After discharging someone, a company will sometimes learn things
about the former employee's performance that might amount to
"just cause" to terminate. A 2014 case from the British
Columbia Court of Appeal addresses when such after-acquired cause
may be available to defend a termination decision.
Kirk Van den Boogaard was a Project Manager for Vancouver Pile
Driving Ltd., a large marine general contractor in Vancouver for
the 14-month period between Dec. 11, 2011 and Feb. 13, 2013. He had
been working on a major construction project for Chevron on
Vancouver Island when his employment was terminated, originally
without cause, upon the provision of four weeks' salary in lieu
After the termination of employment, the employer discovered a
number of business irregularities, the most serious of which
involved Mr. Van den Boogaard attempting through text messages to
procure illegal drugs (primarily Dexadrine and Clonezapam) from a
subordinate employee under his supervision and control.
When the wrongful dismissal action commenced the evidence
established that the Plaintiff occupied a fairly senior management
role and that his duties included the supervision of safety in a
high risk, safety-sensitive, heavily regulated industry. The
Plaintiff was in fact responsible for enforcement of the
employer's drug-prohibition policies.
Both the trial judge and the BC Court of Appeal assessed the
conduct "contextually" as required by the Supreme Court
of Canada decision in McKinley v. B.C. Tel, 2001, SCC 38.
At both levels it was held that the conduct of the Plaintiff
amounted to "misconduct that goes to the root of the
employment..." rendering the Plaintiff's position with the
One of the more interesting aspects of this case derived from
the fact that the Plaintiff's texts were discovered post
termination when he returned his company cell phone.
The BC Court of Appeal confirmed that employers may indeed rely
upon after-acquired cause to subsequently assert just cause for
summary dismissal in certain circumstances.
The court relied upon the 1961 Supreme Court of Canada decision
in Lake Ontario Portland Cement Co. v. Groner,  SCR
553 for the proposition:
"The fact that the Appellant did not know of the
Respondent's dishonest conduct at the time when he was
dismissed, and that it was first pleaded by way of an amendment to
its defence at the trial does not, in my opinion, detract from its
viability as a ground for dispensing with his services."
The employer must still establish that at the time of dismissal
there existed facts sufficient in law to warrant such
Note however, the requirement that the after-acquired cause must
actually be "after-acquired". The BC Court of
Appeal in Van den Boogaard v. Vancouver Pile Driving Ltd.,
2014 BCCA 168 stated at paragraph 34:
"If an employer knew of the misconduct and had expressly or
implicitly condoned it, then claims of after-acquired cause will be
This is consistent with the 2011 decision of the New Brunswick
Court of Appeal in Doucet v. Speilo Manufacturing Inc.,
2011 NBCA 44 at para. 87 in which the court made it clear that the
employer must not have known of the misconduct at the time of the
The resulting caveat is that employers who wish to avail
themselves of a just cause defence and sit quietly on existing
evidence of misconduct do so at their own peril.
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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