



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Roe v. British Columbia Ferry Services Ltd.,









2015 BCCA 1




Date: 20150106

Docket: CA041674

Between:

Gregory Roe

Respondent

(Plaintiff)

And

British Columbia
Ferry Services Ltd.

Appellant

(Defendant)

Corrected
Judgment: The text of the judgment was corrected at page 2 in the Summary, and
at paragraphs 38 and 39 on March 19, 2015




Before:



The Honourable Mr. Justice Tysoe

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Bennett




On appeal from:  An
order of the Supreme Court of British Columbia, dated February 28, 2014 (
Roe
v. British Columbia Ferry Services Ltd.
, 2014 BCSC 1712, Nanaimo Registry No. S66705).




Counsel for the Appellant:



P. Fairweather





Counsel for the Respondent:



P.J. Giroday





Place and Date of Hearing:



Vancouver, British
  Columbia

October 27, 2014





Place and Date of Judgment:



Vancouver, British
  Columbia

January 6, 2015









Written Reasons by:





The Honourable Madam Justice D. Smith





Concurred in by:





The Honourable Mr. Justice Tysoe





The Honourable Madam Justice Bennett








Summary:

Mr. Roe brought an
action against his former employer for wrongful dismissal. The employer
defended the action alleging cause. After an internal investigation, the employer
concluded that Mr. Roe, a senior manager, had on more than one occasion
knowingly given complimentary food and beverage vouchers to his daughters
volleyball team without prior authorization, contrary to the employers policy.
Mr. Roe denied that he knowingly contravened what he said was an ambiguous
policy. The trial judge did not resolve the conflict in the evidence, and made
no findings of fact with respect to the nature of Mr. Roes alleged
misconduct or which of the two posited scenarios had occurred. Instead, he
assumed for the purpose of his analysis that the employers version was true.
Based on that scenario, he found that Mr. Roes actions were bordering on
trifling and relatively minor and therefore did not amount to just cause for
dismissal. The employer appealed.

HELD: Appeal allowed; the
matter is remitted to the trial court for a new trial. The judge erred in his
characterization of the misconduct he assumed occurred for the purposes of his
analysis and for which Mr. Roe was dismissed for cause. In particular, the
judge erred in finding that Mr. Roes assumed conduct, objectively viewed
by a reasonable employer and in all of the circumstances, was bordering on trifling
or relatively minor, and therefore did not rise to the level of undermining
the obligations of good faith that are inherent in and essential to the
employment relationship. His finding as to the nature of Mr. Roes
misconduct does not appear to have been considered in the context in which it
occurred, including: Mr. Roes employment contract, the responsibilities
and trust attached to his senior management position, and the employers policy
and procedures that he was required to follow in the distribution of complimentary
vouchers. The judges failure to apply this contextual approach to assessing
the nature and seriousness of Mr. Roes misconduct resulted in palpable and
overriding error. Given that the factual underpinnings of the judges decision
were assumed and not determined, this Court cannot substitute a finding of just
cause for Mr. Roes dismissal. Accordingly, the matter must be remitted to
the trial court for a new trial.

Reasons for Judgment of the Honourable
Madam Justice D. Smith:

A.
Overview

[1]

Gregory Roe was the manager of the Duke Point ferry terminal from
November 15, 2007, until his dismissal on March 1, 2012. British
Columbia Ferry Services Ltd. (the Employer) terminated Mr. Roe, without
notice for cause, after an internal investigation concluded that Mr. Roe
had, on more than one occasion, knowingly given complimentary food and beverage
vouchers to his daughters sports teams without prior authorization, contrary
to the Employers policy.

[2]

On July 4, 2012, Mr. Roe commenced a wrongful dismissal action
against the Employer in which he sought damages in lieu of reasonable notice
for breach of his employment agreement. He contended that he did not knowingly
breach the Employers policy and that the procedure to be followed under the
policy with respect to the distribution of complimentary vouchers by employees
was unclear. On January 1, 2013, about 10 months after his dismissal, Mr. Roe
secured alternate employment of a managerial nature at a comparable salary.

[3]

There was a conflict in the evidence with respect to the nature of Mr. Roes
alleged misconduct that resulted in his dismissal.

