Steel v. Coast Capital Savings Credit Union, 2013 BCSC 527

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Steel v. Coast Capital Savings Credit Union, 2013 BCSC 527 Date: 20130327 Docket: 08 3779 Registry: Victoria Between: Susan Steel Plaintiff And Coast Capital Savings Credit Union Defendant Before: The Honourable Madam Justice Ross Reasons for Judgment Counsel for the Plaintiff: James A.S. Legh Counsel for the Defendant: Harvey S. Delaney Place and Date of Hearing: Victoria, B.C. January 15, 2013 Place and Date of Judgment: Victoria, B.C. March 27, 2013 Introduction [ 1 ] The plaintiff, Susan Steel, seeks

summary judgment in this action for damages for wrongful dismissal. The defendant Coast Capital Savings Credit Union (“Coast”) alleges that it had just cause for dismissal and seeks to have the action dismissed. Ms. Steel was dismissed after she was found to have accessed without permission a confidential document in another employee’s personal folder. Although the circumstances under which she accessed the document are the subject of some dispute, Ms. Steel acknowledges that she did open the document and that she did not have permission to do so.

Her position is that the misconduct does not amount to cause for dismissal in the circumstances. [ 2 ] For the reasons that follow I have concluded that the matter is suitable for

summary determination. I have concluded further that in all of the circumstances Coast did have just cause to terminate Ms. Steel’s employment. Facts [ 3 ] Ms. Steel commenced her employment at Coast on November 4, 1987. On December 10, 1997, she was promoted to the position of Helpdesk analyst in the IT Department. The Helpdesk analyst provided internal technical assistance to other employees of Coast when they experienced trouble with the network. As a Helpdesk analyst, Ms. Steel was able to access any document or file in the organization. Her work was unsupervised on a day to day basis.

No one monitors which documents the Helpdesk analyst accesses and for what reason or purpose. It would not be practicable to do so. This position was not a managerial position.

Included in the job description for this position is the following: • At all times, abide by the corporate policies regarding professional conduct (i.e.; Code of Conduct and Conflict of Interest policies, Policy of Dishonest Conduct, dress code, etc). • Be a positive role model and lead by example. • Help maintain security of physical premises, property and information as per internal control procedures as well as a safe workplace as per WCB requirement. • Respect the privacy and confidentiality of all customer and staff information at all times. [ 4 ] Privacy and confidentiality were taken very seriously by the employer.

As part of this concern it maintained policies with respect to access to information. [ 5 ] All employees on the employer’s internal system were assigned a “Personal Folder” which is kept on the network for the sole

use of that employee. This file is intended to be used for confidential information pertaining to the company. These folders are confidential and can only be read or edited by the individual assigned to the file. [ 6 ] The only exception to this rule pertained to employees such as Ms. Steel who could access other employees’ personal folders in order to assist with any technical problems. In such cases, access was to be made only after permission was given by the owner of the personal file only or by authorization by the VP of corporate security.

A specific protocol was established to govern the access of a personal folder by a helpdesk employee, such as Ms. Steel, as follows: The employee with the problem contacts the helpdesk; If the problem can be solved orally, it is; If oral advice is not successful, the helpdesk employee may provide on screen support. This allows the helpdesk employee to remotely control the employee’s computer in order to address the issue.

The employee can follow the helpdesk employee’s progress on their screen; Before the helpdesk employee can remotely access the employee’s files, the employee with the problem must specifically give permission. The employee seeking support must determine whether it is appropriate for the helpdesk support person to be viewing the document in question. Even if the helpdesk employee is authorized to view the document, its contents must remain confidential. [ 7 ] Ms. Steel was aware that these rules governed her access to such documents.

