Catholic board ordered to cover costs of former
Posted June 11,
Superior Court Justice P.H. Howden, ruled last month the
Simcoe Muskoka Catholic District School Board (SMCDSB) "has an
obligation to indemnify, reimburse and save harmless" its Director,
Communications and Public Affairs, "for all costs, charges and
expenses" while she defends herself against "disciplinary procedures
brought by the Board arising from a formal investigation and resulting
allegations going to her managerial abilities, her honesty and her good
faith in carrying out her duties," according to the ruling issued May
23, and posted online.
Diane Legg, who was hired by the Board as its communications officer in
July 2000, and promoted to Director in 2008, was suspended with pay on
Feb., 4, related to a complaint lodged against her in November 2013 by
an employee citing "abusive behaviour." and "a generally negative work
environment in the communications department due to her behaviour."
The ruling notes that efforts were made to try and resolve the problems
including the involvement of a third-party facilitator.
"On January 15, 2014, informal resolution attempts ended. By early
February 2014, concerns of the employee and others began to surface
about alleged "abusive, manipulative, and dishonest behaviour"
including allegations that Ms. Legg was not always where her work
responsibilities required or where her expense reports indicated she
should be. ... The Board caused an investigative firm to be hired whose
work was to focus directly on Ms. Legg. Since that firm's retainer in
early February 2014, the investigators have interviewed the interested
Board employees, eight by audio and seven transcribed. They conducted
surveillance of Ms. Legg. They have subjected her iPhone, computers,
network logs, video tape and a camera memory card to forensic
examination. Over 5,000 documents were obtained and reviewed in the
effort to analyze 82 dates when Ms. Legg was out of the office."
On April 24, 2014, the Board made the decision to dismiss the applicant
from her employment as Director of Communications and Public Affairs.
In this case, Justice Howden was not being asked to determine whether
the allegations against Ms. Legg were true, and cause for dismissal.
Rather, she had applied to the Court to compel the Board to live up to
its contractual obligation for "all costs, charges and expenses
whatsoever which the Communications and Public Affairs Director
sustains or incurs in or relation to any action, suit, or proceeding
which is brought, commenced or prosecuted against the Communications
and Public Affairs director for or in respect of any act, deed, matter
or thing whatsoever, made, done or permitted by the Communications and
Public Affairs Director, in or in relation to the execution of the
duties of the office."
The Board's position was the obligation to cover those costs and
expenses did not apply to an internal "proceeding," whice Justice
"There is a sense from the Board's submissions that it sees such
provisions as this one as being improperly utilized where the
proceeding is within the employer's own umbrella and not some third
party action against the applicant. It should be plain that many of the
cases holding in favour of indemnification and advancement of legal
costs deal with proceedings generated internally or brought within the
subject corporation or entity," he said. "Accordingly, it is declared
that the Board has an obligation to indemnify, reimburse and save
harmless the applicant for all costs, charges and expenses the
applicant has and will have in defending herself pursuant to Article
13.01 of the contract of employment ... including any legal fees,
disbursements, costs and HST the applicant has and will have to pay,
commencing on January 30, 2014."
However, Justice Howden added, "As several of the cases note, it is
open to the arbitrators in acting within their jurisdiction following
the arbitration hearing to order that the applicant repay the Board
some or all of the costs advanced to her under this order, or not."