By Kelly Donovan
This article was originally published on February 24, 2019
Last week, I escorted my daughter out of Sick Kids at McMaster in a wheelchair after having a tumour removed from her cheek. While waiting for our ride, my phone alerted me to an email from the Superior Court of Justice; Justice Doi had made his decision about my pending lawsuit against my former employer, the Waterloo Regional Police Service. My curiosity got the better of me, and I had to read at least the first few paragraphs. My hands began to shake and I could barely steer the wheelchair; I thought I was going to be sick.
If only these doctors could just cut out the cancer that is the Waterloo Regional Police Service, I may have a chance at survival.
In January, 2018, (7 months after I resigned from my employment with the police service), I read an Affidavit filed by Police Chief Bryan Larkin wherein he used my case to defend his employer in the $167M class action lawsuit against them for gender discrimination, sexual harassment and sexual assault. It was as if my case was being used to tell the public "look, we deal with complaints seriously, see? These prior matters were settled." Only, that's not what was happening at the police service at all. I knew the other three officers listed in this chart, and NONE of them were healthy. I can't even say for sure if any of them were actively at work since their Human Rights complaints had been filed. I was listed as the only "Female Constable who had resigned voluntarily, settled my Human Rights complaint, and was paid a monetary settlement." Only, the police service had signed a contract stating they cannot disclose the terms of my resignation agreement, (as I have not since resigning in June, 2017). But, there it was in fine print for the world to see. Chief Larkin did not need to defend his employer in this case, he surely did not need to use my case to try to paint the picture that the service is doing a great job, so why did he?
Up until this point, my PTSD symptoms had returned to a level where I could effectively manage my day to day responsibilities and focus my efforts on building my business. After reading chief Larkin's affidavit and being asked by CTV News to provide a statement in response to Larkin who told the news station "we encourage people to come forward," I felt re-traumatized. I felt lied to. Worse, I knew the public was being lied to, and they were using me to do it.
I got sick, again. I started taking my medication, again. I couldn't sleep for longer than two hours at a time and when I did the nightmares woke me up in a pool of sweat, I lost my appetite and my will to exercise, I drank more. None of these behaviours are conducive to operating a business, as most of you can imagine. With less business activity, meaning less income, I began to accumulate debt. I sought legal advice. I was told that since Larkin was not obliged to write this affidavit, and surely did not have to disclose the terms of my resignation agreement, this would constitute a breach of our contract. So, I had to decide what to do about it. I could just let it go, let Goliath be Goliath. But, then what would that mean for THE person who has been doing everything she can to hold public officials accountable?
In May, 2018, I filed a statement of claim against them for breach of contract. One simple breach, (at this point). As expected, the police service immediately filed a motion to dismiss my claim. One of their arguments was that my allegation should be heard by the Human Rights Tribunal as a contravention of settlement. That decision was set to be made by a Judge in February, 2019. What I did not expect came in June, 2018. The police service decided it was going to file a contravention of settlement application against ME at the Human Rights Tribunal, (prior to courts deciding on my case first). I was served a 400-page package that basically said everything I had done since July, 2017, was in violation of our contract. The police service wanted me to pay them "significant damages," cease my 'repeated and flagrant' violations of the agreement, retract all allegations about them from the public realm and from my book, etc. It was, in my opinion, a gag proceeding. They wanted me to stop talking about them. (As an aside, even when I was face to face with members of the board in September, 2017, at NO time have they ever accused me of defamation, slander or libel. I welcome the opportunity to prove that everything I have ever alleged is true).
I did not sign a non-disclosure clause
I had 14 days to respond to this 400-page document. I responded by informing the Tribunal of the ongoing Court case, and that until a Judge had decided jurisdiction, it was premature and inappropriate for me to address the allegations at the Tribunal. The Tribunal responded by scheduling a hearing date for the service's case against me, February, 2019, nine calendar days after my court case was to resume. Did they not read my response? How could I defend the police service's allegations if only nine days before then I would find out if Courts would allow my case to proceed there, or not?
I continued to receive repeated requests for documentation from the Tribunal. My health just kept getting worse, every time I saw the lawyer's name or the "HRTO" in my inbox, my anxiety spiked and I wanted to throw up. Under duress I filed my own application with the Tribunal; if they were going to hear the police service's allegations, they better hear mine at the same time. The Tribunal quickly filed their OWN request to dismiss my claim, saying I was just outside of the 6-month limitation period (despite the police service being 7 months LATE with their application). I couldn't win…
During the time I was receiving repeated requests, demands, extensions, (which was all very harassing to me during this time), I received another huge package by Purolator. This time, it wasn't from the offices of Filion Wakely, it was from WSIB. My former employer was appealing my claim for benefits, (since I had resigned, only my psychology visits were being paid by WSIB for my PTSD). Once again, I was struck to the core. I had required the police service to release me from any future appeals in my resignation agreement. I wasn't going to give up my $100k/year job, all of my benefits, to allow them to continue to come after me for whatever I had left. But, there it was; "this letter is to let you know the employer has informed us in writing of their intention to appeal a decision in this claim." The letter attached showed that the police service had filed the appeal in January, 2018, (the same time chief Larkin's affidavit was made public, 7 months after my resignation). This was, in my opinion, another flagrant breach of our contract. I was told that if I did not participate in the appeal process, my former employer would receive my entire medical record, which (my female colleagues who have been through this will know), contained much more than my recent mental health records. I was forced to go through the painful and embarrassing process of taking my case worker through my medical history to remove what was obviously not relevant to my claim for PTSD and records that my former employer had no right to obtain.
