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Court File No,;CV-10-14676

SUPERIOR COURT OF JUSTICE

8 ETWE E N:

JOHN MIDDLETON

Plaintiff

- and-

THE CORPORATION OF THE CITY OF WINDSOR

Defendant

STATEMENT OF DEFENCE

1. The Defendant admits the following allegations contained in the Plaintiff's Statement

of Claim:

(a) Part of paragraphs 4 and 6, namely the Defendant admits that the Plaintiff was appointed in or about 2003 to the Windsor Citizens Crime Prevention

Committee and was subsequently appointed Chairman of the Committee.

(b) Paragraphs 2, 3 and 7 of the Statement of Claim.

2. The Defendant denies the remainder of allegations contained in the Statement of Claim, except as hereinafter expressly admitted, and puts the Plaintiff to the strict proof

thereof.

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3. The Defendant is a municipal corporation incorporated pursuant to the City of Windsor Act, S_O. 1892 c.92, and as a municipality is subject to the provisions of the

Municipal Act, 2001, S.O. 2001, c25.

4. The Defendant states that pursuantto the provisions ofthe Municipal Act, 2001, and the Defendant's by-laws and resolutions, City Council for the City of Windsor rCity Council"), through the Striking Committee of City Council, has at all material times the legal

authority to, among other things:

a. Establish Council committees;

b. Establish terms of reference, rules of order and requirements for

membership for Council committees; and

c. Appoint and remove members of Council committees.

5. Pursuant to its municipal powers and authority, City Council established the Windsor

Citizen's Crime Prevention Committee ("WCCPC") as a Council committee in or about

1987.

6. The WCCPC is comprised of citizens, elected representatives and organizations

united to develop and administer programs aimed at reducing crime in the City of Windsor

through education and participation in the community.

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141004

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7. The WCCPC consists of up to fifteen members who are volunteer appointments.

plus one elected representative. In addition, resource personnel who are employees of the

Defendant are allocated to the WCCPC to assist and facilitate its programs.

8. As a Council committee, appointments to the WCCPC are at all material times made by the Striking Committee of City Council. Such member appointments are at the will and discretion of City Council and may be revoked where City Council considers it appropriate. The appointment or revocation of an appointment to a Council committee is not subject

the principles of natural justice and is an administrative function exercised by the Striking

Committee of City Council.

9. The Defendant states that in or about 2003, the Defendant was appointed as a

citizen member of the WCCPC. The Plaintitfwas subsequently appointed as Chairperson

of the WCCPC on or about April 19, 20P7 for a term ending November 30. 2008. The

Plaintiff continued to hold this appointment until it was revoked by a resolution of City

Council on April 21, 2008. effective April 22. 2008.

10. The Defendant further states that at all material times it had operated pursuant to a "Respectful Work Program". This Program included a Workplace Violence and

Harassment Policy and a Human Rights Policy, which stated that such program and policies applied to elected representatives, employees, volunteer appolntees and others.

Such program and policies provided for. among other things, a commitmentfor maintaining

a respectful workplace, free of violence, discrimination and harassment.

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141 005

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11. Specifically, the Defendant's Workplace Violence and Harassment Policy dealt with

"Personal Harassmenf' and stated 1 in part, that Personal Harassment is defined to be:

"any unwanted or unwelcome acts of coercion and

psychological harassment or misuse of power, including

annoying or distressing behaviour through repeated and hostile

or unwanted conduct, verbal comments, e-mail, threats,

actions or gestures that affect a person's dignity or psychological or physical integrity and that result in a harmful

work place environment. Single severe acts of harassing

behaviour may be sufficient to be defined as Personal

harassment under this policy"

12. The Defendant states that in or about April200B, it received complaints from various employees aSSigned as resource personnel to the WCCPC concerning the Plaintiffs

behaviour and conduct as Chairperson of the WCCPC. Specifically, such complaints

included, but are not limited to, the following:

a. That the Plaintiff behaved in a deliberately difficult and confrontational

manner towards the Defendant's employees on WCCPC issues.

b. That the Plaintiff bullied, belittled and acted in a condescending and

sexist manner towards the Defendant's employees with respect to WCCPC matters.

c. That the Plaintiff told a female employee of the Defendant during a

budgetary discussion that another female employee allocated to the

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WCCPC as a resource person was "not fucking worth that much money",

and that she must have rocks for brains if she thought so. This

discussion was in reference to the budgetary cost amount transferred to

the WCCPC budget for the use of such employee.

d. That the Plaintiff stated to the same female employee, on a later date, that the "pickings must have been pretty Slim jf they chose you" in relation to that employee's promotion to another position. The Plaintiff then

asked this person if she was going to be working for a man or a woman.

