Wong v. Lantic Inc., 2012 ABQB 716

Court of Queen ’ s Bench of Alberta Citation: Wong v. Lantic Inc., 2012 ABQB 716 Date: 20121120 Docket: 1106 00553 Registry: Lethbridge Between: Larry Wong Plaintiff - and - Lantic Inc. and Rogers Sugar Ltd. Defendants _______________________________________________________ Reasons for Judgment of J.B. Hanebury, Master in Chambers _______________________________________________________ [ 1 ] The plaintiff, Mr. Wong, was dismissed without notice from his supervisory position because he circulated inappropriate material via his workplace email.

He sued for wrongful dismissal and his employer seeks to have his claim dismissed summarily. FACTS [ 2 ] Lantic Inc. filed three affidavits in support of its application and Mr. Wong filed one in response. Mr. Wong was cross- examined on his affidavit and the transcript was provided.

[ 3 ] Lantic Inc. operates a sugar beet processing facility in Taber, Alberta and employs approximately 130 full-time employees and approximately 200 additional temporary employees. Its workforce, like most today, is ethnically diverse and approximately 15% are women. [ 4 ] Mr. Wong was hired by Rogers Sugar Limited as the chief electrician in August 2002. He continued in his position when Rogers Sugar became Lantic Inc. [ 5 ] As the chief electrician Mr. Wong worked in the electrical/instrumentation shop and supervised nine electrical and instrumentation employees.

He was responsible for the day-to-day operations of the electrical and instrumentation departments and he acknowledged that he was at least partly responsible for employee promotion, discipline, vacation, adherence to the company’s policies and procedures, and the health and safety concerns for the nine employees he supervised. [ 6 ] The company has three employee policies that are relevant to Mr. Wong’s claim. [ 7 ] Firstly, Lantic has a System Usage Agreement pertaining to the use of technological devices in the workplace by its employees.

It provides that: ...the sending or forwarding of inappropriate (i.e. offensive or disruptive) or confidential information could result in the employee being held liable. The company will disassociate itself from such activities to the extent legally possible. The agreement states in relation to e-mail that “personal use should be limited and should not include junk mail, jokes, and electronic chain letters”.

It notes that “all messages, including personal e-mails, distributed via the company’s systems become a part of the company’s systems and may therefore be subject to monitoring.” [ 8 ] As to the use of the internet, the agreement states that “access should be utilized for business related purposes only” and “employees with internet access are prohibited from accessing, viewing, downloading or printing inappropriate materials.” [ 9 ] Mr. Wong signed off on this System Usage Agreement in 2006. [ 10 ] Secondly, as a part of his employment, Mr.

Wong was also required to read and follow the company’s Code of Business Conduct. It states on page 4: It is the responsibility of company personnel to bring to the attention of the company, knowledge of any situation that might adversely affect the company’s reputation. Company personnel are encouraged to report, verbally, or in writing any evidence of improper practice of which they are aware. As used here, the term “improper practice” means any illegal, fraudulent, dishonest, unsafe, negligent or otherwise unethical action by a director, officer, employee or consultant. [ 11 ] In 2006 Mr.

Wong confirmed that he had read and would abide by this Code. [ 12 ] Finally, there is a Discrimination and Harassment Policy which states that the company is “committed to providing employees with an environment free from unlawful harassment.” It goes on to provide that employees who engage in conduct in violation of that policy will be subject to the company’s discipline procedure.

[ 13 ] The Policy provides a definition of harassment, noting that it can include behaviour such as “unwelcome remarks or jokes about subjects like race, religion, disability or age [and] the display of sexist, racist or other offensive pictures or posters.” [ 14 ] Prior to 2009 Mr. Wong was provided with a copy of the Discrimination and Harassment Policy and attended at least one training session pertaining to this and other policies. [ 15 ] Against this policy framework I turn to the actions of Mr. Wong. [ 16 ] Doug Reurink was Mr. Wong’s direct supervisor during the period in issue. He states that Mr.

Wong asked that the computers in his shop be connected to the internet so that various work-related searches could be undertaken by the employees he supervised. This was done in November, 2009, and he says that he advised Mr. Wong by email that if too much time was spent on the internet or sites that did not relate to work “we will be dealing with that individual”. [ 17 ] In March, 2010, Mr. Reurink warned Mr. Wong by email that there was an expectation that the use of the computers by the employees in his shop would be supervised by Mr.

