Previously, we posted here on the case of the CIBC employee who had been dismissed for using her personal account to complete a wire transfer for a client in Ogden v CIBC. The initial trial decided only that Ms. Ogden had been wrongfully dismissed and the heads of damages. The trial judge found that CIBC had conducted a flawed investigation of Ms. Ogden’s conduct and there was a lack of clarity, training and consistency in its policies and procedures.

In a decision handed down April 27, 2015, the BC Court of Appeal ordered a new trial. In particular, the court found that the trial judge had misapprehended the evidence and CIBC’s legal arguments, such that the trial judge’s overall conclusion could not stand.

The trial judge had adopted some 482 paragraphs, “almost word for word” from Ms. Ogden’s closing submissions as part of his 497 paragraph judgment. In light its conclusions on substantive issues with the trial judge’s decision, the court of appeal did not have to decide whether this had given rise to any procedural unfairness in the hearing.

However, with respect to substantive issues, the court found that the trial judge had misunderstood CIBC’s argument on just cause. The trial judge understood CIBC to have made an argument for cumulative cause, in that “two or more wrongs are worse than one”. In part, he found that CIBC could not succeed on this argument because Ms. Ogden had been given a final warning for other misconduct only after she had committed the wire transfer misconduct – CIBC could not consider this in breach of the final warning if Ms. Ogden did it before being warned.

This was a fundamental error. CIBC did not argue cumulative cause, but rather, relying on the Supreme Court of Canada’s decision in McKinley v BC Tel, argued that the context in which Ms. Ogden committed the wire transfer misconduct – in which she had been previously warned and counselled about how seriously CIBC takes even slight violations of its policies – made the wire transfer incident that much more severe.

The court of appeal also found that the trial judge had made irreconcilable findings on aggravated and punitive damages and that he had misapprehended the evidence that the wire transfer was not a breach of CIBC’s Code of Conduct.

Though the court of appeal did not reverse the trial judge’s findings on cause, its decision affirms the importance of CIBC’s process of taking every breach of its policies seriously and responding in a measured and appropriate (and documented) fashion. The decision further highlights how, even in circumstances where an employer may not have a clear trail of cumulative instances of misconduct amounting to just cause for dismissal, the contextual history of an employee’s workplace conduct may form a crucial aspect of a court’s analysis of one particular act of misconduct said to amount to just cause.

We will be sure to report on the outcome of the new trial.