HomeMy WebLinkAboutEmployer 21-10-08IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations Act,
1995, as amended,
(Grievance of Community Living Atikokan dated September 8, 2020 re Mosbeck)
BETWEEN:
COMMUNITY LIVING ATIKOKAN
(the “Employer”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the “Union”)
AWARD
Arbitrator: Marilyn A. Nairn
Hearing held (by videoconference): February 22, March 25, June 21, June 23, July 14, 2021
APPEARANCES
For the Employer: Hayley Yorke
For the Union: Kamal Bakhazi
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AWARD
1. This grievance, brought by Community Living Atikokan (the “Employer” or “CLA”) alleges
that Gwenda Mosbeck, a former employee, violated terms of a Memorandum of Settlement
(“MOS”) executed by the Employer, the Ontario Public Service Employees Union (“OPSEU” or the
“Union”), and Ms. Mosbeck. I was appointed pursuant to section 49 of the Labour Relations Act,
1995 as amended and there is no dispute as to my jurisdiction to hear and determine this
grievance.
2. Ms. Mosbeck was the grievor involved in the matters giving rise to that MOS. This
grievance alleges that Ms. Mosbeck violated paragraphs 6 and 7 of the MOS. There is no dispute
that the obligations set out in those paragraphs apply to Ms. Mosbeck. The relevant provisions
of the MOS provide:
6. The parties agree that the terms of this settlement shall be kept confidential as between the
parties and may only be disclosed to third parties for the purpose of its implementation, or as
may otherwise be required by law [except as specifically stated above]. Mosbeck further agrees
that she will not disclose to any person, including family members, any information relative to
paragraph 2 of this settlement.
7. Mosbeck agrees that she will not make any negative or disparaging statement about the
Employer, any of its current, past or future employees, or Directors, either verbally or in writing.
3. Given the confidentiality clause, only as much information from the MOS as is necessary
to make sense of the circumstances will be disclosed in this award. Paragraph 2 of the MOS
provides financial consideration to Ms. Mosbeck in exchange for the Employer accepting her
letter of resignation and resolving all issues with respect to her employment with CLA, including
two grievances filed by Ms. Mosbeck alleging an unsafe workplace due to alleged bullying and
harassment and intimidation and coercion in her capacity as a union steward. The MOS was
executed on July 10, 2015. The financial consideration was received by Ms. Mosbeck.
4. On the agreement of the parties, this hearing did not proceed on the legislated day for
hearing. Discussions were held in an attempt to resolve the grievance and further dates were
then set. In addition to an agreed statement of fact, I heard evidence from three members of the
Employer’s management team and a fourth employee. The Union called no evidence and Ms.
Mosbeck did not testify. Documentary evidence, photographs, and video were also filed,
including the Appendices referred to in the agreed statement of fact.
5. The agreed statement of fact provides:
THE GRIEVANCE
1. These proceedings arise from the employer grievance (the “Grievance”) filed
September 8, 2020 (Appendix 1) and amended September 15, 2020 (Appendix 2).
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2. The Grievance relates to a claim by Community Living Atikokan (“CLA”) that Ms.
Mosbeck breached paragraph 6 and 7 of the Memorandum of Settlement signed
July 10, 2015 (Appendix 3).
THE PARTIES
3. CLA is a community-based organization located in Atikokan, Ontario. CLA provides
supports and services for individuals living with intellectual disabilities
(“Members”). CLA provides living, community participation, and employment
supports to its Members. The organization is funded through Ministry of Children,
Community, and Social Services’ [“MCCSS”] funding and community donations.
4. Ms. Gwenda Mosbeck (“Ms. Mosbeck”) is an individual residing in Atikokan,
Ontario. Ms. Mosbeck was employed by CLA from 1998 to July 10, 2015 (her
“Employment”).
5. The Ontario Public Service Employees Union and its local 725 (the “Union”)
represents employees within the bargaining unit at CLA. Ms. Mosbeck was
represented by the Union for the duration of her Employment.
The Management Team at CLA
6. In her various employment roles at CLA, Ms. Mosbeck was supervised by several
members of the CLA management team. This team (the “CLA Management Team”)
currently includes the following individuals:
a. Mr. Jim Turner (“Mr. Turner”), who has been employed as the Executive
Director of CLA from 2009 to the present day. Mr. Turner had frequent
interaction with Ms. Mosbeck during her Employment as a result of her role as
a Union Steward.
b. Ms. Christie Gushulak (“Ms. Gushulak”), who has been employed at CLA since
1994. She has been a member of the CLA Management Team from 2002 to the
present day. Ms. Gushulak was Ms. Mosbeck’s direct supervisor from 2002 to
2010 inclusive and from 2011 to 2015 inclusive.
c. Ms. Tina McEvoy Pollard (“Ms. Pollard”), who has been employed at CLA since
2002, and has been a member of the CLA Management Team from 2010 to the
present day. Ms. Pollard was Ms. Mosbeck’s direct supervisor from 2010 to
2011 inclusive. Ms. Pollard was also an indirect supervisor of Ms. Mosbeck
from 2011 to the end of Ms. Mosbeck’s Employment.
d. Ms. Melissa Lafond (“Ms. Lafond”), who has been employed at CLA since 2011
and has been a member of the CLA Management Team from 2018 to the
present day. Ms. Lafond was not in a management role during Ms. Mosbeck’s
Employment.
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BACKGROUND
The Grievances of 2014
7. On or around November 4, 2014, the Union advanced two grievances on behalf of
Ms. Mosbeck. The first alleged that the Employer failed to provide a safe and
healthy work environment free from harassment and bullying (Appendix 4), and
the second alleged intimidation and coercion in respect of Ms. Mosbeck’s position
as a Union Steward (Appendix 5) (collectively the “Grievances of 2014”).
Settlement of the Grievances of 2014
8. On or around March 4, 2015, Ms. Mosbeck went on medical leave from her
employment at CLA. She never returned to work.
9. In or around July of 2015, the Union approached the Employer and indicated that
Ms. Mosbeck wished to resolve the Grievances of 2014 and end her employment
at CLA.
10. CLA, the Union, and Ms. Mosbeck settled the grievances by way of Memorandum
of Settlement signed on July 10, 2015 (the “Memorandum of Settlement”).
11. As part of the settlement, Ms. Mosbeck was deemed to have resigned from her
Employment effective July 10, 2015.
The Memorandum of Settlement
12. Section 6 of the Memorandum of Settlement states:
[see paragraph 2 of this Award]
13. Section 7 of the Memorandum of Settlement states:
[see paragraph 2 of this Award]
July 13, 2020 - The Cease and Desist Letter
14. On July 13, 2020, Ms. Mosbeck was sent a Cease and Desist Letter (Appendix 6) on
behalf of CLA asking that she cease and desist posting disparaging remarks about
CLA on Facebook. The letter stated that such actions are a breach of the
Memorandum of Settlement. The letter was sent via email to Ms. Mosbeck by CLA’s
legal counsel, O’Neill Associates.
6. The MOS also states:
8. Mosbeck acknowledges that, by signing this Memorandum of Settlement, she understands it
and that she signs it voluntarily, having been fully and fairly advised by the Union of the
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consequences of this Agreement and that she has been properly represented by the Union
with respect to these matters.
7. Atikokan has a population of about 2700 people and is situated about halfway between
Thunder Bay and Fort Frances in northwestern Ontario. Community Living Atikokan is a non-
profit organization. Its largest program is designed to support the independent living of 26
Members, whether assisting Members’ community participation or providing Member support
services. It also provides intensive support for those Members requiring 24/7 support. Finally, it
provides employment supports by establishing contacts within the community and helping
Members obtain work. CLA also operates a seasonal chip truck that employs Members. An
additional 6 Members are supported through a ‘passport’ program, managed by CLA, that
enables them to purchase services using funds provided by MCCSS. CLA’s workforce is a total of
35 full-time and part-time employees, including the management team.
A brief summary of the time between the November 2014 grievances and this grievance.
8. The grievances filed on November 4, 2014 apparently related to a conversation between
Mr. Turner and Ms. Mosbeck in his office in advance of a staff meeting. Ms. Mosbeck was acting
in her capacity as union steward. The nature and tone of that discussion and allegations made
were disputed and ultimately not determined as the MOS settled all matters between Ms.
Mosbeck and the Employer, with the Employer expressly denying any and all liability.
9. On January 27, 2015 there was an incident at work involving Ms. Mosbeck and a Member.
The following day Mr. Turner was advised and he understood that the Member had ‘swatted’
Ms. Mosbeck. No report of any injury was made until about nine days later when Ms. Mosbeck
left work to attend the emergency room. Ms. Mosbeck also then filed a police report and a WSIB
claim.
10. When advised that Ms. Mosbeck had sought medical attention, an investigation into the
incident was conducted by Ms. Gushulak. She spoke to three individuals who were in the room
at the time, including one staff member. It was reported that a Member had slapped Ms.
Mosbeck on the arm and/or the head and had aggressively messed up her hair. That was the
extent of their report and, according to Ms. Gushulak, it was consistent with Ms. Mosbeck’s
original report of the incident, both to CLA and to the police, and with Ms. Mosbeck’s behaviour
at work during the intervening period.
11. Sian Krassey, CLA’s Administrative Officer, is responsible for filing WSIB claims. She
provides the Form 6 claim to the employee to fill out. The details of the incident are completed
by the employee. Ms. Krassey also completes an employer Form 7. Copies of both are provided
to the employee and then sent to WSIB. In this case, a letter from Ms. Gushulak was attached.
That letter stated that the Employer had not been advised of any injury at the time of the incident
and that Ms. Mosbeck had been at work since the incident.
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12. Apparently no criminal charges were filed in connection with that incident. Ms. Mosbeck’s
WSIB claim was initially allowed to the extent that medical documentation recommended
counseling and a health care claim was approved by WSIB. The Employer accommodated Ms.
Mosbeck’s absence from work in order for her to attend. However, her attendance at work
became more and more sporadic and when asked by Ms. Gushulak in early March 2015 to meet
to discuss her attendance, Ms. Mosbeck left work and never returned.
13. It appears that Ms. Mosbeck later filed either a second WSIB claim or an appeal, further
to which the Employer provided information with respect to the November 2014 grievances, the
Ministry of Labour (“MOL”) complaints and an alleged threat against Mr. Turner, discussed
below. It appears that that claim was also approved, but I have no evidence as to the basis for
that claim. In cross-examination, Mr. Turner denied involvement in Ms. Mosbeck’s WSIB claim.
However, Ms. Krassey testified that Mr. Turner participated in a phone conversation she had with
the WSIB case manager regarding Ms. Mosbeck’s claim. There is significant animosity between
Mr. Turner and Ms. Mosbeck. However, I am not persuaded that Mr. Turner’s denial is culpable
as alleged by the Union, given he was provided with no opportunity to reflect or review any
assertion that he had participated in a phone conversation in 2015 when he testified in 2021,
particularly as, from the Employer’s perspective, this grievance had nothing to do with that claim.
14. In the early summer of 2015, the Union contacted the Employer indicating that Ms.
Mosbeck was interested in resolving the November 2014 grievances and ending her employment
with CLA. Negotiations ensued, and the MOS was signed on July 10, 2015, resolving all issues
concerning Ms. Mosbeck’s employment with CLA.
15. Between May and October 2015 two complaints alleging harassment and bullying in the
workplace were filed against CLA with the MOL. The MOL Inspector attended the site twice and
ultimately determined the complaints to be unsubstantiated. In advising the complainant of the
result, the Inspector reported that the complainant had stated an intention to have Mr. Turner
removed from his position, even using violence. Apparently having sought advice regarding what
he believed was a serious threat, the Inspector identified the complainant, Ms. Mosbeck, to Mr.
Turner for the first time, advising that he make a report to police. As a result, Mr. Turner filed a
report with the OPP and had a trespass notice issued and served in October 2015, informing Ms.
Mosbeck that she would be charged with trespass if she came onto CLA property.
16. In November 2015, Ms. Mosbeck filed a complaint with the Human Rights Tribunal of
Ontario (“HRTO”) against CLA. That matter went to a preliminary hearing and was dismissed in
November 2016 on the basis that the matters complained of had been resolved by the terms of
the MOS.
17. Ms. Gushulak had worked with Ms. Mosbeck for 17 years and described their working
relationship over that time as wonderful. She testified that Ms. Mosbeck was a “great worker”,
with a “real knack” for working with Members. However, that relationship deteriorated over this
period. Ms. Gushulak testified that Ms. Mosbeck’s report of the January 2015 incident had
changed and grown over time to the point where Ms. Mosbeck asserted to the HRTO that she
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had been knocked unconscious and had suffered a concussion and hearing loss. Ms. Gushulak
testified that staff were in the vicinity and had Ms. Mosbeck been rendered unconscious, an
entirely different process including the police, the MCCSS, and WSIB would have been
immediately involved. On October 17, 2015, Ms. Mosbeck accused Ms. Gushulak of lying on the
WSIB form filed, an accusation that Ms. Gushulak testified ended both their personal and
professional relationships.