Wong and if he found employees looking at anything other than work items on the internet he was to report it. [ 18 ] The human resources administrator for Lantic, Jo-Ann Christensen, stated that in the latter half of 2009 Mr. Wong had come into her office to discuss issues related to employee computer use. She says that he asked her what he should do about an employee that he supervised who had e-mailed him inappropriate e-mails containing “girlie” pictures. [ 19 ] She says that she referred to the Harassment and Discrimination Policy and discussed how it would apply to e-mail communications. She states that Mr.

Wong did not believe discipline was warranted as the employee was a “good guy”. Ms. Christensen states that, after some discussion, in the end she agreed that for that instance he did not have to discipline the employee but she says that she instructed Mr. Wong to monitor the e-mail usage of that employee. This advice was based on her understanding that there was just one employee and he had sent inappropriate e-mails only 3 or 4 times in the past year.

She states that no information was given to her by the plaintiff that he had himself sent these inappropriate e-mails or that there was more than one employee involved. [ 20 ] Mr. Wong states that he does not recall this conversation. Therefore, it has been considered no further in these reasons. [ 21 ] In January, 2011, a safety training session was held for 50 employees, including female employees. A video was shown during that session which depicted two women performing CPR on each other in lingerie. The employee who showed the video, the site safety coordinator, resigned shortly thereafter.

He indicated that he had received the video from an employee in the electrical/instrumentation shop. As a result the company decide to do a preliminary examination of the three computers in that shop and the computer used by the employee who had shown the video. [ 22 ] One of the computers in the electrical/instrumentation shop was for the exclusive use of Mr. Wong.

The second was for the electrical employees who had individual company e-mail addresses, and the third was for the instrumentation employees who had one common e-mail address. [ 23 ] The examination determined that the video in issue was sent to the employee who showed it, Mr. Wong, and at least one electrical employee, and it came four months prior from the instrumentation group e-mail address. The examination also determined that, in Mr. Wong’s e-mail account, there were messages which contained images described by the company as pornographic. [ 24 ] As a result, a meeting was held with Mr.

Wong and he was asked if he had e-mailed any inappropriate material from his Lantic account. At Mr. Wong’s request for a definition of inappropriate, it was defined to include material that was sexually explicit and pornographic. At Mr. Wong’s request, pornographic was described to include nude photographs and pictures of nude women. [ 25 ] Mr. Wong admitted that such e-mail messages may have been sent to him and he may have forwarded a few of them on. Mr. Wong was then placed on paid administrative suspension pending further investigation.

[ 26 ] Mr. Babtist of the company was asked to undertake a further investigation. He was able to see all of the emails contained on Lantic.ca user accounts on computer hard drives and on the Lantic servers for the prior 12 months. A physical scan was done of the folders for each email account and inappropriate items were flagged and assessed.

His analysis of this information was put into an Excel spread sheet and attached to his affidavit. [ 27 ] He determined that a number of employees were engaged in sending and receiving inappropriate e-mail messages which included material the company determined was pornographic, contained nudity, or was discriminating and harassing. It was also determined that Mr. Wong and another employee, Mr. Dhoot, who was supervised by Mr. Wong, were sending inappropriate email messages externally. His spreadsheet indicates that Mr. Dhoot sent a few messages externally to personal addresses. Mr.

Wong sent messages externally to personal and business addresses. [ 28 ] The company determined that Mr. Wong was the only supervisor who appeared to have sent and received more than just a few inappropriate emails in the prior 12 months. For example, one supervisor in the list had three emails with suggestive or sexual content, two of which he appears to have received from Mr. Wong. [ 29 ] The computer analysis indicated that Mr. Wong had a number of these images stored on his hard drive under a file labelled “stuff”.

He had approximately 25 emails that were deemed to be sexual, involve nudity or were racist and one that was deemed to be suggestive. [ 30 ] Copies of some of the email material were provided as attachments to two of the Lantic affidavits and it is not disputed that the material was inappropriate. One email attachment contains 19 pictures of adults engaged in sexual intercourse. There were numerous pictures of naked women in various poses, pictures of women’s genitalia and an email that allowed the viewer to “build” the body of a woman.

