AG Growth International Inc v Dupont, 2021 ABQB 663

Court of Queen’s Bench of Alberta Citation: AG Growth International Inc v Dupont, 2021 ABQB 663 Date: 20210819 Docket: 2110 00440 Registry: Red Deer Between: AG Growth International Inc. Plaintiff - and - Tyler Earl Dupont Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J. S. Little _______________________________________________________ I. Overview [ 1 ] This is an appeal of a Provincial Court decision in a wrongful dismissal case. Mr.

Dupont was summarily dismissed by AG Growth International Inc. (Westeel) following its investigation into an incident which the corporation determined breached its sexual harassment policy. He sued for wrongful dismissal and, following a two day trial, was awarded damages equivalent to ten months wages. In his decision reported as Dupont v Ag Growth International Inc. (AGI-Westeel) , 2021 ABPC 118 , Judge Yake performs a careful analysis of the credibility and reliability of the witnesses and organizes the balance of the decision into findings of fact and application of the law to those facts.

II. Background [ 2 ] As I will discuss in more detail shortly, the thrust of the appellant’s argument is that the learned trial judge erred in his application of the law to the facts. By way of background, I can do no better than to reproduce the trial judge’s findings of fact below. [79] With regard to the events that occurred on January 9, I find the following facts: (

a) before January 9 RT and Mr. Dupont were workplace acquaintances, but they were not good friends; (

b) at about 8:00 a.m. on January 9 Mr. Dupont asked RT to go on a date with him and in reply she said “maybe”; (

c) at about 9:25 a.m. on January 9 Mr. Dupont approached RT while they were both working at the Westeel facility in Olds, Alberta and asked her if she was chilly and said “Now that you’re single we can go on a date”; (

d) Mr. Dupont then reached over and lifted RT’s hoodie and T-shirt, exposing the area of her body extending from her belly-button to her bra, including her bra; (

e) Mr. Dupont did this because he wanted to flirt with and “hit on” RT, and he wanted to show her that he “liked her a lot”; (

f) Mr. Dupont did not intend to lift RT’s T-shirt when he lifted her hoodie; (

g) Mr. Dupont did not intend expose any part of RT’s body when he lifted her hoodie; (

h) Mr. Dupont’s actions caught RT by surprise, and caused her to be anxious, distressed and embarrassed, and caused her to fear Mr. Dupont; (

i) RT immediately swore at Mr. Dupont and slapped his hand away; (

j) Mr. Dupont then immediately walked away from RT; (

k) RT quickly reported this event to Westeel Production Manager Steve Ricklefs and provided him with her written statement found under Tab 6 of Exhibit 1, and then met briefly with Mr. Ricklefs, Mr. Arthur and Mr. Hawman, and was advised of the steps that would be taken by Westeel to investigate this event as an incident of harassment; (

l) when RT met with Mr. Ricklefs, Mr. Arthur and Mr. Hawman she told them that she did not want to see Mr. Dupont lose his job, but she did not want to have further contact with him; and (

m) shortly after this incident Mr. Dupont was sent home from work. [ 3 ] In relation to the events of the following day which culminated in Mr. Dupont’s dismissal, the trial judge found the following facts: [80] (

a) shortly after he came in to work Mr. Dupont met with Mr. Arthur, Mr. Hawman and Mr. Ricklefs in the Westeel boardroom for about one half of an hour; (

b) Mr. Dupont was presented with the allegations contained in RT’s written statement dated January 9 and he was given a fair opportunity to respond to those allegations; (

c) after hearing Mr. Dupont’s response to those allegations Mr. Arthur, Mr. Hawman and Mr. Ricklefs conferred together privately (i.e. not in Mr. Dupont’s presence) for about two minutes and a joint decision was reached to terminate Mr. Dupont’s employment; (

d) during this meeting Mr. Arthur, Mr. Hawman and Mr. Ricklefs were aware of disciplinary actions other than termination of Mr. Dupont’s employment that were available to address Mr. Dupont’s behavior; (