[4]

The Employer characterized that misconduct as dishonest, claiming that
Mr. Roe knowingly misappropriated company property to his own financial
and reputational benefit. It submitted that Mr. Roes dishonest actions
irrevocably breached the requirements of good faith and trust that formed the
basis of their employment relationship.

[5]

Mr. Roe characterized his actions as simply a failure to comply
with an ambiguous policy of the Employer, with respect to employee use of complimentary
vouchers. He acknowledged that the policy had previously required getting prior
approval from his regional manager but said that in 2011 the policy was changed
to require notification of distribution of the vouchers to the marketing department
only after the fact, although he admitted he had not provided such notification
in this case. Mr. Roe submitted that his conduct was not dishonest but
merely inadvertent, and would not result in a complete breakdown of the trust
required for the continuation of the employment relationship.

[6]

The summary trial judge did not resolve this conflict in the evidence.
He made no findings of fact as to which of the two posited scenarios had occurred.
Instead, he assumed for the purpose of his analysis that the Employers version
of Mr. Roes alleged dishonesty was true. Based on that scenario, he concluded
that Mr. Roes actions were bordering on trifling and did not amount to
just cause for dismissal. In the result, he fixed the notice period at 11 months,
but awarded damages of $67,663.60 for 10 months salary (given Mr. Roes return
to employment at a comparable salary on January 1, 2013), $7,718.60 for
lost benefits, and $1,206.25 for medical expenses that would have been covered
by the Employers health plan, interest, and costs.

[7]

The Employer appeals the award, submitting the trial judge erred:

a)       In
finding that the Employer did not have just cause to dismiss Mr. Roe; and

b)       In the
alternative, in awarding Mr. Roe damages of 10 months notice for 4.5
years of service.

[8]

For the reasons that I shall explain below, I find it necessary to
address only the first ground of appeal.

B.
Factual Background

[9]

Mr. Roe was hired as the Duke Point terminal manager on November
15, 2007, after signing the terms and conditions of the Employers offer of
employment. As a terminal manager, Mr. Roe was the most senior management person
for the Employer when he was on duty.

[10]

Mr. Roes responsibilities included: (i) the management and
oversight of the terminal operations and its staff; (ii) the safety and
security of all customers and staff; (iii) the supervision and assistance
in the selection, development, training and motivation of employees; (iv) overseeing
special projects, teamwork and communications; and (v) daily revenue
reconciliations that included ensuring the accuracy of the revenue reports
prepared by the ticket agents and the accountability of all cash.

[11]

His employment contract listed the Employers core values as: safety
first, employees, quality, integrity, partnerships and environment. Included in
the employment contract as an attachment was a Code of Business Conduct and
Ethics (the Code). On November 16, 2007, Mr. Roe acknowledged in
writing that he had read and understood the Code and the consequences for a
breach of the Code.

[12]

In particular, the Code provided:

BCF [the Employer] personnel have the responsibility to
understand and conduct themselves in accordance with this code, and to report
conduct or proposed conduct that is in violation of this code.



Employees who breach the code may
be subject to disciplinary action, up to and including dismissal. If a
violation of law is involved, the matter may also be referred to the
appropriate law enforcement agency. Any Supervisor or Manager who directs or
approves of conduct in violation of this code, or who fails to report a
violation of which he or she has knowledge, is also in violation of the code
and subject to disciplinary action.

[13]

The Code set out the requirements for all personnel to: (i) act in
an honest and ethical manner at all times, (ii) comply with all of the
Employers laws and regulations; and (iii) avoid conflicts of interest with
the Employer. The latter requirement was defined as including using corporate
property, information, or position for personal benefit.

[14]

The Code further provided that [t]he property and assets of BCF [the
Employer] must only be used in the course of carrying out the bona fide business
purposes of the Company and that personnel may not dispose of BCF property or
assets except in accordance with guidelines established by BCF. The Code
prohibited the accepting or offering of gifts and entertainment by personnel
except in the normal exchanges common to, and generally accepted in, established
business relationships.

[15]

As previously mentioned, the incident that led to Mr. Roes
dismissal involved his use of the Employers complimentary food and beverage
vouchers. The Employer has complimentary retail service vouchers for travel,
food, dessert and beverages. As a terminal manager, Mr. Roe was authorized
to issue complimentary vouchers to passengers who had been inconvenienced in
some way, in accordance with the Employers Customer Service Recovery Plan
(the Customer Recovery Plan).