One email attachment contained 50 photos of nude or partially nude women. [ 31 ] Mr. Wong was the only employee who sent pornographic material to external business contacts. These emails were sent from Mr. Wong’s Lantic account eleven times to outside parties, with each email often sent to more than one person for a total of 37 inappropriate messages to external business parties such as suppliers, contractors and business contacts. These emails all indicated that they came from the Lantic account. [ 32 ] In addition, the employees Mr.

Wong supervised were the ones most engaged in the distribution of pornographic and other inappropriate material through e-mail. [ 33 ] Eighteen inappropriate emails came from the computer in Mr. Wong’s shop that registered the sender’s name and was used by the employees he supervised. The safety video that resulted in the investigation was among the emails sent from this computer to various parties, including Mr.

Wong. [ 34 ] Twenty-seven inappropriate emails came from the joint computer found in the electrical/instrumentation shop that did not register the name of the sender. [ 35 ] The investigation found most of the offensive material originated from or was stored in the computers in Mr. Wong’s shop, with his email account being, by far, the most involved in this activity. [ 36 ] This behaviour by Mr. Wong was contrary to the aforementioned company policies, the same policies that Mr.

Wong was responsible for enforcing with the employees in his shop. [ 37 ] As a result of this investigation 14 employees were given warning letters, Mr. Dhoot received a five-day suspension and Mr. Wong was terminated for cause.

[ 38 ] Mr. Wong issued this claim against Lantic, claiming wrongful dismissal. [ 39 ] Mr. Wong states that he was a good and valued employee and had an unblemished record prior to his termination. He states that he was never told that “off colour emails of a humorous and adult nature would result in termination of his employment” [emphasis in the original]. [ 40 ] In addition to stating that it was never explicitly made clear to him that he would be terminated for such conduct, Mr. Wong states that it was his understanding that a certain amount of personal and joke email use was tolerated.

As an example he mentioned a joke email that he sent to Mr. Baptiste, the IT employee who undertook the investigation. He admitted that this email did not contain the kind of inappropriate material at issue. [ 41 ] He says that no one ever stated explicitly what constituted too many off colour emails and what constituted emails that were too offensive. He states that it was his understanding that numerous employees were involved. He also understood that his employer was monitoring computer usage and thought that the company was aware of the nature, scope and effect of the emails.

He assumed the system was being monitored to ensure that emails would not become too offensive or too off colour. His belief was that the company was aware of the practice and “simply chose to ‘turn a blind eye’”. He says that he had “no idea - nor was [he] ever informed that [he] had ‘stepped over’ the mysterious line of what was not acceptable or was too many.” [ 42 ] He said in cross-examination at p. 32 line 23 and p. 33, line 19 to 27: Q. And so was it an issue of Lantic not being clear with the system usage agreement or you just not choosing to follow the system usage agreement? A.

That would – Yes, not following the usage system, usage agreement. Q. And so – A. Just because everybody else was doing it also, that I knew of. Q. And so there wasn’t a problem with Lantic failing to provide clear and concise direction with respect to the system usage agreement. A. Just from what you read on the inappropriate jokes, but how much was too many, or if they knew what was going on, give some warning. [sic] ... Q.

So again, from what you’re saying or from what I’m understanding you’re saying, it’s not the system usage agreement, it’s your understanding that your e-mails and internet access were monitored and you didn’t get a warning? A. Yes. Q. It’s not really that the policy was unclear or that you didn’t understand it? A. Yes.

[43] He says that other supervisors were involved and he was the only one terminated. He says that the statement of the company’srepresentative that any other supervisor only had one or two emails is not true and he knows it is incorrect because he had personalcommunications with them. They must have deleted their emails.

He notes that there is no information provided about deleted emailsfrom other supervisors. [44] The showing of the video at the safety meeting, he states, shows the atmosphere in the work place at that time as the safetyco-ordinator obviously believed that such content fit into the company culture . [45] Mr. Wong concludes by stating that he expects to obtain evidence at trial that will support his statements and the applicationis merely an oppressive action taken by a multi-national company trying to financially ruin him so he cannot pursue his claim. [46] Mr.

