Foerderer v. Nova Chemicals Corp., (2007) 418 A.R. 64 (QB)

• Judge: Topolniski, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 23, 2007
• Citations: (2007), 418 A.R. 64 (QB);2007 ABQB 349

Foerderer v. Nova Chemicals Corp. (2007), 418 A.R. 64 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JL.036

Juergen Foerderer (plaintiff) v. Nova Chemicals Corporation (defendant)

(0010-001543; 2007 ABQB 349)

Indexed As: Foerderer v. Nova Chemicals Corp.

Alberta Court of Queen's Bench

Judicial District of Red Deer

Topolniski, J.

May 23, 2007.

Summary:

The 47 year old plaintiff was a power engineer with a 12 year unblemished work record in a male-dominated industry. A junior employee, a female power engineer, who joined the team the plaintiff was the administrative leader of, complained to the employer that she was sexually harassed by the plaintiff. The plaintiff allegedly used profane language, sexually infused talks and jokes, and displayed pornographic and graphically violent images. Following an investigation, the plaintiff was summarily dismissed for breaching company policies on internet usage, sexual harassment and business conduct. The plaintiff sued for damages for wrongful dismissal, submitting, inter alia, that the employer condoned his misconduct and that summary dismissal was not warranted. The employer had determined that the plaintiff's denials and apparent unwillingness to change precluded any other resolution.

The Alberta Court of Queen's Bench dismissed the action. The employer had cause for dismissal. If the plaintiff was wrongfully dismissed, the court would have fixed the period of reasonable notice at 12 months.

Master and Servant - Topic 7550

Dismissal or discipline of employees - Grounds - Cause or just cause defined - The Alberta Court of Queen's Bench stated that "cause is a question of fact that varies with the nature of the employer's business and the degree of trust and responsibility involved in the employee's position. Cause is determined by an objective contextual and proportional analysis. A finding of misconduct does not, by itself, give rise to just cause; the question is whether, in the circumstances, the behaviour is such that the employment relationship could no longer viably subsist. There must be a balance struck between the severity of an employee's misconduct and the sanction imposed. The factors considered include the employee's tenure, employment record, and the seriousness of the misconduct." - See paragraphs 150 to 151.

Master and Servant - Topic 7574

Dismissal or discipline of employees - Grounds - Sexual harassment - The 47 year old plaintiff was a power engineer with a 12 year unblemished work record in a male-dominated industry - A junior employee, a female power engineer, who joined the team the plaintiff was the administrative leader of, complained to the employer that she was sexually harassed by the plaintiff - The plaintiff allegedly used profane language, sexually infused talks and jokes, and displayed pornographic and graphically violent images - Following an investigation, the plaintiff was summarily dismissed for breaching company policies on internet usage, sexual harassment and business conduct - The plaintiff sued for damages for wrongful dismissal, submitting, inter alia, that the employer condoned his misconduct and that summary dismissal was not warranted - The employer had determined that the plaintiff's denials and apparent unwillingness to change precluded any other resolution - The Alberta Court of Queen's Bench dismissed the action - The sexually charged conduct of the team, which was contrary to known and unambiguous company policy, escalated after the junior employee's arrival - The junior employee was in a position of vulnerability because of the power imbalance - There was overt sexual harassment directly targeting the junior employee - The prior existence of a sexually charged work environment did not preclude a finding of harassment - There was no condonation - If there was condonation, it was subject to the implied condition of future good conduct - Assuming the plaintiff was entitled to a "fair" investigation, he was given a summary of the complaint and an opportunity to respond orally and in writing - The investigation was fair and independent - The anti-harassment policy itself constituted a warning - Cumulatively, the plaintiff's acts warranted summary dismissal, particularly where it was pervasive and abusive and his attitude and conduct precluded any other resolution - He was retaliatory after the complaint and evasive and dishonest during the investigation - The plaintiff's conduct could not be reconciled with his employment obligations.

