03/28/2019 FRI 16:05 PAX 519 786 G037 Atcks Motley oosvore Court File No.: CV-19-00012463-0000 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN MARK BRICKELL, Plaintiff -and~ NIAGARA PENINSULA CONSERVATION AUTHORITY Defendant STATEMENT OF DEFENCE 1. The Defendant denies the allegations contained in the Plaintiffs Statement of Claim, except as explicitly admitted to herein, The Defendant denies that the Plaintiff is entitled to any of the relief sought in the Statement of Claim. Background 2. The Defendant, the Niagara Peninsula Conservation Authorlty ("NPCA’), is a conservation authority established under the Conservation Authorities Act, RSO 1990, ¢ C.27 (the “Act’). 3. The Plaintiff, Mark Brickell, commenced employment with the NPCA on. February 18, 2014. The Plaintiff commenced employment as the Chief Administrative Officer/Secretary-Treasurer of the NPCA ("CAO") under a five year fixed term contract commencing on June 26, 2017. 4. The Plaintiff's CAO contract had explicit provisions regarding the termination ‘of same on a with or without cause basis,03/28/2019 FRI 16:05 vax 519 746 €037 wLoks Morley qooasore -2- 5, In or around July or August 2018, the Plaintiff requested that the NPCA’s Board of Director's Chair conduct a performance appraisal of the Plaintiff, shortly after the conclusion of the Plaintiff's first year of employment as CAO, The Plaintiff requested this performance appraisal as he was looking for @ positive review to support a request for additional compensation. The Board indicated It would evaluate the Plaintiff's performance In or around October, 2018, 6. From approximately October 23 to November 22, 2018, the NPCA's Board Chair and Vice-Chair engaged in the Plaintif's performance appraisal The Plaintiff's Unsatisfactory Performance Appraisal 7. On November 28, 2018, a Special Board meeting was held for the NPCA. Board to receive the Plaintiff's performance appraisal and to make recommendations regarding same, 8. _Atthis Special Board meeting, the NPCA Board decided to put the Plaintiff on @ pald administrative leave, effective Immediately, and to give him an opportunity to respond to the performance appraisal prior to the Board taking any further action. 9. Atthis Special Board meeting, the NPCA Clerk, wes appointed the Interim CAO, 10. On November 28, 2018, immediately after the Special Board meeting, the NPCA's Board Chair and Vice-Chair, along with the NPCA Human Resources Consultant, met with the Plaintiff to advise him that he was being placed on a pald administrative leave and that he was being given an opportunity to respond to his performance appraisal, 11. Atthat meeting, the Plaintiff advised the NPCA that he did not want to see the performance appraisal or the comments regarding same, and that he would prefer to negotiate a “resignation” package.03/25/2019 pRE 16106 PAX 519 746 4037 Hick® Morley @oosvore 12. The performance appraisal disclosed the following significant issues: (a) Breach of confidentiality by, instructing his staff to share a confidential audit report with other staff and then engage in settlement negotiations with those same staff members; (b) Deliberately misleading the NPCA Board, for instance, representing to the Board that certain employees, whose employment the Plaintiff had decided to terminate, were no longer interested in working at the NPCA when such was not the case; (0) Insubordination and willful neglect of duty, for instance, failure to follow Board and Auditor General Audit Committee direction regarding a new restoration grant program; (4) Unprofessional, aggressive and intimidating conduct towards NFCA staff, Including directing his staff to not Investigate complaints about his own behaviour, nor sharing sald complaints with the Board; (e) Inappropriate use of corporate assets, for instance, purchasing a $7,000 desk without seeking quotes and therefore, without following policies and procedures; (f) Violation of corporate policies, including for the reasons set out above, 18. On November 30, 2018, the NPCA Chal and HR Consultant met wlth the Piaintif to discuss the terms of a potential resignation. The Plaintiff advised during that meeting that he was ending negotiations and stated "T'l take my chances with the new Board”, 14, The Plaintiff did not act in good faith in acting in the way thet he did. The Plaintiff cannot rely on his unwillingness to discuss his performance appraisal, which amounted to insubordination, and his request to discuss resignation package, as 4 basis to seek additional damages. Furthermore, the Plaintif's rofusal to discuss his03/29/2018 PRE 16196 PAX 519 746 4037 BLokE Morley qoossore “4- performance appraisal with the Board is Itself an act of gross insubordination and constitutes cause for dismissal. The NPCA's Board Decision to Terminate the Plaintiff's Employment for Cause 18. On December 3, 2018, another Special Board meeting was held to discuss and/or approve any potential terms of the Plaintif's resignation (had that process borne fruit), and/or the termination of the Plaintiff's employment for cause, At this meating, the Board passed the following resolution: (a) Direct the NPCA Board Chair, with the assistance of Labour Relations Specialist, to negotiate (if required), execute and sign the terms and conditions of the current CAO/Secretary-Treasurer’s exit from the existing NPCA job contract effective Immediately, or in the absence of a satisfactory negotiation, terminate the Plaintiffs employment for cause; (b) Direct the Board Chair, that the negotiation for resignation be null and vold if no agreement had been reached by Thursday, December 6, 2018 at 5:00 p.m.; and : (c) Direct the Board Chair to offer, negotiate (if required), execute and sign the terms and conditions of the Interim CAO employment contract for @ peried of 12-months to the then Acting CAO effective immediately. 16, From December 3 through December 5, 2018, nagotiations occurred between the Plaintiff, the NPCA Chair and the NPCA HR Consultant. No resolution was finalized, 17. On December 6, 2018, at 12:35 p.m., the Plaintiff and his Isgal counsel were advised that the Plaintiff had the option to accept a final offer of a resignation package as requested by the Plaintiff, or otherwise his employment would be terminated for cause effective December 6, 2018 at 5:01 pm. The Plaintiffs legal03/29/2019 PRI 16106 FAX 519 746 4037 HLcke Morley oorsore = Bs counsel responded shortly thereafter to advise that the Plaintiff rejected the final resignation offer. 18. In accordance with the Board's resolution set out above at paragraphs 15(a) and 15(b), and given the failed resignation negotiations, the Plai as.a CAO was terminated for cause effective December 6, 2018 at 5:01 p.m.. The Plaintif's employment termination was confirmed to the Plaintiff and his counsel via ‘email, and the Plaintiff was advised that a termination letter would follow. 's employment 49, On December 11, 2048, the Plaintiff was provided with an unsigned termination letter through email correspondence from the NPCA’s HR Consultant. The letter was simply a formality confirming the earlier Board resolution as described above 20. On December 12, 2018 the termination letter, which was signed by the still remaining Board Vice-Chair (in the Chair's absence), was provided to the Plaintiff via ‘email and a hard copy was provided by courier. 21. NPCA denies any inappropriate disclosure of any communications between the NPCA and the Plaintiff or the Plaintiff's counsel and puts the Plaintiff to the strict proof thereof. 22. The Plaintiff's decision to terminate the employment of David Barrick, then Senior Director of Corporate Resources, is entirely irrelevant to this action. The Plaintiff had given Mr. Barrick working notloe of the termination of his employment, which would have taken effect sometime in December 2018. This upcoming termination of Mr. Barrick’s employment was then rescinded prior to its effective date. The NPCA Board of Directors Is Reconfigured but the Resolutions reached and/or taking effect prior to the Board’s Reconfiguration remain Valid 23. The Plai provisions authorizing the termination of the contrect prior to the completion of its was employed pursuant to a fixed term contract with specific03/29/2019 PRI 16106 PAX 519 746 4037 HLcke Morley Qoosyore ee term for cause or without cause. The NPCA pleads that the authority to terminate the contract was contemplated by the parties to the contract, was contained in the contract itself and sald authority remained with the Plaintiff and the NPCA Board, The Plaintiffs employment was not an appointment by by-law to public office, was not akin to that of a statutory office holder or otherwise, and no procedural faimess had to be afforded to him. 24. tthe time the Board passed the resolutions of December 3, 2018 (set cut at paragraph 16 above) to approve a resignation package or the termination of the Plaintiff's employment for cause, the Board had the proper authority to make that decision as per the NPCA Administrative By-law, under the Act and otherwise at law. 25, The NPCA “Administrative By-law’ dated September 19, 2018 (Report No. 62-18) authorizes the Board to terminate the CAO's employment. The By-law states, inter alle: 2. _ Mandatory Responsibilities of Board Members: 2.4 _ Relationship between Board Members and CAO ISecretary-Treasurer: The Board regularly eveluates the CAO/Secretary-Treasurer, measuring his/her performance against the Niagara Peninsula Conservation Authority's strategic plan and financial and human resources goals of the organization. 