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IN THE MATTER OF AN ARBITRATION

PURSUANT TO THE AGREED TERMS OF REFERENCE AND


THE COMMERCIAL ARBITRATION ACT OF BC

BETWEEN:

TELECOMMUNICATION WORKERS UNION

(the “Union” or the “TWU”)

AND:

SHERRYL ANDERSON

(“Anderson”)

AND:

GEORGE DOUBT

(“Doubt”)

ARBITRATOR: Vincent L. Ready

COUNSEL: Thomas F. Beasley for


the Union

Scott A. McCann for


Sherryl Anderson

George Doubt on his


own behalf

DATE OF DECISION: January 14, 2011

32491
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I was initially appointed by the Telecommunication Workers Union (the


“Union”) to investigate a complaint filed on November 17, 2009 pursuant to the
Union’s Harassment Policy (the “Harassment Policy”) by the Union’s President,
George Doubt, against the Union’s Secretary Treasurer, Sherryl Anderson. I
began my investigation by conducting lengthy interviews with the protagonists,
Doubt and Anderson. It was identified to the parties that there appeared to be
intractable disputes at issue arising from Doubt’s November complaint but also
from an earlier complaint filed by Doubt against Anderson and Anderson’s
harassment complaints against Doubt. As a result, the Union, Doubt and
Anderson agreed to refer all outstanding issues to binding arbitration according
to the following terms of reference:

Whereas disputes have arisen between the Telecommunications


Workers Union (the “TWU”), certain members of the Executive
Council and Ms. Sherryl Anderson arising out of complaints filed
by Sherryl Anderson and George Doubt under the TWU
Harassment Policy.

The end result of the complaints was a Decision of Final Resolve


issued by the Executive Council on September 18, 2009. Pursuant
to Article 3 of the Decision of Final Resolve, Ms. Anderson and her
lawyer were to meet with two designated representatives of the
Executive Council and its lawyer to discuss a mutually agreeable
“without prejudice” contractual agreement for the termination of
her position and duties and responsibilities with the TWU and the
resignation of her position on the Executive Council. Ms.
Anderson and her lawyer made it clear that they did not agree that
the Decision of Final Resolve was enforceable or constitutionally
valid. Nonetheless, all parties participated in a mediation process
but no resolution was reached.

Ms. Anderson and her lawyer have clearly indicated that they
intend to pursue a civil claim against the TWU, George Doubt and
certain Officers of the Executive Council personally for the
damages suffered by Ms. Anderson as a result of the Decision of
Final Resolve and the actions of certain members of the Executive
Council including the President, George Doubt. Likewise the TWU,
George Doubt and certain Officers of the Executive Council have
clearly indicated that they intend to pursue civil claims against Ms.
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Anderson personally for damages suffered by them as a result of


her actions.

Now therefore, the two designated representatives of the Executive


Council (on behalf of the TWU), George Doubt, and Sherryl
Anderson have all agreed to engage arbitrator Vince Ready to
provide a final and binding arbitration of the following issues:

1. What is the appropriate remedy if any for the termination of


Ms. Anderson’s position and duties and responsibilities with
the TWU and the resignation of her position on the Executive
Council, in light of all the circumstances of the case?

2. What is the appropriate remedy if any for Mr. Doubt arising


out his complaint which gave rise to the decision of final
resolve of September 17 and 18, 2009 and out of his
November 17, 2009 complaint and who is liable if anyone, in
light of all the circumstances of this case?

The parties agree as follows:

a. Mr. George Doubt will be granted “interested party”


status and will be allowed to attend the hearing and
his participation will be limited to making submissions
on the issues before the arbitrator and making closing
submissions with respect to the issues before the
arbitrator;

b. Ms. Anderson agrees to abide by paragraph 1(b) of the


decision of final resolve of September 17 and 18, 2009;

c. if Ms. Anderson is required to contact for the purpose


of the hearing any of the individuals or entities set out
in paragraph 1(b)(i) of the decision of final resolve of
September 17 and 18, 2009, then she shall do so only
through her Counsel, Scott McCann;

d. the TWU shall pay the arbitrator’s fees and


disbursements;

e. the decision will be final and binding on the parties


and no further action, claim, charge or complaint will
be pursued by the TWU, Sherryl Anderson or George
Doubt against each other or other members of the
Executive Council arising from the facts as outlined
herein;
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f. the arbitration shall be conducted in accordance with


the Commercial Arbitration Act;

g. the arbitrator shall determine the procedure for the


arbitration;

h; the arbitration shall be completed and a decision


rendered within 120 days of the date of this
Agreement;

i; the arbitrator shall have the jurisdiction to grant any


remedy he deems just and equitable in the
circumstances and such order may include an order
with respect to the payment of legal fees.

Further to the Terms of Reference, all parties agreed to proceed by way of


will say statements and supporting documents copied to each other. I was
provided with will say statements from Anderson, Doubt, the TWU, Ron
Palmer, Steve Lewis, Nancy McCurrach, Lori Ruggles, Lesley Moseley and Lee
Riggs, as well as reply will says statements from Anderson. As matters turned
out, the will say statements were relied on by all parties and no vive voce
evidence was called.

