Recent Decision from B.C. Court of Appeal Cautions Employees to Consider Skeletons in The Closet Before Suing for Wrongful Dismissal

August 2014

Article by: Jennifer Hogan

Previously printed in the CCH’s Focus on Canadian Employment and Equality Rights Newsletter.

In a recent decision, Van den Boogaard v. Vancouver Pile Driving Ltd., 2014 BCCA 168, the B.C. Court of Appeal upheld the discharge of a senior manager who, in the period of time following his dismissal without cause, was discovered by the employer to have been soliciting illegal drugs from a subordinate employee. When the employee sued for wrongful dismissal, the employer successfully defended the action by taking the position that there was after-acquired cause.

Background Facts

Kirk Van den Boogaard was employed by Vancouver Pile Driving Ltd. as a project manager. He was, among other duties, responsible for job site safety in what is a high-risk, safety-sensitive and heavily-regulated industry. His core duties focused on workplace safety, safety training and enforcement of drug prohibition policies.

On February 13, 2013, Van den Boogaard’s employment was terminated on a “without cause” basis and he received four weeks of base salary in lieu of notice. Subsequent to the return of his company cellular telephone, Vancouver Pile Driving discovered a series of text messages that Van den Boogaard had sent, many during working hours, soliciting and procuring drugs from a unionized employee under his supervision. A couple of the drugs involved were listed substances under the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

When Van den Boogaard commenced a wrongful dismissal action, Vancouver Pile Driving defended against the action by maintaining there was after-acquired cause – and the employer won.

B.C. Supreme Court Decision

At trial, Van den Boogaard admitted to using the company cell phone to solicit and procure drugs from an employee under his supervision and even went so far as to say that he may have consumed drugs with the employee after work.

The trial judge held that Van den Boogaard’s conduct was incompatible with his duties as a project manager and was misconduct that went to the heart of the employment relationship. In the judge’s view, it did not matter whether the solicitation and procurement of drugs took place on or off the worksite or during work hours because “the situation should not have arisen under any circumstances”.

In the result, the trial judge found that Vancouver Pile Driving had cause to terminate Van den Boogaard’s employment and dismissed the action.

B.C. Court of Appeal Decision

Van den Boogaard appealed the decision on the basis that the trial judge failed to take a contextual approach to his conduct and made findings that were unsupported by the evidence.

The B.C. Court of Appeal dismissed the appeal, finding no such errors in the trial judge’s conclusion regarding cause.

The Court agreed with the trial judge that Van den Boogaard’s admitted illegal conduct involving an employee over whom he had direct supervisory authority went to the root of the employment relationship. This was particularly so given Van den Boogaard’s high level of responsibility as a project manager on a safety-sensitive worksite. The employment relationship could not be restored in the circumstances.

Lessons for Employers

This case is good news for employers. It affirms that employers can rely on misconduct discovered subsequent to an employee’s dismissal to establish after-acquired cause. The case also illustrates that employers – particularly those in high-risk, safety-sensitive and heavily-regulated work environments – are entitled to hold their supervisors to a high standard of conduct.