[16]

Diane Finnie, Director of Employee Relations for the Employer, deposed
that the beverage and dessert vouchers are ordinarily only used for purposes
of Customer Service Recovery  as a gesture to those passengers who may have
experienced inconvenience during travel. Melanie Lucia, Superintendent of
Terminal Operations, South Region, echoed that the purpose of the complimentary
vouchers were for customer recovery only. She deposed that complimentary
vouchers had never been distributed for purposes of fundraising, donations or
charitable contributions, and their use was a rare event. She added:
Providing free food or drinks to friends and family members would be a misuse
of the Defendants assets and a serious breach of the Defendants policies.

[17]

The procedure for issuing complimentary vouchers under the Customer
Recovery Plan to an individual or group required prior approval. Until mid-2011
that approval was granted by the regional managers. Ms. Lucia was the
regional manager for Nanaimo. Mr. Roe and the other terminal managers were
reminded of this policy in an email dated March 21, 2009. In mid-2011, the
granting of prior approval was changed from the regional managers to the marketing
department. Mr. Roe deposed that he understood he had to obtain prior
approval before donating the complimentary vouchers; however, he also said that
the change in mid-2011 permitted terminal managers to use their own discretion
for making the donations so long as they notified the marketing department by
way of email after they had done so. He said that he had followed that
procedure prior to February 2012 but did not with respect to the predicate
incident.

[18]

Ms. Lucia denied that the procedure for obtaining authorization to
donate the complimentary vouchers had changed in any way except as to who was
to provide that authorization. She deposed that, as regional manager, she had
never informed Mr. Roe that he could use his discretion in making
donations of the vouchers and then notify the marketing department after the
fact. She reiterated that prior approval, which required formal written
requests from either the individual or group that was to receive the vouchers,
and the authorized personnel, was always required in advance of the donation. Bill
Marshall, another terminal manager, also deposed that he had never been advised
of a change in the procedure as alleged by Mr. Roe.

[19]

In mid-February 2012, Mr. Roe donated $70 worth of complimentary
dessert and beverage vouchers to his daughters volleyball team when they
travelled to the mainland for a tournament. He said that he did so as a
gesture of good will and to provide some minor support to the parents of the
players on the team, as the team had not done any fund-raising that season. He
acknowledged that on a previous occasion (during the summer sometime between
2009 and 2011), he had donated travel vouchers to his daughters fastball team.
Those vouchers had a value of about $120 to $130. He admitted that he did not
obtain prior approval for either of these donations or inform the regional
manager or marketing department that they had been made.

[20]

Upon learning of the February 2012 incident, the Employer commenced an
investigation. The investigation included a fact-finding interview with Mr. Roe
on February 28, 2012 (the Fact-Finding Meeting). Present at the
Fact-Finding Meeting were Monique Joubarne, Director of Security Programs, Ms. Lucia
and Ms. Finnie.

[21]

The Fact-Finding Meeting was conducted by Ms. Joubarne. The procedure
she followed included asking Mr. Roe a question and writing down his
answer. She then read out what she had recorded and asked Mr. Roe if her
record of his answer was accurate. Only then did she move on to the next
question. Ms. Lucia and Ms. Finnie took their own notes of the
meeting. The notes of all three representatives as to what occurred at the
Fact-Finding Meeting were consistent.

[22]

The three representatives reported the following findings from the
Fact-Finding Meeting:

Greg Roe confirmed he understood the purpose of the
complimentary vouchers - which was to compensate [the Employers] customers if
they had a bad experience or were loaded incorrectly or inconvenienced in some
way.

·

He confirmed that he did provide the vouchers to his daughters
volleyball team for travel on February 19, 2012 (about 12).

·

The vouchers were written in advance on February 13, 2012 with
the intention of providing them to the volleyball team.

·

They were written using old vouchers from 2005. When asked why he
would use these vouchers, he advised that the old ones dont have a carbon copy
so they are not sent back to revenue (the new books are tracked better with a
copy of each voucher going back to revenue).

·

His reason for providing the vouchers was because he wanted to do
a nice gesture for the kids and it made him feel good.

·

He knew it was wrong and that the vouchers were not to be used
for this purpose.

·

He advised he understood he overstepped his authority and
breached the trust of the Company.

