Monday, August 21, 2017

A Voice Refusing Silence

Mayorgate's monkeys have found themselves on the couch like the forgetful husband who somehow managed to let his mind slip past the anniversary date. Although the occupation of the couch in this situation is not due to forgetfulness, it was rather a need to bring forth two articles shedding light against a tide of destruction of both equality of law and the basic rights all Canadians expect.

Silence has not been comfortable at Mayorgate and it had not occurred as a result of a loss of interest. Ill health had got in the way and the pen stopped moving, though the mind itched for the scratch again. So this look back at the year past may be later than usual but the tradition could not be forgotten or let slip into the nether realm.

May of 2016 glanced back at the year past through Battles won, battles lost, the game continues. As much as any anniversary piece remembers articles of the last year, it is also the cleansing of the plate for the coming year. First out for year 8 an article dealing with local issues, Are By-Laws Real?Not in St. Catharines. The City of St. Catharines, Ontario isn't big nor is it small, yet it is a canvas that mirrors so many of the issues which are relevant to all of us regardless of our home base. For Mayorgate the roots which bind us to reality are never forgotten, in fact the title of that article is a question which will resonate even louder soon.

Democratic society is built on a foundation of law and the law has many tiers. This foundation is held together with a belief, and expectation that all the laws of this land are equally applicable to every Canadian. When this expectation of equality is lost we not only should ask for explanation, but demand it. Journalists hold a powerful position to inform the people of what unfolds before them, and that is why for a long time they have been thought of as watchers. These individuals use the art of language, and their acumen for both investigation and interpretation of information to bring light where darkness festers.

In Canada the world of journalism and traditional media slammed the panic button. This sound managed to grab the attention of the federal government resulting with a Commission being set up under Chair MP Hedy Fry to investigate the future of traditional journalism. Media giants like Paul Godfrey of Postmedia and John Honderich of Torstar shed tears over falling revenues, newspaper closures and the evil encroachment of a changing world and the Internet.

Journalism must remain independent of government influence yet here we had multi-millionaires crying for government handouts. A three part series: Who Watches the Watchers, attempted to sift through the theories of purveyors of think tanks, media advertising campaigns, the tears of media moguls and interfering government officials. At the time of publishing part three in this series the Canadian Heritage Standing Committee was promising to release its report. After all the roundtable meetings were finished and presentations completed, nothing really changed. Trust in the media and its journalists is still at an all time low, newspaper sales still dropping and cost cutting measures rising. The Heritage Committee has now released its report; Disruption: Change and Churning in Canada's Media Landscape, and it will be interesting to peak through its pages of wisdom.

After the journey into the world of media and journalism Mayorgate swung over to the retail world. Today's economies are struggling regardless of what politician's claim. In North America a whole new class in the workforce is growing larger than any other, and that is the Part-time Employee. Part-timers are a favourite especially within the retail industry, although banking and other commercial enterprises are following suit. These workers are not covered by any benefits, making them a cheaper workforce, and are often on minimum wage. Parts 1 and 2 of Modern Society's Reboot of Indentured Servitude not only discussed the near impossible task of surviving as a part-time employee, but also at the attitudes of corporations towards their employees.

Roadblocks appeared on the path and they took some time to steer through, yet Mayorgate sprung from a belief that silent acceptance is not the answer to anything. Strength and power comes from the courage to raise one's voice against what is wrong. The monkeys of Mayorgate will never accept as truth that silence is golden, well maybe when they wish to sleep.

The coming year promises to bring some thought provoking issues to deal with, and maybe some closures. In 2014 a lawsuit had been launched against Mayorgate and its publisher. An article from January 2014, Seniors Languish in Intimidation brought anger from the Board of the Paderewski Society Home. Lawyer Rachel Slingerland for the board played all kinds of tricks, and then jumped ship. Zijad Saskin of the law firm Broderick & Partners LLP took over the steering. Now all of Zijad Saskin's stalling tactics finally fell on deaf judicial ears and the trial was set for July 31st 2017. The trial lasted five days but had not reached an end and adjourned to a possible restart date of September 11th.

So remember that silence is not golden and keep on reading, and having said that, don't be silent with any of your comments. Maybe now the monkeys can get off the couch, but then knowing what monkeys are like they are more likely to continue to fool around.

Wednesday, July 26, 2017

Oh Lord, the Old Goose and Gander Thing

In our democratic society we elect our leaders and all the various levels of government. As the general public we expect a certain amount of humility in theses individuals after all they ask to be chosen by us in service of the people. Maybe now is a good time to end the fantasy before it gets out of hand. True we do elect all the politicians on all levels of government but the humility thing, well it is simply a utopian version of politics.

Then if a utopian version of politics is out of the realm of possibilities, what then? Remember that in old England the sovereign bestowed the title of Lord Mayor to a city mayor. If that's not a fast jolt to an ego what is, especially as municipal politics is at the bottom step of the stairway to heaven.

So what if we jump over to the animal kingdom and to a proverb dating back to 1670, 'what is good for the goose is good for the gander'. It would not matter in what language this proverb is translated its meaning is never lost. Basically it is saying that what is good for one then it is good for, or equally good for another.

Sadly the breaks on reality need to screech to a halt here again. We started talking about politics and elected office so if the implication that an ancient proverb may apply then a reality check is definitely needed. If respect and honour of office do not seem to apply and the ideals of equality left to historical reference, or worse, proverbs, then what is left?

In order to provide at least the appearance of consequential responsibility for their actions our politicos had developed an array of varying Codes of Conduct. Each of these codes set out boundaries within which elected officials are expected to conduct their business of politics and ethical governance. Once one of these characters steps outside and breaks the strings that supposedly bind actions to ethics then a public enquiry is launched. The inquisitor in Ontario has the formidable title of Integrity Commissioner. Yes the title has a resonating sound of grandeur, though reality sadly can taint the whole performance.

Recent months had found the Niagara Region under the shroud of one of these inquisitors, his target predominately one regional councillor. Although John Mascarin, a lawyer from a Toronto law firm Aird & Berlis LLP, had come first to the City of St. Catharines as an Integrity Commissioner, he agreed to fill the same duties for Niagara Region till a permanent individual was chosen. Mascarin not only looked at three complaints filed against Regional Councillor Andy Petrowski, but also two other councillors. In addition to conducting these investigations his mandate included the revamping of the Code of Conduct for Members of Regional Council.

Councillor Petrowski is no virgin as far as investigations by an integrity commissioner is concerned, nor is he new to facing a political storm locally. He is loud and brash, often stands against the old boys club style of politics. At the same time his personal views are less palatable to many and he does not feel shy in expressing them which had found him in the sights of more than one integrity commissioner. Not only has he found himself facing a number of complaints regarding his conduct, the Councillor had become a target for the local newspaper The Standard, and particularly reporter Grant LaFleche.

Here comes the whole goose and the gander thing. Petrowski is a staunch supporter of US President Donald Trump and in a tweet he linked to a website run by a Brother Nathaniel. He did not check out this website and its contents or anything relating to this Brother Nathaniel, he simply saw a headline he liked and linked to it. Nathaniel Kapner, himself a Jew, operates a website titled, 'Real Jew News' and because of his personal views is labelled as anti-semitic.

Grant LaFleche who 'follows' Petrowski's twitter account took this to Harold Nash, President of B'nai Israel in St. Catharines. Nash knew nothing of this till Grant LaFleche brought it to his attention; once Nash became aware of the tweet his comments against the councillor were filled with accusations of anti-semitism demanding Petrowski be censured.

This was not enough for Grant LaFleche, after Harold Nash and B'nai Israel he sought out comment from St. Catharines Mayor Walter Sendzik. Once again, as with Nash, Mayor Sendzik knew nothing of the tweet on Councillor Petrowski's twitter account till LaFleche raised it. Sendzik's attacks labelled the Councillor as anti-semitic and called for his resignation. To complete his trifecta LaFleche contacted Regional Chair Alan Caslin, who was also unaware of the tweet.

No matter how much Councillor Petrowski would apologise or explain that he had not been aware what was the content on the website he linked to, the label of anti-semitic was stitched on. Grant LaFleche and The Standard successfully created a story where none existed. Regional Council devoted a whole session of public condemnation of Petrowski. A gang of non-politicians from the public raised their voices to speak out against the Councillor and denounce his anti-semitism, such as Jeff Burch, Executive Director of Niagara Folk Arts Multicultural Centre. Jeff Burch, once a St. Catharines Councillor and failed candidate in an attempt to become mayor, was quoted as having extreme disappointment with Petrowski's behaviour including posting “what are clearly anti-semitic remarks on his social media account.” This was a quote Maryanne Firth of The Standard published on November 25th 2016, 'Caslin raps Petrowski over latest tweet'.