BACKGROUND
Put bluntly, when Doubt and Anderson assumed office, the Union was in
some amount of disarray. A four month long labour dispute with Telus in 2005
had affected a majority of the Union’s 14,000 members. Some Union members
saw the dispute and the resulting Collective Agreement as a defeat for the
Union and held Bruce Bell, the Union’s President, and members of the
Executive Council responsible. The disgruntled members, led by Don Stang,
tried to have Bell and three Executive Council members removed from office
before the end of their terms through a non-confidence motion passed by a
simple majority at a special convention (the “Stang Motion”). The President
and Executive Councillors challenged their removal from office before the BC
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Supreme Court and the Court in Bell (President, Telecommunications Workers


Union) v. Stang, [2006] B.C.J. No. 1506 held that the Stang Motion was
contrary to the Union’s Constitution and, therefore, null and void.

Bell survived the Stang Motion, but his opponents eventually succeeded
in removing him from office by way of charges and a trial under the
Constitution. As a result, Doubt replaced Bell as President in March, 2007.
Another casualty of the members’ wrath was the Secretary Treasurer, Jim
Christensen. He was charged with dereliction of duty under the Constitution.
Although the Trial Board found him innocent of the charges, he retired early.
Consequently, Anderson was elected to a one-year “remainder” term as
Secretary Treasurer. In March, 2008, she was acclaimed as Secretary
Treasurer for a three-year term of office.

What emerges from the evidence of the parties is that Doubt and
Anderson took control of an organization that was not only deeply divided, it
was also deeply in debt. The labour dispute with Telus, coupled with the
internal warfare, had left the Union in a financial crisis: there were significant
liens against the Union’s office building and unpaid bills piling up. It is
Anderson’s submission that she got the Union out of debt and back onto sound
financial footing. She says her commitment to getting the Union’s books in
order earned her the support of many Union members and staff. It is also her
submission that her efforts to pull up the drawbridge on Executive expenses
put her at odds with Doubt and some members of the Executive Council.

These differences became obvious in May, 2007, when Anderson filed a


complaint under the Harassment Policy against Doubt and Business Agent,
Ivana Niblett for allegedly making untrue accusations about her. On January
26, 2009, Anderson filed seven more complaints of harassment against Doubt,
Betty Carrasco (Vice President), John Carpenter (Vice President) and Niblett.
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Anderson alleged, in part, that the respondents had ganged up on her and
made untrue statements and threats against her.

In accordance with the Harassment Policy, a complaint is filed with the


Human Rights Officer (the “HRO”) assigned to the Province in which the
complainant resides. The HRO who is handling the complaint will consult with
the remaining HROs to determine on the face of the complaint that a bona fide
complaint exists. As Anderson’s complaints involved the President of the
Union and other elected officers, and to avoid an apprehension of bias, the
HRO referred her complaints to an outside investigator, Heather McKenzie of
the Integrity Group.

On April 1, 2009, Anderson went on medical leave. She remains on leave


to this day.

While on medical leave, Anderson saw from her emails and meeting
minutes that the Executive Council was making expenditures that she thought
were inappropriate or unnecessary. She was also critical of the way officers’
duties had been reassigned. She put these concerns into an open email to
Union members. On April 26, 2009 Doubt filed a complaint under the
Harassment Policy against Anderson, Lila Hackett and Harmony Jackson. His
complaint alleged, in part, that Anderson’s email was designed to exclude or
inhibit Doubt from holding office contrary to the Harassment Policy. Doubt’s
complaint was also referred to McKenzie to investigate. The offending email is
set out below:

This is to advise you that I am off on medical leave at this time due
to a series of work related incidences and am unsure as to my
return date. I am concerned and would like it known that I take
no responsibility whatsoever [emphasis in original] for the
decisions and monies being designated by the Executive Council. I
am dismayed to read the April Executive Council draft minutes
and believe that many of the motions passed were unnecessary
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and will cause financial hardship for the TWU. I am also very
concerned with the Table Officers recent actions at the April
Executive Council Meeting of reassigning locals and committees
without the input of the locals, committee members of the
Business Agents that were affected. The reassignments were not
well thought out and now I understand that George Doubt, Betty
Carrasco, John Carpenter and Tamara Marshall (acting ST) have
called a special meeting of the Executive Council on April 28, 2009
that must be attended in Burnaby by all of the Executive Council
members. I am unsure as to what the nature of the meeting is
other than it is to discuss assignments and Alternate Business
Agents. Please imagine the cost of this meeting with the number of
airfares, hotels, per diems etc….The Executive Council just met
last week. I am also concerned that the Table Officers have had a
letter hand delivered to Lila Hackett removing her from Office for
medical reasons. This is a serious violation of the Human Rights
Act.

I am emailing this from my home and do not have a list of


delegates email addresses. Please ensure this is forwarded to
delegates I may have missed.

For months, the tension between the Anderson and Doubt camps
continued to grow. In a meeting with McKenzie, Anderson was told “off the
record” that she should get legal counsel. One attempt to have the Union
provide her with legal counsel was met with the suggestion that she could seek
legal aid or cash out her time in lieu if she was having monetary challenges.
Anderson filed a grievance over the HROs’ decision not to refer her first
complaint to McKenzie. Anderson was removed from the Union’s email service.
In May, Anderson filed another complaint this time alleging retaliation attacks
by Doubt and other members of Executive Council including her removal from
email. Hackett filed her own harassment complaint against Doubt and then
she announced she was stepping down from office. There were allegations that
Doubt was trying to have one of the Pension Trustees removed from the
Pension Board.
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On June 19, 2009, Doubt filed an addendum to his original complaint


alleging that the rumours spread about the Pension Trustee issue was a
continuation of the attack on him by Anderson, Hackett and Jackson.
Anderson responded that Doubt’s complaints were frivolous and vexatious.

