Monday, September 23, 2013

Court of Appeal: Drunk Driving can Amount to Just Cause

Question for consideration:  An employee takes an employer's vehicle to a customer meeting without appropriate approvals, stops for lunch on the way back, where he drinks four beers, and then wrecks the car on the way home, seriously injuring himself and earning impaired driving charges.

Is this just cause for dismissal?

These are the facts of the Dziecielski v. Lighting Dimensions Inc. case.  The trial decision, released March 2012, is here.

When an employer pleads just cause, it has a high burden to prove not only the misconduct itself, but also that the misconduct was sufficiently severe to warrant summary dismissal.  It's a test that's relatively seldom successful, but that's partly because of self-selection of 'clearest cases' - an employee who has been caught and fired after embezzling large amounts of money, for example, will be understandably reluctant to pay a lawyer to seek damages for wrongful dismissal knowing that his employer can prove his criminal misconduct.  However, the just cause analysis is deeply contextual, so there are no bright line rules:  As a classic example, there was a case of a civilian employee in a police station stealing from the vending machines...and, under the circumstances, this was found not to be just cause.

This case seems, at a glance, to be a fairly clear case.

To be fair, though, let's drop the 'taking the vehicle without permission' aspect for a moment, because those facts aren't altogether developed.  It appears that, while he was generally supposed to use his own vehicle, he did have use of the truck in his employment duties.  So while he was 'supposed to' seek permission, it's not at all surprising that a long-service employee in a high-responsibility role would take permission for granted.  (And I would wager that, if the facts were fleshed out in more detail, this probably was far from the first time he had done so, building towards a 'condonation' argument.)  The bottom line is that he was using a company vehicle for legitimate company purposes.

The real problem is the impaired driving.  And it's a big one.

The trial judge captured the severity succinctly:
Increasingly, drunk driving is considered now within society at large be a very serious criminal offence which attracts significant minimum sentences.  Drunk driving is potentially lethal conduct and in this case the employee is extremely lucky to have survived and to not have injured or killed others travelling on the public highway.  To reiterate, the misconduct here is not just intoxication while working, but rather drunk driving on a public highway with the employer’s vehicle. 
How Drunk is Drunk?

I would prefer to lean away from the word 'drunk'.  The word 'drunk' tends to evoke a perception of being passed a certain threshold of intoxication, on a scale of "Sober-Buzzed-Drunk".  It's pretty subjective, so when the employee testified that he wasn't "drunk", I believe that he probably didn't feel like he was passed his own perception of the threshold (not that I think that particularly matters), and unlike the trial judge I don't think that's inconsistent with his prior guilty plea to "over 80".

I prefer the word "impaired" - though I acknowledge that it's tricky for the opposite reason:  Alcohol in any quantity has an impairing effect.  Therefore, if you take the language too literally, you'd say that anyone with a blood alcohol concentration higher than zero is impaired.

I'm also idly curious as to what "four beers" means - bottles or draft?  A 'standard drink' is a fixed volume of alcohol, defined in Canada as a drink containing 17.05 ml of alcohol - so, approximately a 341ml bottle of 5% alcohol beer, 142ml of 12% alcohol wine, or 43ml of 40% alcohol spirits.

So if you have four 341ml bottles of beer with a 5% alcohol concentration, you've had four standard drinks.  By contrast, an 18oz glass of beer contains more than 1.5 standard drinks, meaning that four of those means you've had over six drinks.  There are stronger beers, too, including beers with up to 8% alcohol.

Let's suppose that the plaintiff here weighs somewhere around 200 lbs.  We know that he took one hour for lunch, meaning that he was on the road again about an hour after he started drinking.  With four standard drinks, that would have given him a BAC of about 0.07, pushing pretty close to 'criminal charge' range, and well within the range for administrative suspensions under Ontario's Highway Traffic Act.  If we're talking about 6 drinks, his BAC would have been around 0.11, well over the legal limit for driving.  Either way, that's a pretty significant amount of alcohol, with a significant impairing effect, and almost certainly a causative factor in his losing control of the vehicle.  (There was no discussion in the case relating to weather or traffic conditions, but it sounds like it was a single-vehicle collision, and the time of year was unlikely to have snow.)