18. Matters were quiet until 2020. However, that short history provides some context for the
participants’ respective views.
The Present Dispute
19. The evidence concerning the events leading to this grievance can be grouped into two
general categories, ‘The Facebook Posts’ and ‘The Civil Protest’. The matters complained of
extended over a period of about three and a half months, beginning in early July 2020 and
continuing until October 27, 2020, the day before the legislated hearing date of this grievance.
While this hearing was ongoing, the Employer raised no additional allegations of ongoing
breaches, although the Employer is concerned about deterrence.
20. During the period complained of, CLA was also responding to the additional needs of its
Members and staff due to COVID-19. As well, the construction of the Aspen Court project,
described below, was getting underway, as was its local fundraising campaign.
21. In submissions, certain admissions were made, acknowledging that certain Facebook
posts violated the non-disparagement clause of the MOS. Other matters, and specifically all those
associated with Ms. Mosbeck’s protest, were challenged by the Union as not constituting a
violation of the terms of the MOS.
The Facebook Posts
22. In or about 2018, in consultation with local authorities and with Mr. Turner’s initiative
and oversight, CLA had undertaken the planning and development of a capital project known as
Aspen Court, a project to provide 38 affordable housing units for seniors in a community support
setting in Atikokan. Certain financing was in place by 2020 but the project needed to raise
$200,000 from the community as well. A professional fundraising campaign was set to launch in
the summer of 2020.
23. On July 9, 2020 Mr. Turner posted the first advance notice of that campaign on a local
community Facebook page known as Channel 13. That Facebook group included about 2500
people, made up of both local residents and others having a connection to Atikokan.
24. That day, in response to the notice of the fundraising campaign, Ms. Mosbeck posted the
following comment on the Channel 13 Facebook page:
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Although I think the project itself is wonderful some of the individuals involved are very
questionable people!
25. Ms. Lafond saw the posted comment and notified Mr. Turner, who was also notified of
comments by Facebook. He contacted the page’s administrator who took the comment down. It
was available online for a few hours.
26. On July 13, 2020 Ms. Mosbeck posted the following on her personal Facebook page:
Well this COVID-19 has really brought reality to a new level. Some see it as a curse, me a
blessing. People who have wronged others, and well believe they are ‘bigger then
themselves’ are really feeling the heat... police officers and more recently our government
…[portion omitted]
I am aware of many changes too two organisations within my Community, and well not so
sure they are all that good. So I ask myself this; Surely these organisations have people
sitting on their boards-who care about the foundation of the organization, their employees
and while the people whom they provide the service to. It is my hope that they don't sit on
the board because they feel obligated because they are the Mayor, or that their daughter
had a disability and therefore should become involved or they were asked to by other board
members because no one came forward...These are a few questions I ask myself. Because
I have known individuals who have for years worked in these two organizations. I…Ask
yourself this if their are no native people working at a ‘Native’ Organization one could see
this as discrimination…and well because of personal reasons I know for a fact that the other
organization...has paid out a lot of Provincial money to some very hard working employees
who are sad about leaving a job they held...for many years and well the total years of service
from these employees is more then the existence of the organization...I have always said
that ‘people who enjoy power should never be given that prilege’... Just food for thought!!!!
[transcribed as written]
27. That post was seen by Ms. Lafond and Ms. Gushulak, who were Facebook friends with
Ms. Mosbeck at the time. According to Ms. Gushulak and not contradicted, Ms. Mosbeck’s
Facebook settings were public in any event, so anyone logged in could see her posts. Mr. Turner
verified with the Mayor, a CLA Board member, his Board appointments. According to Mr. Turner,
the only Board in Atikokan where both the Mayor and a mother of a disabled daughter sat as
Board members was CLA. He considered the reference to a payment of money as a breach of the
MOS as Ms. Mosbeck had received financial consideration under the terms of the MOS from CLA.
28. From Mr. Turner’s perspective, and in light of Ms. Mosbeck’s earlier actions, he believed
the comments could only be directed at him and his management team. As a result, he had CLA
counsel send the cease and desist letter identified in paragraph 14 of the agreed statement of
fact to Ms. Mosbeck. It states, in part:
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…you recently posted disparaging remarks on Facebook concerning [CLA], its employees,
and/or representatives. Your action constitutes a clear and egregious breach of the [MOS]
you signed in July of 2015…
29. On July 14, 2020, Ms. Mosbeck replied to counsel’s email as follows:
I will post what I want on facebook [sic], nothing directly related to Community Living
Atikokan, which I no longer work for and I am certain that speaking the truth is not a
criminal offence and I would be more than willing to proceed to court with any and all
matters involving Community Living Atikokan and Mr. Turner and other management
employees. Please do not send me any further emails but rather send any and all mail
registered so I can decide whether I want to receive it.
30. This email confirmed that Ms. Mosbeck had received the cease and desist letter, which
also advised that should Ms. Mosbeck fail to comply with the terms of the MOS, CLA would seek
repayment of funds paid to her under the settlement, as well as monetary damages.
31. Things were quiet for almost a month. Then, on August 9, 2020, following another post
about Aspen Court by Mr. Turner, Ms. Mosbeck again posted to the Channel 13 Facebook page:
Okay so Mr. Turner i was wondering when it became okay to use foul language with
Community Living members or for that matter when it was okay to use foul language with
able or non-able person looking for work or volunteer positions... you seriously have some
Ethical problems and wondered if that is why you were let go from you last place of
employment.
[transcribed as written]
32. Mr. Turner and his family were out of town and he received a text notifying him of this
post. The post was available for about 17 hours over a weekend before it was removed by the
page’s administrator.
33. Mr. Turner’s evidence as to his employment history and his testimony that he has never
been terminated from any employment was not contradicted or undermined in any way.
34. The allegation of the use of foul language arose following a Member’s birthday party,
which Ms. Mosbeck attended on or about August 8, 2020. Based on what she alleged she heard
at that party, a complaint was made by Ms. Mosbeck by email on August 10, 2020 alleging that
Mr. Turner had verbally abused a Member during an incident in his office in 2013. No complaint
had been raised at that time.
35. Ms. Mosbeck’s complaint, sent to the office of CLA counsel, also references monies having
been paid out to staff, “as a result of ‘bullying and Harassment’ of which I am related or indirectly
related to for the purpose of the report”. She speaks about her assault in the workplace and
criticizes Ms. Gushulak and Mr. Turner in connection with Ms. Mosbeck’s WSIB claim.