He was then asked if he had ever done this before. He
responded that there may have been another occasion - when asked to clarify if
he had or had not  he then said there was another occasion for his daughters
fast ball team that was travelling previously but he couldnt remember the
dates, where he provided between 10-12 food vouchers.

He advised that he knew it was wrong at that time as well and
again explained that he thought it was a nice gesture. He also explained that
he knew they were of value and that he was being more generous than his
position allowed.

He was asked if he told anyone or got permission from anyone
to provide the vouchers  he advised that he did not tell anyone and did not
have permission to provide the vouchers.

He confirmed that he has not done
this for any other teams  other than his daughters [
sic
]. He advised he
was very remorseful and would hope that we would take into consideration that
others have been given a 2nd chance for things like alcoholism, or anger
issues, etc. Monique reminded him that there was a big difference between
someone having a problem with alcohol and someone breaching the trust of the Company.
He said he understood.

[23]

The representatives also concluded that:

Vouchers
issued post 2005 are managed electronically by the revenue department. The
vouchers are identifiable and the carbon copies provide explanations for the
issuance. When all vouchers have been issued the booklet is returned to revenue
for reconciliation.

It is the
writers opinion that Roe was aware that the complimentary vouchers he provided
lacked any identifiable markings and that they could not be traced in any way.
When the booklet was empty only the spine remained and that was recycled
locally
.

[24]

Lastly,

included in their report was a
recommendation that Mr. Roe be terminated for cause for the following
reasons:

Recommendation

·

Greg has relatively short tenure with the Company (4
+
years).

·

He is in a position of authority as a Terminal Manager and held
to the highest standard.

·

His actions were premeditated not once but twice.

·

He knew his actions were wrong and clearly understood the use of
the vouchers.

·

He used the old vouchers that he knew would not require tracking
back to revenue.

·

He has stolen from the Company and breached the trust of the
Company.

[25]

Mr. Roe deposed that he was not thinking clearly during the
Fact-Finding Meeting. He said that he was unrepresented, under duress, and
found the meeting to be difficult and stressful. He said that he had not been
advised of the gravity of the Fact-Finding Meeting or that his job might be in
jeopardy. He claimed that Ms. Joubarne, Ms. Finnie and Ms. Lucia
were aggressively attacking him. In response, Ms. Lucia deposed that the
Fact-Finding Meeting was conducted in a professional, respectful and calm
manner at all times.

C.
The Legal Framework

[26]

In
McKinley v. BC Tel,
2001 SCC 38 at para. 49, the Court
set out a two-part test for determining whether an employer is justified in
dismissing an employee on the grounds of dishonesty. The court must determine: (i) whether
the evidence establishes the employees deceitful (dishonest) conduct on a
balance of probabilities; and (ii) if so, whether the nature and degree of
the dishonesty warrant the employees dismissal. Both parts of the test involve
factual inquiries (paras. 48-49). Absent palpable and overriding error, it
is common ground that an appellate court may not interfere with a trial judges
findings of fact.

[27]

In particular, the test requires an assessment of whether the employees
misconduct gave rise to a breakdown in the employment relationship justifying
dismissal, or whether the misconduct could be reconciled with sustaining the
employment relationship by imposing a more proportionate disciplinary
response (paras. 48, 53 and 57). A contextual approach governs the
assessment of the alleged misconduct at this stage of the test (para. 51).
That assessment includes a consideration of the nature and seriousness of the
dishonesty, the surrounding circumstances in which the dishonest conduct
occurred, the nature of the particular employment contract, and the position of
the employee (paras. 48-57). The ultimate question to be decided is
whether the employees misconduct was such that the employment relationship
could no longer viably subsist (para. 29).

[28]

Mr. Justice Iacobucci, writing for the Court in
McKinley,
summarized
the contextual approach to the assessment of whether the employees dishonesty gives
rise to a breakdown of the employment relationship as follows:

[48]       I am of the view that whether an employer is
justified in dismissing an employee on the grounds of dishonesty is a question
that requires an assessment of the context of the alleged misconduct. More
specifically, the test is whether the employees dishonesty gave rise to a
breakdown in the employment relationship.
This test can be expressed in
different ways. One could say, 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 employees obligations to his
or her employer
.



