Imitation is the Sincerest Form of Flattery, and a Slippery Slope – Ogden v CIBC

• Ms. Ogden worked as a financial advisor for Canadian Imperial Bank of Commerce. She was an exemplary employee, but her conduct had come under scrutiny on three previous occasions.
• She received a call in the middle of the night from a client needing to transfer funds from China to a Canadian bank account, in order to close a property transaction.
• Ms. Ogden agreed, and accepted a wire transfer of approximately $100,000 into her personal bank account. The next morning, she transferred the money to the client’s CIBC account so they could complete the deal.
• CIBC discovered this “commingling” of the client’s funds with her personal account, and terminated her for cause.
• She sued for wrongful dismissal, and the trial judge agreed and awarded her damages, including aggravated damages.
• The trial judge adopted Ms. Ogden’s counsel’s closing submissions almost word-for-word.
• CIBC appealed the decision, and the Court of Appeal found there was misapprehension of the evidence and legal arguments which constituted palpable and overriding errors of the trial court.

Why This Decision is Important

A judge copying even large parts of counsel’s submission is not, “without more,” grounds for an appellate court to set aside a judgement (Cojocaru v BC Women’s Hospital and Health Centre, 2013). But, it can factor into an appellate court’s decision to review, and how they handle that review.

Case Details

The trial judge in this case misapprehended CIBC’s legal argument. They offered previous infractions by Ms. Ogden as “relevant context,” but only this “commingling” as the cause for her termination. However, the judge’s reasons were based on the premise that CIBC asserted it had terminated Ms. Ogden’s employment for “cumulative cause,” arising from a series of incidents.

The three previous incidents, though not just cause for termination, were, CIBC said, evidence of how seriously they reviewed breaches of their Code of Conduct. All three incidents had resulted in CIBC investigating the claim and, on two occasions, issuing a warning letter to Ms. Ogden. CIBC did use evidence of these incidents to show Ms. Ogden’s “state of mind,” and to show that she should have been aware that CIBC took their Code of Conduct very seriously.

This misconstruction of CIBC’s defence resulted in an error of law, such that the trial judge’s overall finding cannot stand. The trial judge also misunderstood CIBC’s argument against the “commingling,” likening it to a lawyer comminging client funds in a trust account. In fact, it was a breach of Ms. Ogden’s employment agreement, wherein it was strictly prohibited for bank employees to mix personal and bank business.

When the trial judge chose to copy the majority of Ms. Ogden’s lawyer’s closing submissions, they too misconstrued CIBC’s defence, which resulted in the error of law.

Outcome

The trial judge erred in three ways:

• He misapprehended and mischaracterized CIBC’s evidence and arguments, leading him to disregard the relevant context of the prior discipline.
• He made irreconcilable fact findings in terms of aggravated and punitive damages.
• He did not address the real issue, whether or not the bank was justified in terminating Ms. Ogden’s employment for cause based on a single incident of misconduct.

The Court of Appeal did not directly address the trial judge’s copying, but did note that the substantive errors (above) in this case exemplified the risk of extensively copying the submissions of one party as their own reasoning.

Key Takeaways

• This case was not about the several incidents leading to Ms. Ogden’s employment, but whether the single wire-transfer act was enough to terminate her for just cause.
• The trial judge relying on her counsel’s closing argument meant that they had the same mistaken understanding that her counsel did, thus making the case susceptible to appeal.

References

Ogden v Canadian Imperial Bank of Commerce, 2015 BCCA 175
https://canlii.ca/t/ghbs2

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