Canada: Texting About Drugs On A Company Cellphone? Probably Not A Good Idea

Last Updated: May 8 2014
Article by Alison Strachan

The British Columbia Court of Appeal recently released a decision that will be of interest to employers who find information on a former employee AFTER they have terminated without cause. In this case, after a former employee returned the company cell phone, the employer discovered a series of text messages, many occurring during work hours, relating to purchasing illegal drugs from an employee he supervised as well as other people. The following is a summary of the decision in Van den Boogaard v. Vancouver Pile Driving Ltd. 2014 BCCA 168 (CanLII).

What happened?

Mr. Van den Boogaard ("Mr. B."), a senior manager with slightly more than one years' service, sued his former employer after his "without cause" dismissal. Mr. B had been responsible for the safety of a job site in a high risk, safety-sensitive, heavily regulated industry. His core duties were workplace safety, safety training and enforcement of drug and alcohol policies. In this role he participated in creating a core value statement for the employer and created safety policies for the company. At the time of dismissal he was paid four weeks' pay in lieu of notice.

After the dismissal, Mr. B returned his company cell phone. At that time, the company discovered he was using the phone to purchase drugs, primarily, Dexedrine and clonazepam both of which are listed substances under the Controlled Drugs and Substances Act. Mr. B admitted that he used the company cell phone to acquire illegal drugs, but claimed that he would have been on breaks or off the worksite when he sent text messages.

What did Trial Judge do?

The trial judge found that the evidence amounted to cause and dismissed Mr. B's action. Mr. B appealed claiming that the trial judge failed to take a 'contextual approach' (remember the McKinley test for misconduct) and made findings that were not supported by the evidence.

What did the Court of Appeal do?

It too dismissed Mr. B's appeal and here's why.

(a) Contextual Analysis

The trial judge had said the test for cause for dismissal is:

...behaviour that, viewed in all the circumstances, is seriously incompatible with the employee's duties, conduct which goes to the root of the contract and fundamentally strikes at the employment relationship.

Mr. B argued that this was a "strict and inflexible approach". The Court of Appeal found that, although the trial judge's reasons were brief, he considered the circumstances of the misconduct: Mr. B's job description, the nature of the work, and the fact that the Mr. B admitted that he committed a criminal offence by purchasing drugs. He found that Mr. B was a manager at a dangerous job site; was supposed to set a good example for other employees; and bought drugs from a direct subordinate.

The Court of Appeal found no error in law on the part of the trial judge and that he had properly applied the contextual approach from McKinley saying that the "weight given by the trial judge to particular matters" was an exercise of his discretion.

(b) Palpable and overriding error in finding just cause?

Mr. B argued that the trial judge upheld the termination based on finding a "conflict of interest" and that this was neither pleaded nor reasonably supported by the evidence. He claimed that there was no evidence that his actions actually had an impact on workplace safety or that any misconduct occurred during working hours. The Court of Appeal distinguished the cases Mr. B relied on in his arguments saying:

[32] However, I do not think these cases stand for the broad principle Mr. Van den Boogaard urges this Court to adopt. Mr. Van den Boogaard is effectively asking this Court to overlook the gravity of his admitted actions because Vancouver Pile Driving failed to provide an affidavit expressly stating that, if it had known he was using a company phone during working hours to purchase illegal drugs from his subordinate, the company would have terminated him. Such subjective evidence is not required; the test from McKinley as to whether conduct amounts to misconduct has an objective element. As succinctly stated in Lewis v. M3 Steel (Kamloops) Ltd., 2006 BCSC 681:

[25] The test for just cause for summary dismissal is an objective one: is the misconduct something a reasonable employer could not be expected to overlook, having regard to the nature and circumstances of the employment? Can the employment relationship viably subsist? ... In other words, did the misconduct violate an essential condition of the employment contract, breach the faith inherent to the work relationship, or was it fundamentally or directly inconsistent with Mr. Lewis' obligations...

The Court of Appeal then reviewed after acquired cause cases and concluded:

[34] Regardless of whether dismissal for after-acquired cause or for cause is being argued, the issue is whether the employer can establish that, at the time of dismissal, there were facts sufficient in law to warrant a dismissal. If an employer knew of the misconduct and had expressly or implicitly condoned it, then claims of after-acquired cause will be defeated.

What does this mean to you?

This is a useful decision for employers. Conduct that is incompatible with an employee's duties and that goes to the root of the employment contract, fundamentally strikes at the employment relationship. In this case, that conduct was not discovered until after the employment was terminated on a "without cause" basis by the employer. The conduct was only discovered when the former employee returned company equipment with that information on it. Generally speaking, employees in higher level company roles (i.e., management level) will be held to a higher standard than employees in lower level roles. In this case, illegal drug transaction communications by a manager responsible for enforcing drug policies and who had participated in developing such policies was found to be conduct that was incompatible with his duties and the employer successfully established that at the time of dismissal, there were actually facts sufficient to warrant dismissal.

The decision is a good reminder for employers to not only insist on employee's returning company owned equipment at the time of termination, but to also consider reviewing information stored on that equipment to determine whether there are liabilities or risks lurking in the data. What you find might surprise you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Alison Strachan
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions