Poliquin v. Devon Canada Corp.,

• Judge: Fraser, C.J.A., Côté and McFadyen, JJ.A.
• Neutral Citation: 2009 ABCA 216
• Citation: 2009 ABCA 216,(2009), 454 A.R. 61 (CA),[2009] 9 WWR 416,454 AR 61,8 Alta LR (5th) 45,[2009] AJ No 626 (QL),75 CCEL (3d) 1,[2009] A.J. No 626 (QL),454 A.R. 61,(2009), 454 AR 61 (CA)
• Date: 17 June 2009
• Court: Court of Appeal (Alberta)

Poliquin v. Devon Can. Corp. (2009), 454 A.R. 61 (CA);

      455 W.A.C. 61

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.074

Claude Poliquin (respondent/plaintiff) v. Devon Canada Corporation (appellant/defendant)

(0801-0352-AC; 2009 ABCA 216)

Indexed As: Poliquin v. Devon Canada Corp.

Alberta Court of Appeal

Fraser, C.J.A., Côté and McFadyen, JJ.A.

June 17, 2009.

Summary:

A 50 year old senior supervisory employee was summarily dismissed after 26 years' employment on the grounds that (1) he solicited and accepted free personal services from the employer's suppliers and (2) he used the employer's computer equipment and Internet access to view and transmit pornographic and racist material, both violating the employer's code of conduct. The employee sued for damages for wrongful dismissal. The employer moved under rule 159(2) to summarily dismiss the action.

The Alberta Court of Queen's Bench, in a judgment reported [2008] A.R. Uned. 669; 2008 ABQB 682, dismissed the motion. Although the employee's conduct was "deplorable" and "beyond inappropriate", whether summary dismissal was a proportional disciplinary action required a trial. The employer appealed.

The Alberta Court of Appeal allowed the appeal, summarily dismissing the wrongful dismissal action. On the uncontroverted evidence, it was plain and obvious that the employee's action could not succeed.

Master and Servant - Topic 7561

Dismissal or discipline of employees - Grounds - Conflict of interest - [See both Master and Servant - Topic 7563 ].

Master and Servant - Topic 7563

Dismissal or discipline of employees - Grounds - Dishonesty - A 50 year old senior supervisory employee supervised 20-25 employees, including other supervisors - He was summarily dismissed after 26 years for (1) soliciting and accepting free landscaping services for his home from two of the employer's suppliers and (2) for receiving and forwarding (on at least two occasions) pornographic and racist e-mails on his company computer over a period of months, notwithstanding a previous written warning not to access pornographic materials on the internet via the company computer - Both forms of conduct violated express provisions of the employer's code of conduct - The employee sued for wrongful dismissal - The trial judge dismissed the employer's motion to summarily dismiss the action under rule 159(2) on the ground that whether dismissal was a proportional response to the misconduct required a trial - The Alberta Court of Appeal held that the action should have been summarily dismissed on the ground that it was plain and obvious that the action could not succeed - The solicitation and acceptance of personal benefits from the employer's suppliers (over whom the employee had responsibility to issue contracts and sign invoices) was both dishonest and a conflict of interest - That alone merited summary dismissal - The employee did nothing to stop the receipt of pornographic and racist e-mails from known persons notwithstanding the previous warning - He even forwarded a pornographic image to two female employees, risking a sexual harassment claim - There was a potential of serious harm to the employer's reputation, as the e-mails identified the employer - It was no defence to say that he only received the pornographic e-mails (rather than sending them), that none of the inferior employees complained of harassment or that such misconduct was culturally tolerated in the industry - The employer was entitled to manage conduct in its own workplace - The employee ignored and abused the employer's trust - It was plain and obvious that the wrongful dismissal action could not succeed - The cumulative misconduct, particularly because of, inter alia, his senior supervisory position and the previously ignored warning, warranted summary dismissal.

Master and Servant - Topic 7563

Dismissal or discipline of employees - Grounds - Dishonesty - The Alberta Court of Appeal stated that "dishonesty may or may not be grounds for dismissal. ... an employer is justified in dismissing an employee for dishonesty - and again by analogy for conflict of interest - if the behaviour in question: (a) violated an essential condition of the employment contract; (b) breached the faith inherent in the work relationship; or (c) was fundamentally or directly inconsistent with the employee's obligations to the employer." - See paragraph 35.

Master and Servant - Topic 7582.1

Dismissal or discipline of employees - Grounds - Personal use of employer's property (incl. computers to access pornography, etc.) - [See first Master and Servant - Topic 7563 ].