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36. Ms. Lafond was asked to investigate the allegation of the use of foul language on behalf
of CLA. It appears that MCCSS was also required to be notified. On August 12, 2020 Ms. Lafond
conducted interviews with three Members, including the alleged victim. Also present was Mary
Gillis, the Union’s Chief Steward. The alleged victim told Ms. Lafond that Mr. Turner had not
sworn at her. The alleged victim’s adult daughter confirmed that she was not aware of anything
untoward having happened. Ms. Lafond, knowing these Members, was satisfied that had
something untoward occurred, the daughter would have both been aware of it and would have
raised the issue at the time. Ms. Lafond agreed that had Mr. Turner raised his voice, Ms. Krassey
would have heard it. Ms. Krassey’s office connects to Mr. Turner’s office by a door. Because the
staff is mostly female, that door remains open for everyone’s protection.
37. Ms. Lafond did not consider it necessary to interview either Mr. Turner or Ms. Krassey
given the outcome of her interviews with the alleged victim and her daughter. She denied that
the alleged victim felt intimidated, testifying that they had a good relationship. She was confident
that there was no merit to the allegation and noted that the Union’s Chief Steward agreed. Ms.
Lafond acknowledged she also considered the fact that Ms. Mosbeck had made the allegation.
38. Some five months later, in January 2021, CLA was advised by MCCSS that it had found the
complaint to be unsubstantiated.
39. On August 11, 2020, Ms. Mosbeck again responded to a post made by Mr. Turner
promoting Aspen Court. That post stated:
OMG certainly hope you are not running this, kinda made a real mess of Community Living
Atikokan... I was wonder if the lawyer for Community Living Atikokan has set a date and
time for our court appearance..Thanking You in Advance.
[transcribed as written]
40. Mr. Turner understood the reference to a court date as a reference to having sent the
cease and desist letter. He saw this post as a direct attack on him and an attempt to discredit the
Aspen Court project because of CLA’s involvement. He described these Facebook posts as
profoundly disheartening, to have his character and reputation impugned in the community with
little ability to undo any resulting damage to him both personally and professionally. He was
frustrated as well, given that Ms. Mosbeck had left CLA’s employment five years before and given
that the HRTO had ruled against her.
41. The posts came just before the launch of the Aspen Court fundraising campaign. Mr.
Turner testified that the fundraising campaign was negatively affected by Ms. Mosbeck’s actions.
He based that assertion on the estimate of monies that the fundraisers had calculated as
achievable from the community versus what donations had been pledged by the time he testified
in February 2021. He testified that, as a small town, the community would see the protest and
the negative posts and be dissuaded from contributing. He testified that, given the length and
intensity of Ms. Mosbeck’s asserted campaign of disparagement, most people would wonder if
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there was some truth to it, and that CLA’s reputation had thereby been negatively affected. He
was reluctant to acknowledge that COVID-19 may have influenced the level of personal
donations. The anticipated corporate donations were achieved, which reflect $150,000 of the
$200,000 total sought.
42. Mr. Turner also expressed appreciation for the support he had received from the
community, CLA staff, and the Ministry, and identified his own commitment to continue his work.
43. On August 14, 2020, Ms. Mosbeck posted the following to her Facebook account and
shared it publicly:
So out of boredom... with COVID and all - I have been working on a small project... it's called
Quote for the day: I have set myself up - outside the Hydro office in Atikokan - don't want to
interfere with traffic on Fridays, some days it's busy - so walk by, drive by and bike by; take a
look at the post return to your respective devices and post your interpretation of it’s meaning.
There is a reason for my madness.
1. To see how creative people are
2. To see if it generates excitement
3. Does it give people some food for thought... just saying!!!
My hours for posting our 8:00 a.m. to 10:00 am and then 2:00 - 4:00 pm; I have set myself up
outside the Hydro office on Gorrie St... read the quote and post your interpretation of it’s
meaning. We either think the same or different and no cross referencing!!! Remember it's all in
fun!!!!
[transcribed as written]
44. On Aug 17, 2020, Ms. Mosbeck posted and publicly shared the following:
[portion omitted]
So in my ‘civil’ protest; I first put a plan together that had a specified purpose, objective and a
goal. Pictorial teaching is used as a form of communication, when used properly it should elicit
specific behavior, designed for therapeutic purposes.
Thank you for you time.
45. On Aug 20, 2020, Ms. Mosbeck posted and publicly shared the following:
Not certain what I want t to share first; anyways I received my first citation; not certain what it
means but - anyways I placed that in the mail and I now will get my day in court. I'm so excited
might get me a new outfit when I'm in Thunder Bay.
People is a small town love to gossip and then believe that in their gossip they are hurting no
one... so here it is guys you do... if your not interest in my issue then I would appreciated it if
you keep it to yourself - but you know what some people enjoy others pain - So I hope you feel
better soon!!! And second I am set-up outside of Hydro Office on Gorrie St. and so I will bring
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all my documentation with me; might have to use my partners truck but anything you feel is
necessary for your ears and not your mouth please feel free to approach me. I am protesting
the abuse of power... and what is right is also justice. I am generally there about 7:15 a.m. until
10:00 and then return again at 2:00 p.m. until 4:00 p.m. I will freely discuss anything with
anybody, well who really cares... A Canadian Citizen who has the courage to Care.
[transcribed as written]
46. Finally, on September 19, 2020, Ms. Mosbeck posted this lengthy message on her
Facebook page:
So my family will not be happy when they see this post but, I will apologize now for my very
unprofessional behavior but I have been forced to as a result of Mr. Turner calling the OPP
Detachment here in Atikokan, about a letter he has been sending to me in the mail, that I have
returned to him at least 8 times but probably more, and I asked for it to be sent by sheriff;
Atikokan does provide this services. But he does not want to.. maybe it goes through the
Ministry and they will wonder why would a WSIB client that has been pensioned off returning
mail to Community Living Atikokan. Much of my personal information was shared with WSIB,
information not related to my injury- as a result of an ‘assault’ at work that took place January
27th, 2015, exactly 23 days after my father passed, what does my dead father have to do with
my injury. Anyways as a result of me returning Mr. Turner's letter because it was not sent by
the sheriff I threw it onto his property from the sidewalk. I also recommend to my MPP-the
Ombudsman Office and others, on August 10th, 2020. A fair negotiation, I also provided this
information to the new Police Sgt. Who I have a great deal of respect for he listens, is
trustworthy but I informed him I cannot in good faith dump someone else’s garbage unto him,
he just arrive here in Atikokan and he is capable but this garbage is history and not the present,
my protest is definitely about the present , that I will leave my ‘civil protest’ at home in my
yard...Only when Mr. Turner learns to respect people in his Community. If he cares about his
staff many Provincial employees, are working from home, I speak with some daily. So if he is as
work; he is not concerned about his female employees but rather himself. I have always stated
that people who enjoy power for self-serving purposes should never be given such a privilege;
So I no longer have a car it was impounded by the OPP here in Atikokan and also I was arrested
for assaulting a OPP officer after he swore at me. I was talking with the 911-call centre explaining
to the women on the other line that I was very frightened because of this police officers
behavior.. that is recorded. I have no idea what has happened to this town of Atikokan but
truly... A stranger with an ugly past came her about 10 years ago, appears to be bright and
personable but what happens in his office and his workplace is ‘toxic’ page 30 of the health and
safety book, look at - administrative toxic… gives a great description of my workplace in 2015
and at present. Many of our tax dollars are used to fund this Organization and when I looked at
the public Audit that is provided to everybody... I did not see the dollar value of our hard earn
money used to make others keep dirty little secrets... I have many just waiting for help to arrive.
