Leach v. Canadian Blood Services, 2001 ABQB 54

• Judge: Coutu, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 24, 2001
• Citations: 2001 ABQB 54;(2001), 284 A.R. 1 (QB)

Leach v. Cdn. Blood Services (2001), 284 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. FE.054

Larry Leach (plaintiff) v. Canadian Blood Services (defendant)

(9903 18274; 2001 ABQB 54)

Indexed As: Leach v. Canadian Blood Services

Alberta Court of Queen's Bench

Judicial District of Edmonton

Coutu, J.

January 24, 2001.

Summary:

The plaintiff's employment with the defendant was terminated after seven years on the ground that he sexually harassed other employees. He denied the allegations and sued for wrongful dismissal.

The Alberta Court of Queen's Bench dismissed the action but provisionally assessed reasonable notice to be 12 months.

Master and Servant - Topic 7574

Dismissal of employees - Grounds - Sexual harassment - The 62 year old plaintiff's employment with the defendant was terminated after seven years - The ground was that he sexually harassed a female employee in 1994 (comments, touched her buttocks, kissed her) and finally another employee in 1999 (comments, kissed her) -He denied the allegations and sued for wrongful dismissal - The Alberta Court of Queen's Bench held that termination was the appropriate discipline - His conduct was of the more serious type of sexual harassment - It was not an isolated event - He was a manager who was responsible for enforcing the employer's harassment policy - His conduct undermined the employer's faith, trust and confidence and had impact on staff morale - His denial limited his options - Even if he was not given a clear warning in 1994 that he would be dismissed if he sexually harassed an employee again, one was not needed - He was aware that unwelcome physical contact was sexual harassment and could lead to dismissal - See paragraphs 114 to 138.

Master and Servant - Topic 7574

Dismissal of employees - Grounds - Sexual harassment - A manager's employment was terminated for sexual harassment - He sued for wrongful dismissal - He argued respecting one incident, that the employer had no right to dismiss him because the matter did not take place in the workplace but at noon hour off premises during a lunch on the employees' personal time - The Alberta Court of Queen's Bench rejected the argument - Courts had upheld summary dismissals for off-duty conduct, such as intoxication, substance abuse, theft, and fraud when this conduct was found to be incompatible with the employee's duty or prejudicial to the employer's interests - Similarly, an employer was entitled to dismiss a manager for off-duty serious sexual harassment if the conduct was prejudicial to the interest of the employer or was incompatible with the proper discharge of the employee's duties - See paragraphs 90 to 99.

Master and Servant - Topic 7608

Dismissal of employees - Defences - Warning of misconduct - [See first Master and Servant - Topic 7574 ].

Master and Servant - Topic 7616

Dismissal of employees - Defences - Employer's unfair or improper investigation - The 62 year old plaintiff's employment with the defendant was terminated after seven years - The ground was that he sexually harassed two female employees - The plaintiff sued for wrongful dismissal - He argued, inter alia, the employer did not conduct a fair and proper investigation of the second harassment complaint and therefore the court should not uphold the dismissal - The Alberta Court of Queen's Bench rejected the argument - The obligations and rights to a fair hearing found in administrative law did not apply to common law master-servant relationships - Any concerns about the fairness or impartiality of the employer's investigation was effectively removed by the complete and impartial assessment of the facts undertaken by the court at trial - See paragraphs 139 to 162.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - The 62 year old plaintiff's employment with the defendant was terminated after seven years - The ground was sexual harassment - He denied the allegations and sued for wrongful dismissal He was a transport supervisor and earned $44,201/yr. - He was responsible for packing and safe delivery of blood products for the Edmonton centre, training and supervising a staff of eleven, inventory control and warehousing, and managing a financial budget of approximately $500,000 - The Alberta Court of Queen's Bench dismissed the action but provisionally assessed the appropriate notice period as 12 months - See paragraphs 164 and 165.

Cases Noticed:

Sylvan Lake Golf and Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (1996), 190 A.R. 321 (Q.B.), refd to. [para. 70, Appendix B].

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. 81, Appendix B].

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. 86, Appendix B].

Brennan v. Canada and Robichaud (1987), 75 N.R. 303; 40 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 93, Appendix B].

Port Arthur Shipbuilding Co. v. Arthurs, [1967] 2 O.R. 49; 62 D.L.R.(2d) 342 (C.A.), revd. [1969] S.C.R. 85; 70 D.L.R.(2d) 693, refd to. [para. 96, Appendix B].

Pearce v. Foster, [1886] 17 Q.B.D. 536 (C.A.), refd to. [para. 97, Appendix B].

Cluff et al. v. Canada (Minister of Agriculture) and Sage, [1994] 2 F.C. 176; 71 F.T.R. 122 (T.D.), dist. [para. 104, Appendix B].

Shiels v. Saskatchewan Government Insurance (1988), 67 Sask.R. 220; 20 C.C.E.L. 55; 51 D.L.R.(4th) 28 (Q.B.), dist. [para. 107, Appendix B].

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.), reving. (1994), 8 C.C.E.L.(2d) 281 (Gen. Div.), refd to. [para. 111, Appendix B].

TSE v. Trow Consulting Engineers Ltd. (1995), 14 C.C.E.L.(2d) 132 (Ont. Gen. Div.), refd to. [para. 125, Appendix B].

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. 125, Appendix B].

Neigum v. Wilkie Co-operative Association Ltd. (1987), 55 Sask.R. 210 (Q.B.), refd to. [para. 125, Appendix B].