Wong did not cross-examine any of the deponents on their affidavits. ANALYSIS [47] The test for

summary judgment and the purpose and usefulness of the rule have been postulated many times by many Courts. [48] Before granting

summary judgment, the court must be satisfied that it is plain and obvious that the action cannot succeed. There must be no genuine issue for trial, or as it has also been stated, no reasonable prospect of success: De Shazo v. Nations EnergyCompany Ltd., 2005 ABCA 241, para. 17; Murphy Oil Co. v. Predator Corp., 2006 ABCA 69, para. 24; Papaschase Indian Band No.136 v. Canada (Attorney General), 2008 SCC 14, para. 11. Unrealistic litigation should not be allowed to proceed: Premakumaran v.Davidow, 2005 ABQB 377, para. 26. [49] While there is a high bar with a

summary judgment application, when the facts and law are clear and credibility is not in issue,a matter may be capable of being decided summarily: Papaschase Indian Band (supra), para. 11; Espey v. Chapters Inc., (AB KB), [1998] 225 A.R. 68 (ABQB) para. 24; Tottrup v. Clearwater (Municipal District No. 99), 2006 ABCA 380, para. 11. [50] This case law essentially seeks to balance the desire to ensure a litigant is not lightly denied his or her day in court and thedesire to ensure the wise use of legal and judicial resources. [51] In

summary, a claim can be struck when there is no genuine issue for trial, or, if there is an issue that is capable of beingdetermined on a

summary basis, that issue is decided against the plaintiff. [52] As to the evidence, the case law has held that it is insufficient for a defendant to present only allegations of fact, evidencemust be presented to support those allegations: Royal Bank of Canada v. McLean, (1997), (AB KB), 211 A.R. 297(QB) at p. 304. Similarly,

summary judgment cannot be avoided on the basis that better or more evidence may be subsequentlydiscovered at the time of, or during trial: Suncor Inc. v. Canada Wire & Cable Ltd., (1993), (AB KB), 7 Alta. L.R.(3d) 182 (QB)., Murphy Oil Co. v. Predator Corp., (2004) 2004 ABQB 688 , 365 A.R. 326 (Q.B.), p. 331. [53] Against that background, I turn to the specific question before this court: Is there a genuine issue for trial as to whether theplaintiff was wrongfully dismissed? [54] Cases abound on the question of what conduct is just cause for the termination of an employee.

It is acknowledged that eachcase is fact specific. However, the case law has established certain principles against which the facts in each case can be considered. [55] A fundamental term of the employment contract is that the employee serves his or her employer honestly and faithfully. Thisis a concept that is “paramount to the basic relationship.” There is an implied obligation for the employee to act in the best interests of

the employer and not to conduct him or herself in a way that harms or places at risk the employer’s interests: CRC-Evans Canada Ltd. v.Pettifer, (AB KB), [1997] 197 A.R. 24 (ABQB), para. 45, aff’d. 1998 ABCA 191 , [1998] 216 A.R. 192(Alta. C.A.). [56] In the case of dishonesty, the Supreme Court of Canada said that determining if the conduct justified dismissal must be donein context. The test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship.

The court said, byway of example, “that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract,breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his orher employer.” When considering the sanction, proportionality is relevant. An effective balance should be struck between the severityof the misconduct by the employee and the sanction imposed by the employer: McKinley v.

BC Tel, 2001 SCC 38, para’s. 48, 53. [57] An employee of a bank, who cohabited with a bank robber who used their joint premises as the centre of operations, wasfound to be conducting herself in a manner that was incompatible with the interests of her employer. The bank’s dismissal of her forcause was upheld: Canadian Imperial Bank of Commerce v. Boisvert, (FCA), [1986] 2 F.C. 431 (F.C.A.). [58] An employee received a warning in 2002 not to surf inappropriate web sites while at work.

An audit of his computer in 2006showed that he had spent 1 to 2 hours a day surfing explicit pornographic web sites on at least 10 days over one month. He wasdismissed immediately. The court held that his behaviour had undermined his employer’s confidence in him as a supervisor. Furthermore his conduct resulted in sexual harassment of the information services employee who was forced to view the pornographicimages. The court noted that statutory law prohibits sexual harassment in the workplace and imposes a liability on employers who fail toprevent such conduct.

The court held that the employer had proven that it had just cause to dismiss the employee without notice:Backman v. Maritime Paper Products Ltd., 2008 NBQB 219. [59] In Foerderer v. Nova Chemicals Corp., 2007 ABQB 349, the plaintiff was the leader of a team that had a well-establishedculture of sexually-charged conduct. A complainant, who had participated in this culture in the past, raised issue with the plaintiff’sconduct. An investigation ensued and the plaintiff was found to have accessed inappropriate web sites, including hard-core pornographicsites and sites depicting graphic violence.