Peripherally, I note that his criminal conviction appears to be "over 80", which would indicate a BAC higher than 0.07 ("80" is equivalent to 0.08 - it's just different units of measurement), but alcohol absorption varies by individual, and especially so if he's a bit smaller.  It wouldn't be inconceivable that he would reach 0.08 with only four standard drinks.

Just Cause

Just cause is a very difficult and contextual analysis at times.  In many jobs, having a beer at lunch isn't a big concern.  In a firm I used to work with, I used to routinely go out to lunch with the firm's partners and have a pint or a glass of wine.  Nothing inherently wrong with it.  Employers with employees performing safety-sensitive tasks will often have zero tolerance policies.  The employer in this case had a policy expressing that consuming alcohol while on the job is a violation of a "Major" rule.  That being the case, it still wouldn't likely constitute just cause in certain cases (i.e. if a person in a non-safety-sensitive role consumed a single drink at lunch, it may be disciplinary, but not sufficient to justify summary dismissal).

However, an employee drinking, and particularly drinking a significant amount, before engaging in a safety-sensitive task on behalf of the employer (including driving the employer's vehicle) will be far more severe.

Incidentally, the employee did not remember seeing the policy, but he signed and acknowledged having received and read it when it was released, some 9 years prior.  The employee argued that there was no consideration for having signed the policy handbook, but that argument kind of misses the point:  Lack of consideration will invalidate a contract, but a 'zero tolerance for alcohol' policy will not ordinarily need to be part of a contract or contract amendment.  An employer has significant latitude to direct its employees in what they can and can't do, particularly while on the clock, and this would generally fall within employer discretion.  An employer doesn't need an employee to agree to do what he's told:  The fact that the employer directed the employee not to drink on the job is enough, and the employee signature is a way of acknowledging having been so directed.

Food for Thought

My view is that this is a pretty clear case for just cause.  His defence that he wasn't really drunk just doesn't hold water under the circumstances.  The trial judge's analysis was very good, and this isn't surprising:  This particular judge has a very significant expertise in workplace law.

But imagine a few slightly-different scenarios:  What if it were not the employer's vehicle?  He's coming back from a customer meeting, so technically he's on the clock, but does the employer have as meaningful an interest in his sobriety when it loses only his paid time by him getting in an accident?

What if it were only one drink?  Would it be fair then to say that he knew or ought reasonably to have known that getting back on the road after only the one drink fundamentally breached his employment obligations, because of a policy that he'd acknowledged nine years earlier?

What if there hadn't been a collision?  If he'd been stopped at a ride check and charged on that basis?  Would that change the severity of the misconduct?

The Court of Appeal

The trial judge dismissed the employee's claim, and the employee appealed, and the decision was released recently.

It's a short endorsement, rightly dismissing the appeal, but again includes the phrase that the "determination of just cause is essentially factual".

I've taken issue with this before, and I acknowledge that I may have overstated the case against that interpretation:  One might reasonably interpret the decision in McKinley v. B.C. Tel from the Supreme Court as saying basically that, albeit in a different context.

But it has certainly not been universally applied that way.  Various courts from various jurisdictions have characterized 'just cause' as being a question of 'mixed fact and law'.  See the Ontario Divisional Court's decision in Beard v. Suite Collections Canada Inc., the British Columbia Supreme Court's decision in Goodkey v. Dynamic Concrete Plumbing Inc., the Nova Scotia Court of Appeal's decision in Myra v. Nova Scotia, and the Federal Court of Appeal's decision in Thomas v. Canada.  (Some of these deal with administrative law principles, which states the resulting standard of review somewhat differently, but the question is fundamentally the same.)

And, more to the point, the characterization simply doesn't make sense.

