Ar­ranElder­slie told to pay

Shoreline Beacon - - Front Page - Scott Dunn Post­media News

A Su­pe­rior Court judge has found Ar­ran-Elder­slie was not jus­ti­fied in fir­ing for­mer chief build­ing of­fi­cial Craig John­ston in 2009 and awarded him more than $370,000, in­clud­ing puni­tive and ag­gra­vated dam­ages.

John­ston took the mu­nic­i­pal­ity to court af­ter his very pub­lic fir­ing on June 25, 2009, when then-mayor Ron Oswald read from a news re­lease to an­nounce John­ston’s im­me­di­ate dis­missal.

Jus­tice Clay­ton Con­lan, in a 34-page de­ci­sion is­sued Dec. 19, not only found that the mu­nic­i­pal­ity’s ac­tions amounted to wrong­ful dis­missal, “the man­ner of his dis­missal amounts to a wrong that is de­serv­ing of an award of puni­tive dam­ages.”

Among his many find­ings, Con­lan said the news re­lease an­nounc­ing rea­sons for John­ston’s dis­missal was er­ro­neous.

It said John­ston had “breached spe­cific terms of his con­tract with Ar­ran-Elder­slie re­lat­ing to a pro­hi­bi­tion on de­sign­ing build­ings for con­struc­tion within the mu­nic­i­pal­ity .... ”

“In fact,” Con­lan’s de­ci­sion says, “his con­tract in force as of June 25, 2009 ex­pressly per­mit­ted that to oc­cur pro­vided some­one else did the in­spec­tions.”

John­ston was Ar­ran-Elder­lie’s chief build­ing of­fi­cial while he also ran his own de­sign busi­ness, Craig John­ston De­sign.

In his own news re­lease, which was re­ported at the time, John­ston said he’d done noth­ing wrong. Wed­nes­day he said he wel­comed the “vin­di­ca­tion” of the court de­ci­sion.

“I am ex­tremely happy with the judge’s de­ci­sion and I’m still car­ry­ing on with my draft­ing and de­sign busi­ness and I’m try­ing to build it back up again.”

Ar­ran-Elder­slie’s newly elected mayor, Steve Ham­mell, de­clined to com­ment on the judg­ment Wed­nes­day. He said coun­cil will dis­cuss the de­ci­sion be­hind closed doors ei­ther dur­ing the next reg­u­lar coun­cil meet­ing on Jan. 14 or sooner. Staff are look­ing at the pos­si­bil­ity of call­ing a spe­cial coun­cil meet­ing, he said.

John­ston’s lawyer, Brian Bar­rie, sug­gested puni­tive dam­ages in a range of $100,000 to $200,000, which Con­lan found to be “on the low side.” He awarded $200,000 to pun­ish the mu­nic­i­pal­ity.

Then he went fur­ther, award­ing rare, ad­di­tional ag­gra­vated or “moral dam­ages” of $100,000. A fur­ther nearly $71,000 was awarded in dam­ages for breach of con­tract.

Con­lan found the way the mu­nic­i­pal­ity fired John­ston was par­tic­u­larly bad, hav­ing called him to the mu­nic­i­pal build­ing without ex­pla­na­tion, with po­lice there “es­sen­tially to guard him,” with ter­mi­na­tion let­ter and press re­lease pre­pared, which was duly re­ported in the me­dia.

John­ston was given “some kind of in­ter­ro­ga­tion,” then the mu­nic­i­pal­ity “put out for pub­lic con­sump­tion a grossly mis­lead­ing state­ment,” which left the “false im­pres­sion” he wasn’t al­lowed to de­sign build­ings in the mu­nic­i­pal­ity while also serv­ing as chief build­ing of­fi­cer.

In jus­ti­fy­ing the ag­gra­vated dam­ages, Con­lan cited John­ston’s men­tal dis­tress, weight loss, loss of ap­petite, ir­ri­tabil­ity, sleep­ing prob­lems, mar­i­tal break­down and so­cial iso­la­tion as among the emo­tional con­se­quences he suf­fered “as a di­rect re­sult of his harsh dis­missal.”

Be­tween fall of 2009 and 2016, John­ston was un­suc­cess­ful with nu­mer­ous build­ing depart­ment job ap­pli­ca­tions at var­i­ous mu­nic­i­pal­i­ties, Con­lan noted.

Fur­ther awards of in­ter­est and costs were to be awarded af­ter sub­mis­sions were re­ceived on those mat­ters.

Ar­ran-Elder­slie said it fired John­ston for hav­ing a con­flict of in­ter­est by de­sign­ing build­ings in the mu­nic­i­pal­ity and then do­ing the mu­nic­i­pal build­ing in­spec­tions on con­struc­tion of them him­self.

Jus­tice Con­lan did find John­ston was in a con­flict of in­ter­est by both de­sign­ing build­ings in the mu­nic­i­pal­ity and in­spect­ing his own work.

“Frankly, the sit­u­a­tion ought never to have been per­mit­ted to oc­cur.”

But cru­cially, Con­lan also found that the mu­nic­i­pal­ity long knew John­ston was do­ing this and its con­tracts with him even ex­plic­itly per­mit­ted him to so, as long as his work was in­spected by some­one else -yet it never ap­pointed a back-up in­spec­tor.

