bLAWgazine: How not to terminate an employee

Quinn M RossQuinn Ross is one of eight lawyers at The Ross Firm. Quinn practises in the areas of real estate, corporate/commercial law and estate law. He also has broad experience in criminal, administrative and civil litigation where he has appeared before the Ontario Court of Justice, the Ontario Superior Court of Justice, the Divisional Court of Ontario, the Court of Appeal for Ontario and various administrative tribunals.



rossfirmterminate20130128John Pate was the chief building official for a township north of Peterborough for 10 years, and had a clean employment record.

As a result of an amalgamation in 1998, a new township was created and Pate became a building inspector in the new building department. John Beavan became the new chief building official for the newtownship, and also Pate’s new boss.

It is of note that Beavan, before becoming a building official, had been a police staff sergeant for many years prior to his retirement from the police force.

On March 26, 1999, with instructions from the township’s chief administrative officer, Pate was summarily terminated from his job by his boss Beavan, the former police officer.

At the time, Pate was told he was being fired because of discrepancies uncovered with respect to building permit fees, and the municipality believed that Pate had pocketed the fees for himself.

Then Beavan made a very strange offer to Pate.  If Pate were prepared to walk away from his job and resign without his severance pay or any other money from the municipality, the municipality would not contact the police.

Pate asserted his innocence and refused to quit.  As a result of that decision, the municipality passed on information to the OPP.

Interestingly, the OPP officer who investigated the complaint was reluctant to lay charges because of what he viewed as inadequate evidence.

From the municipality’s point of view, if Pate were convicted of a criminal offence, the municipality would not have to pay him any severance pay or damages for wrongful dismissal.  On the other hand, if he were not guilty, well…that was a whole other kettle of fish and the municipality might have to come up with a whack of money to satisfy Pate’s claim in a civil trial for wrongful dismissal.

The municipality decided in all its wisdom to override the investigating officer, and exerted pressure through those higher in command within the OPP.  Ultimately, criminal charges were laid to be tried in a criminal trial.

In response to that, Pate commenced a civil action against the municipality, claiming damages for wrongful dismissal and malicious prosecution.

The evidence provided to the OPP by the municipality for the criminal trial was that the municipality had searched its records and could not find any records concerning building permits the municipality knew should have been issued by Pate.

The municipality claimed, in short, that Pate had issued building permits to various applicants without opening a file and simply pocketed the fee for himself without leaving a record of the transaction.  That does sound like theft.

At the criminal trial, which lasted four days, the court heard what the municipality and in particular, what the former police staff sergeant Beavan failed to tell the OPP.

John Beavan failed to disclose to the OPP that the municipality had lost a large number of files including building permit files, and it was ‘common knowledge’ to the municipal employees as well as to the chief administrative officer of the municipality that during the relocation of township offices many files and records had been permanently lost.

The former police staff sergeant, Beavan, who fired Pate on behalf of the municipality, also failed to tell the OPP that he had retained Pate’s journal showing his monthly reconciled entries relating to building permit applications and building permit application fees.  At trial, the former police officer, Beavan, could not tell the court what had happened to the journal, nor could he produce it.

Pate was acquitted of all charges in the criminal trial and was free to proceed with his civil action against the municipality, claiming damages for wrongful dismissal from his job, as well as damages for malicious prosecution pursued by the municipality through the criminal court system.

During that civil trial against the municipality, Beavan, the former police staff sergeant acknowledged that he only turned over the statements and evidence to the OPP that building permit files concerning Pate were missing but not that many other files and records were also missing.  He admitted at the trial that he now realized, belatedly, the police may have only relied upon his limited disclosure, notwithstanding that he himself would not have done so had he been the investigating officer.

The judge at the civil trial for wrongful dismissal found it ”…Most troubling…that Mr. Beavan, in most of the statements, went to great length to indicate that he had conducted comprehensive searches of the files and records in building office and cannot locate any evidence of an application for a permit or issued building permit.”

“Everyone employed by the Defendant [Municipality] was well aware that records of this nature had gone missing as a result of the municipal office move.  This was never disclosed [to the police] and should have been disclosed by the Municipality to the investigating officer.”

In the end the court found that ”…there was more than ample evidence to conclude that the Township initiated the criminal proceedings against Mr. Pate without reasonable and probable grounds to believe that he committed thefts and did so maliciously in order to avoid civil liability for the termination of his employment.

The court awarded John Pate more than $825,000 in compensation, damages and costs, including $550,000 in punitive damages against the defendant The Corporation of the Township of Galway-Cavendish and Harvey.

Tragically, Pate died before the final decision was handed down by the court.

Lessons to be learned:

  1. Employment law is very tricky.  You may not know whether you are being fairly treated by your employer and it is always best to obtain an opinion from a law firm that has employment law experience.
  2. Employers should always be wary before they let an employee go.  It is far better to obtain legal advice well before an employee is given notice of termination.
Written by on January 28, 2013 in Quinn Ross - No comments

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