In a closed meeting held September 18 and 19, 2009, the Union’s


Executive Council reached a Decision of Final Resolve on Doubt’s April 26,
2009 harassment complaint. The Decision of Final Resolve reads as follows:

At a closed meeting of the Executive Council (“EC”) of the


Telecommunications Workers Union/Syndicat des
Travailleurs(euses) en Telecommunications (“TWU”) on September
17 and 18, 2009, the Human Rights Officers (“HROs”), Dale
Warner, Tricia Watt and Isabelle Miller of the TWU, made a
recommendation to resolve the complaint of George Doubt,
President of the TWU, against Sherryl Anderson, Secretary
Treasurer of the TWU.

Alyson Williams, Business Agent, chaired that meeting.

Information at closed meetings is kept confidential.

Mr. Doubt’s complaint concerned a harassment based on the wide


distribution of an April 14, 2009 letter and a letter from Mr. Doubt,
to individuals including members and Delegates (the “Complaint”).

Heather MacKenzie, the Investigator on the Complaint, had found


that the Complaint could not be resolved prior to investigation, and
that the complaint had been substantiated and remedial action
was required. Specifically, the Investigator found Ms. Anderson’s
conduct to be harassment under the TWU Harassment Policy and
common law, including maligning Mr. Doubt’s reputation and to be
using her role as Secretary-Treasurer and a Table Officer for
improper purposes such that it constitutes an abuse of authority.
Ms. MacKenzie determined that there is no real possibility of Mr.
Doubt and Ms. Anderson to achieve and sustain the semblance of
a constructive, or even civil, professional relationship.

The HROs recommendation was made in accordance with Section


4.2.f of the TWU Harassment Policy (the “Policy”). After a
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discussion at the closed meeting, the EC made the following


decision of a final resolve on the Complaint:

1. Ms. Anderson shall immediately cease and desist from:

a) harassing Mr. Doubt;

b) while she is on leave from the TWU, and until she


obtains approved medical – clearance to return to
work:

i. contacting the following about any aspects of


their business as it pertains to the TWU – any
members of the TWU, EC, TWU Committees, the
Telecommunication Workers Pension Plan
(“TWPP”), Concert Properties, and the Board of
the Telecommunications Workers Union
Benevolent Society (the “TWUBS”), staff of the
TWU, and employees or representatives of
employers with certifications with the TWU (the
“employers”);

ii. participating in the business of TWU, EC, TWU


Committees, the TWPP, Concert Properties, the
TWUBS and the employers; and

iii. performing any of her duties and responsibilities


as the TWU Secretary-Treasurer.

(collectively the “prohibition”)

The prohibition includes letters, text messages, blogs,


electronic communications, phone discussions, faxes,
emails, in person discussions, meetings, conference
calls and Board meetings. The only exception to the
prohibition is contact by Ms. Anderson with the
Telecommunication Workers Benefit Plan (“TWBP”)
and the TWPP concerning her rights and benefits
under those plans, and by Ms. Anderson concerning
contact with the EC on complaints by or against her,
or on appeals of those complaints.

2. Any breach of Section 1 may lead to charges against Ms.


Anderson under the TWU Constitution;
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3. Before Ms. Anderson returns to work, two designated


representatives of the EC and its lawyer shall discuss with
Ms. Anderson and her lawyer or advocate, a mutually
agreeable “without prejudice” contractual agreement for the
termination of her position and duties and responsibilities
with the TWU and the resignation of her position on the EC.
That agreement shall:

a) include a mutual release of all claims between Ms.


Anderson, the TWU and Mr. Doubt;

b) include a strict confidentiality provision between Ms.


Anderson, the TWU and Mr. Doubt;

c) include a non-disparaging provision between Ms.


Anderson, the TWU and Mr. Doubt; and

d) not impact on Mr. Anderson’s rights to medical leave


under the TWBP including their Short Term Disability
(“STD”) and Long Term Disability (“LTD”) Plans.

4. If no resolution is reached under Section 3 before Ms.


Anderson returns to work, then this decision shall be
returned to the EC for resolution before Ms. Anderson
returns to work.

This Decision of final resolve shall be communicated by the


Investigator to the Complainant and the Respondent in accordance
with Section 4.2.h of the Policy. In the event that the Investigator
is unavailable or unable to fulfill this provision due to illness or
absence, the Investigator shall designate an alternate to carry out
this function.

This Decision of final resolve and all matters with respect to the
Complaint shall be held in strictest confidence and shall not be
discussed by the Complainant or the Respondent with anyone
except their lawyers.

It is Anderson’s evidence that the Executive Council was told by Tom


Beasley, legal counsel for the HROs and the TWU, that the Decision of Final
Resolve was based on McKenzie’s recommendations. When Anderson asked
McKenzie why she had recommended Anderson be removed from office,
McKenzie said she was not aware of the Decision of Final Resolve. Anderson
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read the Decision to McKenzie and Anderson says McKenzie’s response was,
“Oh, fuck”. Based on her discussions with McKenzie, Anderson is convinced
that McKenzie did not regard the Executive removing Anderson from office as a
reasonable resolution to Doubt’s complaint.