e) the decision to terminate Mr. Dupont’s employment was based on the conclusion reached by Mr. Arthur, Mr. Hawman and Mr. Ricklefs that Mr. Dupont’s actions constituted “unwanted touching” of RT and violated Westeel’s zero tolerance policy prohibiting unwanted touching described in Westeel’s Discrimination and Harassment Program document; (

f) even though other types of disciplinary action are described in Westeel’s Positive Discipline policy, because he believed that Mr. Dupont admitted to unwanted touching Mr. Arthur believed that

summary dismissal was mandatory, and no serious consideration was given to any other type of disciplinary action; (

g) on January 10 Mr. Dupont was told by Mr. Arthur that his employment was terminated for cause and that he would not be receiving any severance payment. [ 4 ] The trial judge set out his framework for the legal analysis of the factors to be considered in determining whether

summary dismissal is warranted: [81] Courts have defined sexual harassment that may afford justification for

summary dismissal as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for victims of the harassment”:

Janzen v Play Enterprises Ltd., (SCC), [1989] 1 SCR 1252 (SCC). [82] Westeel’s Code of Business Ethics and its Discrimination and Harassment Program document define “harassment” and “workplaceharassment” and “sexual harassment” more broadly, but in essence those

definitions capture the definition of sexual harassmentdescribed in Janzen. [83] Mr. Dupont’s actions, even though brief and isolated, constituted intentional and nonconsensual touching of RT for a sexual purpose(i.e. flirting). It was unwelcome conduct that embarrassed and humiliated RT, and detrimentally affected her in her work environment.

Itwas “sexual harassment” as judicially defined and as defined in Westeel’s Discrimination and Harassment Program document. [Emphasisadded] [84] There is no place for sexual harassment in the workplace or elsewhere, and employers have a duty to protect all of their employeesfrom that misconduct. However, a finding of misconduct does not, by itself, give rise to just cause; the question is whether, in thecircumstances, Mr.

Dupont’s behavior was such that the employment relationship that he had with Westeel could no longer viablysubsist. [85] Cause is question of fact to be determined by an objective, contextual and proportional analysis.

The Court’s task is to strike areasonable balance between the severity of the employee’s misconduct and the sanction imposed: Foerderer v Nova ChemicalsCorporation, supra, at para 63; Calgary (City) v Canadian Union of Public Employees Local 37, supra, at para 138. [86] As is stated at paras 81 and 82 in Watkins v Willow Park Golf Course Ltd, supra: [81] There is no fixed rule as to when an employee’s conduct will justify a

summary termination of employment. The proper analysis isa contextual one in which the Court assesses the degree of misconduct and the surrounding circumstances of its particular case…Determining whether misconduct in any particular case has reached a level to justify

summary termination will always be fact-specificbut even more so when the allegations of misconduct relate to verbal and sexual harassment. [82]

Summary dismissal will be justified when the impugned conduct violates an essential condition of the employment contract, isfundamentally or directly inconsistent with the employee’s obligations to his employer or destroys the mutual faith necessary for theemployment relationship. III. Standard of Review and Parties’ Positions [5] The standard of review for civil appeals on questions of law is correctness.

Questions of fact, factual inferences, and theapplication of a legal standard to questions of fact, or mixed fact and law, are reviewed for palpable and overriding error: Housen vNikolaisen, 2002 SCC 33. [6] Counsel for the appellant Weststeel submits that the learned trial judge: 1. Erred in mixed fact and law by finding that Mr. Dupont’s conduct was at the low end of the seriousness spectrum of misconduct. 2. Erred in law in failing to consider all relevant factors of the contextual proportionality analysis for

summary dismissal for causewhen evidence going to all or some of those factors was before him. 3. Erred in fact by finding that the Weststeel’s decision to terminate Mr. Dupont’s employment was only undertaken becauseWeststeel believed it to be mandatory and that no serious consideration was given to other potential discipline or to the contextual factorsrequired to be considered. [7] Counsel for Mr.

