Date: 20050106
Docket: T-1492-01
Citation: 2005 FC 11
BETWEEN:
WILLIAM SHEK
Applicant
and
THE BANK OF NOVA SCOTIA
Respondent
[1] Mr. William Shek (the "Applicant") has applied for judicial review of a decision dated July 25, 2001 (the "Decision"). It was made by Mr. Owen Gray (the "Adjudicator") under the Canada Labour Code, R.S. 1985, c. L-2 (the "Code"). In the Decision, the Adjudicator upheld the Bank of Nova Scotia's termination of the Applicant's employment and, in so doing, denied his request for a suspension followed by reinstatement.
[2] The Applicant was the Manager of the Bank of Nova Scotia's branch at Markham and McNicoll in Scarborough, Ontario (respectively the "Bank" and the "Branch") from 1988 until his dismissal on March 29, 1994 (the "Dismissal").
[3] The Applicant filed a complaint, pursuant to section 240 of the Code, alleging that he had been unjustly dismissed by the Bank. The Adjudicator's role, under paragraph 242(3)(a) of the Code, was to "consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon".
[4] The hearing dealing with the merits of the complaint (the "Hearing") was held over twenty-nine days during the years 1998, 1999 and 2000. The Adjudicator heard the testimony of twenty-one factual witnesses who were both Bank employees and Bank customers. They testified about events which had occurred prior to the Applicant's Dismissal. In addition, one expert witness testified about the quality of a tape recording. The last day of submissions by counsel was January 31, 2000.
THE BACKGROUND
[5] The Applicant's conduct came under scrutiny in mid-February of 1994 when a longtime Bank employee was transferred to the Branch to become its Senior Operations Officer. She reported directly to the Applicant and four full-time and four part-time employees reported to her. They included tellers, customer service representatives and clerks. Soon after her arrival, the new officer began to hear from staff members that the Applicant drank alcohol at lunch, in quantities that caused inappropriate behaviour including sexual harassment in the form of suggestive remarks. Staff members also complained that the Applicant interrupted and reprimanded them in public when they were dealing with customers.
[6] These complaints were brought to the Bank's attention and, on Tuesday, March 22, 1994, the Applicant was suspended with pay pending the completion of an investigation. The Bank's three investigators interviewed twelve staff members and, two days later on March 24, 1994, they met with the Applicant to discuss the matters raised in the staff interviews. During that meeting, the investigators concluded that the Applicant lied to them when he said that he was unaffected by three beers and could consume twelve at his home without being adversely affected.
[7] Following the meeting, the investigators prepared a written recommendation dated March 28, 1994 in which they asked that the Applicant's employment be terminated (the "Recommendation").
[8] At paragraph 28 of the Decision, the Adjudicator noted that the Recommendation was made because the investigators found that (i) the Applicant regularly made offensive comments of a sexual nature to staff; (ii) the Applicant regularly verbally harassed the staff; (iii) although he denied having a drinking problem, the Applicant drank alcohol to the extent that it had an effect [sic] on his association with staff and customers; and (iv) the Applicant was not truthful in his discussion with them on March 24, 1994. The Recommendation was accepted by the Bank and a letter of termination for cause was handed to the Applicant at the Bank's offices on March 29, 1994 (the "Dismissal Letter").
[9] However, before the meeting at which the Dismissal Letter was to be given to the Applicant, a second type of complaint was made. It was the first customer complaint and it was received by telephone on March 24. Mr. Ali, a principal of a company called Ray CPI Corporation, alleged that he had asked the Applicant for a $50,000.00 commercial line of credit, that it had been refused and that the Applicant had insisted on a secret commission in the form of a 50% investment in the company for his friends or himself and employment for his son.
[10] On March 25, Mr. Ali taped a meeting he held at his office with the Applicant. The Bank reviewed the tape before its meeting with the Applicant on March 29. During that meeting, when Bank personnel questioned the Applicant about his customer contacts the previous week, he failed to disclose the meeting at Mr. Ali's office on March 25, 1994.
[11] The Bank's officials were concerned about the Applicant's truthfulness and the propriety of his conduct with Mr. Ali but, since a decision had already been made to dismiss him based on the staff complaints, they did not pursue the Ali matter at the meeting and handed the Applicant the Dismissal Letter.
[12] A second customer complaint was subsequently received from the Lynes brothers. They were principals of a company called Optiplas Films Inc. ("Optiplas"). Several months after the Dismissal, they spoke to the Bank and alleged several improprieties. The most troublesome was the Applicant's use of his position to persuade the company to purchase items for him in the United States and then import them into Canada. He paid for the items but paid no duty, taxes or delivery charges. However, he testified before the Adjudicator that he had no idea that the items were not being declared at Canadian customs.
[13] The Lynes brothers also said that the Applicant asked them to supply the Branch with liquor for its Christmas party and asked them to lend him trucks for his personal use without charge. The Applicant responded to these allegations by saying that these items had been volunteered. There was also evidence that the Applicant had offered to invest in Optiplas.
[14] A third complaint was received from the co-owners of Interline Wholesale Hardware Distributors. They operated a hardware store near the Branch and were borrowing customers of the Bank. They testified that the Applicant took advantage of his position in that, on twenty or thirty visits to the store, he accepted items worth approximately $20.00 without charge. The Applicant, on the other hand, said that all he received were two Christmas gifts and that the allegations were false.
[15] Mr. Sekoulidis of Turm Construction and Interiors was the fourth complainant. His company manufactured and installed store fixtures and was a borrowing customer of the Branch. The Applicant ordered four or five drawer units for the Bank without establishing a price. The Applicant twice asked for invoices but the company was reluctant to invoice the Bank. The Bank never paid for the units. The Applicant also ordered and received a hi-fi cabinet for his own use without asking for a price and without attempting to make payment.
THE ADJUDICATOR'S DECISION
[16] The Decision is sixty-two pages in length. It includes a review of the evidence on the following topics (the "Evidence Review"):
(i) the staff complaints;
(ii) evidence about inappropriate conduct toward staff;
(iii) the meeting of March 24, 1994;
(iv) Desmond Ali's complaint;
(v) evidence about the Applicant's dealings with Desmond Ali;
(vi) other customer complaints.
[17] It is significant that in the Evidence Review each topic is balanced in the sense that it includes a detailed discussion of the Applicant's testimony. In broad terms, his responses to the allegations of misconduct made by the Bank's staff and customers were varied. He said that one allegation was true. He said that other allegations were partially true but were overstated. In some situations, he said that his conduct didn't appear to cause offense. Sometimes, he explained his conduct by providing a context that made it appear less offensive, sometimes he said that he had been joking and sometimes he denied that an alleged incident had occurred.
[18] Following the Evidence Review, the Decision sets out the Adjudicator's findings (the "Findings") and then finishes with a section entitled conclusion (the "Conclusion").
[19] With regard to his Conclusion, the Adjudicator said that:
· The gravamen of the misconduct as alleged and as proven was that Mr. Shek had dealings with a customer [Mr. Ali] that gave rise to a conflict of interest without having cleared the dealings with the employer when they were first contemplated. His having selectively responded to employer questions in [a] manner calculated to avoid discovery of those dealings is not a separate and distinct matter, it is both a part of the offence and an aggravating factor in determining the seriousness of the offence and the reasonableness of discharge as a response to it and the matters offered as a grounds for that action. [paragraph 197]
· An employer has an obligation to provide its employees with a workplace free from harassment. That obligation warrants an employer's treating harassment as serious misconduct with serious consequences for harassers. . . . Mr. Shek was the person responsible for carrying out the bank's obligations to the employees in his branch, by informing branch employees of the bank's harassment policy and seeing that they conformed to it. That is an aggravating factor in considering the seriousness of those aspects of his misconduct towards employees that constituted harassment. [paragraph 201]
· But during the proceedings before me Mr. Shek heard exactly what was alleged. He had weeks and months to consider his response. In response to some of the complaints that I have found to be true he offered detailed and substantially different versions, of which he claimed to have a clear recollection. Either he was being dishonest about the content of the existence of his recollection, or he has a pervasive and disabling disconnect from reality. Either view weighs against reinstatement to Mr. Shek's original or any similar job. [paragraph 203]
· I do not have to decide whether the grounds originally offered for the recommendation that Mr. Shek be dismissed by themselves constitute just cause for dismissal, because there were more grounds than those. Mr. Shek had placed himself in a conflict of interest situation through dealings with the principal of a customer of the Bank. He had not reported the dealings when they came into contemplation, as he was clearly required by the guidelines that he had repeatedly read. He was not forthright about those dealings when questioned by the Bank and, as I have found, he was not entirely forthright about the nature of those dealings in his testimony before me. [paragraph 204]
· Those breaches were aggravated by his failure to acknowledge or fully recognize the impropriety of his conduct at the time. His responses to the allegations when confronted with them left the employer little hope for reform of his conduct or restoration of its trust and confidence. [paragraph 205]