As part of the Annual Review process she acknowledged that she had reviewed, understood and signed off on several related policies including: Acceptable Use Policy, Code of Conduct Policy, and the Information Confidentiality Policy. [ 8 ] In July 2008, Leslie Kerr was the manager of Coast’s Facilities /Purchasing Department. Ms. Kerr maintained a spreadsheet which designated a list of priorities for the limited employee parking spaces available at the Information Technology Group’s workplace. The spreadsheet was kept in Ms.

Kerr’s personal folder and contained confidential employee information such as pay grades and seniority dates. Ms. Steel was an employee who did not have a parking spot and who was affected by this list of priorities. [ 9 ] On July 22, 2008, Ms. Steel’s supervisor, Bryan Valdal, received a telephone call from Ms. Kerr who was upset. She stated that she had tried to open the confidential spreadsheet in her personal folder and her computer displayed a message indicating that the document was already in use by Ms. Steel. Ms.

Steel had not been authorized to access the file, nor had she received permission to do so from Ms. Kerr. Ms. Steel knew that she was not authorized to access the file. [ 10 ] There are differing accounts in the evidence concerning how Ms. Steel came to be viewing the confidential document. In her affidavit #1 dated July 8, 2010, Ms. Steel deposed: 52. My manager, Brian Valdal, informed me that he needed to get a particular Coast Capital document from another employee, and advised me that he had been having some difficulty contacting that employee to get the document. 53.

Several weeks before, I had been helping this particular employee with the file that Mr. Valdal was looking for and coincidentally I knew that this Coast Capital document was saved in this employee’s personal directory. 54. I accessed the file in the employee’s directory so that I could give it to Mr. Valdal. After I obtained the document for Mr. Valdal, I did not log out of the employee’s directory. To the best of my knowledge, while I had the file open on my computer, the employee also tried to access the file and was denied access. It is my understanding that she reported this to Mr. Valdal. 55. Mr.

Valdal came to my desk and asked me if I had accessed the Coast Capital file in the employee’s personal directory. I told him that: a. I accessed the employee’s personal directory to obtain the Coast Capital file he was looking for; b. I had done nothing else in the employee’s directory; c. I closed the file; and d. I apologized to Mr. Valdal for not taking the appropriate approach to accessing the file. 56. I did not access any other information within the directory and I did not access this file for my own gain.

I was only trying to help my manager get a Coast Capital file that he was having difficulty obtaining. I was trying to be helpful to my boss, Mr. Valdal. [ 11 ] Ms. Steel was examined for discovery on September 9, 2010. Her evidence included the following: 401 Q Who was your boss? A Bryan Valdal, B-r-y-a-n, V-a-l-d-a-l. 402 Q So how did you know he was trying to reach somebody regarding -- A I don’t recall specifically but I think it was at a staff meeting. Someone asked about what was happening with parking.

403 Q Do you recall anything else? A No. He must have said that he was waiting to hear back from this person. 404 Q Do you recall him saying that or are you just guessing as you sit here today? A I’m guessing because that was my impression. ... 408 Q Mr. Valdal didn’t ask you to go get it? A No, he did not. 409 Q The employee that you were speaking to didn’t ask you to get it, correct? A No. ... 683 Q Tell me what happened or tell me everything you recall happening when Mr. Valdal asked you whether you were accessing somebody else’s document?

A As I said, I was on a call, on the phone with someone else at the time. I had opened the file because I wanted to see what was in it and possibly share that with Bryan. I don’t remember what I was going to do with it. And then I got busy, I got another phone call and I had e-mails to answer, I completed forgot that I was in the document. So for a period of a few minutes I was in the document. And when Bryan came to my desk, just to ask if I was in the document, I answered that I was.

And he asked my to get out of it, which I did, and he said that she was on the phone. 694 Q You never went to Bryan’s to say: I found the document? A No, I didn’t get a chance to. 695 Q You could have just copied the document and sent it to him, couldn’t you? A But I wouldn’t have done that. I could have but I didn’t. 696 Q In fact, in those circumstances then you wouldn’t have read the document then, correct? A There’s ways of doing that without reading the document, yes. 697 Q Or you could have simply told him: I can access the document, do you want me to? You could have done that?