Dupont submits that the trial decision is owed deference and that the learned trial judge made no palpableand overriding error in his factual findings or the application of legal standards to them and that Weststeel effectively is looking to thisCourt to treat this appeal as a trial de novo. IV. Analysis Ground One: Level of Seriousness of Misconduct [8] Determination as to whether

summary dismissal is justified requires an analysis of the proportionality of the employer’sresponse to the misconduct. That analysis begins with a determination of the seriousness of the misconduct. [9] Consideration of the following excerpt from the trial decision suffices to dispose of the appeal on this first ground: [87] In the present case, Mr. Dupont’s action constituted a single, brief and isolated incident of unwanted touching of RT, for thepurpose of flirting with RT in order to pursue a romantic relationship with her.

Upon realizing that his advances were not welcome he didnot persist, but immediately desisted and walked away. [88] While I do not discount the effect that his actions had upon RT, they fall at the low end of the “spectrum of seriousness” referred toat para 205 of Foederer and cited at para 90 in Willow Park Golf Course Ltd. [10] A finding that intentional and unwanted touching for a sexual purpose (Trial decision para 83) constitutes sexual harassment

at the low end of the spectrum of seriousness ignores our Court of Appeal’s determination that sexual assault is at the high end of that spectrum: Sexual assault, by its very definition, is serious misconduct: Calgary (City) v CUPE Local 37 , 2019 ABCA 388 at para 11 ) [ 11 ] Recognizing that Calgary v CUPE dealt with the standard of review of an arbitrator’s decision, it nevertheless stands for the proposition that in this case, the trial judge’s starting point in the proportionality analysis should have been that the impugned conduct was on the high end of the spectrum of seriousness. [ 12 ] Counsel for Mr.

Dupont argues that a characterization of the incident as a sexual assault confuses the criminal definition of sexual assault with the civil definition of sexual harassment and is not borne out by the evidence: “Westeel argues that Mr. Dupont committed the criminal act of sexually assaulting RT, a legal conclusion not supported by the trial decision or the facts. The Court did not make such a finding and it is misleading to suggest otherwise. The employee in Calgary v CUPE groped the breast of a co-worker, which is sexual assault.

Our case involved the brief, relatively private, isolated and inadvertent lifting of an undershirt. (Respondent brief at para 4.4(c), emphasis in original) [ 13 ] A number of points can be made respecting this argument: 1. It ignores that unwanted touching for a sexual purpose, as was found by the trial judge at para 83, is the definition of sexual assault, whether on a criminal or civil level. There are, of course, varying degrees of sexual assault. But sexual harassment with a physical component is among the most serious forms of workplace misconduct ( Calgary v CUPE at para 31). 2.

It is inconsistent as well with the determination of Hollins, J. in Watkins v Willow Park , 2017 ABQB 541 , referred to by the Respondent in argument and cited by the trial judge at para 86, in which Hollins, J. implicitly held that an actual physical assault or unwanted physical contact would escalate misconduct even further along the sexual harassment spectrum: [114] Further, while I distinguish this from cases of actual physical assault or unwanted physical contact, the level of the Plaintiff’s sexual and verbal harassment of Ms.

Li is still, in my view, on the more serious end (upper middle) of the spectrum … 3. The learned trial judge did not find that the lifting of a piece of clothing was “inadvertent”. What he found was that Mr. Dupont did not intend to expose RT’s body, though that may be considered a foreseeable consequence of lifting a shirt. 4. Lastly, although by their nature most sexual assaults are private, this assault was not “relatively private”: RT’s testimony describing her reaction to Mr. Dupont’s unwanted touching was supported by the testimony of Mohamed Elmoge, another Westeel employee. Mr.

Elmoge was also a reliable and credible witness, and I accept his testimony that, as he was working at Westeel on January 9, he saw RT slap Mr. Dupont’s hand away as he was reaching toward her shirt. (Trial decision at para 62) [ 14 ] Even though, as pointed out by counsel for the Respondent, Mr.