Master and Servant - Topic 7582.1

Dismissal or discipline of employees - Grounds - Personal use of employer's property (incl. computers to access pornography, etc.) - An employee was summarily dismissed for, inter alia, receiving and fowarding to others pornographic and racist e-mails on his employer's computer - The Alberta Court of Appeal stated that "an employee's misuse of a workplace computer for pornographic or racist purposes negatively affects an employer's professional, ethical and operational integrity. Employers are not required to tolerate the misuse of their computers and Internet access any more than they are required to put up with serious incidents of dishonesty by employees. When an employee steals money from an employer, the theft and resulting damage is at least confined to that employee. But where dissemination of pornographic or racist material using the employer's computer or Internet access is concerned and especially where the employee's e-mail address includes the employer's identity, this is not necessarily so. ... Accordingly, the harm done may well be far more serious and pervasive. This reality substantially increases the risks to employers flowing from the misuse of their equipment and Internet access for improper purposes. For these reasons, an employer is entitled not only to prohibit use of its equipment and systems for pornographic or racist purposes but also to monitor an employee's use of the employer's equipment and resources to ensure compliance." - See paragraph 49.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or appropriate - An employer applied under rule 159(2) for summary judgment to dismiss an employee's wrongful dismissal action - The Alberta Court of Appeal stated that employer had the evidentiary burden of showing that there was no genuine issue of material fact requiring trial - If the defendant satisfied that burden, to meet or counter the employer's evidence the employee had to establish that it was not plain and obvious that his claim could not succeed - The court stated that "first, the bar to summary judgment remains a high one ... Second, if that bar is met, summary dismissal is not an extraordinary remedy nor an indulgence to the party moving for it. Third, if the evidence conflicts on a material point, or is hearsay, the party resisting summary judgment can demand a trial as of right. There is no discretion to refuse the trial." - See paragraphs 10 to 13.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Practice - Topic 5702 ].

Cases Noticed:

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. 8].

Blomme v. Herman et al. (1993), 145 A.R. 16; 55 W.A.C. 16 (C.A.), refd to. [para. 8].

Paragon Controls Ltd. v. Valtek International et al. (1998), 299 A.R. 373; 266 W.A.C. 373; 1998 ABCA 19, refd to. [para. 8].

Prefontaine v. Veale et al. (2003), 339 A.R. 340; 312 W.A.C. 340; 2003 ABCA 367, refd to. [para. 8].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 10].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1; 178 D.L.R.(4th) 1, refd to. [para. 12].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241; 146 D.L.R.(4th) 577, refd to. [para. 12].

Espey v. Chapters Inc. (1998), 225 A.R. 68 (Q.B.), refd to. [para. 14].

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. 30].

Banque de Montréal v. Leong, [1989], 2 S.C.R. 429; 100 N.R. 203; 26 Q.A.C. 20; 62 D.L.R.(4th) 1, refd to. [para. 37].

Durand v. Quaker Oats Co. Canada Ltd. (1990), 45 B.C.L.R.(2d) 354; 32 C.C.E.L. 63 (C.A.), refd to. [para. 37].

MacFarlane v. Westfair Foods Ltd. (1994), 158 A.R. 267; 7 C.C.E.L.(2d) 75 (Q.B.), refd to. [para. 37].

Snydmiller v. Dome Petroleum Ltd. (1986), 66 A.R. 390; 43 Alta. L.R.(2d) 392 (C.A.), refd to. [para. 41].

Snider v. New Brunswick Telephone Co. (1986), 69 N.B.R.(2d) 8; 177 A.P.R. 8 (T.D.), affd. (1987), 78 N.B.R.(2d) 266; 198 A.P.R. 266 (C.A.), refd to. [para. 41].

Backman v. Maritime Paper Products Ltd (2008), 337 N.B.R.(2d) 1; 864 A.P.R. 1; 67 C.C.E.L.(3d) 261; 2008 NBQB 219, refd to. [para. 46].

Menagh v. Hamilton (City), [2005] O.T.C. 898 (Sup. Ct.), affd. 2007 ONCA 244, refd to. [para. 46].

Gonsalves v. Catholic Church Extension Society of Canada (1998), 112 O.A.C. 164; 164 D.L.R.(4th) 339; 39 C.C.E.L.(2d) 104 (C.A.), refd to. [para. 46].

Tellier v. Bank of Montreal (1987), 17 C.C.E.L. 1 (Ont. Dist. Ct.), refd to. [para. 46].

Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303; 40 D.L.R.(4th) 577, refd to. [para. 47].

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; 59 D.L.R.(4th) 352, refd to. [para. 47].

Bannister v. General Motors of Canada Ltd. (1998), 112 O.A.C. 188; 39 C.C.E.L.(2d) 91; 164 D.L.R.(4th) 325 (C.A.), refd to. [para. 47].

Foerderer v. Nova Chemicals Corp. (2007), 418 A.R. 64; 2007 ABQB 349, refd to. [para. 53].

Simpson v. Consumers' Association of Canada et al. (2001), 152 O.A.C. 373; 209 D.L.R.(4th) 214; 13 C.C.E.L.(3d) 234 (C.A.), refd to. [para. 55].

Atkinson v. Boyd, Phillips & Co. (1979), 9 B.C.L.R. 255 (C.A.), refd to. [para. 73].

Nossal v. Better Business Bureau of Metropolitan Toronto Inc. (1985), 9 O.A.C. 184; 51 O.R.(2d) 279; 19 D.L.R.(4th) 547 (C.A.), refd to. [para. 73].

Authors and Works Noticed:

Echlin, Randall Scott, and Certosimo, Matthew L.O., Just Cause: The Law of Summary Dismissal in Canada (2008 Looseleaf Update), para. 10:400 [para. 32].

Levitt, Howard Alan, The Law of Dismissal in Canada (3rd Ed. 2003) (2008 Looseleaf Update), paras. 6:10.70, 6:20.50 [para. 32].

Counsel:

C.G. Jensen, Q.C., and S.D. Petriuk, for the appellant;

E.R. Bossio, for the respondent.

This appeal was heard on April 6, 2009, before Fraser, C.J.A., Côté and McFadyen, JJ.A., of the Alberta Court of Appeal.

The following judgment of the Court of Appeal was delivered by Fraser, C.J.A., and filed on June 17, 2009.