieu of notice, but held that there did not exist the kind of bad faith conduct in the manner of dismissal that warranted damages beyond the five month period - See paragraphs 9 to 13.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dismissal - Reasonable notice - Considerations affecting - [See Master and Servant - Topic 8000 ].

Cases Noticed:

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1; 152 D.L.R.(4th) 1, refd to. [para. 4].

Counsel:

S.A. Binder, for the respondent/plaintiff;

M.L. Engelking, for the appellant/defendant.

This appeal was heard on September 8, 2006, by Côté and Paperny, JJ.A., and Sulyma, J.(ad hoc), of the Alberta Court of Appeal. Paperny, J.A., delivered the following memorandum of judgment orally for the court on the same day.