In Porta v. Weyerhaeuser Canada Ltd., 2001 BCSC 1480 at paras. 113-115, Cullen J. wrote: …[T]he sufficiency of the defendant’s contemporary investigation of these issues, so far as it governs the availability of evidence for this court to consider on the context of the misconduct relied on as just cause, is an important consideration in determining whether the defendant’s onus of proof has been discharged… Where potentially cogent evidence relating to the context of an employee’s asserted misconduct is not mustered or preserved by a contemporary investigation, that failure may have a reductive effect on the positive evidence adduced. That is so, not because of any adverse inference to be drawn from the investigation’s failure, but rather from the court’s inability to conduct a qualitative contextual analysis of the misconduct as the law mandates The investigation conducted by the defendant in the case at bar was short in duration and narrow in scope. In my view, the positive evidence which it produced was insufficient to permit proof of the sort required on a balance of probabilities that Porta either committed theft, breached company policy, or was dishonest to the required degree, and in the appropriate circumstances to permit a conclusion that termination was justified.
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