· For all these reasons, I am satisfied that the Bank's dismissing Mr. Shek when it did was not unjust. Accordingly, this complaint is dismissed. [paragraph 206]
[20] On the question of the Applicant's alcohol consumption, the Adjudicator said:
· I accept that the repeated references in the testimony [of the Bank's witnesses] to his [Mr. Shek's] stumbling and dropping files probably all relate to a single incident. The reports of slurred speech, uncharacteristic friendliness, inability to focus at the time and inability to remember afterwards were not all referable to single or isolated incident, however. Those events were periodic. They had a real and negative impact on the staff and the potential, at least, to impact negatively on customer trust and confidence. [paragraph 158]
[21] On the issue of credibility the Adjudicator concluded as follows:
· I accept the bank's evidence that when asked about his drinking Mr. Shek claimed that 3 beers over lunch did not affect him at all, and that even 12 beers would not affect him. They did not believe that he could believe such an outlandish claim, and concluded that he was being deliberately untruthful. No doubt what he said was and is untrue. He persisted in his claim, though, even with the benefit of 5 years' hindsight and after having heard all the testimony to the contrary. [paragraph 159]
· I do not accept Mr. Shek's hypothesis that Ms. Howitt was telling a lie that someone had told her to tell. There was no suggestion that any of Ms. Howitt, Ms. Mitchelson or Ms. Walker had any special grudge or other reason to fabricate their evidence. Having seen them testify and considered the likelihood that they might have been influenced by or through their continuing employment by the bank, I believe their accounts of these two incidents without reservation. Mr. Shek's claim that he recalls substantially different versions of those incidents adversely affects his general credibility. [paragraph 162]
· I do not, however, reject her evidence that on one occasion he asked if she would go home with him and on another asked her if her boyfriend used condoms. [paragraph 165]
· I also accept Ms. Raffa's version of the incident in which Mr. Shek commented on her hips, and Ms. Weber's version of the incident in which he commented on her "ass". I accept Ms. Chan's testimony that Mr. Shek once said to other staff in her presence that for two years he had wanted her to be his "girlfriend" or had been trying to be her "girlfriend". [paragraph 166]
· I accept the testimony of the staff witnesses that Mr. Shek displayed a negative, chauvinistic and inappropriate attitude toward women, that he spoke down to his subordinates, particularly Shirley Weber, that he spoke inappropriately about employees to other employees, and that he inappropriately commanded their attention when they were otherwise engaged. [paragraph 167]
· I do not accept his [Mr. Shek] varied and inconsistent explanations of his having not raised the matter [his proposed investment with a Bank customer] with the bank on March 22 or March 24 or, indeed, any time after he began the investment and employment discussions with Mr. Ali. [paragraph 177]
· I do not believe that the Lynes brothers have confused a discussion with Mr. Shek about finding investors with an offer by Mr. Shek to invest personally, nor that their claim to have received such an offer from him is a lie fabricated out of a sense of grievance over how the bank, through Mr. Shek, responded to Optiplas' financial difficulties at a later stage. I accept the evidence of the Lynes brothers that at one point Mr. Shek did offer to invest in their business. [paragraph 183]
· . . . after all the evidence Mr. Shek gave on the preliminary issue about how tightly the bank controlled and scrutinized the branch budget, and particularly its capital component, and how closely branch financial dealings had to be watched, I have great difficulty believing either that he thought Shirley could pay an invoice in his absence for an unspecified amount or that the absence of payment would not have come to his attention afterwards. [paragraph 187]
· I conclude that Mr. Shek knew when he asked for the hi-fi stand that Mr. Sekoulidis was unlikely to charge him for it. I do not believe that he had any objectively reasonable belief that the cost would be less than that of the IKEA item he claims they had discussed. [paragraph 188]
· The claim that he [Mr. Shek] would have dealt with Mr. Sekoulidis' reluctance by going off to an ATM, withdrawing $500 cash and then placing $300 of it on Mr. Sekoulidis' desk is difficult to believe. I do not believe it. [paragraph 188]
· Having seen and heard Mr. Sekoulidis testify I have no difficulty whatsoever rejecting the suggestion that he is lying out of a sense of grievance over Mr. Shek's past role in his dealings with the bank. I accept Mr. Sekoulidis' testimony that Mr. Shek asked him to make this piece of furniture without discussing price, that Mr. Sekoulidis did so without seeking payment, that the item was of substantial value, and that Mr. Shek did not pay for it or attempt to pay for it. [paragraph 189]
· I accept that Mr. Shek also asked Mr. Sekoulidis to make a gaming table. I accept Mr. Sekoulidis' testimony about Mr. Shek's rooting about for material. These matters further illustrate Mr. Shek's inclination to impose on customers. [paragraph 190]
[22] The Adjudicator found that the Applicant made comments to his female employees that constituted harassment. In this regard, he said:
· Mr. Shek did not deny having offered to perform on his pregnant secretary the examinations for which she sought leave to visit her doctor. He acknowledged having told a female employee that he would, or thought he should, spank her. [paragraph 163]
· He also spoke to two female employees about searching them, and either used the term "strip search" or left the clear implication that that is what he had in mind. These comments, and the invitation to Ms. Howitt to come home with him, all had obvious sexual connotations. I accept that Mr. Shek did not intend to actually perform a clinical examination on Ms. McGibbon, or to spank Andrea Jones or strip search Andrea Jones and Vita Raffa or take Susan Howitt home with him. These were fantasies. He was, in effect, telling female subordinates about sexual fantasies of his that involved them. [paragraph 163]
· This kind of conduct was bound to make the women to whom it was directed uncomfortable. It is the sort of conduct that must be assumed unwelcome in these circumstances unless clearly invited. Because of the power Mr. Shek had over their employment, the victims of this conduct would have been less likely to object to it than if it had come from a male co-worker. The absence of objection was not an invitation. In the circumstances, this conduct was a form of sexual harassment, even though it did not appear to have sexual intercourse as its intended objective. [paragraph 164]
· I do not, however, reject her evidence that on one occasion he asked if she would go home with him and on another asked her if her boyfriend used condoms. My assessment of the invitation to Ms. Raffa to go home with him is the same as the invitation to Ms. Howitt: that this did not have sexual intercourse as its object, but was the articulation of a sexual fantasy in the guise of a joke, and objectionable for the reasons discussed earlier. [paragraph 165]
· I also accept Ms. Raffa's version of the incident in which Mr. Shek commented on her hips, and Ms. Weber's version of the incident in which he commented on her "ass". I accept Ms. Chan's testimony that Mr. Shek once said to other staff in her presence that for two years he had wanted her to be his "girlfriend" or had been trying to be her "girlfriend". [paragraph 166]
· I accept the testimony of the staff witnesses that Mr. Shek displayed a negative, chauvinistic and inappropriate attitude toward women, that he spoke down to his subordinates, particularly Shirley Weber, that he spoke inappropriately about employees to other employees, and that he inappropriately commanded their attention when they were otherwise engaged. [paragraph 167]
[23] Regarding the complaint by Mr. Ali, the Adjudicator found that the Applicant had breached the Bank's conflict of interest guidelines in his dealings with Mr. Ali. The Adjudicator also found that the Applicant lied to the Bank's representatives on March 29, 1994, when he failed to mention his meeting with Mr. Ali on March 25, 1994. With regard to these topics the Adjudicator said:
· I find that before March 25, 1994 Mr. Shek had made an agreement with Mr. Ali that he would arrange or facilitate $50,000 in bank financing for Ray CPI by causing security for the loan to be provided. [paragraph 172]
· Mr. Shek was undertaking that security would be put up, enough security that no credit adjudicator would refuse the loan. The price for this was a 50% interest in the company and employment for his son at the same salary or draw that Mr. Ali took from the company. [paragraphs 172 and 173]
· I do not accept his [Mr. Shek] varied and inconsistent explanations of his having not raised the matter with the bank on March 22 or March 24 or, indeed, any time after he began the investment and employment discussions with Mr. Ali. [paragraph 177]
· Given what he [Mr. Shek] did say about his discussions with Mr. Ali, however, his failure to mention the meeting with Mr. Ali at his premises could only have been a deliberate attempt to avoid prompting any questions that might have expressly required that he reveal the entire arrangement and the extent of his involvement in it. [paragraph 178]
[24] Regarding the Optiplas complaint, the Adjudicator found that:
· I am unable to conclude, on the basis of the evidence before me, that Mr. Shek knowingly participated in a scheme to have Optiplas smuggle consumer goods into the country for him in such a way as to avoid payment of duties or other taxes. I agree with counsel for the bank, however, that Mr. Shek failed to make the sort of inquiries about the payment of duties and other taxes that one would expect to be made in these circumstances by a prudent bank manager, appropriately concerned about appearances, if indeed such a manager would have participated in such an arrangement at all. Although Mr. Shek reimbursed the amount sought by the customer for its direct costs for these importations - the purchase price of the goods - the customer's fetching and delivering of these goods involved uncompensated time and effort, as did making the initial payment and processing the reimbursement. [paragraph 179]
· Even if the initial importation was at the invitation of Mr. Lynes, about which I have some doubts, Mr. Shek's repeated requests for this benefit were an imposition on the customer. Those requests, together with the request for or acceptance of the clock, the request for wine for the Christmas party and the repeated use of the customer's truck, cumulatively bordered on exploitation of the customer's eagerness to please the representative of the bank to which it was indebted. [paragraph 180]