To label anything a lie immediately makes some individuals jump up and down bang the drum of honesty. So may we call this a misrepresentation of the truth? Petrowski in fact, which is witnessed by direct copy reprinted by The Standard, had only made 'remarks' to Donald Trump and Obama in his tweet. He had no remarks made towards or at the Jewish community as a whole or anyone individual Jewish person living or dead. Still it was The Standard and Maryanne Firth will say that she did not say that, but only quoted Jeff Burch.

The circus went on from November 24th 2016 with the news story created by Grant LaFleche through to December 15th 2016, with a total of six articles and editorials. In addition to this barrage, Niagara this Week joined in and culminated with an editorial in December which boggled the mind on how editorials can twist the truth. Even the Canadian Jewish News published an article on the subject December 5th 2016.

Welland Mayor Frank Campion at NPCA Board meeting
Now fast forward to June 2017 and a YouTube video on a Niagara Peninsula Conservation Authority Board (NPCA) meeting, posted on Facebook by Niagara Falls Councillor Carolynn Ioannoni. In this video you can watch the Mayor of Niagara Falls and the Mayor of Welland, also both Regional Councillors, raise their hands in a Nazi salute. Both Mayor of Niagara Falls Jim Diodati and Welland Mayor Frank Campion raise their hands in what they claimed later was a joke.  The video is of a January 18th 2017 NPCA Board meeting and it is a record of the official business of the board, not a social gathering. This video came to public attention in June, both Mayors Jim Diodati and Frank Campion made public apologies with that claim, that they only did it as mocking fellow Councillor Douglas Joyner on how he raises his hand to get attention.

Niagara Falls Mayor Jim Diodati at NPCA Board meeting
Grant LaFleche and The Standard jump forward on June 12th 2017 with an article titled 'Mayors' Nazi salute to be removed from NPCA video'. LaFleche writes, “If nothing else, Diodati said the incident shows how mindful elected officials must be about what they say or do. Even if they don't intend to say something hurtful, they sometimes can do so without realizing it at the moment.” LaFleche's article finishes with a joint statement made by Mayor Jim Diodati and Mayor Frank Campion.

Mayor of West Lincoln Douglas Joyner raising his hand first at NPCA Board meeting

Unfortunately, our actions were gestures meant in light and a silly imitation of another councillor's unique handraising style. They were not meant as anti-semitic. Our actions in no way represent our genuine views and values. We have both apologized to those who felt offended. We feel strongly that we would never want our actions to be taken out of context or misinterpreted. This weekend, we reached out to members of the Jewish community to share our sentiments as well. We both say that we certainly feel this to be a learning experience and appreciate the comments of the community, but want to be clear that we don't want the intentions of our action to be misconstrued.”

Mayors Jim Diodati and Frank Campion issued their statement of apology, LaFleche tags it at the end of his article with a few words of wisdom and humility from Diodati before the apology, and that's it. Three days later LaFleche writes another article, although the focus of that is separate to the anti-semitic Nazi salute.

So here it is the old goose and gander thing stripped bare wanting explanation. It's important to understand this old proverb is not some joke, it is the foundation of democracy. Nothing is more vital in a true democracy than equality. It should not matter what one's economic situation is, nor should gender, race or religion be a consideration when application of our laws or our governing procedures be applied. Then if Petrowski is the goose, what about the gander here?

This is where the proverb and all that we supposedly as Canadians value falls dramatically apart. Serious questions demand to be answered by Grant LaFleche and The Standard, after all the world of journalism claims to bring all the truth without bias. Still it's not the ethics of a journalist and his newspaper alone that should explain themselves.

A Nazi salute is quite possibly the most detested physical act in today's society. Throw a birdie finger today and even an 80 year old grandma will be likely to throw one right back at you, especially if you are on the road. Not with a Nazi salute, and to have two mayors, professional politicians paid with public money claim it was a joke, that it was done in jest during an official board meeting, is simply unacceptable. It is important to note that the video was of the January 18th 2017 meeting and was only made public June 12th; Diodati and Campion only apologised in June and only when publicly caught.

When Petrowski pressed the button on his infamous tweet, Clark Kent of The Standard's newsroom, LaFleche, grabbed his cape and plucked it out of the air. He held it tight and flew to Harold Nash, President of B'nai Israel of St. Catharines. Clark – sorry, Grant - then made a stop at the door of Walter Sendzik, Mayor of St. Catharines and even knocked on the door of the Regional Chair, Alan Caslin. Yet with the two gander, Diodati and Campion, the caped crusader of Niagara's journalism for some reason sought out no real comment other than from Perry Schlanger, a member of the public. Mr. Schlanger is a regular cast member in City Council's gallery of extras. During The Standard's frenzy on the Petrowski tweet it was reported that Perry Schlanger, along with Haley Bateman and Jeff Burch, made pleas as 'concerned citizens' for action to be taken against the Councillor. A Nazi hand salute brought this response form Schlanger as quoted by LaFleche: “I am willing to accept their mea culpa.” Maybe the question to Mr. Schlanger should be this, does he see a tweet with no reference to an individual Jew or the Jewish community worse than the hand salute during official business by two mayors, who only apologise five months later, when caught? This is the Austin Powers moment with the finger on chin and the “hmm.”

Harold Nash, President B'nai Israel St. Catharines, after being woken up by LaFleche went into attack mode demanding censure of the Councillor after his tweet. Harold made no comment in relation to the hand salute, so an email was sent to him providing an opportunity to stand against all forms of anti-semitism. Harold Nash has refused to respond, he has made no comment on the hand salute, not even an attempted eloquent “mea culpa.” Now with Nash's silence questions begin to buzz and they are not pleasant. 

It is not only Nash of B'nai Isreal who raises question through silence.  Judy Haiven wrote a long letter of opinion which The Standard published June 27th 2017. The letter by Judy Haiven, titled, 'Many Jews support BDS Movement' and was written on behalf of the steering committee of the Independent Jewish Voices of Canada, (

Haiven's letter is in support of the BDS (Boycott, Divestment and Sanctions) Movement. The first paragraph provides a brief description of what Independent Jewish Voices Canada is about, then paragraph two slams into this, “We, too, condemn St. Catharines regional counc. Andy Petrowski clearly anti-semitic... tweets. We agree with Synagogue B'Nai Israel and the multicultural councils calls for regional council to censure him.”

Judy Haiven writing from Halifax apparently is fully knowledgeable of local Niagara politics. Paragraph three of Haiven's letter states, “At IJV Canada we know a great deal about anti-Semitism” and later, “IJV abhors anti-Semitism.” So since Haiven makes one think that she is aware of the situation in Niagara it is difficult to understand why she and the Independent Jewish Voices Canada remained silent about the Nazi hand salute. After all IJV knows so much about anti-semitism and abhors it so. An opportunity was provided for both Judy Haiven and the Independent Jewish Voices of Canada to comment. No response has come from either of the two emails sent.

Can it be fair to ask what prompted Judy Haiven to make the attack on Councillor Petrowski in a letter where 98% of its content was to support the BDS Movement? Why has the IJV Canada and Haiven stayed silent on the Nazi hand salute by Diodati and Campion? Why has Harold Nash and B'nai Israel St. Catharines stayed silent? Asking such questions of Jeff Burch and his Niagara Folk Arts Multicultural Centre would be a waste of time.

Amongst all the silenced Jewish voices the plot thickens and questions scream out for answers. Is it possible that the abhorrence of anti-semitism has taken a back seat to politics? After all even the Canadian Jewish News (CJN) who wrote a whole expose on the innocuous tweet has stayed silent on a Nazi hand salute.

It has been said that the Nazi hand salute is most likely the most detestable physical action in modern society. There are no possible excuses which take away the connotation of anti-semitism and an absolute disrespect for millions of victims of the Holocaust. In February of 2011, a Canadian tourist standing outside the German parliament raised his hand in a Nazi salute whilst his girlfriend photographed him, was immediately arrested, memory card taken from the camera, and was lucky not to be jailed.

In May 2016 a Scottish man was arrested after posting a video on YouTube of his girlfriend's pet dog, a Pug, doing the Nazi salute with its paw. In March 2013 a Greek footballer was banned for life from playing for his national team – he even claimed he did not know or understand the meaning of the gesture. A British businessman found himself arrested at the Cologne airport for his raised hand in 2008.

B'nai Brith Canada, Friends of Simon Wiesenthal Centre, and Centre for Israel and Jewish Affairs have remained silent on this incident with Diodati and Campion. Why? Seeking clarification, an email was sent to NPCA Chair Sandy Annunziata. Sandy Annunziata did not respond but on his behalf Mayorgate received an email from Michael Reles, Communciations Specialist at the NPCA. Michael Reles said in his response, “The section of the video was removed at the request of our partners in the Jewish community.” Wait a moment, how can any individual or group have the power to force the editing or doctoring of any government records? The same Michael Reles refused to respond when asked who specifically were the “partners in the Jewish community.” Why the secrecy? What has Michael Reles or Sandy Annunziata got to hide?