It is clear that Anderson fought doggedly to appeal the Decision of Final


Resolve and to be allowed representation in that appeal. If the Union would
not provide her with legal counsel, she wanted a fellow TWU member, Lori
Ruggles, to represent her. Beasley, on behalf of the HROs, denied her request
because Ruggles had been interviewed by McKenzie during her investigation
and would, he maintained, be in a conflict of interest. On January 16, 2010, in
response to Anderson’s request, Doubt issued an Interpretation of the TWU
Constitution wherein he found that “...the complainant, the respondent or a
witness in a harassment matter is not entitled to be represented by a shop
steward, lawyer or anyone acting as an advocate during the investigation
process. In my view allowing such representation would turn the harassment
investigation into an adversarial process and would be contrary to the intent of
the Harassment Policy.” Doubt’s interpretation of the Constitution was
overturned by the Union’s Convention, in February, 2010.

Anderson remains convinced that the Union’s claim that Ruggles was in
a conflict of interest was bogus; she thinks the Union was afraid that she
would have been successful in arguing for an appeal if Ruggles had
represented her. She believes the Union’s refusal to allow her representation
was fundamentally a denial of natural justice. She independently retained
legal counsel for these proceedings.

It is Anderson’s evidence that a Council member put reconsideration of


the Decision of Final Resolve on the agenda of the October, 2009 meeting of the
Executive Council. She says the item was removed from the agenda but that
she was told it could go on the agenda for the following meeting. At the
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November Executive meeting, the Executive voted to remove the issue of her
appeal from the agenda.

Anderson’s attempt to have the November meeting of the Executive


reconsider the Decision of Final Resolve gave rise to Doubt’s second
harassment complaint against her. It is Doubt’s evidence that the circulation
of an appeal to the Executive would be a breach of confidentiality under the
Harassment Policy. Doubt says that he “hoped that by filing a complaint
quickly that the breach and resulting harm might be avoided.” The
Confidentiality provision of the Harassment Policy is set out below:

3.0 CONFIDENTIALITY

The TWU recognizes the difficulty of coming forward with a


complaint of harassment, as well as a complainant’s interest in
keeping the matter confidential. To protect the interests of the
Complainant, the Respondent, and others who may report
incidents of harassment, confidentiality will be maintained
throughout the process and information relating to the complaint
will only be disclosed to the extent necessary to carry out these
procedures. The TWU will administer this policy in accordance
with its obligations under applicable personal information
protection laws.

Where permitted by law, the TWU may collect, use or disclose


information necessary to conduct an investigation related to this
policy without consent.

3.1 Records

All records of complaints, including contents of meetings,


interviews, results of investigations and other relevant material will
only be disclosed to the extent necessary to carry out the
complaint process. The original records will be stored indefinitely
in the office of the Human Rights Officer assigned to the case.

In December, the Executive again voted to remove reconsideration of the


Decision of Final Resolve from the Executive Council meeting agenda. On
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January 19, 2010, the Executive ruled that an appeal of the Decision of Final
Resolve was out of order. It is Doubt’s evidence that Anderson was aware there
is no right of appeal for respondents in the Harassment Policy and there never
has been.

According to Anderson, at the TWU convention held February 1-6, 2010,


delegate Steve Lewis attempted to bring her appeal to the floor of convention.
She says that Lewis and other delegates to convention were told by an HRO,
Cindy Orivolo, that if they raised the issue they would be charged with and
investigated for breach of confidentiality. Anderson says that the convention
Chair determined the matter was not appealable to convention due to the
HROs’ advice that to allow the appeal would be in breach of the Harassment
Policy’s confidentiality provision. In March, 2010, Ruggles was informed by
Orivolo that she was being investigated for breach of confidentiality.

Anderson tried in vain to get a copy of McKenzie’s report. She wanted to


see McKenzie’s recommendations for herself. On November 25, 2009 she
emailed the Union’s privacy officers a request for disclosure under the Personal
Information Protection Act (the “PIPA”). On the same date, she emailed
McKenzie a request for full disclosure under PIPA. Anderson says that on
January 7, 2010 a Union privacy officer advised that, based on TWU policies,
Anderson was not entitled to a copy of McKenzie’s report. Anderson says that
no such policies exist. On February, 23, 2010, McKenzie provided disclosure of
what Anderson says were “a series of notes made by Heather McKenzie that I
cannot read.” McKenzie did not disclose her report.

Finally, upon realizing that the President and Executive Council were
never going to allow her to appeal the Decision of Final Resolve, Anderson
agreed to these proceedings.
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POSITIONS OF THE PARTIES


Mr. McCann, on behalf of Anderson, argues that a review of all of the
circumstances of this case demonstrates a campaign by certain members of the
Union’s Executive Council, led by the President, Doubt, to improperly remove
Anderson from office at any cost. As the Court held in Bell, supra, the
Constitution allows for only two mechanisms to remove an officer before the
expiry of their term – through a recall process or after a trial for offences under
the Constitution. Rather than abide by the Constitution, he says, these officers
used the Harassment Policy as the tool to remove Anderson from office.

It is McCann’s submission that the Decision of Final Resolve purportedly


is based on the independent findings of McKenzie; however, Anderson has
never seen McKenzie’s report or her findings. It is the HROs’ recommendations
that the Executive Council adopted recommendations that are ostensibly based
on McKenzie’s report. However, there is no evidence before this Board that
McKenzie recommended Anderson’s removal from office.

