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Good luck reading riot act in B.C.

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Between 500 and 700 people who committed acts of theft, break and enter, vandalism or arson in the June 15 Vancouver riot following game seven of the Stanley Cup finals will face charges, Vancouver city police announced last week, with charges against the first 40 being recommended to Crown prosecutors by month's end.

There's going to be a bonanza for criminal defence lawyers once charges start being laid in earnest. No surprise there. With the projected numbers of accused, many of whom face multiple charges, Vancouver's courtrooms are going to be jammed up with fallout from the riot.

But curiously, what's also shaping up is a mini boom for another type of lawyer -- employment-law counsel.

Contrary to initial media and police reports, the review of the riot released last month, The Night the City Became a Stadium, indicated a dearth of anarchists and hardcore criminals in those crowds. Instead, there was an abundance of drunk or stupid, or both, middle-class kids. The rioters were mainly intoxicated teenagers and 20-somethings, out for nihilistic kicks or easy smash-and-grab thievery.

Some of them have, or had, full-time or part-time jobs. And some -- the ones caught on video -- have been fired by their employers.

The cause célèbre case so far is University of British Columbia student Camille Cacnio. In a widely viewed video posted on Internet websites, she can be seen exiting the smashed-out storefront of Vancouver clothier Black & Lee Tuxedos carrying pairs of stolen pants.

Prior to the riot, she held down a job at Vancouver's Burrard Acura auto dealership. Her employment was terminated, however, after she was identified as one of the rioters. She subsequently blogged a rambling 3,500-word apology for her actions, but she's still out of a job.

Now, she's reportedly the subject of dubious legal advice as to whether her firing was lawful. Apparently some Vancouver lawyers think her rights may have been violated and she's been wrongfully dismissed, or to use the technical legal terminology, dismissed without "just cause."

Leaving aside unionized workers governed by collective agreements, most firings are what's known as "without cause." If an employer downsizes, closes a plant or moves operations offshore, a laid-off employee is dismissed without cause. Because the job loss isn't the employee's fault, he or she's suffered a wrongful dismissal.

If wrongfully dismissed, an employee is entitled to a working notice period before the layoff takes effect. Absent a notice period, a severance package of pay and benefits equivalent to what would have been earned during the appropriate notice period is due.

However, where employee conduct amounts to misconduct -- neglect of duties, non-medical absenteeism, disruption of the workplace or chronic disobedience of supervisors are the usual grounds -- there's just cause for dismissal and no severance package is due.

The argument advanced in Cacnio's favour is that, despite her admitted theft, she can't be dismissed for just cause because her thievery was committed beyond the scope of, and outside the hours of, her employment. Moreover, the argument continues, because her criminal act took place off-duty, she wasn't lawfully canned, and therefore deserves civil damages from the dealership for wrongful dismissal.

Good luck selling that one to a judge.

Canada's wrongful dismissal law has always been that an employer has authority to fire an employee for outside-of-work conduct if it's incompatible with the employee's on-the-job duties. Cacnio's duties apparently included handling money and dealing with the buying public.

So if she's convicted of, or even just, as she's already done, publicly admitted to, theft -- a criminal act about as incompatible with her job description as imaginable -- that defeats her wrongful dismissal claim.

Add in the fact the auto dealer is a retail business that touts its reputation and integrity in the marketplace, and has been publicly embarrassed by her linkage to its business, and the incompatibility is multiplied.

Sales manager Patrick Almeida told the CBC he terminated Cacnio's employment precisely because he received complaints about her riot behaviour after she was identified as an employee.

But Cacnio's future-employment prospects remain good.

Even if she was lawfully dismissed, and even if she is convicted of a crime, she or any other rioter has recourse to B.C.'s Human Rights Tribunal to compel an employer to hire her, or face prosecution and penalties, including an award of monetary damages payable to her by the employer.

Under B.C.'s Human Rights Code, a person can't be denied employment if convicted of a crime not related to that employment.

The exact phrase used in the Code refers to prohibiting refusal of employment or continued employment due to a criminal conviction "unrelated to the employment or to the intended employment." This wording is so vague and elastic in its application that it denies few felons the right to raise, or at least threaten to raise, a human rights complaint. And few employers, particularly small businesses, will risk the lengthy, time-consuming and expensive litigation that is a human rights claim led by the prosecutorial wing of a government agency. (Manitoba's Human Rights Code contains no comparable provision.)

You'd think joining a mob that burns police cars, breaks storefront windows and doors, sets fires, steals property and causes an estimated $5 million in damages might impair a career.

But apparently not. At least not in B.C.


Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition October 26, 2011 A10


Updated on Wednesday, October 26, 2011 at 8:58 AM CDT: added photo

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