Well then, which of the big three Jewish organisations is the 'silent' partner with the NPCA and Chair Sandy Annunziata, or is it all of the above? Regional Chair Alan Caslin said after the overwhelming vote by Regional Council to condemn the BDS Movement that it “was based on information provided by those organisations.” Alan Caslin was referring to B'nai Brith Canada, Friends of Simon Wiesenthal Centre, and Centre for Israel and Jewish Affairs as “those organisations.” The Motion brought before Regional Council, which garnished both publicity and accusations against MPP Cindy Forster and the NDP, was by NPCA Chair Sandy Annunziata. Can it be that the big three made a silent deal with NPCA Chair Sandy Annunziata so as to not drop nasty publicity on his board? Now watch for the anti-semitic label to be stitched onto Mayorgate.

On May 18th 2017, during the titillating presentation of his findings by Integrity Commissioner John Mascarin, St. Catharines Mayor Walter Sendzik wanted to know what had happened to a Motion from December 8th 2016. Minutes from the meeting reveal that a Motion was moved by Councillor Augustyn and seconded by Sendzik. This Motion requested council to deny Councillor Petrowski from serving on Committees, Subcommittees, Agency Boards and Commission meetings until he aplogises in writing at a Council meeting for his tweet that was found to be offensive by the community. Finally this Motion was referred to the Integrity Commissioner and yet in May of 2017, John Mascarin had said that he had not seen it. An email was sent to the Regional Clerk asking for some clarification on this issue. It took several days but a response came from the Deputy Regional Clerk, Natasha Devos, to her reply she attached a copy of a letter dated June 20th 2017 from former interim Integrity Commissioner John Mascarin. Mr. Mascarin states, “My view on the aforementioned minute item may now be moot given the decision made by Regional Council on June 8, 2017.”

Mayor Sendzik had made a great deal of noise about the tweet from the time that LaFleche contacted him. Seeking some understanding Mayor Sendzik was asked whether the Nazi salute was less serious an act compared to a tweet. Sendzik's first response opened with, “I will say there is a big difference between what Councillor Petrowski has repeatedly done to offend many people in our community and what occurred at a meeting of the NPCA.” He ignored the question asked and attacked the Councillor on past actions. Sendzik also defended the two mayors on the grounds that they were only mocking another fellow councillor and had done so many times. He said that both had apologised “for offenses that were mistaken as a Nazi salute.”

It is extremely hard to mistake a physical gesture with the arm stretched straight out from the body, the hand flat and pointing out as anything but a Nazi salute. Individuals do not do this kind of gesture to hail a cab, or waive to a friend or seek attention of any kind, at least not the kind they would want. A second email was sent to Mayor Sendzik and his response confirmed the need to examine another consequence of the actions by Diodati and Campion.

In his second response Mayor Sendzik said, “Its actions like these displayed at the board that lead to bullying and harassment if left unchecked in today's society.” Whether it's the Ministry of Labour, the Human Rights Code, the Charter of Rights and Freedoms or any municipality, none permit or condone bullying or harassment. The law stamps down on a bully regardless if he is in cyberspace or on the ground. Mayor Sendzik confirmed in his first email that Mayor Diodati and Mayor Campion had been mocking a fellow Councillor, a co-worker, for a long time. Yet no one found reason to mention this. The Standard and Grant LaFleche said nothing, and since Mayor Walter Sendzik had known about this and clearly found it distasteful, why did he remain silent? It was only through an email exchange with Mayorgate that he made this clear. As far as Diodati and Campion are concerned they made no apologies on this issue even when caught.

So not only has the Nazi hand salute found itself waived on through with no consequence, evidence of workplace harassment has simply been ignored. To add further to this impressive list of transgressions is the openly admitted fact by NPCA Chair Annunziata that government records, in the form of the video had been edited. Michael Reles of the NPCA claims in his email that the video is not an official government record, that the only official record of the board meeting are the Minutes. Webster's describes official as, “by, from or with the proper authority, authorized or authoritative.” Examining the seventeen pages of the 58th Annual General Meeting Minutes there is no mention of any kind of hand raising. The video is made by the NPCA for the NPCA with their authority and only with their authority. Now 'silent' partners have been able to wield outside pressure to doctor that government record. How is this possible? A better question is what happens when there is an investigation or inquiry and the evidence had been intentionally altered and destroyed?

Grant LaFleche wrote a second article titled 'NPCA on slippery slope by editing video, says Brock prof', June 15th 2017. Brock University Political Science Professor David Siegel was also contacted by Mayorgate for comment on something other than a slippery slope. Professor David Siegel said that he was “...not a lawyer, so [he doesn't] have any expertise about the rules of evidence.  However, it seems logical that the best evidence would be a complete unedited recording of an event.  Any deviation from that would raise questions about what was edited out and why was it edited?”  

Chair Annunziata had erased the section of video which proved the Nazi salute, it was an official government record, so now what happens in an investigation or inquiry? Was this because he made a silent deal with the Jewish organisations or did Annunziata have his own reasons? Doctoring records is wrong no matter who you are, as former Premier McGuinty found out clearly. For the NPCA and its Chair Annunziata, the 'what if' is in fact a reality - an investigation request had been filed with the Region. John Mascarin, interim Integrity Commissioner, had responded to the investigation request stating that it was out of his jurisdiction because the NPCA is a separate corporate body with its own Code of Conduct. He had advised the investigation request be filed with the NPCA, which it will be, and it will be an interesting exercise considering Chair Annunziata's actions to date.

In the end the goose paid a very heavy price. Those regular cast members in the extras gallery of councils, the social warriors: Jeff Burch, Haley Bateman, Perry Schlanger, had faded behind the curtain of duplicity it appears. Grant LaFleche proved the case on the issue of faux news, and The Standard is after all the standard. Councillor Petrowski still faces jabs; on July 7th 2017, The Standard published the article 'Regional council can't agree on code of conduct' by Bill Sawchuk, who writes: “The social media activity of St. Catharines Coun. Andy Petrowski over an anti-semitic video the councillor posted on Twitter in December, Petrowski – who removed the tweet in question – denied he intended any attack on the Jewish Community.”

Bill Sawchuk is the Standard's journalist who in May sat through the court hearing of a Motion by Petrowski and Fred Bracken totally ignorant of court procedures. Bill tweeted, took notes and reported the he said/she said version, and Bill missed a great deal. He missed the fact that the lawyer for the Region intentionally kept information from the judge. He missed the question of intentional and willful obstruction of justice. He also missed how a judge makes a ruling towards one party to an action but then ignores the other party's identical breach. Bill Sawchuk also has not made a sound on the Nazi hand salute and that is a curiosity. Even an old proverb seems to have faltered in Niagara.

Friday, June 30, 2017

Opportunity Lost

If one was to take a stroll down the corridors of power what questions would beg to be answered? Then, depending on which house one enters, whether it be where authority wields armies or international economies, or the budget decor of local municipal politics, do those questions lose or gain volume and prominence. Integrity and equality have been lost in their translation form the pages of documents which supposedly guarantee our dignity and freedom, regardless of which house you choose to tour.

So what do we do to overcome the shortcomings of reality, when a desire for power seduces individuals away from the lofty ideals of integrity, honesty, etc. We institute various governing bodies and authorities with powers to investigate and adjudicate on complaints received. One such individual comes in the guise of an Integrity Commissioner. That title alone resonates with virtue and fairness, does it not? In fact by 2018 the Provincial Government lead by Premier Wynne will mandate that all municipalities hire an Integrity Commissioner.

This Integrity Commissioner has the power to investigate any and all complaints raised against local government and those we elect to represent us at the most basic level. The powers and authority of the Integrity Commissioner have been set out in the Municipal Act under Part V – Accountability and Transparency, subsection 223.3. In this subsection all the powers and authorities are fully described as to what the commissioner can do. Yet the Municipal Act falls drastically short on one important issue, and the recent Modernising Ontario's Municipal Legislation, Bill 68 with its amendments does nothing at all to remedy the situation.

The issue in question is procedure, there are no common set of procedural boundaries. It is difficult to comprehend how all the lawyers and experts who sat to thrash out the Municipal Act with its typical government language forgot to set into subsection 223.3 any rules for an investigation by an integrity commissioner.

Our criminal system of justice works within a framework of rules and boundaries. Our judicial system, whether criminal or civil, with its Rules of Civil Procedure, operate within clear boundaries. Yet the integrity commissioner, who is the investigator, judge and jury, has no clear procedural rules. Each one of these commissioners can conduct themselves as they see fit.

Since there are no rules set out in the Municipal Act and no 'How To' handbook for integrity commissioners then only expectations exist. First, naturally, would be that the individual chosen will understand law, the Municipal Act and codes of conduct. Second and equally important is that the chosen commissioner will be completely impartial. He or she cannot have any business ties or associations to the municipality nor any political associations locally. There can be no questions raised as to the motivation of the chosen commissioner.