Consider this passage from the Supreme Court's decision in Housen v. Nikolaisen, which is the leading decision on 'standard of review' and post-dates the McKinley v. B.C. Tel decision:
At the outset, it is important to distinguish questions of mixed fact and law from factual findings (whether direct findings or inferences).  Questions of mixed fact and law involve applying a legal standard to a set of facts: Canada (Director of Investigation and Research) v. Southam Inc.1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.  On the other hand, factual findings or inferences require making a conclusion of fact based on a set of facts.  Both mixed fact and law and fact findings often involve drawing inferences; the difference lies in whether the inference drawn is legal or factual.  Because of this similarity, the two types of questions are sometimes confounded.
Just cause is a complex question.  It entails significant factual analysis to determine whether or not the alleged misconduct occurred, and a detailed analysis of the broader context within which it occurred.  But 'just cause', strictly speaking, is a legal standard, and determining whether or not the facts as found rise to the legal threshold of just cause is a legal analysis.  Making it a question of mixed fact and law.

But don't take my word for it.  Let's take it back to the first principles:  Employment law is a niche area of contract law, and the notion of 'just cause' is built upon the notion of 'fundamental breach'.  If two parties enter into a complicated contract with a number of terms, it is not necessarily the case that a breach by one party will relieve the other party of his or her obligations under the contract:  Only when the breach is said to deprive the innocent party of substantially the whole benefit he or she was to receive under the contract is the innocent party entitled to treat the contract as at an end.  The breach had to go to the root of the contract, rendering its performance different in substance from that for which the parties contracted.  Another formulation was that it evidenced the breaching party's intention to no longer be bound by the terms of the contract.

This is the theoretical foundation of just cause, and even today many courts and tribunals use the language of 'fundamental breach' to describe just cause, though it isn't beyond question whether or not the concepts remain synonymous - in 2004, the New Brunswick Court of Appeal found that the concept of fundamental breach does not coincide with the Supreme Court's contextual approach to just cause.  (I have my doubts about this, but that's a battle for another day.  Suffice it to say that the current Supreme Court has made significant strides to streamlining employment law with contract law in general, and I appreciate this approach:  I see the employment contract as being simply a type of contract that has some distinct features.)

The jurisprudence is one-sided, at least, that fundamental breach is a question of mixed fact and law, for exactly the same reasons that I am arguing that just cause is as well.

Why Does This Matter?

The test for appellate review of questions of fact versus questions of mixed fact and law is similar:  In either case, it requires a 'palpable and overriding error' in order for an appellate court to intervene.

However, a factual finding calls for more deference than a finding of mixed fact and law.  For a strict finding of fact, the question essentially turns on whether or not the judge properly understood the evidence, and reached a conclusion capable of being supported by the evidence.  So if the trial judge finds "Joe testified x, and I found him to be very credible, so I conclude that x is true", then that finding of fact will be unassailable unless a review of the record shows that, in fact, Joe never said x.

A question of mixed fact and law, by contrast, can be attacked on the basis that the applicable legal standard was not properly applied.  There is a significant standard of deference, still, but not insurmountable.  Before the Ontario Court of Appeal began to regard just cause as a question of fact, it routinely reversed trial decisions, because it could look at the overall circumstances of the case - the facts as found by the trial judge - and determine whether or not the trial judge was clearly wrong in how it applied the legal standard of just cause.

Relevance to the Case

I've clearly indicated my belief that the result is right in this case:  This guy's conduct, on the facts, is just cause.

And likewise, the Court of Appeal seems to agree.  They decided the case on the basis of deference, but even in the short endorsement they indicate a broader agreement with the trial decision:  "We see no error, let alone a palpable and overriding error".

(Though, incidentally, I think that there's more going on underneath the facts as found.  Stopping for lunch on your way back from a customer meeting generally means that you're on your own, and drinking four beers during a one-hour lunch solo...seems really excessive.  There's also a remark in the trial judgment that the guy had a previous license suspension.  Then you take his evidence that he wasn't drunk...with a BAC of 0.07 to 0.11, anyone's going to feel at least buzzed, unless they have a really high tolerance for alcohol which is characteristic of alcohol abusers.)


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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