· I do not believe that the Lynes brothers have confused a discussion with Mr. Shek about finding investors with an offer by Mr. Shek to invest personally, nor that their claim to have received such an offer from him is a lie fabricated out of a sense of grievance over how the bank, through Mr. Shek, responded to Optiplas' financial difficulties at a later stage. I accept the evidence of the Lynes brothers that at one point Mr. Shek did offer to invest in their business. [paragraph 183]
[25] With respect to Turm Construction & Interiors, the Adjudicator held that:
· Mr. Shek's dealings with Mr. Sekoulidis further illustrate Mr. Shek's inclination to exploit, consciously or otherwise, the willingness of customers to do him favours because he was their bank manager. Mr. Shek's view seems to have been that this was alright as long as the benefit was not too great in any one instance and the customers did not actually tell him they were seeking favourable treatment in return (even if that was the only plausible reason for their behaviour), because then he would be on side according to the letter of the bank's guidelines. [paragraph 186]
· It was extraordinarily imprudent of Mr. Shek to have ordered furniture for the branch without having first agreed to a price. Of course, he claims to have been told that the price would be less than charged by a volume furniture manufacturer. Any reliance on this on his part stands in curious contrast to his expressed belief that there is no legal obligation without a written agreement. In any event, after all the evidence Mr Shek gave on the preliminary issue about how tightly the bank controlled and scrutinized the branch budget, and particularly its capital component, and how closely branch financial dealings had to be watched, I have great difficulty believing either that he thought Shirley could pay an invoice in his absence for an unspecified amount or that the absence of payment would not have come to his attention afterwards. [paragraph 187]
· I conclude that Mr. Shek knew when he asked for the hi-fi stand that Mr. Sekoulidis was unlikely to charge him for it. I do not believe that he had any objectively reasonable belief that the cost would be less than that of the IKEA item he claims they had discussed. [paragraph 188]
· I accept Mr. Sekoulidis' testimony that Mr. Shek asked him to make this piece of furniture without discussing price, that Mr. Sekoulidis did so without seeking payment, that the item was of substantial value, and that Mr. Shek did not pay for it or attempt to pay for it. [paragraph 189]
· I accept that Mr. Shek also asked Mr. Sekoulidis to make a gaming table. I accept Mr. Sekoulidis' testimony about Mr. Shek's rooting about for material. These matters further illustrate Mr. Shek's inclination to impose on customers. [paragraph 190]
[26] Finally, the Adjudicator had this to say about Interline's complaint:
· Interline's principals' testimony did not, in the end, sustain the picture they painted in chief of Mr. Shek's almost never paying for items, even expensive ones. Clearly he did pay for some things. He still has cancelled cheques to prove it. Mr. Shek says that larger items (that is, items more expensive than a few screws or a glue stick) for which he did not pay were given to him as gifts. Of course, they were: there is no claim that he stole anything. All of the items he took without payment were given to him. By definition, they were gifts. The issues here are the same as with Optiplas: the number of occasions on which he accepted these gifts, whatever their size, his willingness to accept them and to accept whatever lame excuse he claims the customer offered for not taking his payment. [paragraph 184]
· Mr. Shek's counsel points to statements in the evidence that other Interline customers were similarly treated, at least as to declining payment for smaller items. Those other customers were contractors who spent considerably more in the store than Mr. Shek did. In any event, Mr. Shek was not just another customer. He was the branch manager who represented the bank with which the store did business. However eager or reluctant the principals of the store may have been about repeatedly favouring their bank manager in this way, a prudent bank manager would have been concerned about appearances. A prudent bank manager would not have allowed it to continue, would not have accepted so many gifts, would have made sure that when the customer said "we have no change, we'll catch you later" that he kept the information necessary to settle the account. A prudent bank manager waived off in that way would have sought to settle the account on the next occasion, and not just when his employment with the bank had ended. [paragraph 185]
THE ISSUES
[27] I have not discussed every issue raised by the Applicant. It is clear from the Notice of Motion that the Decision was initially attacked on a large number of grounds. However, in some cases, the issues raised were not pursued and, in other cases, I decided that they did not merit attention because they could not be described as even remotely arguable. I have, therefore, considered only those issues which, in my view, could potentially have affected the outcome of this application.
