Tuesday, July 16, 2013

Dishonesty gives cause for termination in financial industry

Agostino v. Gary Bean Securities Ltd., 2013 ONSC 6918 holds:

[85]           I recognize that dishonesty does not automatically mean that an employer has cause for dismissal.  Writing on behalf of a unanimous court in McKinley v. BC Tel2001 SCC 38 (CanLII), [2001] 2 S.C.R. 161, Iacobucci J. said at para. 57:

…I favour an analytical framework that examines each case on its own particular facts and circumstances and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship.  Such an approach mitigates the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal.  At the same time, it would properly emphasize that dishonesty going to the core of the employment relationship carries the potential to warrant dismissal for just cause.

[86]           However, Mr. Agostino was an investment adviser in a heavily regulated industry.  InKorman v. Midland Walwyn Capital Inc. (1999), 132 Man.R. (2d) 283 (Q.B.), MacInnes J. wrote at para. 64:

Honesty is absolutely fundamental to the employment of a financial adviser…

[87]           I agree.

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