McCann further argues that the Decision of Final Resolve’s requirement


that Anderson agree to terminate her position and duties with the Union was
extraordinarily excessive in the circumstances of the case and beyond the
power and authority of the Executive Council. He maintains that Anderson
had no option but to agree to these proceedings because every attempt she
made to appeal the Decision of Final Resolve was thwarted by Doubt and his
supporters on the Executive Council. Ms. Anderson was constantly threatened
with charges for breaching confidentiality when she tried to appeal the Decision
of Final Resolve.

McCann submits that Anderson is entitled to damages flowing from the


loss of her employment and, based on the pertinent factors of age, length of
service, character of employment and the availability of alternative
employment, case law supports a notice period of 22-24 months. He says that
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Anderson had intended to work until she was 60 years old. She had no doubt
that she would have been re-elected as Secretary Treasurer and, consequently,
she should be compensated for the lost opportunity. McCann relies on Chaplin
v. Hicks, [1911] 2 K.B. 786 (C.A.) and Webb & Knapp (Canada) Ltd. v.
Edmonton (City), [1970] S.C.R. 588 for the principles to apply when assessing
the damages for loss of an opportunity or chance to obtain a benefit. He
argues there was a very high likelihood that absent the improper action of
certain members of the TWU Executive Council, Anderson would have been re-
elected as Secretary Treasurer and damages awarded under this heading must
include all salary and benefits that Ms. Anderson would have earned during
this period.

It is McCann’s submission that Anderson is entitled to bad faith and


aggravated damages arising from the manner in which she was dismissed. He
argues that it was reasonably foreseeable that the actions of the TWU, Doubt
and certain members of the Executive Council would cause significant mental
distress to Anderson. He argues that their conduct was clearly calculated to
produce the effect which it did and, in doing so, they breached the obligation of
good faith and fair dealing in the manner of dismissal that the Supreme Court
of Canada requires of employers in Honda Canada Inc. v. Keays, 2008 SCC 39.
As a result, McCann contends, Anderson is entitled to significant damages for
the mental distress she suffered including but not limited to anguish, grief,
humiliation, wounded pride, damaged self-confidence or self-esteem, damaged
reputation and severe depression. In addition, he relies on Sulz v. Canada
(Attorney General), 2006 BCSC 99, to argue that Anderson is entitled to
damages for the negligent infliction of mental suffering.

Finally with respect to damages, McCann argues that Anderson is


entitled to punitive damages. In Vorvis v. Insurance Corp. of British Columbia,
[1989] 1 S.C.R. 1085, the Court held that punitive damages are appropriate in
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respect of conduct which is of such nature as to be deserving of punishment


because of its harsh, vindictive, reprehensible and malicious nature. Counsel
argues that the TWU ought to be punished for condoning what is so clearly
malicious, oppressive and highhanded conduct by its President and members
of its Executive Council.

It is McCann’s submission that from the outset, Anderson was denied


the representative of her choice. The Union blocked Anderson’s attempts to
have Ruggles represent her in an internal appeal. And, even though the
Decision of Final Resolve requires Anderson to retain legal counsel, she has not
been reimbursed for legal fees. As a result of the TWU’s actions, Anderson has
been forced to retain counsel while she is on a reduced income due to her
illness. The expense has exacerbated Anderson’s mental distress, requiring her
to pay her legal fees would be deplorable, McCann maintains.

McCann also relied on the following authorities with respect to claims for
damages: Morrow v. Outerbridge, 2009 BCSC 433; Greater Toronto Airport
Authority, [2010] C.L.A.D. No 127 (Shime); Tipple v. Deputy Head (Department
of Public Works and Government Services), 2010 PSLRB 83 (Quigley); Mustaji v.
Tjin, [1996] B.C.J. No. 1376 (C.A.); and Dixon v. British Columbia Transit, [1995]
B.C.J. No. 1892 (S.C.).

For its part, Mr. Beasley argues on behalf of the TWU that Anderson
continually and regularly breached the confidentiality provision of the TWU
Harassment Policy by contacting members of the Council about her complaint.
Further, following the Decision of Final Resolve, she continually and regularly
contacted members of the Council, staff and other organizations whom she was
prohibited from contacting. He maintains that Anderson’s actions and
breaches of confidentiality have negatively impacted the TWU and irreparably
broken any chance that she could reasonably return to work as the Secretary
Treasurer, if she was cleared to return to work. He notes that Anderson
17

remains on medical disability and has not provided any medical report that she
is able to return to work now or at any time in the future.

It is Beasley submission that as the Secretary Treasurer of the TWU,


Anderson owes a duty of fidelity and good faith to the Union. He argues that
she has breached that duty by her disrespectful barrage of emails and
correspondence to members of the Council, her breaches of confidential
matters and breaches of the Decision of Final Resolve. She failed to be loyal to
the Council and its Decision of Final Resolve and made derogatory remarks
about the Council and its members, he maintains.

Beasley continues that Anderson’s breaches of the Decision of Final


Resolve constitute gross insubordination and wilful disobedience. He relies on
Heyes v. First City Trust Co., [1981] B.C.J. No. 1529 wherein the Court held
that where an employer can establish that an employee acted in wilful defiance
of clear and unequivocal instructions from a superior, then the employer may
dismiss an employee without notice.

