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BETWEEN:
AND:
SHERRYL ANDERSON
(“Anderson”)
AND:
GEORGE DOUBT
(“Doubt”)
32491
2
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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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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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.
Anderson alleged, in part, that the respondents had ganged up on her and
made untrue statements and threats against her.
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.
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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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.
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.
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.
November Executive meeting, the Executive voted to remove the issue of her
appeal from the agenda.
3.0 CONFIDENTIALITY
3.1 Records
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.
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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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.
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
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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.
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.
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.
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.
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.
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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:
(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.
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.
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.
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.
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.
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.
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:
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.
It is so awarded.
_____________________________
Vincent L. Ready