Former Economic Development Manager John Whalley’s civil suit against the Cape Breton Regional Municipality for constructive dismissal was the first (and to date, only) court case I have ever covered — but boy, did I cover it.
I attended the trial in August 2018 (four full days, and a brief appearance on the fifth) and then spent weeks writing about what I’d heard. Readers, I wrote a series of 14 articles about it — including one dedicated entirely to case law (case law!)
But I was clear from the very beginning that while I “hoped justice was done” in the case, my real interest was less in Whalley’s claim of constructive dismissal than in what the testimony revealed about:
…the inner workings of the administration of CBRM Mayor Cecil Clarke during a very controversial period that included the sale of Archibald’s Wharf, the McKeil deal and other strange doings around port development…
And the case did provide such a glimpse — in particular, it revealed (through the testimony of CAO Marie Walsh) that Mayor Clarke had hired staff who reported directly to him, something the Municipal Government Act (MGA) forbids Nova Scotia mayors from doing, and that those staffers were engaged through Business Cape Breton (BCB), the now-defunct “economic development arm” of the CBRM.
Dismissal
The presiding judge, Justice Patrick J. Murray of the Supreme Court of Nova Scotia, dismissed Whalley’s suit in December 2018, saying Whalley had left his job as the CBRM’s economic development manager of his own accord.
Whalley, according to the Cape Breton Post, filed an appeal on 31 December 2018.
Last Wednesday (September 18), Justice Carole Beaton of the Nova Scotia Court of Appeal “dismissed the claim at the request of the court registrar in accordance with a provision in the civil procedure rules.”
According to the Post, Whalley’s defense counsel — Blair Mitchell of Mitchell & Ferguson — failed to submit “necessary documents and other information” related to the appeal within the period specified in those rules:
In an appeal not perfected before 80 days from the date of the filing of the notice of appeal, or before any other time ordered by a judge, the registrar must make a motion to a judge for an order to dismiss the appeal on five days notice to the parties.
I asked Whalley about this and he told me (in an email) that there was still a “small chance” his case would be heard, so he preferred not to provide an official comment, but he noted that Justice Murray’s decision on costs had not been issued until 5 September 2018. That decision, which I’ve attached below, notes that the final cost submissions were not received until August 9.
Affidavit
The decision on costs runs to 11 pages and takes the reader through the positions of the CBRM — which asked for costs of $30,938.00 (plus disbursements) — and Whalley — who asked that the court should order no costs against him at all.
The CBRM argued it was entitled to costs as the successful party, but that it should receive “an increased cost award” because of remarks made by Whalley during an interview with the CBC’s Wendy Bergfeldt after Justice Murray’s decision was handed down.
This is a weird little path that involves an affidavit from Carolyn MacAulay, who heard the interview and wrote:
5. On December 20, 2018 I listened to a CBC radio show called Mainstreet hosted by CBC journalist, Wendy Bergfeldt. Ms. Bergfeldt interviewed both Mr. Tony Mozvik, Q.C. and Mr. John Whalley about this case.
6. During the interview, Mr. John Whalley made comments about costs and also pertaining to the fact that he never expected to win the case. I have provided a typed transcript of Mr. John Whalley’s comments to assist the court. I have created this transcript and confirm it is true an [sic] accurate to the best of my knowledge and belief. It is attached here to this my affidavit as Exhibit “A”.
She then provided the URL for the interview which you can still hear on the CBC Mainstreet website.
The CBRM took the interview as proof Whalley’s suit was frivolous and asked Justice Murray to “send a message in the form of a cost order to show that frivolous, vexatious and unwarranted actions, will be met with stiff costs consequences.”
Whalley, Justice Murray notes, objected “strenuously” to “the use of the CBC interview in support of CBRM’s position on costs. He stands by what he said, and in no way was this claim without merit.”
Whalley urged the court, instead to “consider the public nature of this litigation as well as other factors to reduce or eliminate the need for costs to be assessed against him.” Those factors included what Whalley said was “the CBRM’s policy not to claim costs against an unsuccessful litigant.” Writes Justice Murray:
Mr. Whalley submits that even if the Court is included to award some costs, these circumstances warrant a reduction by as much as 50 to 60 percent of normal costs. Mr. Whalley believes the Court should order no costs at all against him.
In the end, Justice Murray, although he declared himself “inclined not to place much weight on the paragraphs pertaining to the CBC interview,” was not inclined to consider the question of Whalley’s dismissal as one “that raised an issue of broad public importance” either.
He awarded the CBRM costs of $25,000, all inclusive.
Canceled
I have to admit, if this is how the whole thing ends — with the appeal dismissed due to lack of supporting documentation — I will feel the way I did when HBO canceled Deadwood without resolving any of the story lines.
But even if the appeal is heard, I’m unlikely to get closure for the issues that really bugged me about this case — the mayor hiring staff who reported directly to him, the sale of Archibald’s Wharf to CME, the purchase of Sydport land to lease to McKeil Marine, the hiring of a pair of port “developers” who had never developed a port, Michael Merritt.
HBO eventually relented and produced a two-hour Deadwood movie tying up all the lose ends but, sadly, I don’t think there’s a real-life equivalent to that.
Still, I don’t regret the time and energy I spent covering the Whalley trial. I think I learned a lot about what was — no offense to Justice Murray — a matter of public interest.
Final_Costs_Decision