Hopps v. Windsor Mold Inc. (1997), 70 A.C.W.S.(3d) 79 (Ont. Gen. Div.), refd to. [para. 128].

Machado v. Pratt & Whitney Canada Inc. (1995), 12 C.C.E.L.(2d) 132 (Ont. Gen. Div.), refd to. [para. 128].

Hutchinson v. St. Leonard's Society of Brant (1993), 46 C.C.E.L. 306 (Ont. Gen. Div.), refd to. [para. 128].

Mackie v. Genesco Canada Ltd. (1991), 34 A.C.W.S.(3d) 796 (Ont. Gen. Div.), refd to. [para. 128, Appendix B].

Boisvenue v. St. Stephen (Town) (1998), 88 N.B.R.(2d) 320; 224 A.P.R. 320; 22 C.C.E.L. 116 (T.D.), refd to. [para. 128].

Byer v. Himark Enterprises Inc. (1998), 39 C.C.E.L.(2d) 203 (Ont. Gen. Div.), refd to. [para. 128].

Konowalchuk v. Schneider (J.M.) Inc., [1999] 1 W.W.R. 154; 128 Man.R.(2d) 267 (Q.B.), affd. [1999] 9 W.W.R. 44; 138 Man.R.(2d) 295; 202 W.A.C. 295 (C.A.), refd to. [para. 128].

Tellier v. Bank of Montreal (1987), 17 C.C.E.L. 1 (Ont. Dist. Ct.), refd to. [paras. 132, 147, Appendix B].

McIntyre v. Rogers Cable T.V. Ltd. (1996), 18 C.C.E.L.(2d) 116 (B.C.S.C.), refd to. [para. 140, Appendix B].

Quirola v. Xerox Canada Inc. (1996), 16 C.C.E.L.(2d) 235 (Ont. Gen. Div.), refd to. [para. 140, Appendix B].

Higginson v. Rocky Credit Union Ltd. (1995), 162 A.R. 369; 83 W.A.C. 369; 10 C.C.E.L.(2d) (C.A.), refd to. [para. 142, Appendix B].

Kinch v. Amoco Canada Petroleum, [1998] A.R. Uned. 472 (Q.B.), refd to. [para. 142, Appendix B].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; [1990] 3 W.W.R. 289; 69 D.L.R.(4th) 489; 43 Admin. L.R. 157; 30 C.C.E.L. 237; 90 C.L.L.C. 14,010, refd to. [para. 143, Appendix B].

Ridge v. Baldwin, [1963] 2 All E.R. 66 (H.L.), refd to. [para. 143, Appendix B].

Gonsalves v. Catholic Church Extension Society of Canada (1996), 20 C.C.E.L.(2d) 106 (Ont. Gen. Div.), revd. (1998), 112 O.A.C. 164; 164 D.L.R.(4th) 339 (C.A.), refd to. [para. 147].

Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 147, Appendix B].

Reilly v. Steelcase Canada Ltd. (1979), 103 D.L.R.(3d) 704 (Ont. H.C.), refd to. [para. 147, Appendix B].

Jivrag v. Calgary (City) and Calgary Parking Authority (1986), 71 A.R. 87; 13 C.C.E.L. 120 (Q.B.), varied (1987), 18 C.C.E.L. xxx (C.A.), refd to. [para. 147, Appendix B].

Ewasiuk v. Estevan Area Home Care District 9 Inc. (1985), 42 Sask.R. 38; 9 C.C.E.L. 267 (Q.B.), refd to. [para. 147, Appendix B].

Yeomans v. Simon Fraser University, [1996] B.C.J. No. 956, refd to. [para. 159, Appendix B].

Bardall v. Globe and Mail, [1960] O.W.N. 253, refd to. [para. 164, Appendix B].

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. [Appendix B].

Authors and Works Noticed:

Article, Court takes tough position on workplace sexual harassment (1998), Legal Alert, vol. 17, No. 9, generally [Appendix B].

Article, Discipline for Sexual Harassment at Work More Severe (1998), Labour Alert, vol. 2, No. 5, generally [Appendix B].

Article, How to Effectively Remedy Sex Harassment Complaints (1993), Employment and Labour Law Reporter, vol. 3, No. 8, generally [Appendix B].

Article, Sexual Assault is Just Cause for Dismissal (1998), Employment and Labour Law Reporter, vol. 8, No. 8, generally [Appendix B].

Article, Termination Not the Usual Response to Sexual Harassment (1997), Labour Alert, vol. 1, No. 4, generally [Appendix B].

Aggarwal, Sexual Harassment in the Workplace (3rd Ed. 2000), p. 269 [para. 105, Appendix B].

Canadian Encyclopedic Digest (West.) (3rd Ed.), vol. 35, Title 153, para. 182,pp. 13, 14 [para. 91, Appendix B].

Echlin, Certosimo, Just Cause, The Law of Summary Dismissal in Canada (2000), pp. 1-5 [paras. 117, 119]; 1-6 [para. 148]; 6-2 [para. 117]; 6-14 [para. 142]; 6-15 [para. 117]; 6-16 [para. 121]; 13-11 [para. 142]; 13-12 [para. 151]; 13-19 [para. 128]; 13-20 [paras. 119, 142]; 13-21 [para. 142]; 13-22 [para. 125].

Levitt, Howard, The Law of Dismissal in Canada (2nd Ed.), p. 177 [para. 92, Appendix B].

Counsel:

Alvin Goldsman, for the plaintiff;

Craig Neuman, for the defendant.

This case was heard before Coutu, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on January 24, 2001.