Bill 52
It was a Psychiatrist with CAMH who told me, while being assessed for the in-house PTSD program at Homewood Health in Guelph in September, 2018, "so, what's stopping you from filing in court to dismiss their claim against you?" He was right. I had to try to stop them; what they were doing to me was wrong, and if I didn't, this whole ordeal would kill me.
Bill 52 was the Protection of Public Participation Act, and amended the Courts of Justice Act to include section 137.1 which would dismiss a proceeding that was intended to limit public debate on matters of public interest. I filed an application at Superior Court to have their gag proceeding dismissed. Section 137.4(1) of the Courts of Justice Act states: "If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal." Great! (I thought). I can just file my Notice of Application at the HRTO and that will stay the police service's proceeding against me.
I was wrong. In her decision, (which was delivered February 1, 2019), Madam Justice Favreau sided with the police service and stated that a Human Rights Tribunal matter is not a "proceeding" for the purposes of Bill 52, Donovan v. (Waterloo) Police Services Board, 2019 ONSC 818. One reason I chose to file this application was that since Bill 52 was enacted, there had not been any applications to dismiss Tribunal proceedings under CJA s. 137.1. Also, I knew the police service would not be entitled to costs if I was unsuccessful. My belief was, how could Tribunal proceedings be exempt? If we want to preserve public debate on matters of public interest, is this not across the board? Otherwise, we are setting out a roadmap for anyone who wants to gag someone; find a way to use an administrative tribunal, and you're all set.
Five days after reading Justice Favreau's decision, the Tribunal sent me an order that I had to respond by February 8th to advise on whether or not I intended to proceed with my claim at the Tribunal, (five days before a Judge would decide whether or not I could proceed in court?) Is any of this making sense to you? It wasn't making sense to me. I responded by reminding the adjudicator that she was obliged to respect the principles of procedural fairness and natural justice, and advised I would not be making this decision until Courts had decided on my claim filed there first.
On February 13, I defended the service's motion to dismiss my claim against them, (which now included the second alleged breach of them appealing my WSIB claim). I raised several valid arguments to Justice Doi, including the police service allegedly signing our contract in bad faith (if they believed at the time that despite my requirement for a mutual release, they would still appeal my WSIB claim), the police service won, and my claim was dismissed. With costs, Donovan v. Waterloo Police, 2019 ONSC 1212. This was the decision I read while waiting outside of Sick Kids with my daughter. Just how much would the police service ask me to pay their lawyers? That has yet to be determined.
February 22 was to be the scheduled hearing date for the police service's case against me. Now that I knew the Courts would not proceed with my claim, I knew now that my only hope was with the Tribunal; unfortunately. There was a teleconference call on February 19 with the Tribunal adjudicator. She claimed to not have been aware of my parallel civil proceeding, (despite my reply on July 10, 2018), and could not advise how to file a complaint of a violation of the code of conduct by adjudicators of the Tribunal. In the end, the hearing scheduled for February 22 was postponed, (it should have been postponed back in July when I advised the Tribunal that the police service had only filed their claim because I had begun a civil court process, and that I believed their proceeding was an abuse of process and retaliation, not to mention seven months late).
I immediately filed a request to amend my claim to include the second breach, although I was once again a few days outside of the six-month window from having learned of the second breach, which most likely means the Tribunal itself will file to dismiss my claim. Do you see a pattern here? Was the Human Rights Tribunal not established to protect the rights of people like me? Not, stand up for employers like the Waterloo Regional Police Service who do not like it when people speak the truth and it hurts their reputation.
This case could take years before the Tribunal; years of my life, years of my recovery, years of my children's lives with a contributing mother… And, it is all at the expense of the taxpayers in the Region of Waterloo. And, for what? Because my speaking the truth struck a nerve? Because the Waterloo Regional Police is still trying to set an example for other officers who may be considering speaking up, or is this action on behalf of the Ontario Association Chiefs of Police who all hold a stake in the continued Blue Wall of Silence?
You be the judge. I'm sure if you were, you wouldn't ask an employee who resigned from employment, has been representing herself throughout this entire ordeal, and is trying to build a new life for herself to pay the legal bill.
If Dr. Dirk Huyer, Ontario's Chief Coroner, really wants to know what is killing police officers in Ontario, he only has to read this article. If the WRPS are not successful in getting me six feet under, the residual stress of this entire ordeal may very well be.
I can only hope that my legacy will inspire politicians who are more interested in the truth, than prostituting themselves out to protect the reputation of the policing profession in Canada.