A I could have done that. 698 Q You didn’t do that? A I didn’t do that. 752 Q What I would like you to do is take me through that whole conversation of what he said and what you said to the best of -- A That’s as far as -- that’s all there was to it. 753 Q You said -- A Yes, I’m in it and I will get out of it. 754 Q And nothing else? A As far as I know. 755 Q Okay. So you’ve exhausted your memory on everything you can remember of that? A Yes. [ 12 ] Mr. Valdal deposed as follows in his affidavit #1 dated December 17, 2010: 42.

On July 22, 2008, at a monthly Helpdesk meeting, a question came up as to where the Helpdesk employees were on the waiting list for parking spots. I, at that meeting, made it clear that that this remained a sensitive topic. As such, my only course of action would be to speak to Leslie Kerr of the Defendant. 43. Leslie Kerr is no longer employed by the Defendant. 44. I indicated that I would speak to her and ask where the team ranked on the waiting list for parking. 45. I, in fact, did leave a voicemail with Ms. Kerr to touch base whenever she had a moment to discuss this issue.

46. I did not instruct anyone to find the parking list – nor did I indicate that I wanted to see the list. 47. Later in the morning of July 22, 2008, Ms. Steel came to see me and asked if I had found out any information on parking. Ms. Steel was curious as to whether or not she would be getting a parking spot. I told Ms. Steel that I had left Ms. Kerr a voicemail and that I had asked her if she could contact me when she had a moment to discuss this. It was not a priority for me. 48. At approximately 2:00 pm on July 22, 2008, I received a call from Leslie Kerr.

She seemed to me quite confused and she was angry. 49. She indicated to me that when she was trying to open one of her documents that there was a warning message on the pop-up screen with a message saying that the document was in already in use by Sue Steel. 50. Ms. Kerr indicated to me that the document was one of the parking spreadsheets. ... 55. In response to this call, I put Ms. Kerr on hold and walked over to Ms. Steel’s desk and asked her if she was in a spreadsheet of Ms. Kerr’s as Ms. Kerr wanted access to this document. 56. Ms.

Steel told me that she had it open and said she was immediately closing it. ... 91. In response to paragraph 52 and 54 of the Plaintiff’s affidavit, I deny that I informed the Plaintiff that I needed to get a particular document from another employee. As set out above, I indicated that I would speak to Ms. Kerr. The reference that the Plaintiff makes to “a particular document” neglects, also, to mention that she was in the group that would be referenced in this document. 92. I, at no time, told Ms. Steel to find, or view the document.

At no time did she indicate to me that she knew where the document was, or that she was planning on accessing it. I would not have authorized that. 93. In response to paragraph 54 of the Plaintiff’s affidavit, Ms. Steel did not obtain the document for me. For that matter, at no time after the discovery that she was accessing this document did she suggest that she was getting it for me, nor did she give it to me. 94. In response to paragraph 55 of the Plaintiff’s affidavit, Ms. Steel did not apologize to me for “not taking the appropriate approach to accessing the file”.

She did not apologize to me for anything at that time. 95. In response to paragraph 56 of the Plaintiff’s affidavit, I was not having difficulty in locating any document. I was not trying to see any document. [ 13 ] In Ms. Steel’s affidavit #2 sworn May 31, 2012, she deposed as follows: 14. In response to paragraph 91, I inferred that Mr. Valdal was looking for the information about the parking wait list based on his statement at our staff meeting that he wanted to speak to Ms. Kerr about parking. 15. In response to paragraph 92, where Mr.

Valdal states that I did not tell him I knew where the document was or that I was planning to access it, is true, however: a. All the Helpdesk staff, including myself were encouraged to solve problems on our own initiative, b. I often stayed late to help out on issues that were not yet resolved, c. If we learned of a problem that needed help from others we would seek out that help; d. If we learned of an issue that others would likely want to know about we would pass on the information directly and not through management; e. If we had a call after Mr.

Valdal had left, that involved things he normally did, we would often do it for him, f. As a senior staff member in the department I was often called upon by others to help and we would collaborate to get things done, g. Overall, the department mentality, and certainly mine, was to try and help solve issues. It was this thinking that lead me to access the parking wait list. 16. In response to paragraph 93, where Mr. Valdal states that I did not tell him I was getting the parking wait list for him is not accurate: a. I told Mr.

Valdal in the interview on Friday July 25, 2008 that I had accessed the parking wait list to help him. [ 14 ] Ms. Steel was dismissed from her position by letter dated July 29, 2008 which stated in part: It is my unpleasant duty to inform you of your termination, effective today, July 29th, 2008. This termination is on a “with cause” basis, as a result of recent findings that have led to a loss of confidence.

The reason for cause is based on a decision following the incident that occurred on Tuesday, July 22nd at which time it was found that you had accessed a confidential file kept in a staff member’s private folder. You were clearly aware that this file was not for your

viewing. Sue, this is outside the boundaries set for your position as a Helpdesk Analyst and an action which flies in the face of the trustthat is required in a position that holds access to confidential and private information. The severity of this breach of trust has led CoastCapital Savings to lose faith in your judgement. It has resulted in a serious loss of confidence in you which we believe has irreparablydamaged the employment relationship and hence the difficult decision to end your employment with Coast Capital Savings. Suitability [15] Rule 9-7(15) of the Supreme Court Civil Rules provides in part:

(15) On the hearing of a

summary trial application, the court may (

a) grant judgment in favour of any party, either on an issue or generally, unless (

i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issuesof fact or law, or (ii) the court is of the opinion that it would be unjust to decide the issues on the application, [16] The first question to be addressed therefore is whether, having regard to the provisions of the Rule, this matter is suitable forsummary determination. Both parties submit that the matter is suitable for

summary determination and seek judgment. Counsel for Ms.Steel submits that even on the employer’s version of events, the conduct did not amount to just cause for dismissal. Counsel submitsfurther that the costs of a full trial on the merits would be prohibitive and that application of the principle of proportionality supports aconclusion that it is appropriate to decide the issue summarily. Counsel for the employer submits that it is possible for the court to findthe facts necessary to determine the issues. In counsel’s submission, given the evidence Ms.

Steel gave on her examination for discoverythat substantially qualified the evidence given in her affidavit #1, there remains little conflict in the evidence concerning the facts givingrise to the dismissal and the court is able to find those facts. [17] I have concluded that given Ms. Steel’s evidence in her examination for discovery, I can find the facts necessary to determinethis matter. I find the facts in relation to the events that culminated in Ms. Steel’s dismissal to be as follows. [18] As part of her duties, Ms. Kerr maintained a waiting list of employees eligible for parking spots.

The list was a confidentialdocument and contained information about employees’ seniority and pay grades. Ms. Steel was one of the employees who was on thelist. Because of a previous request for assistance, Ms. Steel was aware of the document and where it was stored in Ms. Kerr’s folders. [19] On July 22, 2008, the subject of the waiting list came up at a monthly meeting of Helpdesk personnel attended by Ms. Steel andher superior Mr. Valdal. Mr. Valdal told the participants that he would speak with Ms. Kerr about the subject. I find that Mr. Valdal didnot request Ms.

Steel to procure a copy of the list for him. [20] I find that Ms. Steel went into Ms. Kerr’s folder and opened the list for her own purposes. She did not make a copy of thedocument for Mr. Valdal. She only told Mr. Valdal that she had opened the document after he came to investigate upon receiving Ms.Kerr’s report. Ms. Steel did not have permission to access the document. Her actions were in violation of her employer’s policies. Legal Principles [21] In order to terminate an employee without notice or pay in lieu thereof, an employer must have just cause: Hennessy v. ExcellRailing Systems Ltd., 2005 BCSC 734.

