The Whalley Trial Part VII: Missing Documents

Editor’s Note: John Whalley, the former Economic Development Manager of the Cape Breton Regional Municipality (CBRM) is suing the CBRM for constructive dismissal. The case finally came to trial from 20-24 August 2018 and the Spectator was there. We’re presenting our coverage in a series of articles because the trial touched on so many issues of interest to CBRM residents. This is Part VI (Read Part I,Part II,Part III,Part IV,Part V and Part VI)

 

The defendant then presents his or her own evidence, including witnesses. The plaintiff has the same right to cross-examine. — How do civil cases work? Depart of Justice Canada

John Whalley was the final witness called by the plaintiff, so following his cross-examination by Tony Mozvik, the lawyer for the CBRM, it was time for the defense to call its first witness. That witness was Gordie MacDougall, the CBRM’s director of human resources.

The defense had obviously called MacDougall to settle, definitively, the question of whether Whalley had a contract with the CBRM in addition to his letter of hire and whether that contract contained any mention of severance.

The head of HR, who had been a senior manager in HR since 1995 — i.e. before Whalley was hired — would have been the obvious person to settle this question and yet, MacDougall succeeded only in muddying the waters.

Under questioning from Mozvik, MacDougall testified that CBRM directors get written contracts with severance clauses but senior managers and managers get letters outlining the terms of their employment and no severance clauses.

MacDougall cited his own personal case: from 1995 to 2015, as a senior manager, he had a letter, not a contract and no severance.

When he became director of HR, he received a written contract with a severance clause.

Mozvik then asked MacDougall if Whalley’s position still existed and MacDougall said yes, and that it was now occupied by John Phalen.

 

Economic Development & Major Project

John Phalen (CBC photo)

John Phalen (CBC photo)

Let’s call a brief recess here and talk about the Phalen hire for a moment because there was something off about it from the beginning.

Former CAO Michael Merritt, in his testimony, would say it took “eight months” to replace John Whalley, who resigned in May 2015, which would mean Phalen was hired in January 2016.

But during his cross examination of Merritt, Whalley’s lawyer, Blair Mitchell, referring to the hiring of Phalen, stated:

…[M]y understanding is that the notice for the position was not posted until..sometime in March of… the ensuing year of 2016, is that correct?

To which Merritt replied:

That sounds correct.

But both statements, obviously, cannot be correct. Fortunately, I can settle this one. I sent an access to information request to the CBRM back in May 2017 to find out how and when Phalen had been hired and discovered that the requisition form for the position, which had been renamed to Economic Development and Major Project Manager (not “Special” Projects as was cited in court) was sent to the CBRM HR department on 22 March 2016 — that is, 10 months after Whalley resigned.

The regular, full-time, confidential position was posted internally and the closing date for applications was 7 April 2016.

Click to enlarge.

 

As late as October 2016 (or nine months after, according to Merritt’s testimony, Phalen had been hired as economic development and major project manager) he was still being cited in the press as the municipality’s head of Public Works, as evidenced by this Cape Breton Post story about the Thanksgiving flood:

(For what it’s worth, Phalen’s LinkedIn profile still identifies him as the CBRM’s manager of public works.)

The first I heard of his new title was a February 2017 reference to him in the Post. And I’d never heard an explanation as to why he was hired, until I heard this one, offered by Merritt in his testimony:

[Phalen] had worked with us in Public Works in the…CBRM, but John also had economic development experience, and he was a businessman himself and he had experience in trade shows, so he was a real good fit to the role.

So what is happening here? Did Merritt just forget how long it took to replace Whalley? (He sounded very definite about the “eight months” in his testimony.) Or was Phalen somehow hired as economic development manager before the job was even posted? (This wouldn’t be entirely without precedent in the CBRM — remember, Marlene Usher was appointed CEO of the Port of Sydney Development Corporation before that corporation even existed.)

But what’s also interesting, in light of the constructive dismissal case, is that while Mozvik went to great pains to suggest the port was not one of Whalley’s key responsibilities, the first item listed under “Essential Duties and Responsibilities” in the description of Phalen’s job references the Port of Sydney Development Corporation which, at this point, still had responsibility for the container port project.

And while Mozvik had also tried to convince the court that oversight of the Marconi Campus move, which Whalley had been offered in lieu of any responsibility for port development, was a valid undertaking for a municipal economic development manager, it’s not listed anywhere in Phalen’s job description (unless it’s hidden behind “Downtown Revitalization Strategies” or “Other related duties”):

 

Gordie MacDougall, who would have been the director of HR when Phalen was hired, might have been able to shed some light on this mystery, but he wasn’t asked about it

When it came time to cross-examine MacDougall, Whalley’s lawyer had bigger fish to fry.