2.8 _ Relationship between Board Members and NPCA Staff The Board Members must act as a team and represent the interest of the entire watershed. A strong parinership must be forged between the Board and the CAO/Secretary-Treasurer. The Board allows the CAQ/Secretary-Treasurer to manage the organization and its staff. The following parameters ara to be followed throughout the organization and by the public at large:03/29/2019 Prt 16196 PAK 519 746 4037 dicks Morley Boos sore With respect to staffing issues, the following outlines the responsibilities of the Board Members and the CAOQ/Secretary-Treasurer: ‘The Board Is solely responsible for the following: Recrulting the CAO/Secretary-Treasurer; Hiring the CAO/Secretary-Treasurer; and Dismissing the CAQ/Secretary-Treasurar. 3, Duties of Officers: 3.1 Chair of the Board; Works in partnership with the CAO/Secretary- ‘Treasurer to ensure Board resolutions are carried Serves as a signing officer for the Niagara Peninsula Conservation Authority; Performs other duties when directed to do so by resolution of the Niagara Peninsula Consorvation Authority. [partial list only to set out relevant provisions} 3.2. Vice-Chair of the Board; Understands the responsibilities of the Board Chair and acts as Chair immediately upon the death, incapacity to act, absence of resignation of the Chalr until such time as a new Chair is ‘appointed or until the Chair resumes his/her dutlas; Serves as an alternate signing officer for the Niagara Peninsula Conservation Authority. [partial list only to set out relevant provisions] 28. On December 6, 2018, the Council of the Regional Municipality of Niagara ("Niagara Region Council" ) met and exercised its right to replace its members on the NPCA Board by passing @ resolution appointing twelve (12) new individuals, on an interim basis “effective immediately” for a period of “three (3) months until it is,03/29/2018 PRI 16106 PAX 519 786 4037 Hicks Morley qotovore 3B determined how to proceed with the Board compasition”. As such, twelve (12) new Boerd members were appointed. 27. On December 6, 2018 at 5:01 p.m. when the Plaintiff's employment was. terminated for cause, that termination occurred as a result of the Board's resolution passed December 3, 2018. No further decision wes made by the Board on December 6, 2018 - when the offer lapsed, the termination for cause became the only authorized option. 28. On December 19, 2018, Hamilton City Council passed a resolution regarding the City of Hamilton appointments to the Board which was racelvad by the NFCA on January 2, 2019. This resolution was interpreted by some as immediately replacing the two (2) Hamilton Board members, including the Vice-Chair. 29, The Vice-Chair remained a member of the Board on December 12, 2018 and was acting In the absence of the Chair when he signed the Plaintiff's termination letter, Accordingly, pursuant to the NPCA’s Administrative By-law, the Vics Chair was acting in the capacity of the Chair in his absence and had the authority to terminate the CAO's employment pursuant to the Board's resolution of December 3, as well as the authorlty to sign the termination letter as an alternate signing officer of the Board. Furthermore, the NECA pleads that the signing of the termination letter is an administrative process rather than a decision making function. 30. By decision dated December 21, 2048, Justice Ramsay declared that as of December 6, 2018, the new NPCA Boerd members as appointed by the Niagara Region Council “are members of the board of the Niagara Peninsula Conservation Authority’ and the members removed by the Niagara Region Council “are not”. 31, Justice Ramsay's decision of December 21, 2018 did not purport to abolish or otherwise render meaningless any resolutions previously passed, but not yst executed or completed, by the previous Board when he declared that the Niagara Regional Council appointments were to be made effective December 6, 2018.03/25/2019 FRE 16:07 PAK $19 746 4037 Hicks Morley @ousoia 9. 32. On January 2, 2019, Justice Ramsay ordered that the Board of the NPCA meet on January 7, 2019 at the NPCA's facillly at 2:30 p.m, That mesting occurred as directed. 