Master and Servant - Topic 7574

Dismissal or discipline of employees - Grounds - Sexual harassment - The plaintiff sued his employer for wrongful dismissal after he was summarily dismissed for sexually harassing a junior female employee - The Alberta Court of Queen's Bench stated that "the following factors are of relevance in the context of a sexual harassment case: (i) the nature and degree of the conduct; (ii) whether the offending employee was told the impugned conduct was unwelcome or offensive; (iii) continuation of the unwelcome or offensive behaviour after being advised that it was unwelcome; (iv) the nature of the employment relationship between the offending employee and victim, particularly if the offending employee was in a position of authority over the victim; (v) the nature of the employment relationship between the offending employee and employer, including their length of service and position, and whether there were implied or express terms of the employment contract which gave rise to additional obligations on the employer's part, such as warnings or the opportunity to respond; (vi) whether any warnings had been given that the misconduct was inappropriate and that dismissal was a possible consequence of further similar misconduct; (vii) the existence of a formal and known sexual harassment policy that was enforced by the employer; and (viii) condonation of the behaviour by the employer." - See paragraph 91.

Master and Servant - Topic 7608

Dismissal or discipline of employees - Defences - Waiver, condonation or warning of misconduct - The Alberta Court of Queen's Bench stated that "whether a warning and opportunity to improve one's performance is necessary to justify summary dismissal depends on the circumstances and nature of the misconduct. The greater the wrong, the less likely it is that an employer will be required to first put the employee on notice that such misconduct is unacceptable or to provide some form of progressive discipline. Whether an employee has been warned is not, in itself, determinative of the respective parties' rights. Rather, a warning is one of the factors to be taken into account in determining if dismissal was justified. What constitutes a warning may vary with the circumstances, but it is more than an admonishment. It must indicate the nature of the impugned conduct and include a statement that disciplinary consequences may be expected to follow if the impugned conduct continues." - See paragraphs 153 to 155.

Master and Servant - Topic 7608

Dismissal or discipline of employees - Defences - Waiver, condonation or warning of misconduct - [See first Master and Servant - Topic 7574 ].

Master and Servant - Topic 7616

Dismissal or discipline of employees - Defences - Employer's unfair or improper investigation - A summarily dismissed employee in the private sector claimed that he was denied a "fair hearing" by a deficient investigation of a complaint of sexual harassment against him - The Alberta Court of Queen's Bench, in discussing whether there existed a right to a "fair hearing", accepted the following academic statement: "It may be that while a duty to provide a fair hearing may not arise in the common law employment context the very nature of the allegations of sexual harassment, based for the most part on the accusations of one employee against another, compels the employer to exercise a degree of care in prosecuting the allegations, so as to balance the 'rights' of the accused employee with those of the victim. While there are divergent views on this point, it does appear, that at the very least, by providing to the accused employee an opportunity to respond to allegations of harassment the employer enhances its case." - The court stated that any duty of fairness was met where the employee was given a summary of the complaint against him and an opportunity to respond verbally and in writing - The employee was given a fair chance to defend himself - See paragraphs 133 to 144.

Cases Noticed:

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (1996), 190 A.R. 321 (Q.B.), refd to. [para. 8, footnote 1].

R. v. Lin (C.W.), [1998] A.R. Uned. 728; 42 W.C.B.(2d) 47 (Q.B.), refd to. [para. 8, footnote 1].

Lauzon et al. v. Davey et al. (2006), 402 A.R. 293; 62 Alta. L.R.(4th) 314; 2006 ABQB 499, supplementary reasons (2007) 413 A.R. 392; 2007 ABQB 121, refd to. [para. 8, footnote 1].

Klemke Mining Corp. v. Shell Canada Ltd. et al. (2007) 419 A.R.1; 2007 ABQB 176, refd to. [para. 8, footnote 1].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 63, footnote 2].

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 63, footnote 2].

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, refd to. [para. 63, footnote 2].

