By M.T. Fernandes | Dundalk Herald
Melanie McGraw, who was terminated without cause by Southgate in 2019, had her day in court and was vindicated.
Superior Court Justice Roger Chown backed up his Oct. 20 decision with damage awards for what he called “discriminatory and reprehensible” conduct: Moral damages – $75,000; Discrimination – $35,000; Defamation – $20,000; Punitive Damages – $60,000.
Ms McGraw also was awarded six months pay in the wrongful dismissal decision for Southgate not providing reasonable notice – about $12,000.
Southgate still faces covering part of Ms McGraw’s court costs, which have not yet been assigned. Some insurance policies do not cover damages which are punitive – that is, for treating the employee in a malicious or high-handed manner.
The Herald received the following reply to its questions sent to the township, including that about insurance: “On behalf of Mayor John Woodbury and the Township of Southgate we will not be making any comments at this time. Our Lawyer has advised the Township to not make any comment until we make a decision on a possible appeal of the decision over the next 30 days.”
TRIAL HELD IN APRIL
The trial was held on six days in April, and also included two later written submissions. John Tamming of Owen Sound acted for Ms McGraw and lawyers for the township were Sabatina Vassalli and Taylor Carson of Agro Zaffiro.
The case went to trial instead of there being a settlement made between the parties.
Mr. Tamming commented in an email reply to the Herald: “We regret that this matter had to proceed to trial. Southgate is not a large municipality and this judgement will be felt.”
But he added that Ms McGraw “strongly felt that she had to make a statement on behalf of all vulnerable employees.”
Justice Chown said in his decision:
“The facts are not subject to misinterpretation. Ms. McGraw was marginalized in a toxic, male-dominated workplace. Her termination was based on unfounded sexist allegations.”
RUMOURS & GOSSIP
Including the rumours here would spread them once more, when the trial judge has ruled they were unfounded. The matter was to do with allegations of improper personal conduct with impact on the department.
These rumours were described in a section from a recording of a closed Southgate council meeting which the Justice ordered to be released. In it, the CAO informed council of this background to his decision.
The township’s defence as summarized by the judge was that because there was no proof of pervasive rumours circulating about Ms McGraw, the defendants acted on them by firing her without cause.
Much of the evidence entered by witnesses for the defence about these allegations was hearsay, the judge said. Some of this testimony was from members of the department, past and present.
BACKGROUND
Ms McGraw was terminated without cause on Feb. 7, 2019 both as a fire captain and from her position as part-time administrative assistant.
She served ten years as an auxiliary and then as a volunteer firefighter and then fire captain, and three years as the part-time administrative assistant, the decision said.
Her ability as a fire captain and her performance in the administration role were not questioned at any time, Justice Chown said. She also has been an instructor at the Ontario Fire College, and now works for the Kirkland Lake fire department as a full-time platoon chief.
She took that position in January, 2019, intending to continue her 16-hour-per-week admin position with the Dundalk department, but she was terminated in February, 2019.
The CAO did receive advice at the time of the termination from both a human resources firm and a legal firm, the decision reported in summarizing the facts of the trial.
In the wake of the firing, but without making any public reference to it, the then-Dundalk Fire Chief Don Zeggil also resigned in 2019.
SCATHING DECISION
An employment law blog has already referred to the “scathing decision,” and anyone reading the text from Justice Chown would come upon no shortage of phrases to support that label. For example:
“The word ‘rumours’ minimizes what was being said about Ms. McGraw. The things being said about her were mostly unfounded, malicious, sexist falsehoods.”
Southgate council, in its role of oversight, also was mentioned: “The failure of the defendants to support Ms. McGraw against discrimination was a significant, distressing failure.”
The judge’s account says that it was Mr. Milliner’s decision to fire Ms. McGraw. While the CAO did not need council’s approval, members did vote unanimously to approve it.
Ms McGraw’s dismissal was based on the rumours. One of these, which Mr. Milliner repeated to Southgate council in closed session, and then at the trial said that he had “embellished the rumour and effectively he made up this allegation.”
The Dundalk Fire Department had an “apparent enthusiasm for gossip,” Justice Chown wrote. In another place he referred to “the repeated slander Ms. McGraw suffered at the hands of her DFD colleagues.”
A Canadian paralegal research firm provided a link to the decision as their “case of the day.” Their summary: “Rumours, lies, wrongful dismissal and the price you pay… a Tuesday head-shaker.”
The judge wrote that “The behaviour calls to mind a different era… The fact that Ms. McGraw was in a position of authority and therefore a potential target for sexist behaviour and rumours was lost on the defendants.”
MANY TYPES OF DAMAGES
Justice Chown said he was careful to separate and assess each of the damages, although the same factors may come into play in the various damage assessments. Here is how he considered them:
“The moral damages primarily compensate for mental distress arising from the manner of termination.
“The OHRC (Ontario Human Rights Code) damages primarily compensate for injury to dignity, feelings and self-respect arising from discrimination.
“The damages for defamation compensate for injury to reputation caused by the offending statements.
“The punitive damages primarily reflect the need for denunciation and deterrence.”
PUNITIVE DAMAGES
Punitive damages are not common in wrongful dismissal employment law, and are assigned to both punish and to act as a deterrent.
The “embellishment or fabrication” by the CAO of certain accusations and his improperly inflating “rumours” was key to the assessment of punitive damages, Justice Chown said.
In this case, “the defendants’ discriminatory conduct was reprehensible and was a serious departure from ordinary standards of decent behaviour for a municipality and its CAO.”
The amount of $60,000 in punitive damages, he said, was tempered in part by Southgate being a small municipality.