33, In accordance with the NPCA Adm ‘Act, the decision to terminate the Plaintiff's employment was carried out under proper authority by the then properly constituted NPCA Board. trative By-law and the provisions of the 34. All events woro in compliance with the Adt, Part V. The Niagara Regional Council appointment of new Board members was made December 6, 2018, after December 3, 2048 (the date when the Board passed the resolution to terminate the Plaintif's employment) and after the Plaintiff had been advised of the impending 5:00 p.m, deadline as noted above at paragraph 15(b). The December 3, 2018 resolution was unaffected by any changes at that time. 35. _ Inthe alternative, even if the decision to terminate the Plaintiff's employment was made by resolution of the Board on December 6, 2018, which is not admitted but expressly denied, and even if the new appointments to the Board by the Niagara Regional Council were effective immediately on December 6, 2018 when they were made, those appointments could not have taken effect and operated in a way such that the Board's resolution made that day by the previously properly constituted Board was null and void Conclusion 38. NPCA pleads that it Is in no way liable to the Plaintiff for any claims for damages, compensation or payment. 37, _ NPCA denies that the Plaintiff has suffered damages as alleged In the ‘Statement of Claim and puts the Plaintiff to the strict proof thereof. In the alternative, the claims made by the Plaintiff are remote, excessive and not recoverable at law.03/25/2019 FRI 16:97 PAX 519 146 4037 Hick® Morley @orzore -10- 38. NPA denies that the termination of the Plaintiff's employment was without lawful authority under the Act, and therefore, the Plaintiff is not entitled to any declarations or damages as alleged In this respect. 38, NPCA denies that the Plaintiff was wrongfully dismissed, or that he Is entitled to wrongful dismissal damages in any amount. NPCA pleads it had cause to terminate the Plaintif’s employment, 40. NPCA pleads that if the Plaintiff is entitled to damages for wrongful dismissal, which is not admitted but expressly denied, then the Plaintit limited to his contractual entitlements, 's claim for damages is 41. _ In the alternative, the Plaintiff has failed to teke all reasonable steps'to mitigate his alleged damages, if any damages have in fact been sustained, which Is not admitted but denied, 42, NPCA strictly denies that it engaged in any conduct whatsoever that would entitle the Plaintiff to aggravated damages and/or exemplary damages and/or punitive damages. 43. — The Plaintiff's claims for punitive, exemplary and aggravated damages are entirely without merit, At all times, NPCA treated the Plaintiff in good faith, with dignity and respect and in accordance with the NPCA Administrative By-law and the Plaintiff's employment contract. In any event, NPCA further pleads that none of Its conduct caused the Plaintiff to suffer specific, quantifiable and/or compensable harm. 44, In fact, the NPCA acted in good faith towards the Plaintiff by: (a) Conducting a performanes appraisal; (©) Deferring discussion on the performance appraisal; and (©) Engaging in negotiations with the Plaintiff as requested by the Plaintiff.03/25/2019 PRE 16:07 FAX 319 746 4037 Hicks Morley is/are <1 45. _ NPCA therefore pleads that this claim ought to be dismissed with costs to NPCA on a substantial Indemnity basis, Date: March 29, 2019 To: 40088348 6.doux CAVALLUZZO LLP Barristers & Solicitors HICKS MORLEY HAMILTON STEWART STORIE LLP Barristers & Sollcitors 100 Ragina Street South, Suite 200 Watsrioo, Ontario N2J 4P9 Glenn P. Christie Tel: 519-683-3125 Fax: 619-746-4037 LSO No.: 40391 E-mall: glenn-christie@hicksmoriey.com Molissa |, Roth Tel: 519-883-3103 Fax: 519-746-4037 LSO No.: 620010 E-mail; melissa-roth@hicksmorley.com Lawyers for the Defendant 474 Bathurst Street, Suite 300 Toronto, Ontario MST 286 Stephen J, Moreau Tel: 416-964-1115 Fax: 416-964-5695 Law Soclaty Rag. No,: 48750Q Lawyers for the Plaintiff@orevore FAK 513 746 €037 Bicks Morley 03/29/2019 pr 16107 quepuajaq ay 404 s1oKME] Woo AoPOUSOIUBMNOHessH}Ow! "yew-y 10029 “ON OST AEOY-OPLELS EA COLELBTELS “OL iow “TessHOW woo AspowsyoDaysuyo-uvg|6 yew fL6eoy =ON OST LEDYShL-BLS Xe4 GZLE-EBE-GLS ‘PL SBSHYD “d WUD}D, Sd? TZN OUEIUG ‘oopoIEM, 00z sung ‘yINos JeaRS eUIGay COL SIOWONIOS @ SBISWWEG 471 4IYOLS LAVAS NOLTIWVH ASTON SHOIH 3ON3I3G 4O LNSWALVLS UEHARA 1 paoUAUILGD BuIps2001q SOLLSNr 4O LYNOD NORMANS: OnrwLNO (0000-9¥Z1000-6F-AD “ON Alia uNEg (Quepuaysq) ALROHINY NOLLVAMASNOD VINSNINSd VUYOVIN -pue- (yqureia) TayoRia