Ms. Ogden moved to Canada from China in 2000 where she obtained
her Bachelor of Commerce and Certified General Accountant, Level 2
and Certified Financial Planner designations. In 2004, she obtained
employment with CIBC as a personal banker and, in 2006, was
promoted to the position of financial adviser. Between 2006 and
2011, Ogden built an impressive portfolio of clients. She was
regarded as an exemplary employee and, at the time of her
dismissal, the value of her portfolio was over $230 million.
Ogden was dismissed following an incident involving wire
transfers: she accepted two wire transfers in the middle of the
night from third parties in China into her personal account. She
then directed that these funds be immediately transferred to
Ogden argued that the incident did not constitute just cause, as
it was a judgment call made urgently when faced with a difficult
situation; her client's real estate deal was about to collapse
if she did not take this measure. Further, Ogden did not perceive
her actions to be in violation of the Code of Conduct.
At trial, CIBC relied on cumulative cause. Specifically CIBC
argued that the prior incidents in combination with the wire
transfer incident amounted to cause.
The Court rejected this "cumulative cause" argument
because Ogden was given the final warning letter for the prior
incidents after the wire transfer incident. In the Court's
view, in order for an employer to be able to rely on a final
warning letter as part of an allegation of cumulative cause, the
alleged final warning must necessarily precede the ultimate and
final act of misconduct.
Accordingly, the Court's analysis with respect to cause
focused solely on the wire transfer incident. Given all of the
circumstances, the Court held that CIBC's decision to end
Ogden's career constituted a disproportionately severe penalty
for what the Court considered to be an error in judgment.
While CIBC's witnesses at trial focused on the
"commingling" of funds by Ogden, the Court found that
there was no clear prohibition in CIBC's Code of Conduct
against Ogden's conduct. The Court was also critical of
CIBC's lack of training with respect to the Code of Conduct and
Conflict of Interest Policy.
Because there was no clear rule, the Court assessed the unique
circumstances of the incident and considered whether Ogden's
exercise of judgment constituted such a violation of trust that the
ongoing employment relationship was rendered impossible. The Court
determined it was not. The evidence established that Ogden's
analysis of the situation at the time was made with the best of
intentions. It was an honest mistake. The Court did not agree with
CIBC that this single error of judgment was so egregious that it
went to the core of the trust relationship and justified summary
In addition to finding that Ogden was wrongfully dismissed, the
Court found that she was entitled to aggravated damages for mental
distress on account of CIBC's bad faith in the manner of
The Court was highly critical of CIBC's investigation into
the alleged misconduct and found that it forged ahead with the
decision to terminate Ogden's employment based on incomplete
and inaccurate information. Further, the Court determined that CIBC
had previously suspected that Ogden was thinking of quitting and
used the wire transfer incident as an opportunity to push out a top
performer and still retain her portfolio.
Conclusion and Take-Away
In summary, the Court found that CIBC had dismissed Ogden
without cause. CIBC was liable for compensatory damages and
aggravated damages, as well as special damages. The precise amount
of damages and costs was left to be assessed at a later date.
Although CIBC's conduct was determined to be in bad faith,
this case provides important reminders even to employers acting
with the best of intentions to:
Conduct all investigations thoroughly and completely;
Ensure codes of conduct and similar policies are clear,
unambiguous, and consistently enforced. This will be important
should the employer wish to rely on a violation of the policy to
uphold discipline or dismissal; and
Give employees clear and express warnings about performance
issues as and when they arise, and the opportunity to improve
performance after the warning is issued. This will be a
prerequisite for any claim of cumulative cause.
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.
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