On May 11, 2021, I wrote a summary on Dupont v Ag Growth International Inc. (AGI-Westeel), 2021 ABPC 118, a decision wherein the court found no just cause for the dismissal of an employee who had engaged in a single act of sexual harassment.
The trial judge had found that it was a “brief and isolated incident of unwanted touching… for the purpose of flirting”, and on the low end of the spectrum of seriousness for sexual harassment. My summary of that first case can be found at the following link: https://bowriveremploymentlaw.com/sexual-harassment-and-just-cause-the-dupont-case/
That decision was appealed to the Court of Queen’s Bench and very recently overturned by Justice J. S. Little (2021 ABQB 663), and this is a summary of that appeal.
Analysis / Conclusion
The Court of Queen’s Bench overturned the decision because of the trial judge’s conclusion that this single incident was at the low end of the spectrum of seriousness for sexual harassment. Justice Little did not actually state that a just cause dismissal was warranted on these facts, but found that the trial judge’s analysis should have started with a finding that this unwanted touching for a sexual purpose was sexual assault, and therefore serious misconduct at the high end of the spectrum:
[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” […]
[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 […] [underline added]
[…]
[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.
My Take
In my summary of the original case, I noted that “physical touching is usually considered at the more severe end of the spectrum” and “this case could have gone either way”.
I would not have been surprised if the appeal succeeded or failed on this one. I was surprised to see that the Court of Queen’s bench elected to overturn the Provincial Court decision without analyzing whether there would have been just cause had the trial judge began the analysis on the correct footing, but that is what happened.
Here is a link to this case: https://www.canlii.org/en/ab/abqb/doc/2021/2021abqb663/2021abqb663.html?resultIndex=1