[28] Before discussing those issues, it is useful to put this application in its proper context. This is not an appeal. The Decision is subject to the privative clause found in section 243 of the Code and the parties agree that the standard of review on this application is patent unreasonableness. Against this background, the Applicant's position is that his misconduct was not very serious, that his last performance review was satisfactory, that he admitted many of his errors, that he offered to stop drinking during weekday lunches, that favourable and mitigating evidence which had a bearing on his prospects for rehabilitation was not considered and that, in sum, a decision to uphold the Dismissal instead of substituting a less severe remedy was patently unreasonable.
Alcohol and Banking Judgement
[29] The Applicant said that it was patently unreasonable of the Adjudicator not to mention that alcohol consumption was never an issue with respect to the Applicant's daily contact with staff in the Vice-President's office and the Bank's regional office. He said that the Adjudicator should have acknowledged that the Applicant's banking abilities were never impaired and that banking customers did not complain about his use of alcohol.
[30] I have not been persuaded by this submission. I am satisfied that the Adjudicator acknowledged that the Applicant's banking capacity was not impaired when he drew a distinction between the Applicant's abilities as a banker and his abilities as a manager and noted that the former were not affected by alcohol. In this regard the Adjudicator said:
Cumulatively, the staff witnesses' testimony establishes that Mr. Shek's behaviour was markedly affected by his consumption of alcohol at lunches. While there is no evidence that this led to errors of judgement in adjudicating credit applications on those occasions, adjudicating credit applications was not his only important job function. He was responsible for the management of the staff at the branch and for maintaining the confidence and trust of the bank's customers. [paragraph 158]
Sexual Fantasies
[31] The Applicant also said that the Adjudicator had no evidentiary basis for concluding that the Applicant experienced sexual fantasies. This conclusion is in the Findings at paragraphs 163 and 165.
[32] Neither party called any expert evidence which explained the Applicant's behaviour. That being the case, the Adjudicator's use of the term "sexual fantasy" cannot sensibly be read as a description about the Applicant's mental state in a medical sense. When the Decision is read in its entirety, it is clear that what the Adjudicator meant was that he did not believe that the Applicant ever intended to follow through with any of the conduct he suggested. This conclusion is illustrated by the Adjudicator's words at paragraph 163 of the Decision. There he said:
I accept that Mr. Shek did not intend to actually perform a clinical examination on Ms. McGibbon, or to spank Andrea Jones or strip search Andrea Jones and Vita Raffa or take Susan Howitt home with him. These were fantasies. He was, in effect, telling female subordinates about sexual fantasies of his that involved them.
[33] In my view, the evidence discloses that the Applicant both thought of and spoke of doing these things. In circumstances in which the thoughts were present but there was no intention to implement the conduct, the use of the words sexual fantasy to describe the situation is not patently unreasonable.
Admitted Misconduct - Spanking Comment
[34] The Applicant made a broad submission to the effect that the Adjudicator did not acknowledge his early admissions of inappropriate behaviour. However, in reality, this submission was limited to a criticism of the Adjudicator for failing to mention that, on March 24, 1994, at the first meeting with the Bank's investigators, he admitted making the comments about spanking.
[35] For the reasons which follow, I have found this submission to be without merit. In his Findings, at paragraph 163, the Adjudicator notes the Applicant's admission that he spoke of spanking on two or three occasions. The topic is also discussed at paragraphs 82, 84 and 87 in the Evidence Review and there it is clear that two of the three Bank investigators ultimately testified that the Applicant had never denied the spanking comment. It is also clear that the Applicant testified before the Adjudicator that he had acknowledged speaking of spanking at the meeting of March 24, 1994. In my view, there is no doubt that the Adjudicator was aware that, from the outset, the Applicant had admitted that he had made comments about spanking.
Satisfactory Performance Review
[36] The Applicant submits that the Adjudicator did not mention that the Applicant had received a satisfactory rating at the last performance review before his Dismissal. However, since this was not in issue at the Hearing, the omission is understandable. What is significant is that the Adjudicator explained why, given the duration of the Applicant's questionable conduct, there were no complaints until March of 1994.
[37] In this regard, the Adjudicator noted the following evidence at paragraphs 77 and 78 of the Decision:
One of the issues raised with the staff witnesses was why they had not complained earlier, anonymously or otherwise, through the various venues that bank policies afforded them. Some of them were unaware of at least some of those avenues. Those who were aware of the possibility of an anonymous complaint were sceptical that such a complaint would or could remain anonymous, and were concerned that an anonymous complaint could be traced back to them. Admitting that she knew she could make an anonymous complaint, Susan Howitt astutely concluded that the situation could not be dealt with that way, that the bank would need names before taking action against the manager and that the manager would eventually learn who his accusers were. There was generally concern that complaining might have an adverse effect on a complainant's employment, particularly if no action was taken as a result.
Several of the witnesses had complained to Shirley Weber, as their immediate supervisor. In her testimony Ms. Weber acknowledged that she probably ought to have done something more than merely admonish Mr. Shek from time to time, as she did. She was obviously embarrassed and remorseful that she had not complained to the VPO, as her successor had. She had been reluctant to complain, she said, because she had previously complained about another manager and, in the result, had had to continue working with him. She was afraid that no one would support her in this instance either. She told the more junior employees who had complained to her that they could go to the bank's Ombudsman, and encouraged them to do so. She also told them that she would not complain, however, and she told them her fears about complaining. It seems they generally came to share those fears. Naomi Shaw testified that, indeed, employees knew that the bank's Ombudsman would refer to her office any complaint about a branch for which her office was responsible, and that her office could not have done anything unless the complainants identified themselves.
[38] In these circumstances, I have concluded that the satisfactory performance review does not assist the Applicant and the Adjudicator's failure to mention it is not patently unreasonable.
No Policy Prohibiting Alcohol
[39] The Applicant criticized the Adjudicator for his failure to note that the Bank's policies did not prohibit the consumption of alcohol at business lunches. I have concluded that this criticism is inaccurate because, at paragraph 42 of the Decision, the Adjudicator describes the Applicant's evidence to the effect that the Bank had no rules against drinking. Further, the concern about the Applicant was not that he drank alcohol at lunch but rather that he consumed quantities which significantly impaired his staff relations. In these circumstances, the fact that the Bank did not expressly prohibit alcohol consumption is immaterial and there was no reason for the Adjudicator to deal with the topic at greater length.
Not Drinking
[40] The Applicant submitted that the Adjudicator failed to take into account the Applicant's "offer" to stop drinking at business lunches. In this regard, I note that, at paragraph 42 of the Decision, the Adjudicator refers to the Applicant's evidence that he ". . .would have no problem stopping if the bank told him not to drink." Further in his Findings, at paragraph 160, the Adjudicator repeats the Applicant's statement that he could have and still could stop drinking if asked to do so by the Bank.
[41] I do not accept that these statements are properly characterized as an "offer" but, in any event, it is obvious to me that they were discounted by the Adjudicator because he concluded that the Applicant was not a suitable candidate for reinstatement. In this regard, he said at paragraphs 160 and 203 of the Decision:
This is not a case in which the drinker's denial that he has a problem with alcohol is being blamed on an alcohol dependency. Mr. Shek says he is not an alcoholic. He says he could have stopped drinking if the bank had asked him to do so, and still could. Implicit in this is that he sees no real need to do so. It may be that he did and does believe that he could not be affected by beer. I am not sure that the lack of perception and self-awareness that that implies is less a concern in this context than an inherently unbelievable lie about his immunity to the effects of beer. It certainly drains the circumstances of hope for improvement in Mr. Shek either as to alcohol or as to his awareness of his conduct and its impact on others.
. . . But during the proceedings before me Mr. Shek heard exactly what was alleged. He had weeks and months to consider his response. In response to some of the complaints that I have found to be true he offered detailed and substantially different versions, of which he claimed to have a clear recollection. Either he was being dishonest about the content or the existence of his recollection, or he has a pervasive and disabling disconnect from reality. Either view weighs against reinstatement to Mr. Shek's original or any similar job.
Admission of Conflict of Interest
[42] The Applicant also submitted that the Adjudicator ought to have placed weight on the fact that he admitted at the Hearing that his dealings with Mr. Ali should have been reported and that he had not conducted himself in accordance with the Bank's guidelines as they relate to conflicts of interest. It is said that these admissions were clear and unqualified.