It is Beasley’s submission that Anderson is not entitled to any


remuneration because of the severe breaches of her duties and responsibilities
which are equivalent to just cause in the employment relationship. He
maintains that as an elected official Anderson has a higher duty of loyalty and
good faith and, consequently, her breaches deny her entitlement to
remuneration.

Beasley maintains that the appropriate remedy is for Anderson to remain


on medical leave until she obtains clearance to return to work. If she is cleared
to return to work prior to the expiry of her term of office in the spring of 2011,
Anderson should be deemed to have resigned, whereupon she is entitled to
apply for severance pay under the Telus severance agreement, he submits. In
the alternative, he argues that if Anderson is cleared to return to work before
18

her term of office expires, and I find that she is entitled to remuneration in
addition to Telus severance, then she should be kept on salary continuance by
the TWU until her term of office expires. In that event, she shall not have or
exercise any duties or responsibilities as the Secretary Treasurer and as a
Council Member and the provisions of Section 1 of the Decision of Final
Resolve will continue to apply.

In the further alternative, Beasley argues that if Anderson is entitled to


remuneration, then she is only entitled to that remuneration when she is
cleared to return to work. He relies on Sylvester v. BC, [1997] 2 SCR 315
wherein the Supreme Court of Canada held at para. 17 that “[I]t makes no
sense to pay damages based on the assumption that [the employee] would have
worked in addition to disability benefits which arose solely because [the
employee] could not work.”

With regard to the appropriate remedy for Doubt, Beasley argues that he
is not entitled to any remedy against the TWU. Doubt filed two harassment
complaints under the Harassment Policy. The first resulted in the Decision of
Final Resolve which does not contemplate damages to Doubt. The Harassment
Policy does not give the Executive Council the authority to award damages to
the person who was harassed, Beasley continues. In these proceedings, he
says the arbitrator is standing in the shoes of the Union’s Executive Council
with respect to the second complaint and therefore determination of the
appropriate remedy must be consistent with the Harassment Policy and cannot
result in an award of damages.

Beasley also relied on the following authorities with respect to


disobedience, insubordination and insolence: Gordon v. Tubs Ultimate Bath
Store, [2009] O.J. No. 2244 (Ont. S.C.J.); Holden v. Metro Transit Operating Co.
(1983) 1 CCEL 159 (BCSC); Roden v. Toronto Humane Society, April 1, 2005,
19

Ont. CA.; Candy v. CHE Pharmacy Inc. (1997) 31 B.C.L.R. (3d) 12; Vatri v. Delco
Wire & Cable Ltd, [1983] O.J. No. 2493 (Ont. Co CT); Rysstad v. Dependable
Turbines Ltd., 2007 BCSC 474; and Henry v. Foxco Ltd. (2004) NBCA 22.

On his own behalf, Doubt argues that he has participated in many


elections and has won many and lost some. It is his submission that he has
been able to continue working on a constructive basis with opponents after
each type of result.

It is Doubt’s submission that he has suffered harm resulting from the


accusations made against him by Anderson, the handling of all of the
complaints by the TWU HROs and the constant breaches of confidentiality. He
says that he has suffered injury to his feelings, loss of dignity and loss of self
respect resulting from Anderson’s actions and the handling of all of the
complaints by the TWU. Doubt argues that the harm has been multiplied by
the fact that it became public knowledge that harassment complaints against
him were being investigated.

Doubt maintains that from the spring of 2008, the intention of Anderson
and others was to remove him from office in any way possible. He was elected
in 2010 by the narrowest of margins with the opposition to him organized
around the allegations made in Anderson’s complaints.

Doubt argues that his reputation within the TWU and in the Canadian
labour movement has been irreparably harmed. It is his expectation that his
future employment and income after leaving the TWU has been significantly
harmed. The constant attacks by Anderson and the publicity surrounding
them have resulted in negative physical health and mental health effects, he
maintains. They have had irreparable effects on his personal life and
relationships, resulting in suffering and other negative effects on his family.
20

In support of his claim for damages, Doubt relied on Torres and others v.
Langtry Industries (No. 5), 2009 BCHRT 3; Ratzlaff v. Marpaul Construction
Limited and Rondeau, 2010 BCHRT 13; Harrison v. Nixon Safety Consulting and
others (No. 3), 2008 BCHRT 462; and Senyk v. WFG Agency Network (No. 2),
2008 BCHRT 376.

DECISION
By agreement of all of the parties, the purpose of these proceedings is to
determine the relatively narrow issues set out below:

1. What is the appropriate remedy if any for the termination of


Ms. Anderson’s position and duties and responsibilities with
the TWU and the resignation of her position on the Executive
Council, in light of all the circumstances of the case?

2. What is the appropriate remedy if any for Mr. Doubt arising


out of his complaint which gave rise to the Decision of Final
Resolve of final resolve of September 17 and 18, 2009 and
out of his November 17, 2009 complaint and who is liable if
anyone, in light of all the circumstances of this case?

Having carefully considered the submissions of the parties, it becomes


apparent that there was a power struggle between Doubt and Anderson and
their respective supporters. Doubt’s harassment complaint led to the Decision
of Final Resolve which further led to Anderson’s agreement to terminate her
position and duties and responsibilities with the TWU and these proceedings.