When the employee asked the Plaintiff why he wanted to know, the

Plaintiff stated that he wanted to know what the employee had to do and

with Whom to get the promotion. The Plaintiff proceeded to advise this

employee that he hoped her replacement "had a clue" about how

accounting was supposed to work.

e. That the Plaintiff stated to the same female employee, on a later date,

that the Defendant must have fulfilled their quota of hiring "fucking 'tards"

for the year since the employee was obviously retarded.

f. That the Plaintiff stated to the same female employee, on a later date, he

wanted to speak to the employee's supervisor because the employee

was "incompetent", "useless" and "irrelevant".

13. The Defendant states that the Plaintiff's statements and conduct contravened the

Respectful Work Program and also violated the Defendant's Workplace Violence and

Harassment Policy.

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14. The Defendant states that based on the foregoing and the Defendant's obligation to provide a safe and respectful workplace, it had reasonable and proper grounds to revoke the Plaintiffs appointment as a member of the WCCPC_

15. The Defendant further states that it acted in good faith, with discretion, dignity and

respect for the privacy of an individuals involved, including the Plaintiff. At no time did the

Defendant publicaily announce nor did it initiate any publicity or media attention to the

Plaintiff's removal from the WCCPC, or comment publicly regarding same.

16. The Defendant further states and the fact is that following the revocation of the

Plaintiff's appointment as a member of the WCCPC. the Plaintiff engaged in a public

campaign announcing and criticizing his removal from the WCCPC. Such campaign

included, but not limited to, the following:

a. holding press conferences announcing his removal;

b. towing around a mobile sign behind his vehicle announcing that the

Defendant "fired the wrong volunteer";

c. starting a website to further disseminate information and/or knowledge

about his removal; and

d. other public relations activities, comments or interviews

disseminating information and/or knowledge about his removal.

17 _ The Defendant denies that it is liable for the damages claimed or at all.

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18. The Defendant further denies that the Plaintiff sustained damages as alleged or at all. In the alternative, if the Plaintiff sustained damages as alleged in his Statement of

Claim, which is not admitted but denied, such are excessive and too remote.

19. The Defendant further states that if the Plaintiff sustained damages as alleged,

which is not admitted but denied, such were not caused or contributed to by the Defendant.

Rather, the Defendant states that the Plaintiff is the author of his own misfortune, and any

alleged loss of his reputation and business in the community is a direct result of his actions

and public campaign announcing his removal from the Committee.

20. The Defendant further states that the Plaintiff is not entitled to be returned to the

position of Chair of the Committee, as stated in paragraph 15 of his Statement of Claim, and that this Honourable Court does not have jurisdiction to grant such relief. Alternatively,

should this Honourable Court have jurisdiction to grant this relief, which is not admitted, the

Defendant states that the Court should exercise its discretion and decline to grant such

relief.

21. The Defendant pleads and relies upon the provisions of the MunicipaJAct, 2001, S.O.

2001, c25.

22. The Defendant therefore asks that this action be dismissed with costs.

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July 8,2010

GEORGE W. KING LSUC #22322J

McTAGUE LAW FIRM LLP Barristers and Solicitors

455 Pelissier Street Windsor, Ontario N9A 6Z9 TEL: 519-255-4315

FAX: 519-255-4384

SOLICITORS FOR THE DEFENDANT

TO: CLAUDIO MARTINI

Martini Barile Marusic, LLP Barristers and Solicitors 2485 Ouellette Avenue Suite 200

Windsor, Ontario, N8X 1 L5 (T) 519-969-1817

(F) 519-969-9655

LSUC #: A029143V

SOLICITORS FOR THE PLAINTIFF

III 009

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