The onus of proving just cause rests on the employer. As Mr. Justice Finch, as he then was, statedin Ennis v. Canadian Imperial Bank of Commerce (1986), (BC SC), 13 C.C.E.L. 25 (B.C.S.C.): The onus of proving cause justifying

summary dismissal of an employee rests on the employer. Since dismissal without notice is such asevere punishment, it can be justified only by misconduct of the most serious kind. If the plaintiff's conduct is inconsistent with hisfulfillment of the express or implied conditions of service, or is incompatible with the due and faithful discharge of his duties to hisemployer,

summary dismissal will be justified. If the employee's conduct interferes with or prejudices the safe and proper conduct of theemployer's business,

summary dismissal will be justified. If the employee's conduct reveals a character which is dishonest oruntrustworthy,

summary dismissal will be justified. [22] In McKinley v. BC Tel, 2001 SCC 38 , [2001] 2 S.C.R. 161, the Supreme Court of Canada described the contextualapproach to be taken in the determination of whether the employee’s misconduct amounted to cause for dismissal. Mr. Justice Iacobucci,for the Court, stated the importance of the principle of proportionality in this regard. The court must strike a balance between the severityof the misconduct and the sanction imposed. The misconduct at issue in McKinley was dishonesty.

At para. 48, Iacobucci J. described thecontextual analysis to be applied as follows: In light of the foregoing analysis, I am of the view that whether an employer is justified in dismissing an employee on the grounds ofdishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test is whether theemployee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways.

One couldsay, for 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. [23] In Dilg v. Dr. D. Sarca Inc., 2007 BCSC 1716, at para. 35, Mr. Justice Preston noted that the contextual analysis described byIacobucci J. in McKinley is to serve as the basis to be applied in all cases of

summary dismissal.

[24] A relationship of trust has been found to be particularly critical in the banking industry where employees are held to a higherstandard of trust than employees in other commercial or industrial undertakings, see, for example, National Bank of Canada v. Lepire,2004 FC 1555; and Rowe v. Royal Bank of Canada (1991), (BC SC), 38 C.C.E.L. 1 (B.C.S.C.). [25] In addition, employees who work with greater autonomy are held to a higher standard of trust. The greater the autonomy theemployee enjoys, the more fundamental trust becomes to the employment relationship, see Godden v. CAE Electronics Ltd., 2002 BCSC132.

Discussion [26] Ms. Steel occupied a position of great trust in an industry in which trust is of central importance. In her position as Helpdeskanalyst Ms. Steel was given the ability to access confidential documents. The employer established clear policies and protocols known toMs. Steel at the relevant time that were to govern access to confidential documents. One of the most important of these was that Helpdeskanalysts such as Ms. Steel were not to remotely access other employees’ files without first receiving specific permission to do so. [27] It was not practicable for Coast to monitor which documents Ms.

Steel accessed and for what purpose. The employer had totrust Ms. Steel to obey its policies and to follow the protocols. It had to trust Ms. Steel to only access such documents as part of theperformance of her duties and to follow the protocols when she did so. Such trust was fundamental to the employment relationship inrelation to Ms. Steel’s position. It was, to use the language of Iacobucci J. in McKinley, “the faith inherent to the work relationship” thatwas essential to this employment relationship. [28] Ms. Steel violated that trust in two distinct and important ways.

First, she opened a confidential document in another employee’sfile for her own purposes, not as part of her duties and not at anyone’s request. Second, she violated the protocols that were to governsituations in which remote access of such documents was undertaken. Specifically, she did not have permission to do so from thedocument’s owner, or from anyone entitled to grant such permission. [29] I have concluded that in the circumstances this conduct amounted to just cause for dismissal. It follows that the action isdismissed. “Ross J.”