The employer summarily dismissed the plaintiff, who brought an action for wrongfuldismissal. [60] The court rejected any suggestion that a culture of sexually-charged conduct both at the plant and within the team precluded afinding of harassment. In any event, the court found that there was no such plant-wide culture. The court held that the plaintiff’s key rolein creating and establishing the team’s culture clashed with his duty as its administrative leader to set a standard of appropriate conductfor the team.

Furthermore, part of the plaintiff’s job was to ensure that his colleagues knew about the policies prohibiting such conduct .The court refused to allow the plaintiff to “seek refuge behind a culture of inappropriate behaviour for which he [was] largelyresponsible.” [61] It is clear from this decision that a team leader or a supervisor, as someone who has responsibility for ensuring a safe,productive workplace, has different responsibilities then a simple employee and therefore is held to a different standard: See as wellRobichaud v. Canada, [1987] 2 S.C.R. para. 17; Fleming v.

Ricoh Canada Inc., 2003 CarswellOnt 5503, para.162. [62] In coming to its determination that

summary dismissal was justified, the court noted that the plaintiff’s various acts, if viewedindividually, would not justify

summary dismissal. Viewed cumulatively, however, they did. As to whether a warning was requiredprior to dismissal, the court said that that depended on the circumstances and the nature of the misconduct. The greater the wrong, theless likely the employer will be required to provide notice of the unacceptability of the misconduct or to provide progressive discipline todeal with it. [63] As part of its analysis, the court discussed the concept of proportionality: was the misconduct sufficiently serious to warrantdismissal?

To make that determination the court said it must consider whether the dishonesty violated an essential term of theemployment contract; whether it breached the faith inherent to the work relationship; or whether it was fundamentally inconsistent withthe employee’s obligations to the employer.

The determination to be made is whether the conduct, taken as a whole and in its propercontext, constituted a fundamental breach of the employment contract or merely indicated errors in judgment: para’s 210-212. [64] In White House and RBC Dominion Securities Inc., 2006 ABQB 372, the court found that an employer is justified in

[ 64 ] In White House and RBC Dominion Securities Inc. , 2006 ABQB 372 , the court found that an employer is justified in requiring strict compliance with its Code of Conduct by those who purport to lead. In that case the vice president of a brokerage house took a prostitute to the business premises and, after a fight over money, left her there. When confronted with what had occurred, he denied it. He was summarily dismissed. The court found that his conduct, including the denial, demonstrated a lack of integrity, deficient judgment, dishonesty, untrustworthiness and a careless disregard for client and corporate confidentiality. The court held that his

summary dismissal was justifiable. [ 65 ] The case most on point with the present fact situation is Poliquin v. Devon Canada Corporation , 2009 ABCA 216 where the Court summarily dismissed Mr. Poliquin’s wrongful dismissal claim. [ 66 ] Mr. Poliquin was a supervisor managing 20 to 25 employees.

He was terminated for accepting free landscaping services at his personal residence from suppliers to his employer in violation of the Code of Conduct and Corporate Policies, and using his employer’s computer equipment and internet access to view and transmit pornographic and racist material which also violated the Code of Conduct. [ 67 ] In relation to the inappropriate emails, one with a picture of exaggerated male genitalia was forwarded internally to two of Devon’s female employees, while another was forwarded to two male employees. A racist email was forwarded by Mr.

Poliquin to a large number of Devon’s suppliers, employees and business contacts. The evidence indicated that the balance of the inappropriate emails he received, viewed, and either deleted or stored. [ 68 ] Mr. Poliquin sued for wrongful dismissal. His employer brought an application to summarily dismiss his claim. It was refused on the basis that a trial was required to consider proportionality: whether the disciplinary action was proportionate to the egregious conduct.

An appeal was taken. [ 69 ] The Court of Appeal acknowledged that employers have the right to set the ethical, professional and operational standards for their workplaces. The workplace, the Court noted, is not an employee’s home.

It follows that while employers may permit employees limited personal use of their workplace computers, the employer has the right to restrict the use. [1] [ 70 ] The Court pointed out that there are good reasons for restricting employee use as the potential for harm to the organization is great: it can poison the work environment and result in discrimination, harassment and consequent and quite proper actions by employees against the employer.