Simpson v. Consumers' Association of Canada et al. (1999), 90 O.T.C. 161; 41 C.C.E.L.(2d) 179 (Gen. Div.), revd. (2001), 152 O.A.C. 373; 57 O.R.(3d) 351 (C.A.), leave to appeal dismissed (2002), 300 N.R. 199; 172 O.A.C. 198 (S.C.C.), refd to. [paras. 63, 164, footnotes 3, 57].

Duguay v. Maritime Welding and Rentals Ltd. (1989), 100 N.B.R.(2d) 212; 252 A.P.R. 212; 28 C.C.E.L. 126 (T.D.), refd to. [para. 63, footnote 4].

Leach v. Canadian Blood Services, [2001] 5 W.W.R. 668; 284 A.R. 1; 7 C.C.E.L.(3d) 205 (Q.B.), refd to. [para. 63, footnote 5].

Daniels v. Canadian Gift and Tableware Association, [2003] O.T.C. 484 (Sup. Ct.), refd to. [para. 63, footnote 5].

Ennis v. Canadian Imperial Bank of Commerce (1986), 13 C.C.E.L. 25 (B.C.S.C.), refd to. [para. 63, footnote 6].

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. 63, footnote 7].

Bonneville v. Unisource Canada Inc., [2002] 10 W.W.R. 509; 222 Sask.R. 107; 18 C.C.E.L.(3d) 174; 2002 SKQB 304, refd to. [para. 63, footnote 7].

Baumgartner v. Jamieson, [2004] B.C.T.C. 1540; 37 C.C.E.L.(3d) 120; 2004 BCSC 1540, refd to. [para. 63, footnote 7].

Port Arthur Shipbuilding Co. v. Arthurs, [1967] 2 O.R. 49; 62 D.L.R.(2d) 342 (C.A.),  refd to. [para. 63, footnote 8].

Leung v. Doppler Industries Inc. (1995), 10 C.C.E.L.(2d) 147 (B.C.S.C.), affd. (1997), 86 B.C.A.C. 137; 142 W.A.C. 137; 27 C.C.E.L.(2d) 285 (C.A.), refd to. [para. 63, footnote 8].

Lake Ontario Portland Cement Co. v. Groner, [1961] S.C.R. 553; 28 D.L.R.(2d) 589, refd to. [para. 63, footnote 9].

Meaney v. Agnes Pratt Home (1989), 74 Nfld. & P.E.I.R. 18; 231 A.P.R. 18 (Nfld. S.C.), refd to. [para. 63, footnote 10].

TSE v. Trow Consulting Engineers Ltd. (1995), 14 C.C.E.L.(2d) 132 (Ont. Gen. Div.), refd to. [para. 64, footnote 11].

Duffett v. Squibb Canada Inc. (1992), 95 Nfld. & P.E.I.R. 161; 301 A.P.R. 61; 39 C.C.E.L. 37 (Nfld. T.D.), refd to. [para. 68, footnote 12].

Neigum v. Wilkie Co-operative Association Ltd. (1987), 55 Sask.R. 210 (Q.B.), refd to. [para. 68, footnote 12].

Bannister v. General Motors of Canada Ltd. (1998), 112 O.A.C. 188; 40 O.R.(3d) 577; 164 D.L.R.(4th) 325 (C.A.), refd to. [para. 68, footnote 12].

Alberta (Department of Children's Services) v. Alberta Union of Provincial Employees (2005), 138 L.A.C.(4th) 301 (Alta. Arb. Bd.), refd to. [para. 76, footnote 13].

Krain v. Toronto Dominion Bank, [2002] C.L.A.D. No. 406, dist. [para. 77, footnote 14].

Janzen and Govereau v. Pharos Restaurant and Grammas et al., [1989] 1 S.C.R. 1252; 95 N.R. 81; 58 Man.R.(2d) 1, refd to. [para. 90, footnote 15].

Janzen v. Platy Enterprises Ltd. - see Janzen and Govereau v. Pharos Restaurant and Grammas et al.