[51]       I conclude that a contextual approach to
assessing whether an employees dishonesty provides just cause for dismissal
emerges from the case law on point. In certain contexts, applying this approach
might lead to a strict outcome. Where theft, misappropriation or serious fraud
is found, the decisions considered here establish that cause for termination
exists. This is consistent with this Courts reasoning in
Lake Ontario
Portland Cement Co. v. Groner
, [1961] S.C.R. 553, where this Court found
that cause for dismissal on the basis of dishonesty exists where an employee
acts
fraudulently
with respect to his employer.
This principle
necessarily rests on an examination of the nature and circumstances of the
misconduct. Absent such an analysis, it would be impossible for a court to
conclude that the dishonesty was severely fraudulent in nature and thus, that
it sufficed to justify dismissal without notice
.

[Italic emphasis original;
underline emphasis added.]

D.
The Judgment

[29]

The trial judge made no findings of fact regarding: (i) the nature
or the seriousness of the alleged misconduct in the context of Mr. Roes
position as a terminal manager and his employment contract; (ii) the
conflict in the evidence regarding the policy and procedure with respect to the
Employers Customer Recovery Plan; and (iii) the manner in which the Fact-Finding
Meeting obtained the admissions from Mr. Roe that led to the
recommendation that he be dismissed for cause. Rather, the judge adopted the
following approach:

[7]        I assume for the
purpose of this analysis that the defendant is able to prove its allegations of
a knowing breach of company policy and misuse of company property, and
I
assume for the purpose of this analysis that where there is a conflict in the
evidence, the defendants [the Employers] version is true.
In saying this,
I want it to be clearly understood that these are assumptions made
arguendo
and
they are not findings of the court. [Emphasis added.]

[30]

Based on these factual assumptions, the judge concluded:

[8]        Does the nature and
degree of dishonesty alleged by the defendant warrant summary dismissal? I
conclude that it does not. In coming to this conclusion, I accept the
defendants submissions that Mr. Roe held a position of considerable
responsibility and trust. He was one of three persons sharing the most senior
management position on site at the terminal, responsible for overseeing and
supervising employees at that location. His responsibilities included ensuring
that all cash at the terminal was properly accounted for. If he knowingly
breached company policy in giving out these vouchers, Mr. Roe made a
significant mistake, a mistake to some extent magnified by the fact that his
daughter was one of the beneficiaries of the voucher distribution.

[31]

The judge then addressed whether the nature and seriousness of Mr. Roes
assumed dishonest actions were reconcilable with a continued employment
relationship:

[9]         I am not persuaded by the defendants
submissions that the conduct is, as counsel for the defendant put it in oral
argument, terrifically serious. In fact, I would place this conduct at the
lower end of [the] spectrum. While not a determinative consideration, the
amount involved is trifling, and there was not a great amount of prestige or
other non-monetary personal gain to be achieved for the plaintiff by the
voucher distribution. This was in no sense a nefarious scheme, and the
defendant does not suggest that it was  Mr. Roe took no steps to attempt to
deceive or cover his tracks.

[10]      In short, as to the
nature of the dishonesty, this is not a case of deception. As to seriousness,
the extent of the gain is very slight, bordering on trifling, although I accept
that the plaintiffs position as a terminal manager, and the corresponding
obligation to lead by example, is an aggravating factor.

[32]

Applying an objective standard to the issue of whether Mr. Roes
dishonesty led to an irreconcilable breakdown of the employment relationship,
the judge concluded that the employment relationship could be sustained by a
lesser sanction than dismissal:

[11]      I reject the contention
that the alleged behaviour was not reconcilable with a continuation of the
employment relationship. Disciplinary measures short of dismissal would have
been proportionate to the alleged conduct. Any knowing breach of policy or
misuse of company property by an employee in a position of considerable
responsibility is to some extent a breach of the trust that an employer reposes
in that employee. But when this apparently otherwise reliable employee
allegedly strayed from the path in what I have found is a relatively minor way,
the defendant has not demonstrated to me, on a balance of probabilities, the
soundness of its contention that this employee cannot thereafter be trusted to
carry out his duties.

E.
Discussion

[33]

Critical to the determination of this appeal is the judges assumption
of Mr. Roes account of what occurred, which included his admissions at the
Fact-Finding Meeting. This assumption of facts established the first part of
the
McKinley
test; it also formed the basis for the judges analysis of
the second part of the test.

