The Whalley Trial: Postscript

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 the final installment. (Read Part I,Part II,Part III,Part IV,Part V, Part VIPart VIIPart VIII, Part IX, Part XPart XI and Part XII)


Tony Mozvik

Tony Mozvik

The CBRM’s lawyer, Tony Mozvik, was given one final opportunity to speak and his opening line was perhaps the most memorable of the entire trial, given that it was spoken by a lawyer representing a municipality:

My friend referenced the Municipal Government Act, in spite of saying that he wasn’t going to, and that’s fine. I have a big ‘who cares?’ about the Municipal Government Act in this submission.

For a thrilling moment, I thought this was some sort of declaration that the CBRM would no longer be bound by the MGA – mutiny! But then I tuned back in to Mozvik’s discourse:

The Municipal Government Act really doesn’t have anything to do with anything at this point in time. It has nothing to do with constructive dismissal, mitigation or employment obligations and/or mitigation. It is simply a mechanism to highlight what I would say is the principal of ‘No good deed goes unpunished.’

The mayor, being a good guy, sent out word to [Whalley], after he resigned saying that, ‘You know, you can come back’ through Ms. Walsh. And what they do is they try to turn it on its face, by saying he had no authority to do that.

Now, it was a simple comment, a reaching out, obviously something would have had to happen if Mr. Whalley took him up on it. The mayor didn’t say he had a job or he was going to give him a job personally, everybody knows the mayor can’t hire or fire something. The mayor knows that.

(Given that CBRM CAO Marie Walsh had testified earlier that the mayor had, in fact, hired staffers who reported directly to him, I think this last point is debatable, but I am no lawyer.)

Mozvik used his final minutes to argue that Whalley had other responsibilities than the port, that he was one of a number of people who worked on the port file, that the concerns he’d raised about the McKeil deal were answered by the Regional Solicitor and the Department of Municipal Affairs, that Whalley had known responsibility for the port was going to be transferred to the new port corporation, that there was no evidence of Whalley experiencing “psychological difficulties” or seeking “psychological help” after he resigned, that after 18 years on the job it took Whalley only an hour to resign and that believing in the existence of a contract other than the letter of hire was like “watching a movie” and being asked to “suspend belief.” (By which I presume he meant, “suspend disbelief,” otherwise, he must be an awful person to watch movies with.)

And then, the defense rested.


Last words

Appropriately, the final words were those of Justice Patrick Murray, who had a couple of questions for each of the lawyers.

Murray asked Mitchell if he should consider the Parol Evidence Rule in determining the terms of Whalley’s contract.

In Canada (according to Duhaime’s Encyclopedia of Law), the Alberta Court of Appeal described the rule this way in Gainers Inc. v. Pocklington Financial Corporation:

When the deal is complete in the written contracts…., other evidence (parol evidence) is inadmissible to vary or contradict a clear written contract.

Mitchell, in response, maintained that there were three different kinds of contracts (entirely written, entirely oral and some combination of written and oral) and pointed Justice Murray to Sattva Capital Corp. v. Creston Moly Corp, which he clearly felt had some relevance to Whalley’s case, but as he didn’t have time to elaborate on just how it related to Whalley’s case, there’s nothing more I can say about it.

Having posed his questions, Justice Murray thanked everyone for participating in the trial and said he would hand down his decision in a timely manner, although he declined to set a date, saying only that he would release it when he’s ready and when he’s comfortable with releasing it.

And with that, court was adjourned.

Featured photo: Justice Patrick Murray, for the record, did not use a gavel. I have taken some artistic license with the photo.


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