Dotchin v. Workers' Compensation Board (Sask.) (2002), 222 Sask.R. 61; 2002 SKQB 279, refd to. [para. 90, footnote 16].

Bell v. Korczak (1980), 1 C.H.R.R. D/155 (Ont. Bd. of Inquiry), refd to. [para. 90, footnote 16].

Alleyne v. Gateway Co-operative Homes Inc. et al., [2001] O.T.C. 783; 14 C.C.E.L.(3d) 31 (Sup. Ct.), refd to. [para. 91, footnote 17].

Atkin v. Mogul Ventures Corp., [1997] B.C.H.R.T.D. No. 9 (Hum. Rts. Trib.), refd to. [para. 99, footnote 19].

Zarankin v. Johnstone (1984), 5 C.H.R.R. D/2274 (B.C. Bd. Inq.), affd. (1985), 6 C.H.R.R. D/2651 (B.C.S.C.), refd to. [para. 99, footnote 19].

Brick v. Bell Communications Systems Inc. (1989), 27 C.C.E.L. 118 (Ont. H.C.), refd to. [paras. 115, 179, footnotes 24, 68].

Wright v. British Columbia Trade Development Corp. (1994), 3 C.C.E.L.(2d) 254 (B.C.S.C.), refd to. [para. 115, footnote 24].

Varsity Plymouth Chrysler (1994) Ltd. v. Pomerleau (2002), 318 A.R. 38; 5 Alta. L.R.(4th) 187; 2002 ABQB 512, refd to. [para. 115, footnote 24].

McIntyre v. Hockin (1889), 16 O.A.R. 498 (C.A.), refd to. [para. 124, footnote 27].

Mitran v. Guarantee RV Centre Inc. et al. (1999), 242 A.R. 235; 1999 ABQB 276, refd to. [para. 125, footnote 28].

Poirier v. Wal-Mart Canada Corp., [2006] B.C.T.C. 1138; 2006 BCSC 1138; 2007 BCSC 66, refd to. [para. 125, footnote 29].

Brazeau v. International Brotherhood of Electrical Workers (2004), 205 B.C.A.C. 216; 337 W.A.C. 216; 36 B.C.L.R.(4th) 215; 2004 BCCA 645, affing. [2004] B.C.T.C. 251; 2004 C.L.L.C. 210-032; 2004 BCSC 251, refd to. [para. 128, footnote 30].

Legge v. Newfoundland Telephone Co. (1989), 75 Nfld. & P.E.I.R. 21; 234 A.P.R. 21 (Nfld. T.D.), affd. (1995), 127 Nfld. & P.E.I.R. 220; 396 A.P.R. 220 (Nfld. C.A.), refd to. [para. 131, footnote 34].

McIntyre v. Rogers Cable T.V. Ltd. (1996), 18 C.C.E.L.(2d) 116 (B.C.S.C.), refd to. [para. 134, footnote 36].

Quirola v. Xerox Canada Inc. (1996), 16 C.C.E.L.(2d) 235 (Ont. Gen. Div.), refd to. [para. 134, footnote 37].

Dupuis v. Edmonton Cellular Sales Ltd., [2005] A.R. Uned. 590; 2005 ABQB 445, varied (2006), 397 A.R. 376; 384 W.A.C. 376; 2006 ABCA 283, dist. [para. 144, footnote 45].

Emergis Inc. v. Doyle et al., [2007] O.T.C. 194 (Sup. Ct.), dist. [para. 145, footnote 46].

Goldberg v. Western Approaches Ltd. (1985), 7 C.C.E.L. 127 (B.C.S.C.), refd to. [para. 152, footnote 49].

Gonsalves v. Catholic Church Extension Society of Canada (1998), 112 O.A.C. 164; 164 D.L.R.(4th) 339 (C.A.), refd to. [para. 153, footnote 50].

Neigum v. Wilkie Co-operative Association Ltd. (1987), 55 Sask.R. 210 (Q.B.), refd to. [para. 161, footnote 55].