In the period following the Decision of Final Resolve, Anderson made


repeated and futile attempts to appeal the Decision. Based on her knowledge
of the Constitutional methods of removing an elected officer, which the Court
affirmed in Bell, supra, Anderson was convinced the Executive Council could
not use the Harassment Policy to remove her from office. She was certain that
if she could only get her appeal heard, the Constitution would prevail. It will
21

be recalled that the Decision of Final Resolve included a very broad


“prohibition” against Anderson contacting anyone elected or hired or associated
with the TWU about any aspects of their business as it pertained to the TWU.
The TWU argues that Anderson was insubordinate and wilfully disobedient in
her refusal to abide by this prohibition. Further, the Union argues that the
tone of Anderson’s emails was disrespectful and breached the confidentiality
required by the Harassment Policy. In the result, the Union says, her
termination was for just cause and she is entitled to no remuneration for the
loss of her office in spite of Bell, supra.

I do not find the Union’s argument persuasive; nor is it even consistent


with the Decision of Final Resolve. The Decision includes the following
exception to the blanket prohibition:

The only exception to the prohibition is contact by Ms. Anderson


with the Telecommunication Workers Benefit Plan (“TWBP”) and
the TWPP concerning her rights and benefits under those plans,
and by Ms. Anderson concerning contact with the EC on
complaints by or against her, or on appeals of those
complaints.

(emphasis added)

I find that Anderson was within what had become her extremely limited
rights when she contacted the Executive Council and others and that her
conduct cannot constitute insubordination or wilful disobedience. I also find
that her desire to appeal the Decision of Final Resolve which had the
monumental effect of removing her from office was consistent with the course
of natural justice.

Anderson’s many attempts to appeal the Decision of Final Resolve were


blocked either on the grounds that an appeal would be a breach of the
confidentiality provision of the Harassment Policy or that a respondent has no
22

right of appeal under the Harassment Policy. Having found that Anderson’s
right to appeal was consistent with the Decision, it comes as no surprise to me
that she became more and more frustrated with being stonewalled in her
attempts to have that appeal heard. In all the circumstances of the case, I find
that Anderson’s communications do not constitute conduct that would deprive
her of any remedy as alleged by the Union.

The issue of what is the appropriate remedy for the termination of


Anderson’s position and duties and responsibilities with the TWU and the
resignation of her position on the Executive Council is complicated by the fact
that she remains on medical leave and that it is the elected office she will
terminate, not her employment. McCann argues that had she been a regular
employee of the TWU, Anderson would be entitled to reasonable notice of
termination. However, Anderson is not a regular employee of the TWU. She is
a salaried officer of the Union who was elected for a three year term.

McCann argues Anderson ought to receive damages for loss of


opportunity as she would likely be re-elected at the end of this term of office
and would have continued to hold office until she was age 60. I have a number
of concerns with this argument. Anderson has been on medical leave since
April, 2009 and there was no evidence led in these proceedings about her
prognosis for recovery. I am not prepared to make assumptions about when
she will be fit to return to work and run again for office. The fact remains she
was elected for a three year term. The outcome of future elections is
speculative at best, particularly in a volatile political environment like the
TWU’s. And, finally, the issue before me is the appropriate remedy for the
termination of Anderson’s current position as Secretary Treasurer. There is
nothing in the terms of reference for these proceedings or in the original
Decision of Final Resolve that prevents Anderson from seeking office in the
future.
23

Anderson has been on medical leave since April 1, 2009 – prior to Doubt
filing the complaint that led to the Decision of Final Resolve. However, the
medical evidence before me clearly linked Ms. Anderson’s continued struggles
with work to the length and severity of her illness. Her term of office expires at
Convention in the spring of 2011. There is no salary loss to Anderson until she
is deemed fit to return to work. In these proceedings all parties have agreed
that Anderson will resign her position as Secretary Treasurer; however, no
evidence was before me that resigning her position will affect her right to
remain on medical leave for as long as she is eligible for medical benefits.

What remains to be determined is the appropriate remedy for the


termination of her position in all of the circumstances of this case.

It is clear from the evidence that Anderson has experienced a great deal
of suffering as a result of the manner in which her position was terminated.
Anderson was given nothing short of the run around when she attempted to
appeal the Decision of Final Resolve. The actions of Doubt and other members
of the Executive Council had the effect of cutting off every route to natural
justice that ought to have been available to her. I accept Anderson’s evidence
that this experience has directly resulted in her suffering mental distress,
including insomnia, weight gain, depression, anxiety, panic attacks, anhedonia
and increasing isolation from friends, family and peers.

Accordingly, in light of the foregoing complications associated with


Anderson’s current medical leave and the fact that it is only her elected
position that is being terminated, I award Ms. Anderson nominal damages for
the breach of her contract in the amount of $1,000.00. However, I also find
that Ms. Anderson is entitled to additional damages arising from the conduct of
Doubt and other members of the Executive Council for the reasons described
below.
24

The Court’s Decision in Morrow v. Outerbridge, supra provides a clear


definition of aggravated damages. At paragraph 252, Justice Bennett cited
with approval from the Court of Appeal’s Decision in Huff v. Price, [1990], 51
B.C.L.R. (2d) 282 (C.A.) where the Court stated (at para. 299):

So aggravated damages are an award, or augmentation of an


award, of compensatory damages for non-pecuniary losses. They
are designed to compensate the plaintiff, and they are measured by
the plaintiff’s suffering. Such intangible elements as pain,
anguish, grief, humiliation, wounded pride, damaged self-
confidence or self-esteem loss of faith and friends or colleagues,
and similar matters that are caused by the conduct of the
defendant; that are of the type that the defendant should
reasonably have foreseen in tort cases or had in contemplation in
contract cases; that cannot be said to be fully compensated for in
an award for pecuniary losses; and that are sufficiently significant
in depth or duration, or both, that they represent a significant
influence on the plaintiff’s life, can properly be the basis for
making an award for non-pecuniary losses or for augmentation of
such an award. An award of that kind is frequently referred to as
aggravated damages. It is, of course, not the damages that are
aggravated, but the injury. The damage is for aggravation of the
injury by the defendant’s high-handed conduct.

