Elgert v. Home Hardware Stores Ltd. (2010), 486 A.R. 137 (QB)
MLB headnote and full text
Temp. Cite: [2010] A.R. TBEd. JA.085
Daniel Elgert (plaintiff) v. Home Hardware Stores Limited, C.B. and D.S. (defendants)
(0203-12593; 2010 ABQB 35)
Indexed As: Elgert v. Home Hardware Stores Ltd. et al.
Alberta Court of Queen’s Bench
Judicial District of Edmonton
Lee, J.
January 19, 2010.
Summary:
The defendant summarily dismissed the plaintiff for his alleged inappropriate sexual touching of two female co-workers. The plaintiff sued for damages for wrongful dismissal and defamation. At the jury trial, the plaintiff proposed to call family members and past and present employees of the defendant to ask them a series of questions respecting his general character (character evidence). The defendant objected, submitting that the character evidence was inadmissible, as it would not be probative and would lead to circumstantial proof of a collateral fact in issue.
The Alberta Court of Queen’s Bench held that the plaintiff could not lead the general character evidence.
Editor’s Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book’s editorial policy or otherwise.
Evidence – Topic 4847
Witnesses – Examination – Impeaching character – Evidence of good character – The defendant summarily dismissed the plaintiff for his alleged inappropriate sexual touching of two female co-workers – The plaintiff sued for damages for wrongful dismissal and defamation – At the jury trial, the plaintiff proposed to call family members and past and present employees of the defendant to ask them a series of questions respecting his general character (character evidence) – The defendant objected, submitting that the character evidence would not be probative and would lead to circumstantial proof of a collateral fact in issue – The Alberta Court of Queen’s Bench held that the plaintiff could not lead the general character evidence – The plaintiff was presumed to be of good character – The alleged defamation did not concern the plaintiff’s character or reputation – Since the allegations of defamation were specific, the plaintiff’s good character evidence was irrelevant and unnecessary – Alternatively, even if character evidence was admissible in the defamation action, it could not be admitted in the wrongful dismissal action and the plaintiff could lead the evidence only if the two actions were severed – Finally, since this was a jury trial, admission of the character evidence would be highly prejudicial to the defendant as there was a risk that the jury would attach too much weight to it – Whether the plaintiff had a good reputation in the community was irrelevant to whether he committed the specific incidents of sexual harassment.
Libel and Slander – Topic 5430
Evidence – Admissibility – Evidence of plaintiff’s character – [See
Evidence – Topic 4847
].
Cases Noticed:
Robertson v. Edmonton Chief of Police et al. (2005), 385 A.R. 325; 2005 ABQB 499, refd to. [para. 6].
Manno et al. v. Henry et al., [2008] B.C.T.C. Uned. C38; 122 A.C.W.S.(3d) 646 (S.C.), refd to. [para. 10].
Authors and Works Noticed:
Brown, Raymond E., The Law of Defamation in Canada (2nd Ed.) (Looseleaf), vol. 3, p. 22-10 [para. 9].
Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), § 10.24 [para. 5].
Counsel:
Dawn Pentelechuk, Q.C. (Cleall LLP), for the plaintiff;
David D. Risling and Stephanie Matchett (McLennan Ross LLP), for the defendants.
This matter was heard on January 11-13, 2010, before Lee, J., of the Alberta Court of Queen’s Bench, Judicial District of Edmonton, who delivered the following judgment on January 19, 2010.