Furthermore, the reputation of the employer in the business community and elsewhere can suffer, particularly when the employee disseminating the material is a senior supervisor. As well the employee may not be fairly putting in his hours of work and could expose the computer system to threats.

Finally, inappropriate computer use by a supervisor can send the message to other employees that the boundaries of acceptable behaviour are lax and employees may not be as diligent in obeying them. [ 71 ] At para. 49 the Court summarized: 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. In the information technology world today, e-mail can be disseminated to many inside and outside an organization with the click of a mouse. 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.... [ 72 ] On the question of proportionality, the Court, relying on the decision of the Supreme Court of Canada in McKinley v.

BC Tel (supra), found that the employer’s actions must be proportional to the misconduct in question and the Court confirmed that to make this determination it must adopt a broad contextual approach to the analysis. [ 73 ] The Court held that a consideration of the context of the improper activity involves more than the number of instances in which an employee generated or forwarded pornographic images.

As well the duration of the activity, the extent of the employee’s involvement, the nature of the role held by the employee in the company, the employee’s level of seniority, the employer’s reasonable expectations, including whether the improper conduct has been expressly prohibited and any other information relevant to the degree of seriousness of the conduct must be assessed.

[ 74 ] The court found that in this case the situation continued for a year. Mr. Poliquin was a senior supervisor and a role model for others. Some of this material came from Devon’s suppliers, business contacts and other Devon employees and he did nothing to stop it. The court found that it was no answer to the inappropriateness of this conduct that most of the emails were sent to Mr.

Poliquin, not from him. [ 75 ] The Court said at paragraph 56: Poliquin’s misconduct was more serious given his responsibilities as a senior supervisor...By doing nothing to stop the trade in pornography, Poliquin ignored those responsibilities and effectively condoned, if not encouraged, the continued polluting of Devon’s workplace since he knew that this material was being sent to or by other Devon employees.

These other employees would know full well that Poliquin had also received the subject pornography and they would be well aware that even though he held a senior supervisory position, he had done nothing - and was continuing to do nothing - to stop it. [ 76 ] The Court held that the absence of complaints by others was irrelevant as harm could be presumed in light of the facts. The Court added that the policy on harassment was a “zero tolerance” policy and its enforcement was not contingent on a complainant. The Court noted as well that Mr.

Poliquin had been warned five years previously about this very kind of misuse of his computer when it was found that he had accessed pornography from his workplace computer. [ 77 ] The Court said at paragraph 65: It was proper for Devon to give its earlier warning and the fact that earlier warning was given simply underlines the seriousness of Poliquin’s later misconduct. The existence of a prior warning and the continuation of prohibited conduct despite that warning are all part of the context in which this Court must evaluate whether

summary judgment in favour of Devon should be granted. Disregarding an earlier warning is itself a serious independent wrong. [ 78 ] As to other employees who were not disciplined, the Court noted that there was no evidence that the factual situation relating to any other Devon employee was equivalent in severity. The Court added that if Mr. Poliquin wished to lead that kind of evidence, it was open to him to do so. He did not. [ 79 ] As to whether there was a “culture of permissiveness” the Court noted that Mr.

Poliquin’s evidence as to such a culture was merely a “bare, self-serving assertion” about its existence. That assertion was insufficient to create a triable issue in the absence of supporting evidence and detailed facts. Each side, the Court noted, has an obligation to put its best foot forward with respect to the existence or non-existence of genuine issues for trial. [ 80 ] Finally, the Court said, the contextual approach requires an evaluation of the misconduct cumulatively. By that, the court meant that two or more wrongs are worse than one.

If the incidents of impugned conduct share some common element, the question is whether the employer has a serious reason to conclude that the employee is “gravely deficient in some quality needed to do the core of his or her job”. [ 81 ] At paragraph 75 the court held that Mr. Poliquin’s misconduct, the taking of a secret benefit and the receipt, storage and dissemination of racist and pornographic images, could, at the very least, be characterized as exceptionally bad judgment, including an unwillingness to obey and enforce the Code of Conduct.

He had violated essential conditions of the employment contract and breached the trust necessary to sustain the employment relationship. There was no genuine issue for trial and the wrongful dismissal action was summarily dismissed. [ 82 ] From this case law the following principles can be distilled: 1. An employee has a duty to serve the employer honestly and faithfully and not act in a way that puts the employer at risk.

