Canadian Employment Law Today

March 15, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2017 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was the employer entitled to repayment of the money taken by the employees? OR Was there no entitlement to the money calculated to have been taken from the store? IF YOU SAID the employer was entitled to repayment of the money taken, you're right. e court found the Aujlas to lack credibili- ty in their explanation for taking the money and they often made contradictory and un- supported statements. ey justifi ed taking the money as payback for the delay in the $200,000 loan, but the owner and his wife had repaid two previous loans in full. In addition, video footage showed Balwinder taking money in June 2008 — months be- fore the $200,000 loan — and both of them taking money after the loan was repaid in late January 2008. e court also found the Aujlas claim that they were told not to scan some things made no sense, and the fact that they tried to hide what they were doing indicated they knew what they were doing wasn't legally or morally justifi ed. In addition, the review by the accountant showed unexplained deposits consistent with theft over the entire period of the Au- jlas' employment — well before any loans were given. ey used the loan as an excuse because it coincided with the time they were caught stealing on video, said the court. e court determined the June 2007 video footage and the deposit evidence showed it was likely Balwinder was stealing money during her entire period of employ- ment with Crown Liquor. Without video evidence of Harwinder before August 2007, the court could only conclude he had been taking money since then. e court used the accountant's calcula- tion of the average daily amount taken and applied it to Balwinder's entire period of employment and Harwinder from August 2007 to January 2008 to determine how much they should be accountable for. is calculation resulted in $177,050 in total to be repaid to Crown Liquor — $167,810 at- tributable to Balwinder and $9,240 to Har- winder. e court declined to award punitive damages, stating that Crown Liquor would be fully compensated for the theft through the amount to be repaid. See 581257 Al- berta Ltd. v. Aujla, 2016 CarswellAlta 190 (Alta. Q.B.). Employees lend money to employer, take money from register THIS EDITION of You Make the Call features two store workers who were caught stealing money. Balwinder and Harwinder Aujla were a husband and wife who worked as retail clerks at a Crown Liquor store in Calgary. Balwinder, the wife, was hired in January 2001 and her husband in February 2004. ey often worked alone and had keys to the store and the cash register. In 2006, the wife of the store's owner, who was a real estate agent, tried to get the Aujlas to buy an empty lot. ey opened a line of credit and they lent the owner $10,000 in 2006 to purchase inventory for the store and $55,000 in 2007 to help purchase a shopping centre. ese were paid back fairly quickly without interest. In August 2007, the owner's wife asked to borrow $200,000 against the line of credit. Five months later — in January 2008 — she repaid the loan in full along with $7,500 in interest this time. In the months before the $200,000 loan was repaid, the Aujlas expected interest and a payment, but didn't receive any. e owner's wife seemed to be delaying repay- ment of the loan, so they decided to start taking money from the store's cash register to cover the interest from the loan, starting in August 2007. Both of the Aujlas claimed the owner told them after they loaned the money that they didn't need to ring all sales through the cash register. Neither Balwinder nor Harwinder kept track of how much they took, as they some- times were paid by Crown Liquor in cash and received money from others. However, they later claimed the amounts they were taking were roughly equal to the interest owed them from the loan. Subsequently, the store's owner viewed video surveillance from December 2007 to January 2008 that showed both of the Auj- las stealing money by failing to scan items and scanning cheaper items than what was being purchased, then pocketing the diff er- ence. Each time they did this, they angled the cash register screen away from the customer and strategically stacked boxes to block the camera's view. In addition, the owner had footage showing Balwinder tak- ing money on two occasions in June 2007. A certifi ed general accountant went through the Aujlas' bank statements and tax returns between 2001 and 2008 and identifi ed unexplained deposits and un- explained income totaling more than $300,000. Finally, he calculated the number of shifts the Aujlas worked and multiplied it by the average daily amounts seen stolen from December 2007 to their terminations and determined $230,000 was taken. Crown Liquor's owner terminated their employment on Feb. 4, 2008, and sued for repayment of $300,000, later reduced to less than $200,000 after the Aujlas' son testifi ed some of the money in their bank accounts was his.

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