‘This contract muddies the waters’
Legal wrangling takes over in constructive dismissal suit
It was a day of legal wrangling over the introduction of documents into evidence while other documents previously deemed unavailable suddenly surfaced.
Such was the third day of a Supreme Court trial into a constructive dismissal suit filed by the former director of economic development, John Whalley, against the Cape Breton Regional Municipality.
Whalley claims he had no choice but to resign after the municipality reassigned what he deemed was the bulk of his work to another body created to manage the Port of Sydney. Less than 24 hours after admitting there were no employment documents to be found, the municipality Wednesday informed the court that some of those documents were finally located.
However, the found items contain no mention of a possible severance entitlement that Whalley claims was part of his employment contract.
Whalley has testified he can’t find his copies and the municipality’s director of Human Resources Gordon MacDougall said his office has no copies.
MacDougall testified Tuesday the only document he was able to find was a letter of hire, which made no reference to severance.
A future search later Tuesday uncovered some insurance documents. Tony Mozvik, representing the municipality, conceded Wednesday he would not enter the documents into evidence, given the its previous claims such documents were not available.
Yet another legal argument surfaced when lawyer Blair Mitchell, representing Whalley, wanted to introduce a lease agreement between the municipality and McKeil Marine concerning the leasing of property near the Sydport Industrial Park.
Mozvik strenuously objected to the introduction, noting it was not included in the joint exhibit book (filed by both himself and Mitchell) and also questioned the relevance.
“This contract muddies the waters. I don’t see how this is relevant and material to the issues of constructive dismissal,” said Mozvik.
“There is nothing in this agreement that will help you decide whether he was constructively dismissed,” said a seemingly frustrated Mozvik.
Mitchell countered by saying the document was created by the municipality and that Mozvik himself introduced a document earlier in the trial which was not contained in the joint exhibit book.
As for relevance, Mitchell said it goes to the exercising of authority by the municipality. Justice Patrick Murray allowed the document to be entered.
The lease document indicates that the municipality will lease the land to McKeil and assume any environmental liabilities that may become associated with the property.
The agreement bears Mayor Cecil Clarke’s signature and is dated April 7, 2015. Council did not approve the deal until June.
During questioning of former chief administrative officer Michael Merritt, Mitchell asked if he knew of other instances in which such a document was signed prior to council’s approval.
“I can’t recall but that doesn’t mean there was not,” said Merritt.
Merrit explained the lease should have gone before council with an issue paper before being voted on.
Merritt is scheduled to continue his testimony today.