[43] There is no transcript of the Hearing. However, the Adjudicator referred to testimony on this topic at paragraph 125 of the Decision. There he said:
In re-examination, Mr. Shek was asked how he now assesses the propriety of his conduct with Mr. Ali during the period of his suspension. He replied that he thought it could be regarded as a conflict of interest. He said he had not thought so at the time because there had been no solicitation or exchange of benefits. [my emphasis]
Given his view that all the Applicant admitted was that, in hindsight, it "could" have been a conflict of interest, it is my view that the Adjudicator's failure to mention this point in his Findings or Conclusion was not patently unreasonable. In the alternative, if the Adjudicator misunderstood the evidence and there was an unqualified admission, I would not view the error as a basis for concluding that the Decision is patently unreasonable. Before leaving this issue, I should note that I have disregarded the Applicant's affidavit sworn on September 12, 2001 and, in particular, paragraph 52. In my view, it is not admissible on this application.
Ms. Raffa's Mortgage
[44] The Applicant said that three young staff members at the Branch, Ms. Vita Raffa, Ms. Andrea Jones and Ms. Brenda Walker, "turned against" him after Ms. Raffa's mortgage application was declined and that this was not taken into account by the Adjudicator. However, the problem, at least as it related to Ms. Raffa, was mentioned in paragraph 63 of the Decision and, at paragraph 165, the Adjudicator said in his Findings:
Corroborated as it is by other witnesses, I accept Mr. Shek's evidence that Vita Raffa's behaviour and attitude toward him changed after he rejected her mortgage application.
Given this conclusion, I am satisfied, from a review of the Findings, that the Adjudicator was cautious about the evidence of Ms. Raffa and reached no significant conclusions based solely on the evidence of her friends.
Delay
[45] The Applicant's notice of motion mentions delay as an issue and says that the time between final submissions on January 31, 2000 and the release of the Decision on July 25, 2001 was unreasonable. This issue was not addressed by counsel in oral submissions and is not mentioned in the Applicant's Memorandum of Fact and Law. However, since the period during which the Decision was under reserve was eighteen months, I felt the issue should be addressed. That being said, given the complexity of this case, I am not prepared to allow the application on this basis. My view is reinforced by my inability to identify any prejudice to the Applicant caused by the length of time it took the Adjudicator to release the Decision. The Applicant was dismissed in 1994 and the Hearing concluded in January of 2000. In these circumstances, it is impossible to conclude that a further eighteen months would have had any impact on the likelihood of a decision in the Applicant's favour.
Gifts
[46] The Applicant submits that the Adjudicator should have referred to the Bank's policy on gifts and says that there was no evidence that gifts were given in exchange for an anticipated benefit.
[47] The Adjudicator included a section in the Decision entitled "The Bank's Rules". It appears at paragraphs 17 to 23 and the rule dealing with gifts is quoted in paragraph 18. It reads as follows:
You may not use your position to seek personal gain from those doing or seeking to do business with the Bank, nor accept such improper gain if offered. You may accept modest gift (including entertainment) if accepting such gifts is normal business practice, is legal and consistent with generally accepted ethical standards, and if public disclosure will not embarrass the Bank or the recipient.
Under no circumstances will a gift be accepted if it is in cash, bonds, negotiable securities, personal loans, airline tickets, use of vacation property or costly entertainment.
If you are unsure whether it is appropriate to accept a gift, speak to your supervisor.
[48] The Applicant is correct when he submits that no further reference was made to this policy. However, that was because this case was not fundamentally about gifts. The volume and/or value of the items at issue takes them out of the realm of gifts and illustrates, as the Adjudicator concluded at paragraph 190 of the Decision, the Applicant's troubling tendency to impose on the Bank's customers. That is the real issue and it was, therefore, not necessary for the Adjudicator to consider the Bank's gift policy.
CONCLUSION
[49] In my view, the Decision is thorough and balanced, and the conclusions reached on the questions of fact and credibility were entirely open to the Adjudicator. I found no basis for concluding that the Decision is patently unreasonable. Accordingly, the application was dismissed by order dated December 22, 2004.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
January 6, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-1492-01
STYLE OF CAUSE: WILLIAM SHEK
Applicant
- and -
THE BANK OF NOVA SCOTIA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, JUNE 23, 2004
REASONS FOR ORDER BY: SIMPSON J.
APPEARANCES BY: Mr. David Harris
For the Applicant
Mr. Martin Sclisizzi
For the Respondent
SOLICITORS OF RECORD: DAVID HARRIS
Barrister & Solicitor
Toronto, Ontario
For the Applicant
BORDEN LADNER GERVAIS LLP
Barristers & Solicitors
Toronto, Ontario
For the Respondent
FEDERAL COURT OF CANADA
Date: 20040623
Docket: T-149201
BETWEEN:
WILLIAM SHEK
Applicant
- and -
THE BANK OF NOVA SCOTIA
Respondent
REASONS FOR ORDER