In AG Growth International Inc v Dupont ( 2021 ABQB) Justice Little, sitting on appeal from a decision of the Provincial Court found that the trial judge had made a error of law when he failed to begin his analysis of the actions of the Plaintiff by starting with the premise that a sexual assault is automatically at the high end misconduct.
This is a brief summary of the incident:
a) before January 9 RT ( a female coworker) 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 Tshirt, exposing the area of her body extending from her bellybutton 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;
This what the Court said about the correct way to start the analysis in a case of this nature :
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’s response 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 the purpose of flirting with RT in order to pursue a romantic relationship with her. Upon realizing that his advances were not welcome he did not 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 to at 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.
…
[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.
My Comments :
Presumably the analysis should have been as follows
1) Did the conduct amount to sexual assault ?
2) If yes, then this is serious misconduct .
3) Are there any mitigating factors which would indicate that termination for just cause was a disproportionate response ?
If you would like a copy of this case email me at barry@barryfisher.ca