All this being said the Regional Municipality of Niagara found itself and its Chair, Alan Caslin unable to cope with the number of complaints against regional councillors. Previously the Regional Council had voted against the cost of an integrity commissioner and believed that its Chair could handle any investigations. Now with its Chair Caslin faltering with the volume of complaints and 2018 looming in the distance, an interim integrity commissioner was chosen.

John Mascarin, lawyer and partner in Aird & Berlis LLP, was chosen. Mr. Mascarin was called to the bar in 1989, certified by the Law Society of Upper Canada as a specialist in Municipal Law, and teaches at Osgoode Hall. Criteria number one appears to be comfortably satisfied. In addition to his credentials John Mascarin had also conducted an investigation in the City of St. Catharines and most likely had a good recommendation from the Mayor of St. Catharines, Walter Sendzik.

So although his credentials appear nice enough, he carried with him baggage that should have disqualified him as the integrity commissioner of choice for Niagara, at least logic would definitely suggest that. John Mascarin's law firm of which he is a partner, Aird & Berlis LLP, represents the Chinese developers who are planning a large residential and commercial development in Niagara Falls.

Niagara Falls is, at this stage, the 'it' place in the Niagara Region for development. The obvious reasons are its visibility with its Falls, entertainment values such as the Casino, and its proximity to the US border, all of which had not been lost on the Chinese. Developer Ted Zhou, President of Evertrust Development is throwing up a condo complex worth some $100 million. The other planned project called Paradise is somewhat more ambitious. Here the estimate is $1.5 billion, and GR (Can) Investment Co. Ltd. from Hong Kong has CEO Zhiying Chang promising residential, commercial and even a wetland thrown in.

It is easy to understand why the Niagara Region and its government would be hungry for both. John Mascarin as a partner in Aird & Berlis LLP would be privy to all kinds of information in the negotiations on behalf his of clients, the developers, and the Regional Municipality of Niagara. Regardless of whether Mascarin's law firm represents $100 million or $1.5 billion how can he sit in judgment of any government member in the Niagara Region?

Regional Chair Alan Caslin had said that the process of selecting a permanent integrity commissioner was a lengthy one. For that reason John Mascarin was chosen as interim integrity commissioner so as to expedite the leftover investigations. Yet when a complaint was filed against Chair Alan Caslin, John Mascarin excused himself on the point of conflict. A substitute commissioner, Harold Elston, was found rather quickly enough who presented his report and clearance of Alan Caslin at the same time as Mascarin's departure. Now here is the nagging and alarming question: if Mascarin found himself in conflict to investigate Chair Alan Caslin how is it that no conflict arose in investigating any other member of Niagara's government? Who is to say that as Chair, Caslin would have greater knowledge or impact on negotiations than the rest of Niagara's council? In a democracy, and we still are a democracy one would think, the whole of government votes on approvals for any development, not the Chair alone.

The investigation against Caslin related to a communication he had with Premier Wynne regarding the development by Aird & Berlis LLP's Chinese clients. John Mascarin could not allow even a plausible question which would hint at conflict, yet how can the same point not apply to any other regional councillor?

Another question begs attention, and questions here pop up like skin blemishes after the Clearasil dries up. If a complaint was lodged against the Mayor of Niagara Falls Jim Diodati, would Mascarin as Niagara's Integrity Commissioner excuse himself again for conflict? Yet Diodati is only a Councillor on Regional Council, equal standing to all regional councillors. He may be the Mayor of Niagara Falls but here he is just one of the boys and girls. Will John Mascarin invoke a selective conflict of interest? Is that what the Municipal Act would permit?

How is this possible to continue? John Mascarin clearly has conflict issues and all of Niagara's Regional Government members seem to simply choose silence. Maybe a bigger question should be aimed at the brilliant journalists here in Niagara. Bill Sawchuk of The Standard and Paul Forsyth of Niagara this Week drop a sentence at least once in their articles mentioning Mascarin's conflict issue, but as journalists do not find reason to ask any further questions.

The whole issue of integrity commissioners extends even further than this conflict question. What is the real value of their investigations beyond the dollars and cents they rake in from taxpayers pockets? Bill 68 brings forth some amendments to the Municipal Act, claiming to modernise it to some degree. Yet it still won't deal with the most crucial part, that integrity commissioners have no set rules to how their investigations are conducted. Their powers are explained in subsection 223.3 of the Act, but no procedural outline is laid out. In the end it is up to each commissioner to interpret his or own methodology. Is that then what can be considered procedural fairness?

Then picture this: a police officer views a security video which shows a break-in. The thief is clearly identified as not wearing a mask, only gloves. This police officer arrests the culprit, drags him to a judge, does not question him. In front of the judge the prosecutor recommends a penalty and brings forward the record of the culprit. As a result the judge passes sentence. Remember the integrity commissioner is the investigator, prosecutor and judge; talk about inflated power. This scenario has not ended, the police officer, prosecutor and judge discover the culprit has an identical twin. Remember the security video only exposed the face and no prints because of the gloves. In the criminal justice system there are procedures and although a fun scenario this would not happen. Questions would be asked and information gathered before any sentence is handed down.

The whole system of integrity commissioners and their investigations is not simply flawed, it is in fact a fraud at this point. It truly is a cash grab for the selected few and a game of smoke and mirrors. Here in Niagara John Mascarin had arrived with no procedural guidelines and only his own interpretations in his briefcase. The law firm, Aird & Berlis, which he is a partner of, is acting on behalf Chinese clients involved in multi-million dollar developments in the Niagara Region, yet neither Regional Chair Alan Caslin nor St. Catharines Mayor Walter Sendzik saw anything amiss with that.

Regional Councillor Andy Petrowski had three pending complaints against him. Mascarin conducted his investigation of Councillor Petrowski, the accused, without speaking to him. He spoke with the accusers and claimed he had enough factual evidence to make his decisions and draft his reports. After making his decisions, as a throw-away line he offered the accused an opportunity to comment. What was the point of such benevolence? The decisions were made; can Mascarin with a straight face say he would change his mind?

Mascarin also conducted investigations of two other Regional Councillors, but did he speak to both the accuser and the accused? Regional Councillors Heit and Edgar were contacted by email regarding this issue. Both Councillors responded, Councillor Heit stated, “Since he didn't find any wrong doing. The only contact I had was after his report was complete,” and Councillor Edgar said “I learned about the complaint after he had dispensed with it and before the results were made public.” In both these cases Mascarin saw no basis in the individual complaints and could reason that there was no constructive purpose to speak to Councillor Heit or Councillor Edgar. Petrowski's three complaints were seen to be legitimate enough for investigation yet Mascarin saw no reason to speak to the Councillor prior to drafting his report.

Integrity Commissioners are needed and codes of conduct for our elected members of government are definitely required. At the same time a definitive set of rules must be put in place under which each investigation can proceed to ensure each and everyone accused of misconduct is treated equally and fairly. Otherwise our tax dollars go into the pockets of commissioners like John Mascarin who leave more unanswered questions than any draft or report filed.

At this time it would be prudent to make reference to Di Biase v. Vaughan (City), Divisional Court File #309/15JR 2016. This action revolved around questions of administrative law, natural justice, duty of fairness, procedural fairness and more, all centered on an integrity commissioner's investigation and report accepted by Vaughan's City Council. Deputy Mayor Di Biase objected to the investigation and final decision. One major point that comes through the decision by the Justices' of the Divisional Court is heading (vi) The choice of procedure. Quoting paragraph 131, “Indeed, the members of the City of Vaughan Council are the persons investigated by the Integrity Commissioner. The Councillors have codified the procedure or protocol for investigations of complaints about themselves in a bylaw entitled Complaint Protocol for Council Code of Conduct.”

How much of the taxpayer dollars had been spent on revamping the Code of Conduct by Integrity Commissioner John Mascarin? Value for dollars does not exist here not for council members, the only value visible is in the revenue column of Aird & Berlis LLP. Councillors need to know how an investigation is conducted, within what procedural boundaries and not simply open to the whims of interpretation. Otherwise any councillor is open to a political machine ready to demonstrate its power, and influence.

Welland Courthouse - Welland, Ontario

Regional Councillor Petrowski, preparing for the inevitable fallout of Mascarin's 'investigations', believed that his freedoms and rights guaranteed under the Charter of Rights had been diminished by the Code of Conduct for Members of Council. He filed an application challenging the code of conduct on constitutional grounds and had filed for a Motion to be heard requesting an injunction to be placed on the release of the Mascarin reports.

It is irrelevant what any opinion there was as to the motivation behind the actions of the Councillor. As a Canadian citizen he had made a request to be heard before the court of this great land. Doing so, as any Canadian should, he had an expectation of absolute equality before the law.