Gwenda Mosbeck c.c.c. A Canadian Citizen who has the courage to Care. Truly hoping none of
the clients see this I don't share the garbage with them… they to our my family, I worked their
for to long to not have the best memories ever.
[transcribed as written]
47. This post was brought to Ms. Lafond’s attention because it was shared with her by her
child, who received it from a friend. Ms. Gushulak was out camping when the post was made and
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she learned of it from a fellow camper who brought it to her attention knowing she worked at
CLA. The screen shot of the post filed in evidence indicates that it had been shared twice when
the screen shot was taken.
48. In cross-examination, the Union challenged Mr. Turner’s ability to provide any details
about Ms. Mosbeck’s posts based on the documentary material provided. Mr. Turner
acknowledged that the number of likes, or whether the comment was shared were not matters
that could be determined based on the screen shots taken. He acknowledged that, with respect
to the August 11, 2020 post, the documentary material indicated only that the post was made
and that it was screen captured 2 minutes later. He assumed that it was similarly taken down
within a few hours. The administrator eventually shut down the Channel 13 page as it became
too much effort to monitor its contents. Mr. Turner testified that had the Employer thought that
matters would “get to this point”, more detailed material would have been collected.
The “Civil Protest”
49. CLA is housed in two primary spaces in Atikokan, 114 and 118 Gorrie Street. The
administration office is situate at 114 Gorrie. 118 Gorrie provides programming space. There is a
parking lot between those buildings. Across the street from that parking lot is an office for
Atikokan Hydro. There are parking lots on both sides of the Hydro office.
50. On August 11, 2020, the same day that she responded to Mr. Turner’s post promoting
Aspen Court, Ms. Mosbeck parked her car out front of the CLA offices and was seen taking
pictures and notes while walking back and forth along the sidewalk. Mr. Turner was on vacation
at the time but returned early on being advised by Ms. Pollard that people were wondering what
was going on and whether there was an explanation for Ms. Mosbeck’s behaviour.
51. The next day Ms. Mosbeck returned and continued taking pictures and notes. CLA called
the police who came and spoke to her. The management team was concerned about Ms.
Mosbeck’s intentions. They were aware of the 2015 alleged threat against Mr. Turner. They were
also concerned about the privacy interests of staff and Members given that Ms. Mosbeck was
taking photos and making notes.
52. In cross-examination it was put to Ms. Lafond that she had been taking photos and video
of Ms. Mosbeck during her protest, suggesting that these actions could be seen as intimidating
or provocative. Ms. Lafond stated that the photos were taken when Ms. Mosbeck was not in the
immediate vicinity as Ms. Lafond did not want a confrontation. She testified that police had
advised CLA to document Ms. Mosbeck’s activities.
53. Between August 11 and October 27, 2020, Ms. Mosbeck was present on Gorrie Street
Monday to Friday, missing only a few days over that period. She remained for most, if not all of
CLA’s business day. This constant presence on Gorrie Street was referred to by Ms. Mosbeck in
her posts as her ‘civil protest’. Ms. Krassey described that Ms. Mosbeck “decided to haunt CLA”.
13
54. Ms. Mosbeck initially parked her car outside CLA. After being reported to police and
following her August 14 post, she moved it across the street. She attached homemade posters to
her car and an increasing array of objects, including stuffed toys, shoes, bags, medals, a Christmas
tree, a rug, a pool noodle, flags, banners as well as various safety equipment. Ms. Lafond noted
that Ms. Mosbeck had a metal coat rack with various jackets, including a blue jacket that she
recognized as having a small Community Living Atikokan logo embroidered on it. Ms. Gushulak
testified that Ms. Mosbeck would attach this jacket to her driver side mirror with the logo
showing. She often wore a reflective safety vest and sometimes a hard hat. Photos filed in
evidence provided images of a sampling of these materials.
55. Ms. Lafond worked out of 114 Gorrie. If she had to attend at 118 Gorrie, she would time
it so as to avoid any contact with Ms. Mosbeck. Notwithstanding that she described her
relationship with Ms. Mosbeck as good (something to which Ms. Mosbeck nodded in agreement
during the hearing), Ms. Lafond did not want to be accused by Ms. Mosbeck of saying or doing
anything that had not in fact happened. Ms. Lafond assumed Ms. Mosbeck knew that she was
causing anxiety for those working at CLA.
56. Ms. Mosbeck variously walked up and down the sidewalks, sometimes looking into the
CLA office windows or sitting outside the office or across the street, having created a sitting space
on the boulevard with a chair and table. She spoke with staff and Members as they walked by as
well as members of the public who would drive or walk by, curious as to what she was doing. She
also played music at loud volumes, to the point where CLA could not have their windows open
and still be able to focus on work. CLA spoke with both a bylaw officer and the police concerning
the loud music disrupting their ability to work. Mr. Turner noted that at times Ms. Mosbeck had
a specific playlist, including songs such as, “This is My Town”, that the management team
interpreted as sending a message.
57. The signs and posters on Ms. Mosbeck’s vehicle largely faced the CLA buildings so that
staff could see them. CLA installed security cameras on the advice of the OPP and they began
documenting Ms. Mosbeck’s activities. Staff arrived and left work using the back door. At a point
a sheet was hung to cover Ms. Lafond’s office window because it looked directly onto Gorrie
Street and the distraction created by Ms. Mosbeck sitting and facing her window, at times from
only a few feet away, and the inherent intrusion was such that she could not work. Ms. Lafond
described that one was unable to pretend that Ms. Mosbeck was not there.
58. Although Ms. Lafond observed a number of named individuals speaking with Ms.
Mosbeck for both brief and extended periods while engaged in her civil protest, I heard no
evidence from any of those individuals as to the contents of those discussions.