2. A breach of that duty must be looked at in context: ie. did the employee’s behaviour give rise to a breakdown in the employment relationship? 3. Where the employee is a supervisor, he or she is held to a different standard than a mere employee. Receiving, viewing, storing and forwarding pornography in the workplace by a supervisor can signify a breakdown in the employment relationship that justifies dismissal. 4. To make that determination, proportionality must be assessed, in other words the conduct must be considered as a whole and in context to determine if dismissal is appropriate.

This involves a consideration of the number of incidents, the duration of the conduct, the role and seniority of the employee, the extent of the employee’s involvement, the employer’s reasonable expectations, including whether the conduct had been forbidden and any other information relevant to the degree of seriousness of the conduct. The need for, or lack of a warning, to the employee also flows from this assessment. 5. In

summary, the test is whether the conduct as a whole and in its proper context constituted a fundamental breach of the employment contract justifying dismissal, or merely represented serious errors in judgment. [ 83 ] Mr. Wong does not deny the inappropriateness of the material received, stored on his computer, and forwarded to others. However, he argues that the law does not support the granting of

summary judgment in this action. Secondly, he raises several issues that, in his view, result in a genuine issue for trial: his behaviour was part of the corporate culture; the company policies in effect did not state that he would be terminated; he believed his usage was being monitored and he would be warned if it were inappropriate; and, the punishment was not proportional to his misdeeds.

Summary Judgment [ 84 ] Mr. Wong argues that virtually all of the wrongful dismissal case law cited resulted from a trial of the issues, and not a

summary judgment application. In Poliquin , where

summary judgment was granted, the misconduct of the employee had two aspects: the storage and dissemination of pornography and the taking of a secret benefit from a supplier. Therefore, he argues, that case cannot be relied upon to support the dismissal of an action where the only alleged misconduct is the dissemination of pornography. [ 85 ] Mr. Wong is correct. There were two grounds for dismissal in Poliquin and their cumulative effect was considered and found to justify the employee’s termination.

However, nowhere in the case is there any indication that the misconduct relating to pornography was insufficient on its own to justify termination. This Court is not barred from making such a determination; it is only required to undertake the necessary test as described in the case law to determine if there is a genuine issue for trial. As noted in Poliquin at para.13,

summary judgment is not an extraordinary remedy or an indulgence to the party moving for it. It should be granted in the proper circumstances. [ 86 ] Finally, as earlier noted, the obligation is on the plaintiff to put his best evidentiary foot forward. It is not enough to argue that a matter should go to trial so that further evidence can be obtained. Corporate Culture [ 87 ] Mr.

Wong says that others were doing the same thing as he was but they may have just deleted their emails and the material filed by his employer does not indicate that they reviewed deleted material. [ 88 ] To the contrary, there is some reference in the Excel spread sheet to deleted email material. Furthermore, if Mr. Wong were concerned that the results of the email search were selective or inaccurate he had an opportunity to cross-examine the deponents of the affidavits, one of whom conducted the search, and seek clarification. He did not do so.

[ 89 ] As noted in Poliquin , the obligation is on Mr. Wong to put his best foot forward and self-serving assertions about a culture of permissiveness, without more, are insufficient. The CPR video, alone, is insufficient to establish such a culture. It originated from Mr. Wong’s shop and was copied to him. He did nothing to stop its further dissemination or to report its receipt. The culture of permissiveness alleged by Mr. Wong was one he himself was working to establish. As pointed out in Foerderer v. Devon (supra), an employee cannot hide behind a culture that he or she worked to create.

The evidence before this Court is that Mr. Wong was the source of much of what he refers to as the corporate culture. [ 90 ] As noted in Foerderer , Robichaud v. Canada (supra), and Fleming v. Ricoh Canada Inc. (supra), a supervisor is held to a different standard than an employee. He or she is expected to enforce the policies of the employer, not exemplify disobedience. [ 91 ] This defence does not raise a genuine issue for trial. Company Policies and Monitoring [ 92 ] Mr. Wong argues that the policies for computer usage and harassment did not explicitly state that he would be terminated if he violated them.

He was led to believe that his usage was being watched and if he stepped over the line, he would be warned. No one ever warned him and as a result he assumed his usage was acceptable. As he was given no warning and the policies were not explicit, he argues that his immediate dismissal without a warning was not appropriate. [ 93 ] The policies were clear that sending inappropriate material could result in the employee being held liable and the company would disassociate itself from such activities. Personal use of email was to be limited and not include junk email or jokes.