“There are at least nine typed re­ports from John­ston to coun­cil be­tween No­vem­ber 2004 and July 2008, wherein John­ston re­quests that a backup in­spec­tor be ap­pointed,” Con­lan wrote.

Con­lan noted an Oct. 2003 let­ter from then-Ar­ran-Elder­slie clerk Dan Sul­li­van, near the be­gin­ning of John­ston’s em­ploy­ment, which per­mit­ted John­ston’s con­flict.

“It was a li­cence to con­tinue in­spect­ing all build­ings that re­quired in­spec­tion, in­clud­ing those de­signed by John­ston him­self, un­til such time as the mu­nic­i­pal­ity ap­pointed a back-up in­spec­tor, some­thing which was never done for many years (through no fault of John­ston),” Con­lan said.

There was also an email from for­mer clerk Joan Al­bright on June 19, 2006 to coun­cil and copied to John­ston say­ing that he “can de­sign build­ings for con­struc­tion any­where” as long as some­one else in­spected those in Ar­ran-Elder­slie.

Over the years, John­ston did de­sign work for the mu­nic­i­pal­ity too, in­clud­ing the Ch­es­ley pool, the Ch­es­ley agri­cul­tural build­ing, the en­trance to the Ch­es­ley arena, two pic­nic shel­ters, and the Pais­ley Med­i­cal Cen­tre.

Even the fi­nal con­tract he signed, to have been in ef­fect be­tween July 1, 2006 un­til June 30, 2016, con­tained clauses which ac­knowl­edged John­ston op­er­ates his own de­sign busi­ness, whose de­signs could be pur­chased for con­struc­tion in the mu­nic­i­pal­ity.

That con­tract re­quired John­ston to ar­range to have an­other in­spec­tor in­spect any build­ing he de­signed, “at no ad­di­tional cost to Ar­ranElder­slie.”

In sum­mary, Con­lan said, the mu­nic­i­pal­ity gave up any abil­ity to fire John­ston for con­flict of in­ter­est by “ig­nor­ing John­ston’s re­peated writ­ten de­mands for the ap­point­ment of a back-up in­spec­tor and the mu­nic­i­pal­ity it­self ap­prov­ing John­ston to both de­sign and in­spect nu­mer­ous pub­lic build­ings.”

Con­lan found no de­ceit on John­ston’s part, con­trary to what Ar­ranElder­slie al­leged as grounds for fir­ing him.

The mu­nic­i­pal­ity al­leged John­ston was in con­flict con­cern­ing two houses he de­signed, re­ferred to as the Kennedy (2006) and Grant (20056) files. It also al­leged he tried to con­ceal his con­flicts of in­ter­est, which breached his duty of fidelity to his em­ployer.

There is much back­ground in the lengthy de­ci­sion, some of it de­tail­ing staff and at least one mem­ber of coun­cil who grew con­cerned about John­ston per­form­ing the role of chief build­ing of­fi­cial, and an al­le­ga­tion by John­ston he was set up.

All the while, there were au­dits of his work which found noth­ing wrong.

In June 2009, it was dis­cov­ered that in the chief build­ing of­fi­cial files at the mu­nic­i­pal build­ing, the Grant and Kennedy files were al­tered to make it seem as if Home Hard­ware had de­signed them, not John­ston.

“This is im­por­tant in that the dis­cov­ery of the Home Hard­ware plans in those files led to John­ston’s ter­mi­na­tion . . . . ” Con­lan wrote.

John­ston tes­ti­fied he didn’t know how the Home Hard­ware file was in­serted into the Kennedy and Grant build­ing files. The mu­nic­i­pal­ity al­leged John­ston put them there to con­ceal the fact he’d de­signed and in­spected the Kennedy and Grant projects.

When John­ston was briefly shown the files with Home Hard­ware in them, he re­mained silent. John­ston said he saw it as a set-up but not ob­ject­ing cast more sus­pi­cion on him, Con­lan wrote.

John­ston had been asked by the mu­nic­i­pal­ity’s lawyer, Ross McLean, be­fore this for lists of de­sign projects he’d worked on in the mu­nic­i­pal­ity. John­ston failed to men­tion the Grant and Kennedy projects.

But Con­lan con­cluded he be­lieved John­ston sim­ply for­got.

“Sev­eral years af­ter be­ing hired as the CBO, and two to three years af­ter be­ing in­volved with the Kennedy and Grant projects, John­ston sud­denly re­ceives a de­mand let­ter from McLean.

“He has only a few days to re­spond, in writ­ing. There are hun­dreds of build­ing files in ex­is­tence since John­ston be­came the CBO. There are nu­mer­ous projects that John­ston has de­signed since 2003.”

There seemed noth­ing spe­cial about ei­ther pro­ject and, Con­lan pointed out, the mu­nic­i­pal­ity it­self ap­proved of John­ston de­sign­ing and then in­spect­ing cer­tain build­ings.

Con­lan wrote he was un­able to de­ter­mine who tam­pered with the files to make it look like plans John­ston de­signed were done by Home Hard­ware -- but he found it wasn’t John­ston.

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