59. On August 13, 2020, Ms. Mosbeck had a small sign taped to her car’s side window stating
in part, “A good leader supports their employees”. Ms. Lafond interpreted the message as
criticism of Mr. Turner’s leadership.
14
60. On August 18, 2020, Ms. Mosbeck exhibited a poster on her front windshield that read,
“People Who Have 2 Faces are TRANSPARENT”. Her car was parked directly across the street
from Mr. Turner’s office. He believed the message was again intended as criticism of him.
61. Having spoken to the police, CLA was advised to reissue the no trespass order against Ms.
Mosbeck and it appears to have been issued on August 20, 2020, the same day that Ms. Mosbeck
posted about having received her “first citation”. Mr. Turner delivered that notice to Ms.
Mosbeck while she was parked across the street in front of the Hydro office. Ms. Mosbeck would
not acknowledge him so he placed it through an open window onto her car seat. She later picked
up the envelope, came onto CLA property, and returned the notice unopened.
62. As a result, Mr. Turner called police, who attended. Mr. Turner was not aware as to
whether Ms. Mosbeck was charged in connection with that call. He disagreed that his actions
were deliberately provocative testifying that they were in response to Ms. Mosbeck’s escalating
actions and her violation of the notice. Mr. Turner noted that CLA had attempted to send various
communications to Ms. Mosbeck by registered mail but that she had refused them all, so
alternate means of providing notice had to be used.
63. On August 21, 2020, when Ms. Mosbeck attended on Gorrie Street, she had added a
poster titled “When Right is Justice”. Surrounding that phrase were the words, “fair and
reasonable”, “behaviour & treatment”; “peaceful manner”, “genuine respect for the people!”;
“about loving others and not yourself more”; and “being humble”. A second poster on her back
windshield was titled “SAFE-ty”. It referenced “CPI” and stated, “the condition of being protected
from or unlikely to cause damage, danger, risk or INJURY!”. [emphasis in original]
64. CPI is the Crisis Prevention Institute program used to train CLA staff in de-escalation
techniques and in safely managing disruptive and assaultive behaviours. That training is provided
to CLA staff every two years. The acronym would apparently be known to mental health care
workers, emergency responders, school board staff, shelter workers, and health care staff who
take the training in connection with their work.
65. On August 26, 2020 Ms. Mosbeck was parked in front of the Hydro office and left the back
hatch of her car open. She displayed a variety of safety equipment on the hood of her car as well
as having various posters on display.
66. On August 31, 2020 Ms. Mosbeck was featured in the local Atikokan newspaper. That
article stated:
BE KIND The global pandemic has brought goodness to Atikokan in the eyes of one resident.
Gwenda Mosbeck has been peacefully teaching people the importance of loving and caring for
one another by parking on Gorrie Street with signs advocating for better treatment of
vulnerable people.
Mosbeck believes that before the pandemic, people were getting too caught up in their own
lives to remember other people mattered. Now that everyone's daily lives have been affected
15
by the pandemic, Mosbeck said she “sees beauty” in the pandemic - more parents are spending
time with their kids and more people are realizing how important family is.
Mosbeck has been advocating for respect and fairness for all people in this way for three weeks.
Her goal is to remind Atikokanites to help each other out and be respectful, fair, and loving
towards others.
67. For a period of about a week in early September, 2020, Ms. Mosbeck moved her protest
to Main Street, outside an old CIBC location and near the Native Friendship Centre. This location
is a short walk from the CLA office. She constructed a protest attaching a number of existing
posters to a fence on Main Street and added posters that stated, “Compliance is Easy, Different
is Difficult” and “Never Lose Hope or Faith”. Safety equipment such as safety vests, caution tape,
and a case of water were on display. Posters of the “Some People have 2 Faces/Those with 2
Faces are Transparent” variety were evident on both the fence and on Ms. Mosbeck’s car.
68. On September 8, 2020, Mr. Turner served Ms. Mosbeck with a copy of this grievance. That
exchange was audio/videotaped by Ms. Lafond. Ms. Mosbeck was conducting her protest on
Main Street at the time. In the video Mr. Turner can be seen holding an envelope approaching
Ms. Mosbeck from across the street. As he approached, Ms. Mosbeck called out, “Mr. Turner
don’t come near me, I’m not kidding, I’ll have you charged”, and “I’m telling you, step the fuck
away from me”. He handed Ms. Mosbeck the envelope containing this grievance and turned and
walked away. In a sardonic tone, Ms. Mosbeck thanked him and Mr. Turner responded, “See you
in court.” Mr. Turner acknowledged that his comment was made out of frustration.
69. Ms. Mosbeck then followed Mr. Turner back across the street asking, “What happened to
you in Geraldton?” When Mr. Turner responded “nothing”, Ms. Mosbeck replied, “Yes it did, you
got fired from that job”, which assertion Mr. Turner then denied. During this exchange Ms.
Mosbeck tore up the envelope with the grievance and placed them in a garbage can. She
‘thanked’ Mr. Turner and wished him a “Happy Tuesday”. She did not read the grievance. There
was a member of the public standing on the sidewalk next to Ms. Mosbeck at the outset of this
exchange who watched most of the interaction.
70. Ms. Lafond testified that hearing Ms. Mosbeck talk of Mr. Turner being fired caused her
to wonder if something had happened. She expressed that she was uncomfortable when, having
given her the grievance, Ms. Mosbeck started to follow Mr. Turner. Ms. Lafond also described
losing weight, being unable to sleep, and requiring medical care as a result of being at work
through the summer of 2020 being subjected to Ms. Mosbeck’s activities. She also described the
negative impact on her family of not knowing what Ms. Mosbeck intended, to the point that she
and her spouse discussed her quitting her job. Her work suffered and she continues to feel
uncomfortable concerning Ms. Mosbeck’s actions and intentions.
71. Ms. Mosbeck moved her protest back to Gorrie Street, largely parking on the CLA side of
the street, near to or in front of the CLA office, where she remained until bail conditions in respect
of criminal harassment charges prohibited her from attending there.
16
72. On September 10, 2020, Ms. Mosbeck drew a picture of a house in chalk on the sidewalk
in front of 114 Gorrie with the words “home town”. Also on that day, her car carried a poster that
said, “A Special Token of Appreciation for Geraldton, Merci”. That sign referenced two surnames,
apparently relatives of Ms. Mosbeck who live in Geraldton. Immediately prior to moving to
Atikokan in 2010 to take the job with CLA, Mr. Turner and his family had lived in Geraldton, a fact
known to Ms. Mosbeck.
