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Catholic board ordered to cover costs of former Communications director

Posted June 11, 2014

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 Howden disagreed.

"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."

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