Schultz v. Becker Milk Co. (1985), 30 A.C.W.S.(2d) 112 (Ont. Dist. Ct.), refd to. [para. 161, footnote 55].

Kinch v. A. Ltd., [1998] A.R. Uned. 472; 1998 ABQB 171, refd to. [para. 166, footnote 58].

Tellier v. Bank of Montreal (1987), 17 C.C.E.L. 1 (Ont. Dist. Ct.), refd to. [para. 168, footnote 59].

Himmelman v. King's Edgehill School (1985), 67 N.S.R.(2d) 358; 155 A.P.R. 358; 7 C.C.E.L. 16 (T.D.), refd to. [para. 169, footntoe 60].

Hewes v. Etobicoke (City) (1993), 93 C.L.L.C. 14,042 (Ont. C.A.), leave to appeal refused (1993), 158 N.R. 319; 65 O.A.C. 79 (S.C.C.), dist. [para. 174, footnote 64].

Robertson v. Complex Services Inc., [2006] O.T.C. Uned. 751; 51 C.C.E.L.(3d) 153 (Sup. Ct.), refd to. [para. 189, footnote 77].

Chisamore v. Molson Brewery of Canada Ltd., [1991] B.C.J. No. 3668 (S.C.), refd to. [para. 198, footnote 83].

Carias v. Canadian Imperial Bank of Commerce, [2003] B.C.T.C. 587; 25 C.C.E.L.(3d) 67; 2003 BCSC 587, refd to. [para. 200, footnote 85].

Dowling v. Workplace Safety and Insurance Board (2004), 192 O.A.C. 126; 246 D.L.R.(4th) 65 (C.A.), refd to. [para. 200, footnote 86].

DiVito v. MacDonald Dettwiler & Associates Ltd. (1996), 21 C.C.E.L.(2d) 137 (B.C.S.C.), refd to. [para. 201, footnote 87].

Stock v. Bank of Nova Scotia (1988), 22 C.C.E.L. 217 (B.C.S.C.), refd to. [para. 203, footnote 90].

Petit v. Insurance Corp. of British Columbia (1995), 13 C.C.E.L.(2d) 62 (B.C.S.C.), dist. [para. 211, footnote 93].

Hopps v. Windsor Mold Inc., [1996] O.J. No. 5472 (Gen. Div.), refd to. [para. 214, footnote 94].

Smith v. Casino Rama Services Inc., [2004] O.T.C. 653 (Sup. Ct.), refd to. [para. 222, footnote 97].

Authors and Works Noticed:

Christie, Innis, England, Geoffrey, and Cotter, W. Brent, Employment Law in Canada (2nd Ed. 1993), p. 639 [para. 63, footnote 10].

Echlin, Randall Scott, and Certosimo, Matthew L.O., Just Cause: The Law of Summary Dismissal in Canada (1998) (2000 Looseleaf Update), pp. 6-15 [para. 154, footnote 51]; 6-16 [para. 153, footnote 50]; 13-12 [para. 137, footnote 43]; 13-23 [paras. 68, 156, footnotes 12, 53]; 13-320 [para. 162, footnote 56]; para. 13-13 [para. 91, footnote 17].

Gallivan, Kathleen, Sexual Harassment after Janzen v. Platy: The Transformative Possibilities (1991), 49 U. Tor. Fac. Law Rev. 27, pp. 33 [para. 102, footnote 22]; 35, 36 [para. 95, footnote 18]; 56 [para. 100, footnote 20]; 58, 59 [para. 101, footnote 21].

Levitt, Howard Alan, The Law of Dismissal in Canada (3rd Ed. 2003) ( 2006 Looseleaf), pp. 179, 180, 181 [para. 63, footnote 10].

Counsel:

Predrag Anic (Fleming LLP), for the plaintiff;

David J. Corry and Jillian A. Vincent (Gowling LaFleur Henderson LLP), for the defendant.

This action was heard before Topolniski, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on May 23, 2007.