[34]

The assumed facts include the following: (i) Mr. Roe held a position
of trust as a senior manager at the terminal site; (ii) his
responsibilities included the handling and reconciliation of large amounts of
cash; (iii) he acted as a role model and mentor to the other staff at the
terminal; (iv) the standards of integrity and honesty, included in the
Code, were essential conditions of Mr. Roes employment and had been
clearly set out by the Employer in Mr. Roes employment contract; (v) Mr. Roe
knew that his conduct with respect to the vouchers was contrary to the Customer
Recovery Plan; (vi) Mr. Roe knowingly did not seek authorization for
his donations of the complimentary vouchers or notify anyone of his actions after
the fact; (vii) these acts of dishonesty and misappropriation of the
Employers property were premeditated and therefore constituted deceptive
behaviour; (viii) Mr. Roe had engaged in similar acts on at least one
prior occasion; and (ix) Mr. Roes actions were in breach of the Code,
of the trust reposed in him as a senior employee in a management position, and
were unethical.

[35]

On appeal, the central issue was whether Mr. Roes assumed conduct,
objectively viewed by a reasonable employer, in all of the circumstances (including
the nature of the workplace, the nature of Mr. Roes position and
responsibilities, and the standards set by the Employer in Mr. Roes
employment contract), could be found to be bordering on trifling or
relatively minor, and therefore not rising to the level of undermining the
obligations of good faith that are inherent in and essential to the employment
relationship.

[36]

The judge appears to have based his characterization of Mr. Roes
conduct on the trifling monetary value of the donated vouchers, the lack of a
personal benefit to Mr. Roe, and Mr. Roes lack of steps to attempt
to deceive or cover his tracks. With respect, I cannot agree. The value of
the donations, as acknowledged by the judge, was of little consequence. Mr. Roe
did receive a personal benefit by appropriating the vouchers for his own
purpose (to gift the vouchers to his daughters volleyball team). That purpose
was a personal one and unrelated to the Customer Recovery Plan or the business
of his Employer. Mr. Roes failure to obtain prior approval, or to even report
what he had done, was also an act of deception in that he chose to conceal his
actions. Those actions only became known when someone observed a member of the
volleyball team attempting to redeem one of the vouchers. Mr. Roe did, however,
admit at the Fact-Finding Meeting that he understood he had overstepped his
authority and breached the trust of the Employer. This admission was significant
given that Mr. Roe was responsible for the handling and reconciliation of large
amounts of cash.

[37]

In reaching his finding that Mr. Roes actions were bordering on
trifling, the judge does not appear to have applied the contextual approach,
mandated by
McKinley
,

in assessing whether Mr. Roes
misconduct irreconcilably undermined the good faith obligations inherent in the
employment relationship (paras. 8-11 of his reasons). That approach, in my
view, would have required consideration of: (i) the high standard of
conduct expected of Mr. Roe given the responsibilities and trust attached
to his senior management position; (ii) the essential conditions (characterized
as core values) of integrity and honesty in his employment contract,
including the requirement in the Code to act in an honest and ethical manner
at
all times
 (emphasis added); and (iii) his deliberate concealment of
his actions which he later acknowledged to have been wrong and unethical. It
was in this context the judge had to consider whether Mr. Roes assumed
misconduct justified his dismissal. In my respectful view, it was the judges
failure to apply this contextual approach that appears to have led him to
commit a palpable and overriding error.

F.
Summary and Disposition

[38]

In my view, the judge erred in his characterization of the misconduct he
assumed occurred for the purposes of his analysis and for which Mr. Roe
was dismissed for cause. His findings, which minimized the assumed misconduct,
appear to have occurred in large part because of a failure to consider that
misconduct in the context of Mr. Roes employment contract, the
responsibilities and trust attached to his senior management position, and the policy
and procedures he was required to follow in the distribution of complimentary
vouchers. The judges failure to apply the contextual approach mandated by
McKinley
resulted in palpable and overriding error.

[39]

As the

factual underpinning of the
judges analysis was assumed and not determined, this Court cannot weigh the
evidence, much of which is in conflict, in order to make the necessary findings
on: (i) the nature of the alleged misconduct; and (ii) whether it
justified Mr. Roes dismissal. Accordingly, I would allow the appeal, set
aside the judgment, and remit the matter to the trial court for a new trial.

The
Honourable Madam Justice D. Smith

I AGREE:

The Honourable Mr. Justice
Tysoe

I AGREE:

The Honourable Madam Justice
Bennett