All email became a part of the company’s systems and was subject to monitoring. The internet was to be used only for business purposes and the viewing of inappropriate material was prohibited. Employees were to report situations that could adversely affect the company’s reputation and employees who violated the Discrimination and Harassment Policy would be subject to the company’s discipline procedure. [ 94 ] These policies made it clear that an employee would be subject to sanctions if he or she violated the policies.

The word termination was not used, but an employee knows that the result of egregious behaviour can be the end of the employment relationship. The fact that the policy did not state that termination was mandatory is not surprising as an employer is under an obligation to consider the employee’s behaviour in context and adopt the appropriate sanction accordingly. [ 95 ] As to Mr. Wong’s argument that he understood his email was being monitored and he would be told if it were inappropriate, he ignores the fact that he was tasked with doing that very monitoring.

It was his responsibility to monitor the usage of his staff and ensure the computers were being used for work related purposes. It was his responsibility to ensure the policies were being observed. He was reminded of those responsibilities in March, 2010. Not only did he fail to monitor his employees’ accounts, he now argues that others should have monitored his account and let him know that he was acting inappropriately. [ 96 ] Essentially Mr. Wong is arguing that he, a supervisor, had a free pass, one that he clearly knew his employees did not have.

He could ignore the policies he had agreed to uphold and enforce, until he got caught, and at that time he should have been issued a warning and only then held to an obligation of compliance. There is no evidence supporting such a belief. This argument does not raise a genuine issue for trial. Proportionality [ 97 ] Mr. Wong’s final argument is his only argument: looking at his misconduct, in context, is there a genuine issue for trial as to whether the sanction was appropriate? [ 98 ] Mr. Wong was a supervisor.

He sent or received and stored inappropriate emails on more than twenty occasions during a one year period. The attachments to those emails on occasion constituted many pages. His shop was the source of most of the inappropriate

email found during the company’s searches and his employees appeared to be dealing with this material with his tacit approval. Upon occasion he received inappropriate material from others and did not report it. Upon other occasions, he forwarded the material to others. [ 99 ] Furthermore, and most importantly, he forwarded some of the material to business contractors, suppliers and contacts outside the company using his company account.

As the Court noted in Poliquin , para. 49 , this information could be disseminated further very easily. [ 100 ] As to the context within which this conduct occurred, his arguments as to corporate culture and his expectation of monitoring have already been dismissed. [ 101 ] The analysis of this type of behaviour by the Alberta Court of Appeal in Poliquin is clear and unequivocal. Mr.

Wong undertook behaviour that: set an inappropriate standard for his subordinates; could poison the work environment; could leave the company vulnerable to bona fide claims of discrimination and harassment; could affect the company’s reputation in the community; could expose the computer system to threats; and, may have meant that he was not spending his time on his work. [ 102 ] No other employee was terminated, but no other employee or supervisor was involved to the same extent as Mr. Wong and no other employee sent the material to business contacts outside the company. Mr.

Wong’s misconduct was the most severe. [ 103 ] Mr. Wong did not act in his employer’s best interests and, in fact, with his dissemination of pornography and racist material, he placed those interests at risk. His employer relied on Mr. Wong to enforce its policies and lead his team. His behaviour violated the faith inherent in the employment relationship. Mr. Wong’s behaviour, when considered as a whole, and in context, constituted a fundamental breach of the employment contract and justified dismissal. [ 104 ] If Mr.

Wong were entitled to a warning, and in my view he was not, he received that warning with the email from his direct supervisor in March, 2010, reminding him of his responsibilities to monitor the computer usage of his employees. There is no genuine issue for trial. CONCLUSION [ 105 ] There is no genuine issue for trial and the matter can be decided summarily. Lantic’s application is granted. Mr. Wong’s claim is dismissed and Lantic is entitled to its costs. Heard on the 27 th day of September, 2012. Dated at Lethbridge/Macleod, Alberta this 20 th day of November, 2012. J.B. Hanebury M.C.C.Q.B.A.

Appearances: Armstrong Mitchell Lawyers Timothy Mitchell Erin Ludwig for the Defendants / Applicants Carle Law Office Vanessa Cork for the Plaintiff / Respondent [1] For a recent consideration of the ramifications of the use by an employee of an employer issued laptop for the storage of personal information see: R. v. Cole 2012 SCC 53 .