Shalagin v. Mercer Celgar Limited Partnership, 2023 BCCA 373
Mitha Law Group’s Nazeer Mitha, KC and Graeme Hooper obtained a win from the BC Court of Appeal, in a case in which the Court upheld a trial decision that an employer had just cause for dismissing an employee who engaged in a decade of making surreptitious recordings at work. This case emphasizes the importance of trust in the employer-employee relationship.
By way of background, on March 25, 2020, Mercer Celgar Limited Partnership (“Celgar”) terminated one of its employees, Roman Shalagin, on a without cause basis. Mr. Shalagin commenced a suit for wrongful dismissal, and during the proceeding, the employer learned that Mr. Shalagin had engaged in surreptitious recordings at work. Celgar amended its response to the civil claim to allege, among other things, that the surreptitious recordings at work constituted “after-acquired” just cause for termination.
At trial of the wrongful dismissal case, the trial judge in reasons indexed as 2022 BCSC 112 accepted that the recordings constituted grounds for just cause, and dismissed Mr. Shalagin’s wrongful dismissal claim. Mr. Shalagin appealed. In his appeal, Mr. Shalagin argued in part that his recordings were justified as he was concerned about potential discrimination in the workplace, and that the trial judge had erred in finding there was no evidence of that discrimination. In response, Celgar argued that the recordings were not actually connected to any discrimination and instead were being made for Mr. Shalagin’s personal purposes.
The Court of Appeal dismissed Mr. Shalagin’s appeal, agreeing with Celgar’s submissions that Mr. Shalagin had failed to show that the recordings were “rationally connected” to his concern for discrimination. Justice Newbury, writing for the Court, applied the contextual approach to determining if just cause was present as set out by the Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38. Justice Newbury explained that the fact that Mr. Shalagin had made the recordings demonstrated a breach of trust central to the employment relationship:
[42] … the recording activity was underhanded and would be regarded by most employers as misconduct undermining the trust relationship between employer and employee. It also violated the privacy interests of persons who were recorded, as well as those who were discussed in the recordings. In any event, it is my view that McKinley applies to this case, requiring a “contextual approach” and a determination of whether the nature and degree of the dishonesty warranted dismissal — a factual question. (McKinley at para. 49.) As part of this contextual approach, the court should bear in mind the “sense of identity and self‑worth individuals frequently derive from their employment”. It should strike an effective balance between terminating that sense of identity and self‑worth with the severity of the employee’s misconduct. (At para. 53.)
The case is notable given the increasing presence of electronic devices, capable of making recordings, in the workplace. However, like any case on just cause, the case must be understood on its particular facts, and does not mean that every instance of surreptitious recording will constitute just cause for dismissal.