73. On September 11, 2020, she spent time sitting in a chair on the sidewalk directly outside
the CLA office. On September 14, 2020, Ms. Mosbeck wrote “Happy Days” in chalk on the
sidewalk in such a way that it could most easily be read from Ms. Lafond’s office window. On
September 15, 2020, Ms. Mosbeck wrote a large “Good Morning” in chalk on the sidewalk
outside 118 Gorrie.
74. Later on September 15 2020 at 5:07pm, Ms. Mosbeck sent a 31-page fax to CLA. The cover
page was addressed simply “CLA”, “for review”. The next page of the fax was directed to the
attention of the CLA management team. A 3 page ‘letter’ reviewed some of her work history and
Ms. Mosbeck’s views and concerns regarding CLA and Mr. Turner and states, in part:
… This brief description of the many blessings and memories that have come my way can never
be taken from me and is why I am parked outside CLA.
…
Since Mr. Turner’s arrival, he has demonstrated an authorative manner which resulted in a toxic
environment…[material omitted]
Because the work environment is so toxic, the messages on my car refers to many workplace
health and safety issues, I don't share specifics with the public. If Jim Turner was truly concerned
about the members and his staff, he would work from home until help arrives. I made this
recommendation to CLA's legal team, my M.P.P Judith Monteith-Farrell and the Ombudsman of
Ontario, who I have regular contact with. [material omitted]
[transcribed as written]
75. Although that letter is dated March 15, 2020, it references the protest Ms. Mosbeck
began in August 2020. Also included in the fax was a full copy of the MOS. The fax gave no
indication that it contained confidential information. It was sent to CLA’s general fax number,
used by all CLA staff. Members of the management team had also changed since the execution
of the MOS, so for example, Ms. Lafond was not aware of the specific terms of the MOS. About
mid-morning on September 16, 2020 Mr. Turner saw and retrieved the fax while getting coffee.
He could not confirm whether anyone else had seen it. The fax indicates that it was sent from
the Atikokan Economic Development office. I have no evidence as to whether anyone there had
cause to read any of the faxed material.
76. On September 24, 2020, new posters were seen on Ms. Mosbeck’s car, one citing the
Book of Mathew, verse 7.1 and another quoting lyrics from the song “Signs”. On September 30,
2020, Ms. Mosbeck was again located at the old CIBC building. The roof of her car was festooned
17
with, among other things, a bright yellow plastic toy backhoe, a bright yellow gym bag, and a
hard hat. A poster on her car stated:
So in my ‘Civil Protest’, I have decided to return to my textbooks; to use ‘pictorial teaching’
Non-verbal art used to express my own thoughts that may or may not elicit a specific behavior
for a specific purpose.
Bill 168 [unreadable] employer Violence and Harassment in the Workplace
Health and Safety Act [2009]
77. On October 15 and 16, 2020, Ms. Mosbeck displayed a sign stating, “I Can Talk About Life
Experience”. That poster included the words, “concussions, trauma, procedures, process,
lawyers”. On October 16, 2020 Ms. Mosbeck’s car hosted a sign stating, “Mental Health Should
be done with Purpose”, noted with the phrases, “Fact not fiction”, Care not anger; with best
intention and unpredictable result”.
78. During this period, Ms. Mosbeck is alleged to have engaged in other conduct against Mr.
Turner and others at CLA and she was arrested on criminal harassment charges on October 16,
2020. Her bail conditions appear to have included a distancing limit from CLA. She moved her
protest to Main Street and ended her ‘civil protest’ on October 27, 2020.
The impact
79. Because of COVID-19 restrictions, there were fewer Members in attendance on Gorrie
Street than usual. Mr. Turner testified that those who were present were aware of Ms. Mosbeck’s
protest and understood that CLA was the target. At least one Member reported to Ms. Gushulak
that on car rides with Ms. Mosbeck, Ms. Mosbeck had spoken negatively of how she felt regarding
CLA. Another Member who was often out front of the office reported to Ms. Lafond and Ms.
Gushulak that Ms. Mosbeck had spoken to him about her running a “campaign against CL”.
According to Mr. Turner, staff were also upset and found the protest very stressful, affecting their
ability to work. I did not hear from any Members or staff directly.
80. The head of the Native Friendship Centre spoke to Mr. Turner following Ms. Mosbeck’s
July 13, 2020 post, asking him what was going on. The owner of the old CIBC property reached
out to Mr. Turner to get Mr. Turner’s advice and understanding of what Ms. Mosbeck was doing.
According to Mr. Turner, he could not go into a store without someone speaking to him and
asking about Ms. Mosbeck’s protest.
81. Mr. Turner believed the protest also had a negative impact on management staff in that
they felt unsafe. Ms. Gushulak had numerous friends and family contact her or speak to her
asking what was going on as, according to Ms. Gushulak, it was clear to whom the displays were
directed. Friends and family asked Ms. Krassey about her safety, knowing of the protest and that
Ms. Mosbeck had worked at CLA.
18
82. Although self-interested in the context of this dispute, I did not find the evidence of
witnesses to be particularly embellished or exaggerated. Ms. Gushulak described that 2015-2016
had been a very stressful year given Ms. Mosbeck’s various allegations and complaints to external
organizations. She testified that the posts and the protest brought all of that back and added to
it. Ms. Gushulak felt unsafe at work, deciding to drive rather than walk in order to avoid Ms.
Mosbeck. She went out of her way to avoid eye contact or any interaction with Ms. Mosbeck.
She recalled one incident where she and Mr. Turner had parked in front of the office. Rather than
continuing her walk, Ms. Mosbeck stopped and stood between the vehicle and the office and Ms.
Gushulak remained in the car until Mr. Turner came and stood between her and Ms. Mosbeck,
so that Ms. Gushulak could feel safe to enter the office. While expressing historical concern for
Ms. Mosbeck, Ms. Gushulak described this period in 2020 as “unreal and bizarre”. She described
the “civil protest” not as a protest but “a harassment and intimidation tactic”.
83. From Ms. Gushulak’s perspective, Ms. Mosbeck walked a fine line in attempting to
suggest that her actions were not directed at CLA. Yet she displayed her coat with the small CLA
logo and referred to CPI, the course Ms. Gushulak taught, and to Geraldton, Mr. Turner’s prior
home, and although the newspaper article referred to the protest as being in response to COVID-
19, nothing on her posters, nor other aspects of her protest referenced COVID. Ms. Gushulak
noted that part of CPI training was recognizing that 70% of communication was non-verbal, and
she believed that Ms. Mosbeck was sending messages against CLA using non-verbal
communication in her protest. Ms. Gushulak testified that the messages on a number of Ms.
Mosbeck’s posters needed to be “decoded”, citing the poster referencing “trauma” and
“concussion’ as an example of Ms. Mosbeck’s implicit reference to her alleged assault.