Filing a Motion requesting an injunction requires some rudimentary understanding of civil procedures, unfortunately Councillor Petrowski had little, if any. As a co-applicant he had chosen a local Niagara activist Fred Bracken. Frankly there was no understanding why Fred Bracken was attached to the Motion or application challenging the Regional Code of Conduct.

Fred Bracken is a local voice who has challenged Regional Government, the Niagara Regional Police Service and others. He had successfully fought against a false arrest and maybe that was the reasoning behind his attachment to the application and the motion. Bracken had never been on any municipal council nor had he been employed by a municipal government.

The Motion hearing was set for May 10th 2017 and it was to be heard by Justice David L. Edwards at the Welland Courthouse. Both Councillor Andy Petrowski and Fred Bracken were self-represented. The Regional Municipality of Niagara was represented by a Toronto lawyer Sachin Persaud from Boghosian & Allen LLP.

Councillor Petrowski and Fred Bracken had chosen the Regional Municipality of Niagara, Integrity Commissioner John Mascarin and some twenty-four individual Regional Councillors, as respondents to their Motion. It is difficult to understand why the individual councillors were named as respondents, equally at question why some of the regional councillors had been left off the list.

In all civil legal action The Rules of Civil Procedure govern every step from the opening Notice of Motion, advising intended motion to be filed through to the final stages in court. This meant the Councillor and Bracken had to serve each individual chosen respondent with the full set of documents. The service has to be in person to each respondent, ten days prior to the hearing date, and an Affidavit of Service has to be filed at the Courthouse. All of this is simple: the clerk at the court's office would have to review each Affidavit of Service before accepting them into record.

It has been confirmed through the Clerk's Office at the Robert S.K. Welch Courthouse in St. Catharines that the Rules cannot change. A motion filed before the court must have each respondent served in person and an Affidavit of Service separately prepared for each respondent. This is not the Bulk Barn section of the courthouse, nor are the Rules ever accommodating towards anyone. In addition to proper service Form 37B Confirmation of Motion must be prepared by the moving party. This document estimates the time each side will need to present their motions before the judge and it also releases all the material related to the matter to the judge. None of these steps can be avoided, nor are they negotiable. How was it possible to have this Motion pass the Clerk's Office is very difficult to explain.

However it was possible, this Motion found itself slide past the Welland Court's Clerk's Office and be listed for hearing. Hearing this Motion was Justice David L. Edwards, at the Welland Courthouse on May 10th. Justice Edwards had been called to the Bar in 1977 and after spending time with Lancaster, Brooks & Welch LLP he was chosen to replace Madam Justice B. Wein in 2012. He had held positions on the Ontario Civilian Police Commission, the Board of Trustees of Brock University from 1994 to 2005, and is deeply connected to arguably the most important annual event in Niagara, the Rankin Cancer Run. Justice Edwards is rooted in the social fabric of the Niagara area.

The Niagara Region hired a Toronto lawyer Sachin Persaud, a seasoned lawyer called to the Bar in 2006, joining Boghosian & Allen LLP in 2014. Niagara's Regional Solicitor H. Sterling Wood, himself a lawyer with more than a quarter of a century of legal experience, was nowhere to be seen on May 10th.

Standing before Justice David L. Edwards were Regional Councillor Andy Petrowski and Fred Bracken, they were self-represented. The opening half hour of the hearing set the tone for what was to be the finale. Justice Edwards questioned Fred Bracken's position as a co-moving party to the Motion. After all the purpose of this Motion was to request an injunction so as to stop the public release of three integrity commissioner reports prepared by John Mascarin against Councillor Petrowski.

Justice Edwards questioned the validity of Bracken's position as he was not a Regional Councillor nor had he ever been. It was impossible to understand how the Regional Code of Conduct for Members of Council could affect in any way a member of the public. Bracken tried to argue repeatedly that he may at some point in the future wish to run for council and the code of conduct would have relevance then. When that failed Bracken tried to argue a position as a public litigant. That failed equally and Fred Bracken was dismissed from the Motion Hearing. He was told by the judge to remain in court for the final cost allocation but Fred Bracken left the courthouse, leaving his pal Councillor Petrowski on his own.

All civil action through the Superior Court of Justice is governed by the Rules of Civil Procedure. This is the bible, it is the baker's recipe book and no improvisation is permitted not even an ounce, otherwise it all falls flat. As publisher of this website there is first-hand knowledge and experience with the Rules. Councillor Petrowski was completely ignorant of the Rules and their absolute and crucial relevance to each step he had to take to reach the courtroom where he stood.

First in any civil action, this being a motion hearing, is the service of the Motion Record by the moving party. Councillor Petrowski and Fred Bracken were the moving party and they had named the Regional Municipality of Niagara, Integrity Commissioner John Mascarin, and twenty-four Regional Councillors individually as respondents. This meant that each and every one of these respondents had to be served individually and in person. For each of these respondents an Affidavit of Service had to be prepared outlining the individual served and where service had been completed. Each of these Affidavits of Service have to be certified and witnessed at the clerk's office, in this case at the Welland Courthouse. Petrowski would had to have filed twenty-six individual Affidavits of Service with the court's clerk and examination of the court file #11599/17 at the Welland Courthouse shows only two affidavits by Petrowski: one for Integrity Commissioner John Mascarin and another which made no sense with Councillor names, and the Region of Niagara.

Here is an alarming question, how was it possible for Councillor Petrowski to file his material without the proper Affidavits of Service? A lengthy conversation with a clerk from the St. Catharines courthouse confirmed what was already known. No material will be accepted to be filed without proof of service. In Canada regardless of which province, our justice system is expected, and guaranteed to be fully open and transparent. We do not permit any action before the court, any court, on an ambush basis.

Proper service of all material is critical and unequivocal in all actions before the Civil Court, as is another document Form 37B, Confirmation of Motion. This is not a requirement in Small Claims Court but it is required in Civil Court. Confirmation of Motion is prepared by the moving party and it has two functions. First, it provides an estimation of time to be taken presenting their motion and responding motion. Second, it opens the material to the presiding judge as all the material for his or her consideration must be listed. Although the moving party is required to file Form 37B, it is only done so after consultation with the lawyer for the respondents. Sachin Persaud was fully aware of this requirement even though Councillor Petrowski obviously was not, yet Sachin Persaud remained silent. In fact it was not brought to light by the presiding judge, Justice David L. Edwards.

It is difficult to understand how this action could possibly proceed in court and yet the most disturbing legal questions result from the actual hearing. After the first thirty minutes when Fred Bracken was dismissed from the motion, Councillor Petrowski was left to face what was to come on his own. His lack of understanding of the basic procedures opened the door for atrocities to be committed against our justice system, but only for the day.

Sachin Persaud of Boghosian & Allen LLP in his Factum of the Respondent, The Corporation of the Regional Municipality of Niagara stated on page 18 in bold print, “Issue #4: The application materials were not served pursuant to the rules and the applicants had sufficient time to do so.” Persaud was correct to raise this issue, Councillor Petrowski had not properly served all the respondents. As already stated each respondent had to be served in person and a separate affidavit filed.

Justice Edwards brought this issue forward and after listening to Petrowski's explanation and Persaud's response had only one choice open to him. Justice Edwards dismissed the action against all the twenty-four individually listed Regional Councillors. Rules of Civil Procedure, Rule 38.06(1) state, “the notice of application shall be served on all parties.” Further at 38.06 (2) it states, “Where it appears to the judge hearing the application that the notice of application ought to have been served on a person who has not been served the judge may, a) dismiss the application or dismiss it only against who was not served; b) adjourn the application and direct that the notice application be served on the person; c) direct that any judgment made on the application be served on the person”

Half of Petrowski's Motion now had been dismissed and the rest of the hearing proceeded in much the same manner. At the end Justice David L. Edwards ruled against the Motion by Councillor Petrowski. It was the final stage now with the cost allocation. One of the listed costs by the Toronto lawyer, Sachin Persaud, confused the Councillor and he requested clarification. Persaud stood to explain it was the cost of service of material.

At this stage, our judicial system, our guarantee of equality before the law, everything that we value in our democratic society was burned to the ground. Councillor Petrowski stated that he had not been served any material by Sachin Persaud. Persaud admitted that his process server had attempted to serve the Councillor at 8:00 p.m. on May 8th 2017 but was not successful. He referred to his Affidavit of Service which had recorded this to be true, he also said that he had successfully served Fred Bracken. Justice David L. Edwards rummaged through the material and found the affidavit by Persaud but made no comment.

Back to the Rules of Civil Procedure, which Sachin Persaud had referred to in his Factum on page 18. Now it is 38.07 Notice of Appearance (1) “A respondent who has been served with a notice of application shall forthwith deliver a notice of appearance. (2) a respondent who has not delivered a notice of appearance is not entitled to: a) receive notice of any step in the application; b) receive any further document in the application; c) file material, examine a witness or cross-examine on an affidavit on the application; d) be heard at the hearing of the application”

Justice David L. Edwards had earlier dismissed half of the Councillor's Motion on the grounds of the Rules section 38.06. He took time to publicly chastise the Councillor in open court on the process within the judicial system. Now Justice Edwards was made aware that the lawyer representing the Region of Niagara, Sachin Persaud of Boghasian & Allen LLP had withheld information that he had not complied with the Rules, subsection 38.07. Yet Justice Edwards ignored this fact and simply proceeded with costs.