 

Each party is…entitled to an examination for discovery before the trial. Its purpose is to clarify the claim against the defendant and lets each side examine the evidence that the other side intends to use in court— How do civil cases work? Depart of Justice Canada

Whalley’s lawyer Blair Mitchell cross-examined MacDougall. MacDougall sounded decidedly testy throughout and Mitchell was cautioned by Justice Patrick Murray about his “tone” in addressing the witness.

But MacDougall was weirdly evasive in his testimony. Consider this excerpt. Mitchell had just established that upon being hired, Whalley would indeed have signed documents related to income tax, pension and benefits but no such documents were provided to the plaintiff during discovery:

Mitchell: Mr. MacDougall, you were the person who was tasked to identify documents for the purposes of this lawsuit from Mr. Whalley’s employment file, weren’t you?

MacDougall: Yes

Mitchell: Okay…you told me on discovery that you had gone back and searched the files.

MacDougall: Yes

Mitchell: Correct?

MacDougall: Yes.

Mitchell: You didn’t find any evidence of a document showing him signing up for insurance, did you?

MacDougall: I can’t remember.

Mitchell: You didn’t find any evidence of any document of him signing up for benefits, did you?

MacDougall: I’d have to refer back to the file, I’m sure it’s in there.

Mitchell: Well, just a second, Sir. You don’t remember. You were examined for discovery, you knew at the point where you were tasked to search the file that you were to produce all documents in that file related to the terms and conditions of Whalley’s employment, correct?

MacDougall: Let me put it this way, normally those documents are in the employment file.

Mitchell: Yes, I’m going to ask you to answer my question. You were tasked to identify all documents relevant or material to Mr. Whalley’s employment termination from his employment file, is that correct?

MacDougall: I produced whatever I was asked to produce.

MacDougall later stated that he thought he’d been “asked for specific documents” but “maybe” he had, as Mitchell suggested, been asked “to identify all documents in John Whalley’s employment file that were relevant to his terms and conditions of employment.”

And then they had this exchange:

Mitchell: And you did not produce, Sir, and you did not locate, I submit to you, any other signed documents by Mr. Whalley other than [the letter of hire] correct?

MacDougall: …I suppose but I’m not sure on that.

Mitchell: Okay, your best recollection is the answer to the question is ‘yes,’ correct?

MacDougall: My best recollection is the stuff was in the file.

The two reached no satisfactory conclusion during the cross-examination, but the next morning (Wednesday, August 22), brought a surprise: Mozvik rose on “a rather serious issue.”

He informed that court that having heard MacDougall state under cross-examination that certain documents related to Whalley’s hire were in his personnel file, he instructed MacDougall to “check the file to see what’s in it” because “it was never disclosed.”

Tony Mozvik (Source: ContactOut)

Tony Mozvik (Source: ContactOut)

Mozvik said that MacDougall had sent him a text message that morning indicating those documents “in fact, were in the personnel file.”

But Mozvik said, “Those documents were never disclosed because they were never given to me from CBRM.” Mozvik said he’d reviewed the documents 10 minutes prior to coming into court that morning and had brought the issue to Mitchell’s attention and allowed him to review the file.

“…a lot of these documents, I think you could argue, are not relevant to the court proceeding, but that said, I think they still should  have been disclosed.”

Mozvik then said:

“I can indicate to the court that there is no contract in the file but there are insurance documents and things of that nature.”

Mitchell, as you might expect, made as much hay with this failure to disclose as he could.

He said it was “astounding” that these documents had not been located earlier and that there should be “serious consequences” for this failure to disclose, but that post-trial would be the appropriate time to deal with that.

He then suggested that the materials (which Mozvik further characterized as “mostly insurance documents,” including Blue Cross and Manulife) should not be introduced as evidence. (Mozvik indicated the defense had  no problem with disclosure.)

Justice Murray acknowledged that the situation was “unusual” and wondered whether Mitchell wouldn’t like to see the documents and discuss them with his client before deciding whether or not they should be introduced as evidence.

Blair Mitchell (Source: Twitter)

Blair Mitchell (Source: Twitter)

Mitchell said he’d reviewed the file “quickly” and that he did not admit to Mozvik’s submission that there was no standalone contract in the file. He again reiterated that he wanted the file excluded from evidence. Mozvik said he had no problem with that, as long as Mitchell would not be making any representations as to what was in the file.

Ultimately, Murray agreed to exclude the documents, but told the lawyers he wanted it understood that they were not to become an issue at any future point in the trial. Mitchell and Mozvik both agreed to this.

At which point, former CAO Michael Merritt resumed his testimony. But you didn’t even know he’d begun his testimony because I was too busy talking about the surprise follow-up to MacDougall’s testimony.

No worries, I’ll tell you all about Merritt in Part VIII.

Featured image includes file folder illustration by Vincent Le Moign, CC BY 4.0, via Wikimedia Commons

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