Dupont’s assault may not have risen to the level of seriousness as was found in Calgary v CUPE , the starting point for the analysis must be that this was a serious form of workplace misconduct: [ 15 ] Since a sexual assault is what occurred, the whole analysis ought to have been conducted with that finding in mind: Calgary v CUPE para 33 [ 16 ] Having commenced the correct analysis but from the incorrect starting point, the trial judge’s decision cannot survive review on a correctness standard. [ 17 ] This ground of appeal is allowed.

Ground Two: Contextual Proportionality Analysis [ 18 ] The second ground of appeal, which really is an offshoot of the first, is that, having found misconduct, the trial judge failed to properly weigh the other factors that go into an analysis of whether

summary termination was a proportional response to that misconduct. [ 19 ] Both the majority and minority in Calgary v CUPE agree that termination of employment requires a proportionality analysis based on a number of factors which, for the purposes of non labour relations termination, are set out in McKinley v BC Tel , 2001 SCC 38 . The danger of beginning at the wrong point in the seriousness spectrum is evident when those other factors, considered by the trial judge, are reconsidered in light of a higher finding of seriousness.

a) Mr. Dupont was aware of Westeel’s “reasonable, clear, and unambiguous” policy respecting sexual harassment and that termination was a possible outcome of a serious breach including sexual or unwanted harassment (para 90).

b) Mr. Dupont was not given a warning (para 95). But the existence of a policy may be a warning, and no warning is required that employees not commit criminal offences: Foerderer v Nova Chemicals Corp , 2007 ABQB 349 at paras 68 and 162 , Gonsalves v Catholic Church Extension Society of Canada , [1998] OJ no 3404 at para 15 .

c) A court must assess the effect of the misconduct on the workplace as a whole, not just its effect on the offender: Calgary v CUPE at para 56. Here, Westeel’s policy refers to zero tolerance towards harassment, including a single incident. The reason may be presumed to be because even a single incident can leave other employees in RT’s position “anxious, distressed and embarrassed”, as she was and cause them to fear Mr. Dupont, as did RT. (Trial Reasons para 79(h)) [ 20 ] Ordinarily the role of an appellate court is not to re-weigh the factors considered by a trial judge, but in this case, a weighing of the above factors that favour

summary dismissal, starting from the position of serious misconduct, might objectively outweigh the only mitigating factors in Mr. Dupont’s favour, namely that it was a single incident and that he had a nine year incident-free history. [ 21 ] Given my determination on the first ground, I need not determine whether the trial judge’s conclusions rise to the level of palpable and overriding error.

Ground Three: No Consideration was Given to Alternatives to Dismissal [ 22 ] The trial judge found that Westeel did not properly consider in its proportionality analysis whether there were lesser but effective alternatives to dismissal. Westeel argues that he did find that senior officers discussed available alternatives. The fact that those discussions were admittedly brief is not the same as finding that they were inadequate.

They were made a day after the incident and after hearing from those most affected. [ 23 ] The trial judge, however, heard the testimony of the senior officers of the corporation and is in a better position to make findings of credibility respecting the degree to which the corporation considered alternatives. [ 24 ] Again, given my determination on the first ground of appeal, it is unnecessary to rule on this one. V.

Conclusion [ 25 ] For the reasons given above, the appeal is allowed on the first ground. [ 26 ] Section 53(1.1) of the Provincial Court Act does not permit me to send this case back for a retrial. [ 27 ] The parties did not make submissions on costs. Ordinarily, Westeel as the successful party would have its costs here and in the court below. If the parties require a costs ruling, either is free within 30 days of release of this decision to make application to me for that purpose. [ 28 ] Thank you to both counsel for their comprehensive written briefs and concise oral arguments.

Heard on the 28 th day of July, 2021. Dated at the City of Red Deer, Alberta this 19 th day of August, 2021. J. S. Little J.C.Q.B.A. Appearances: Ms. K. Hagg for the Appellant Mr. D Boris for the Respondent