How could Justice Edwards ignore this? Sachin Persaud, an experienced lawyer intentionally withheld from the court information relevant to the matter being heard. He even argued against the applicant on the identical issue before the judge. Can this be considered as intentional obstruction by lawyer Sachin Persaud? Is Justice David L. Edwards equally culpable?

Journalists who sat through the hearing, Bill Sawchuk of The Standard and Melinda Cheevers of Niagara this Week simply parroted the 'he-said-she-said' version. None of these journalists understood anything of court procedures and did not comment on this.

All Regional Councillors had been given an opportunity to comment, not one has responded. Chair Alan Caslin was asked to comment, he has stayed silent. Lawyer Sachin Persaud was given an opportunity to comment and it's not surprising that silence is his response at this time.

How was this possible in Canada? How can our system of justice, which claims to support the ideals of equality and transparency permit this? Is it possible that a judge was more concerned with his own words of wisdom in his ruling, over the very rules that govern every action before him? So many questions scream for attention for an answer. How was this Motion able to proceed with so many breaches of the Rules of Civil Procedure? A more alarming question is why did it?

Thursday, November 3, 2016

Modern Society's Reboot of Indentured Servitude - Part 2

The second part of this article is a little more lengthy than most yet the material revealed required both depth and description with the posting of relevant documents.

Following the interrogation by Human Resource Manager Kelly Turner and Christine Argue of Loss Prevention on August 24th 2015, I was approached by Seafood Manager Kirsten Aplin with a wild request. In her hands Aplin had several UPC labels folded, she said that it was particularly a bad week and if I could put some items through even though I had not used them. She said that she had done this herself before on my invoices but this time asked me to do it. To ask me to commit fraud knowingly was a criminal act of conspiracy – it was intentional entrapment. This was even worse than the fraud committed by Produce Manager Angela Ciestak. It came the day after the interrogation and the first search of my station; such coincidences I don't believe in. I took four of the UPC labels and photocopied them.

On the next day I told Assistant Manager Lynn Walbourne that I had something serious to talk to her about. In the office I dropped the four UPC labels on the desk and recounted the whole thing with Kirsten Aplin. I explained how I had given Store Manager David Camilleri copies of all the invoices regarding the fraudulent invoices by the produce manager. Walbourne then told me she did not know that I had given Camilleri those invoices. Questions were mounting up and smelling worse than rotting apples so I told Walbourne that I had sent all the information to Vice President of Operations Tom White. Walbourne's eyes stared at me for several uncomfortable seconds, then said she would investigate this herself now and get back to me. With all that had happened I expected this to be nothing more than a lie.

My work environment became very, very tense on a daily basis from this point on. Staff were told not to speak to me, others were questioned after they were seen talking to me by department managers. In early September of 2015 I was called into the office, this time with David Camilleri and District Operator Craig Gawley. As I sat down I took my recorder out in front of Craig Gawley's face. Gawley said that I brought a very serious issue to their attention, that it took courage to do it, but now it was no longer my business, they would handle it. He also said that he was the D.O. and if I need to speak to anyone I should speak to him not the V.P., Tom White. Craig Gawley had also said that there would be nothing on my record relating to this matter. As I walked out of the office I could smell the cans of white wash yet I simply could not understand why. Produce Manager Angela Ciestak committed fraud and Seafood Manager Kirsten Aplin had gone further; not only had she committed fraud she had attempted to have me commit an act I would immediately be terminated for. It was a criminal act, Craig Gawley knew it, David Camilleri and Lynn Walbourne knew it, and both Human Resources and Loss Prevention would have known it. Nothing made any sense at all. Sobeys' Code of Business Conduct and Ethics had been breached, in fact more than breached, it was mangled.

Each day I came to work with Marilyn Manson's The Pale Emperor pumping into my ears. The defiance in both the singer's voice and lyrics helped to strengthen my mind to handle the stress of the coming nine hours. On October 6th 2015 I came into work several hours earlier as we were to have a school tour and I would need time to prepare the special treat for the kids. A very somber David Camilleri asked me to come to his office, in the office was another individual. I was introduced to a Tim Gingrich, Director of Human Resources, he said that I was terminated by Sobeys and as he read out the letter all I heard in my head was absolute relief that I outlasted everything. Tim Gingrich handed me the letter, Camilleri looked as if he was going to put his hand out to me. I grinned and walked out the door. I looked at the letter handed to be by the Director of Human Resources and noticed there was no letterhead, it was a blank sheet of paper with some words on it and Camilleri's signature. True professionalism at its best. I walked downstairs, threw my apron into the air, collected my recipes, said good-bye to some friends and walked out the door feeling relief and freedom.

The termination letter had conditions attached to it so I was somewhat handcuffed till January 2016. Within days of being terminated the steps of my response were discussed and formulated. As far as wrongful dismissal went I had all that I needed: recordings, documentation proving fraud, customer statements, witness statements and staff testimonials. Yet I wanted more and now seeing how far the management of Sobeys was willing to go I knew I would get more.

As the constraints of the termination were lifted in January, I prepared phase one. First to come was a complaint filed with the Human Resource Professional Association (HRPA), of which Kelly Turner had to be a member of. Kelly Turner's actions were irregular enough to warrant the complaint. I fully understood that the process with an industry self-regulatory entity would take some months to complete. In addition to this being time consuming I had no real trust in any self-regulating organisation. Experience had proven that these self-regulating entities rarely take the high road which I had stated in the opening of my complaint letter. Yet I hoped to get something for my investment and at the end of it I found myself grinning like a green suited leprechaun sitting at the end of a rainbow.

My original complaint form with attachments to the Human Resource Professional Association was signed a few days after Valentine's Day, on February 18th 2016. It took a little time but I received a response from the HRPA dated March 18th 2016, signed by Alicia Lockey, CHRL, Regulatory Process and Special Projects Specialist. Ms. Lockey also sent a complaints process FAQ, and a copy of the HRPA's Rules of Professional Conduct, which I already had. And so the games began.

The complaint before the HRPA was relatively simple in nature. Supporting evidence was provided so as not to present a hollow or baseless set of allegations. At the core of the complaint was the fact that Kelly Turner, HR Manager for Sobeys breached the rules of professional conduct in the manner which she claimed to have conducted an investigation relating to reports of workplace harassment. In addition to the harassment issue, descriptions of the fraud committed by the two department managers had been presented, explaining the lack of action by the Store Manager, his Assistant Manager, District Operator or even the VP (although we know what VP's do, they de-li-gate, not do).

I understood from the beginning that a copy of my complaint would be sent to Kelly Turner and for that reason I had to ensure that I did not give too much away. After reviewing my complaint Turner would have thirty days to respond. It was that response that I anticipated would provide additional material to what I had already stockpiled. My anticipation was paid for in aces, (I have probably messed up that popular saying). As a complaint mine was five pages long; their response 97 pages. It was a document with one goal, to destroy the reputation of an individual, and as one respected friend with twenty five years in the Human Resource field said, “WOW! They (Sobeys) sure know how to spin things … that document must of cost them $$$$ even though a lot of it was fabricated.”

Kelly Turner did not use a private lawyer as I would have expected, instead she gave me a monstrous gift. This response was prepared by one Alix Herber of Fasken Martineau, a Toronto law firm. In her opening Alix Herber states, “We are counsel for Sobeys Ontario (Sobeys) the former employer of Mr. Alexander Davidoff, the Complainant, and write on behalf of Ms. Kelly Turner of Sobeys in response of your letter dated March 18, 2016 addressed to Ms. Kelly Turner.” Now it was no longer Turner or Craig Gawley or David Camilleri acting as individuals, it was the corporation of Sobeys Ontario and therefore the corporation of Empire Company Limited.

Alix Herber of Fasken Martineau continues in paragraph 3, “We would also respectively request that the Complainant be advised of the confidentiality of this process and not permitted to post these documents on his blog or anywhere publicly, including on social media.” It would seem that Alix Herber had not reviewed the the HRPA Complaint form, there is no written mention of confidentiality anywhere. Alix Herber as a lawyer would also be aware of freedom of speech and freedom of the press, but then Ms. Herber and Ms. Turner had other things on their minds I guess. Alix Herber finishes this paragraph with, “We would also recommend that any new issues be canvassed with the Complainant directly without providing a copy of this written Response.” It is quite understandable why Ms. Herber and Ms. Turner would not want me to have a copy of the response. In relation to being “permitted to post,” the opening page of the response follows this paragraph, and more to come.

