Comment on the NHLPA's Legal Opinion on Cause for Dismissal

   There’s a strange employment law drama ongoing at the NHL’s player’s union, the NHLPA.    The NHLPA dismissed its executive director, Paul Kelly this summer, to the surprise and anger of many of the union members (NHL players).  The union alleged cause for dismissal.  Normally when an employer alleges ’cause’ for dismissal, they are doing so to avoid having to pay reasonable (or contractual) notice to the employee.  I couldn’t find anything in the news indicating whether Kelly was given any sort of notice or severance package, and as far as I can tell, Kelly has not yet sued the NHLPA for wrongful dismissal, which is a lawsuit seeking reasonable notice. 
But then the story got weirder.  Because so many union members complained about Kelly’s dismissal, the NHLPA hired Roy McMurtry, ex-Chief Justice of Ontario and now Chancellor of York University, to write a post-facto legal opinion about whether the NHLPA had ’cause’ to dismiss Kelly.  Getting a legal opinion after you have already fired someone for cause is somewhat unorthodox–normally getting that opinion before you fire the person makes more sense.  Nevertheless, luckily for the NHLPA, McMurtry opined that there was cause to dismiss Kelly.  Trouble is, McMurtry has some sort of relationship with Alan Eagleson, who believe it or not was once prosecuted by Kelly (when Kelly was a prosecutor) and impisoned.   
McMurtry is a very smart man, but he probably made a judgement error in taking on this contract, since it unecessarily embarrasses the NHLPA and probably himself.  So now the NHLPA is going to seek a new legal opinion from someone else.  For what purpose, I don’t know.  if the new opinion finds there was no cause, is the NHLPA going to take Kelly back?Whether or not the NHLPA had cause to dismiss Kelly would be a matter for a court to decide at this point, and there is no assurance at all that a court would agree with whatever a lawyer hired by the employer writes in an opinion.  Determing whether there is cause for dismissal of an employee isn’t a science.
Maybe the NHLPA should hire me.  The last line of my legal opinion would be something like this:  “In short, whether a court would find cause for summary dismissal or not is somewhat of a crapshoot.   The misconduct needs to be a serious breach that irreparably undermines the employer’s trust and confidence in the employee.  Courts don’t easily find cause, although sometimes they find cause when there isn’t any….”
Take this recent case from B.C., called Obeng v. Canada Safeway, for example.  Obeng was a store manager who was fired for theft after employees told management that they saw him putting items into a shopping basket.   He was doing that because he was restocking misplaced items on the shelves, but the employees thought he was taking the items home without paying.  The judge found that he actually didn’t steal anything, and that he was simply restocking the shelves.   But the Court nevertheless rules there was cause to dismiss Obeng without notice because he didn’t mention to the employer during the investigation that he was restocking shelves.  As a result, the cause for dismissal was not theft (which is what the employer had actually fired him for), but a failure to explain to the employer that he was doing his job!  
This is a nutty decision, in my opinion.    But it goes to show that cases involving dismissals for cause can be unpredictable.