I find that “high-handed conduct” is a good description for the way in


which Doubt and other members of the Executive Council acting on behalf of
the TWU blocked Anderson’s right to a fair hearing. I accept that the physical
and mental distress Anderson experienced as a result of the Decision of Final
Resolve was prolonged and worsened by the continuing injustice perpetrated
against her.

I have considered Anderson’s claim for damages resulting from negligent


infliction of mental suffering. The Court in Sulz v. Canada (Attorney General),
2006 BCSC 99 noted at para. 144 that “[a] successful claim of negligence must
demonstrate that the defendant owed the plaintiff a duty of care, that the
defendant breached that duty of care, and that damages or injury resulted from
25

that breach.” I find that the TWU President and Executive Council owed a duty
of care to Anderson. As stated above, the TWU Constitution provides only two
mechanisms for removing an elected officer prior to the expiry of their term.
The Executive Council was acutely aware of that fact as a result of the Court’s
decision in Bell, supra. In that case, Union members had wielded the TWU
Constitution like a cudgel. In this case, it is the Harassment Policy that was
the weapon of choice. I find the TWU breached its duty of care to Anderson
when it decided to remove her from office in response to Doubt’s complaint and
contrary to the Constitution. It is evident that the blatant manipulation of the
Harassment Policy in order to oust Anderson from her position caused her a
great deal of additional pain and suffering.

In the result, I find that Anderson is entitled to tort damages for


negligent infliction of mental suffering and aggravated damages for the manner
of the breach and the manner of the tort, in the lump sum amount of
$100,000.00, based on the principles described above.

I have also considered whether punitive damages are appropriate in this


case. In Vorvis, supra, the Court discussed the circumstances that will give
rise to an award of punitive damages. At para. 27, Justice McIntyre writing for
the majority relied on Pace J.A. in Warner v. Arsenault (1982), 53 N.S.R. (2d)
146 (N.S.S.C.A.D.) where the Court expressed these principles:

Exemplary or punitive damages may be awarded where the


defendant’s conduct is such as to merit punishment. This may be
exemplified by malice, fraud or cruelty as well as other abusive and
insolent acts towards the victim. The purpose of the award is to
vindicate the strength of the law and to demonstrate to the
offender that the law will not tolerate conduct which wilfully
disregards the rights of others.

In adopting the Decision of Final Resolve, the TWU Executive Council


ignored both the Court’s decision in Bell, supra and the Constitution. This
26

time they used the Harassment Policy to remove an elected officer before the
end of their term. The abuse of process to which they subjected Anderson is
deserving of harsh condemnation. This Union must realize that its elected
officers “...are not like tissues to be used up and then thrown out at a whim...”.
(Greater Toronto Airport Authority, supra). I find that an award of $25,000.00 in
punitive damages is appropriate in all the circumstances of this case.

Finally, the Union’s response to Anderson’s requests for representation


was also disturbing. Anderson sought to have a Union member represent her
as was the practice in internal disputes. The Union put time and effort,
including its legal resources, into ensuring that Anderson could not have the
representative of her choice. I am persuaded that the Union selectively relied
on a perceived conflict of interest to deny Anderson’s request. When she
turned to legal representation – as required by the Decision of Final Resolve –
her request for support did not even warrant a response from the Union. In
the particular circumstances of this case, I find that Anderson is entitled to be
reimbursed for all of her actual legal costs by the Union.

In summary, for the reasons above, I find that the appropriate remedy for
the termination of Anderson’s position and duties and responsibilities with the
TWU and the resignation of her position on the Executive Council is as follows:

The TWU will pay to Anderson:

1. nominal damages in the amount of $1,000.00 for breach of


contract;

2. $100,000.00 in tort and aggravated damages;

3. $25,000.00 in punitive damages; and

4. all of her actual legal costs associated with this matter.


27

With regard to the appropriate remedy if any for Mr. Doubt arising out of
his first complaint, I find that the Decision of Final Resolve of September 17
and 18, 2009, was a complete remedy to Doubt’s complaint. Out of his
November 17, 2009 complaint, Doubt claims that he suffered as a result of the
constant attacks by Anderson and others in the Union and as a result of, in his
words, “the handling of the complaints by the TWU human rights officers”. I
accept his submission that this matter was not handled appropriately by his
Union and did, according to his medical evidence, cause him negative effects.
Consequently, I order the Union pay him $1,000.00 for his pain and suffering.

I retain jurisdiction as an arbitrator to resolve any issues arising from


implementation of this award.

It is so awarded.

Dated at the City of Vancouver in the Province of British Columbia this


14th day of January, 2011.

_____________________________
Vincent L. Ready

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