Sobeys painted a picture of an aggressive mental case running around their store frightening staff and threatening management. The goal of Kelly Turner and Alix Herber for Sobeys was plain and simple which explained the reasoning behind submitting material which had no relevance to my complaint. Yet in a court of law it is the evidence that I would need but would not normally have access to even through an Affidavit of Documents, and for that reason I thank both Ms. Turner and Ms. Herber of Fasken Martineau.

A ten page letter began the defamation and attack on my character, followed by 87 more pages under Tabs 1 through to 17. Issues outside my workplace were brought forward which had no bearing on my work or my performance, in fact no employer has a right to comment on an employee's activities outside their work environment. Still that was not anything Turner, Herber or Sobeys cared about.

It is understandable that such a high priced lawyer would look to smear my reputation when potential evidence against her client was as strong as mine. Heck you see it in the movies all the time, this was real life though with real consequences, after all an actor will walk away even after the execution of a death penalty. In the rush to smear me, in Tab 5, Turner and the Sobeys lawyer released private and personal information relating to two employees of the Scott Street Sobeys store.

The Employment Standards Act, under the Protecting Employee Privacy, states, “Do not disclose an employee's information to anyone (other than government agencies and benefits providers) without first securing the employee's permission.” (Keeping and protecting employee records. The Ontario Employment Standards Act, MaRS). I would expect Kelly Turner has some understanding of this Act, and if not definitely Alix Herber should, being from such a prestigious law firm. Maybe I am wrong in such an assumption.

Tab 5 has personal information on one past employee and one current employee, the latter relating to his alleged mental health. This individual made it clear that under no circumstances was he aware of this breach of his personal information. He has been given copies of the pages that relate to him, which are hand-written notes by Kelly Turner. This information has been shared by Turner in this response with a third party, namely the HRPA, who have no legal right of access to this information.

Things don't end with this breach of the Employee Standards Act, actually Tab 5 has a wealth of information, of evidence. All the material in this Tab relates to an investigation that Kelly Turner did in 2014 over a harassment issue with a silly young man trying to impress his equally silly girlfriend. During that investigation Turner has notes on interviews with supposed witnesses. One such witness was Lori Marsh, the Engagement Champ, the same one who walks around the store telling staff that all discussions with her are confidential. Lori Marsh, it appears, volunteered information to Turner and Store Manager Camilleri regarding what she claims to be things discussed with her, a copy of the notes by Turner are posted here. In addition to Lori Marsh another so-called witness was spoken with who said her statements were only “second hand.” How does such an 'experienced' Human Resource professional put on record a second hand account of anything? As you can see though, Turner did.

As one reads Tab 5 through many questions arise, but one in particular has always intrigued me. Did Turner and Camilleri go out to canvas staff to see who was willing to provide statements, or did these people, like Lori Marsh, voluntarily come to Turner and Camilleri? It is an interesting question and has serious bearing on this response later. There are two other points in Tab 5 that relate further down the line. First is the fact that I was watched and details of who I spoke with, even for how long are on record. Staff had been questioned as to what I was talking to them about and even advised by department managers not to speak with me – I have statements on that. Yet after I was terminated I had become a customer, a member of the public. To have this continue is a breach of the Charter of Rights and Freedoms.

Although Tab 5 had provided a plethora of usable information that I would not have had otherwise, some points do stand out and scream for attention. The next point has serious ramifications on the issues of the August 2015 interrogation and eventual dismissal. Turner's notes in Tab 5 state she reviewed the video of the Chef's Station, it appears from the formatting of the notes that Turner even formulated questions after viewing the video. Everything here indicates that the security video had a good line of sight around the Chef's Station. Even when Bakery Manager Shari Chastelet commented later in August 2015 that she thought she was looking for a shoplifter she had not stated any obstacles to the line of sight. Yet contradictory statements were later made relating to the harassment report by me.

Aside from Tab 5 one other stands out, with statements made by Assistant Manager Lynn Walbourne which are presented in Tab 15. Here Lynn Walbourne makes comments relating to August 26th 2015 where she claims, “I questioned Alex about the binders and folders he had in his chef's station drawers.” The first question that comes to mind is where did this statement by Walbourne appear prior to the response? Was it on my employee file which I was not given access to even when I made a written request to review it? More alarming is the intentional omission of fact about the situation.

Walbourne's statement is in two parts, on two pages one signed, the other not signed. She claims on the signed paged that she questioned me about binders and folders then claims I had said or made a statement to her. On the unsigned page the date is incorrect, the fact that she searched my station and the reason changed, Walbourne also claimed that I made a statement relating to Human Rights that is wrong. The facts were simple, on August 26th 2015, after the interrogation by Turner and company, Lynn Walbourne at 12:42 pm came to search my station in full view of customers and staff. On the same day at approximately 1:09 pm she came back down and said, “they told you not to have it on the floor.” Thursday August 27th, Walbourne called me at approximately 11:43 am and asked whether I had any papers “down there.” Then on Friday August 28th 2015 I did give her a “booklet of papers”, it was a revised copy of the Motion Record which Turner claimed that her legal people had called the court about prior to this date. Finally, is it reasonable to ask whether the second unsigned page was added some time later, explaining the lack of signature and serious inconsistencies.

Lynn Walbourne decided to omit from her statement the fact that she searched my station and that as she first began the search she lied as to what she was doing. She also omitted as to who instructed her to search my station and for what reason. Walbourne did not find the need to mention that “the binders” were my temperature logs, and except for one folder the others were recipes which I cooked and worked on. Neither did Lynn Walbourne bother to state that she searched my station for several days or the fact that witnesses told me, who will provide testimony, that Walbourne searched my station even before I started my shift. When I questioned her about this her response was that she was only signing the log binders. Were these the same “binders” she claimed to have questioned me about? It would appear Lynn Walbourne needs her memory refreshed by listening to her own voice.

On August 29th 2015 a senior staff member said to me, “My God they are trying to ostracise you.” I knew that I was in a hostile and poisoned work environment designed to make me want to resign. The daily stress and pressure was immense but under no circumstances would I give in, instead, for months I made sure to record conversations and encounters for my protection as Lynn Walbourne proved supposed 'reporting' was extremely erroneous and lacking truth or even fact, much not even being recorded at all. In the case of Lynn Walbourne there is no report on the morning when I gave her the UPC labels and recounted what happened. I knew where I was working and was fully prepared for the outcome that was ahead.

After termination I served out my 'parole' period and forwarded my complaint to the HRPA. The reason behind my complaint has already been mentioned and the result dissected, yet the gifts did not end there. The HRPA decided to take the matter to a panel for review, and their final decision turned out to be an even greater gift in some respect.

To review the final decision by the HRPA would take a great deal of time, yet to ignore it for expediency alone would be an injustice to this article and to a long phase of a battle to expose the truth. As a governing body over an industry with powers to censure and fine its members the HRPA is bound by the responsibility of procedural fairness. The Human Resources Professionals Association of Ontario Act, 1990, under Section 4(1)(c) gives the Board of the HRPA the specific statutory authority to regulate and govern the conduct of members of the association in the practice of their profession.

Its Chair, Debbie Bennett stated, “Self-regulation is a privilege. It is our responsibility as a regulatory body, and as individual members of HRPA, to ensure that we regulate ourselves effectively.” These are mighty fine words but how much do they really mean? Self-regulatory bodies have proven time and time again that their apparent main goal is to protect their own members rather than investigate the truth. In this case my semblance of procedural fairness disappeared at the Complaints Committee Panel chaired by Jennifer Cooper.

Jennifer Cooper was given an opportunity to answer some questions but she refused to respond. In the final decision the HRPA and Chair of the Complaints Committee Panel basically decided that Kelly Turner had not breached their professional standards. This panel simply took what Turner and Sobey's lawyer had presented in the 97 page response, very little else was of importance to Jennifer Cooper and the panel. According to the HRPA's FAQ sheet provided by Alicia Lockey, Regulatory Process and Special Projects Specialist, under the heading 'What process does the CIC Panel follow?', on page 2, it states “the CIC Panel may decide the matter requires further investigation. The Panel may interview witnesses, to assist in the determination of facts or to bring clarity to the circumstances. The Panel may also engage an investigator to conduct an investigation on their behalf.” What was brought to the HRPA as a complaint was a serious issue and my complaint was clear and on point; the response that was submitted was aimed to damage my reputation with most of the material irrelevant to the complaint.

A landmark federal court decision in Ottawa on September 2nd 2016 has provided the benchmark that now can be referenced to in such matters. Federal Justice Russel W. Zinn wrote in his decision under Standard of Review page 9, paragraph 35: “Commissioner Shoan submits, and I agree, that a harassment investigation has significant consequences for all parties involved, and thus procedural fairness is required.”

