Case: Thomas v Saskatchewan Indian Gaming Authority Inc., 2021 SKCA 164 (CanLII)
Keywords: employment; just cause termination
The Appellant, Ian Thomas, works for Saskatchewan Indian Gaming Authority Inc. (“SIGA”) for more than eight years. The Appellant meets with SIGA’s director of procurement to inquire about whether a decision has been made about a position he applied for, after he was short-listed with two other candidates. When the director informs the Appellant that the position has been awarded to another candidate, the Appellant:
- “became angry and aggressive”;
- “accused [the director] of being a racist who did not support the advancement of Indigenous men”;
- “said words to the effect that he would have had a better chance of being promoted if he had ‘cut his own balls off’”; and
- described explanations for the promotion of the other candidate as “bullshit”. (See para. 7).
As a consequence of this encounter, the director “was quite shaken up” and fears the Appellant will “come to his home”. (See para. 7).
SIGA’s Employee Relations Department investigates the matter, placing the Appellant on leave and instructing him not to communicate with other employees pending the conclusion of the investigation. The Appellant does not comply with these instructions. (See para. 8).
Shortly thereafter, the Appellant is advised that his employment would be terminated, with cause. The letter advising the Appellant of this decision is co-written by the director. (See para. 9). SIGA’s position is that the Appellant’s conduct breached multiple employment policies, breached the common law duty of confidentiality and good faith, and constituted “harassment and insubordination towards a supervisor”. (See para. 14).
The Appellant sues for wrongful dismissal, seeking pay in lieu of an appropriate notice period, and aggravated damages. The Court of Queen’s Bench dismisses the Appellant’s claim, finding SIGA has just cause; that it did not act unfairly or in bad faith. The Court of Appeal dismisses the appeal.
This case is important because the Court of Appeal set out the governing legal principles applicable to a dismissal for cause. For the Court of Appeal, the key question to be addressed in such cases is “whether, in the circumstances, the behaviour of the employee was such that the employment relationship could no longer viably exist”. (See para. 21; citing McKinley v BC Tel, 2001 SCC 38 at para. 29).
At para. 21, the Court of Appeal reproduced Gillese J.A.’s summary of the principles emerging from McKinley as follows:
 Following McKinley, it can be seen that the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional — dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship. This is a factual inquiry to be determined by a contextual examination of the nature and circumstances of the misconduct.
 Application of the standard consists of:
- determining the nature and extent of the misconduct;
- considering the surrounding circumstances; and,
- deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).
For the Court of Appeal, the determination as to whether misconduct amounts to just cause for dismissal is a question of mixed fact and law, reviewed on the palpable and overriding error standard (unless there is an extricable legal error or error of principle in the underlying decision). (See para. 22; citing Lau v Royal Bank of Canada, 2017 BCCA 253 at para. 35; Steel v Coast Capital Savings Credit Union, 2015 BCCA 127 at para. 31; and Housen v Nikolaisen, 2002 SCC 33 at paras. 36-37).
With respect to the Appellant’s argument that his conduct did not meet the definition of “insubordination” because it was not an “intentional refusal to obey an employer’s lawful and reasonable orders”, the Court of Appeal determined that “the particular label attached to the category of misconduct does not govern the determination.” Rather, a court must determine whether “the degree of the misconduct that is said to justify dismissal…is of such a nature as to destroy the employment relationship.” (See para. 25).
The Court of Appeal considered the Appellant’s argument that the Trial Judge had “effectively punished him for complaining to his supervisors about what he perceived as discriminatory treatment”. (See paras. 31-32). For the Court of Appeal, it was the manner in which the Appellant complained, and not the subject matter of his complaint that supported a finding of just cause. The Court of Appeal rejected the argument that the Trial Judge’s decision would have a chilling effect on employees raising legitimate concerns about discrimination in the workplace. (See para. 32).
In this case, the Court of Appeal found no error in the Trial Judge’s conclusion that there was just cause in these circumstances. (See paras. 26, 29, 32, 35, 42, and 43). Since there was no basis to interfere with the Trial Judge’s conclusions regarding just cause, the Court of Appeal did not make a determination regarding aggravated damages.
Counsel for the Appellant: Davin Burlingham (Burlingham Cuelenaere Law Office, Saskatoon)
Counsel for the Respondent: Robert Frost-Hinz (MLT Aikins LLP, Saskatoon)