Examining the final document from the HRPA leaves one bemused even at some of the language, such as the fact that I did not agree with the summary of David Camilleri's actions as outlined in Kelly Turner's letter and that an adequate investigation was conducted. For Jennifer Cooper, Chair of the Panel, to make such a statement only proves ignorance of the English language used in my complaint. Yet that on its own is not the real issue at question. As part of the decision summary a section is labelled 'Information Considered', and it is here that the test of procedural fairness fails.

In paragraph 46 of the decision by Federal Justice Zinn, he states, “in determining whether an investigation was procedurally fair and proper. Justice Richard in Bell Canada v Communication, Energy and Paperworks Union [1997] FCS No 207, 1997 Caswell Nat 347 at para 31 (FCTD) articulated the test as follows: The standard of conduct which is applicable to those preforming an adjudicative function is different from those performing a purely administrative or investigative function. In the case of an administrative or investigative function, the standard is not whether there is a reasonable apprehension of bias on the part of the investigator, but rather whether the investigator maintained an open mind, that is whether the investigator has not predetermined the issue.”

It is near impossible to understand how the HRPA decided not to review key evidence in order to make their decision. Key to all of the issues surrounding the supposed investigation by Kelly Turner is the audio recording of the whole session, yet that is not part of the list of material considered by the Panel and Jennifer Cooper. There are serious legal questions that will require answering relating to the Analysis of Issues as stated in the HRPA summary, some of which are best not brought up here. Others left me with a grin such as the need to have this heading number 3, “Did Ms. Turner engage in a retaliatory conduct against Mr. Davidoff for initiating the harassment complaint and for raising concerns about the conduct of other employee?” Here and now I challenge Ms. Jennifer Cooper to corroborate my words anywhere in the complaint process where I made this allegation regarding Kelly Turner. How or why Jennifer Cooper came up with this as an investigative point for consideration is difficult to understand for now.

Further in point 3 it states, “Documentation from Ms. Turner confirms that Mr. Davidoff was cautioned about his food safety practices on at least one occasion prior to his meeting with Ms. Turner on August 26 2015.” Here is the key to it all. After two years of coming into work five days a week, for eight hours a day, on one day I forgot, for some reason, to put on my hairnet. Yes, a hairnet! This is omitted by Jennifer Cooper as to what “food safety practices” I did not follow. Yet this is somehow insignificant to Ms. Cooper. Cooper labels this as “documentation from Ms. Turner.” What documentation, other than a sentence in the response provided by Alix Herber as Sobeys' counsel? This made me understand O.J. and the black glove absurdity.

Point 3 continues to shine with statements made by Jennifer Cooper which raise serious questions of motivation let alone procedural fairness. Paragraph four begins with, “Mr. Davidoff alleges that Sobeys management and human resources staff, including Ms. Turner, harassed or intimidated him by talking to him about concerns of the invoicing of products to his workstation and searching his workstation.” Here Cooper takes two separate issues – one is fraud by department managers, the other relating to the search of my workstation – throws them together as a mismatched sandwich and asks that it be digested without any resulting upset.

I had brought to the attention of management the issue of fraud committed by two department managers. Craig Gawley, Sobeys District Operator, was recorded calling this “a very serious issue.” One manager went a little further, Kirsten Aplin tried to involve me in the fraud. Sobeys' lawyer, Alix Herber, in the response called it an “erroneous allocation,” although just like a lawyer she is careful not to name which manager this referred to, Aplin or Ciestak. Again, I challenge Jennifer Cooper to point out somewhere in my words that I alleged any intimidation or harassment by anyone relating to this.

In relation to the search, Assistant Store Manager Lynn Walbourne somehow forgot the facts and left all of it out in her teeny statement used by Herber in the response by, and on behalf of, Turner and Sobeys. Cooper explains this away as, “Ms. Turner denies the allegation and submits that Mr. Davidoff has mischaracterized the conversations and the supervision of his workstation.” I have to ask which conversations did I mischaracterize, the one with Kirsten Aplin and the UPC labels or Lynn Walbourne opening all my cupboards and drawers with the lie of looking for napkins?

In the end the HRPA decision summary simply leaves a multitude of questions. As a statutory body the HRPA has an absolute obligation to conduct themselves in a manner which cannot be questioned on issues of procedural fairness. Quoting once again Federal Justice Zinn from paragraph 53 of his decision:

“A lack of even-mindedness has also been found when relevant material information was omitted in the investigation report. Canadian Broadcasting Corp v. Paul [1998] FCS No 1823. [1999] 2FC3 (FCTD0). The court there held that the failure was of such significance that it provided evidence of bias rendering an investigation procedurally unfair.”

There are no explanations or excuses that Jennifer Cooper, Panel Chair, can provide to justify the actions of the HRPA. It has been through experience that trust or faith in self-governing bodies has dissipated over the years. At the same time corporations in general have proven that procedural fairness is nothing but a joke.

In recent months two other employees of Sobeys had been terminated; one from the Fonthill store, the other from Scott Street in St. Catharines. Both employees have asked not to publish their names at this time for privacy reasons. Olga worked at Scott Street Sobeys for a year, and then transferred to Fonthill to get better hours. This individual was a hard working woman in her mind 50's with a work ethic which had her stay longer after clocking out for the day to get the work done. Olga was accused of stealing a piece of chicken worth between $4– $5. Such an accusation was devastating to this person whose honesty and integrity was never questioned.

She was suspended from her duties, then Loss Prevention was brought in to question her. Theft would never be an option for Olga even if she was hungry. During questioning she was able to prove that she paid for the chicken piece. Front end security video proved it and the fact she used her bank ATM card to pay for it proved it. The loss prevention individual, who Olga remembers as Christine, even demanded her bank card, something that the police can't do, but the intimidation used by this individual had no concern for what was legal or not. Even though Olga proved without any doubt that she paid for the chicken she was terminated. Upon termination she was also served with a No Trespass Order for any Sobeys property, this too was an illegal act. Her termination letter states that she breached “Employee Shopping Policy found on page 37 of your employee handbook.”

The second incident revolves around an employee from the Scott Street Store who had began employment with Sobeys in May 2008. Ingrid was a cashier and also staffed the customer service counter. Her termination also centred around a similar reason. When I interviewed her, she explained why she was terminated: “I took coupons off a product I didn't end up buying and I bought it while I was working. I said so I'm being fired for taking a coupon and they (I believe it was the loss prevention lady) said that no it was because I no longer can be trusted.” I asked her what was the value of the coupons, her reply, “it was 3 coupons for $2.50 I believe then – buy 3 get one free.”

No verbal or written warnings were given to either of these two women. Yet in the response by Turner and Sobeys lawyer Alix Herber, on page 8 it states that the issue of fraud identified by me was investigated by “Ms. Argue from Loss Prevention, Mr. Gawley the Director of Operations and Mr. Camilleri, Store Manager.” It further states that “this employee received a final warning letter.” So fraud by a department manager is labelled as “erroneously, but improperly” assigning cost of certain products, is rewarded with a final warning letter, and a promotion as Manager of the Beamsville store Bakery department. Yet two part-time, minimum wage women are immediately terminated for a $4 piece of chicken and some two plus dollars worth of coupons. Both women are labelled as not trustworthy by Christine Argue from Loss Prevention. Procedural fairness did not appear to be consideration for Sobeys or Christine Argue from Loss Prevention.

The issues outlined in these two parts relating to Sobeys are not just systemic with this corporation alone. A flight attendant, Mandalena Lewis, with WestJet had reported sexual assault by a pilot. WestJet claims to have investigated the report, although nothing had appeared to have been done with the pilot. The flight attendant requested her employment record, and when three months passed without response, she sent an angry email which contained a swear word, demanding her record. She was fired later that day for insubordination. In Hawaii, where the assault occurred, there remains an outstanding police arrest warrant, yet WestJet ensures the pilot does not fly any routes which would require stopovers in Hawaii.

Raj Shoan, former CRTC Commissioner, had filed an action with the federal court after a mishandled harassment investigation of which he was the target. As a result, Federal Justice Russel W. Zinn provided a landmark decision in relation to procedural fairness which did not exist in such a concise form in the past. Corporations had rarely shown concern for their employers, although it is not easy to understand the motivation behind their actions. In the end it is up to individuals to stand up and fight for the truth.

The action taken by Sobeys is clear for its intent, Kelly Turner and Sobeys' counsel Alix Herber of Fasken Martineau, set on a course to maliciously attack and tarnish my reputation. Their response to my complaint submitted to the HRPA was not only harsh and vindictive, it was reprehensible. All the hard work, the achievements and loyalty had been wiped out, maybe Alix Herber should have read the Fasken Martineau blog post 'Punitive Damages Awards in Wrongful Dismissals Being Aggravated? The HR Space', by David T. McDonald, Vancouver, April 4, 2013. The opening paragraph states: “The employer's conduct in the course of termination must be proven to be harsh, vindictive, reprehensible and malicious. Despite this high ground a number of recent trial decisions show how courts are becoming more open to providing plaintiff employees with awards of punitive damages.”