84. Although I received no medical evidence, it was apparent from Ms. Lafond’s testimony
that this period was extremely stressful for her and that it continues to have a negative impact
on her well-being. There was limited evidence of the alleged conduct leading to criminal
harassment charges, although it appears that Ms. Mosbeck is alleged to have engaged in
misconduct away from the CLA workplace. That is not the subject of this grievance, but it appears
to have contributed to the overall anxiety and stress felt by members of the CLA management
team.
85. Witnesses spoke highly of Mr. Turner as a manager and as an active and respected
member of the local community. Ms. Gushulak did not think that Mr. Turner’s reputation within
CLA had been damaged and that his work in the community was known and admired. Ms. Krassey
testified that she believes Mr. Turner to be well-respected in the community and that there
would be no Aspen Court without him. She testified that he is considered a leader in the
developmental services community and participates on committees with the Deputy Minister
and Assistant Deputy Minister of MCCSS.
86. Mr. Turner feels significantly affected by Ms. Mosbeck’s actions, particularly in relation to
his work in fulfilling the Aspen Court project. He testified that those in the community who know
him well have not been influenced by Ms. Mosbeck’s actions. However, in his view, the
community was aware of, and was asking about those actions, and he could only speculate as to
19
others’ views. His son reported being asked at school on a number of occasions about what was
going on and why Ms. Mosbeck was engaging in her protest.
* * *
Summary Submissions of the Employer
87. The Employer referred me to the following authorities: Brown & Beatty, Canadian Labour
Arbitration, 5th ed. (Thomson Reuters, 2021), c.3:5120; Tremblay v 1168531 Ontario Inc., 2012
HRTO 1939 (Mackenzie); Vanderpol’s Eggs Ltd. v TC, Local 213, Re, 2015 CarswellBC 2363 (Foley);
Globe and Mail (The) and CEP, Local 87-M, Re, (2013) 233 L.A.C. (4th) 265 (Davie); Ontario
(Ministry of Community Safety and Correctional Services) and Antoncic, Re (2009) 96 C.L.A.S. 348
(PSGB); CUPE and Air Canada (CHQ-17-42), Re, 2020 CarswellNat 4447 (Nyman); O.P.S.E.U. v
Ontario (Minister of the Attorney General) 2004 CarswellOnt 2909 (Abramsky); Barrie Police
Services Board v Barrie Police Assn. [2013] OLAA No. 410 (Marcotte); Zehrs Great Food v United
Food and Commercial Workers Canada, Local 175/633 2018 CanLII 152593 (Brownlee); Chénier v
Canada (Treasury Board – Solicitor General – Correctional Service), 2003 PSSRB 27 (Potter); and
Algoma Steel Inc. and USW, Local 2251(19-0431), Re, 2020 CarswellOnt 4265 (Craven).
88. It was the position of the Employer that Ms. Mosbeck intentionally, brazenly, and
repeatedly breached the confidentiality and non-disparagement provisions of the MOS. It
asserted that CLA and members of its management team had suffered damage as a result. It
seeks the return of the full payment made to Ms. Mosbeck by virtue of the MOS, as well as a
further remedial payment of aggravated damages, in order, it argued, to send a strong message
that this kind of breach cannot happen again.
89. While accepting that it has the onus to establish its case, the Employer argued that a
failure to address information within the exclusive control of Ms. Mosbeck, including her
intentions, ought to result in the drawing of a negative inference as to those intentions. Further,
it argued that hearsay evidence may be given weight if not contradicted.
90. The Employer argued that the 2015 proceedings cannot be re-litigated and that paragraph
3 of the MOS is clear that the agreement was made on a without prejudice basis and without any
admission of liability by the Employer, which liability was expressly denied.
91. The Employer reviewed the evidence in detail to argue that Ms. Mosbeck had engaged in
an active campaign against CLA and against Mr. Turner, ultimately leading to criminal harassment
charges being filed against Ms. Mosbeck, with stringent bail conditions regarding her contact
with CLA and/or Mr. Turner.
92. Although a number of Ms. Mosbeck’s disparaging comments and signs were veiled,
argued the Employer, in context it was clear they were directed at CLA and members of its
management team. The mere presence of the ‘protest’ at the Employer’s business premises
during business hours was enough to imply impropriety on CLA’s part to passers-by, argued the
20
Employer. Public Facebook posts alluded to the ‘protest’ and connected it to CLA, argued the
Employer. Ms. Mosbeck ignored the cease and desist letter of July 13, 2020, noted the Employer,
even while it made clear that the Employer would seek repayment for breach of the terms of the
MOS. Ms. Mosbeck’s feature in the local newspaper had to be taken in context of the work of
CLA and her other comments and actions, argued the Employer, and was an implicit statement
from Ms. Mosbeck that CLA did not treat vulnerable people as well as they could.
93. Atikokan is a small community, argued the Employer, and word gets around, which can
lead to doubts being raised in people’s minds. Ms. Mosbeck repeated her fabrication that Mr.
Turner had been fired from his previous position in front of Ms. Lafond even while Mr. Turner
was serving Ms. Mosbeck with a copy of this grievance, noted the Employer. The comments
directed at Mr. Turner were incredibly damaging, argued the Employer. He is a prominent
member of the community and was engaged in a very public local campaign to raise funds for
the Aspen Court project on behalf of CLA.
94. The impact of Ms. Mosbeck’s actions to the reputation of CLA and Mr. Turner and the
distraction from work through the summer of 2020 while dealing with Ms. Mosbeck positioned
outside the workplace contravened both the spirit and intent of the MOS, argued the Employer.
Her actions impacted managers’ ability to do their job, and it negatively affected both CLA
Members and members of the management team as well as their families and friends.
95. A breach of the MOS can be found, argued the Employer, because Ms. Mosbeck had not
treated the MOS as resolving all issues with respect to her employment with CLA. The decisions
in Tremblay and Vanderpol, both supra, underscore the importance of settlements, argued the
Employer, as well as confirming that Facebook is a public forum.
96. Disparagement is a lesser test than defamation, argued the Employer, citing Antoncic,
supra. Critical or disapproving statements are not protected, nor does this impose an improper
limit on freedom of speech, argued the Employer.
97. Vanderpol, supra, also speaks to the need for an effective remedy, argued the Employer,
noting that full re-payment of settlement consideration was ordered in The Globe & Mail, supra.
In Air Canada, supra, one-third of the settlement monies were ordered to be repaid, argued the
Employer, while the arbitrator set out general principles with respect to an appropriate remedy.
Unlike that case and others cited, Ms. Mosbeck’s conduct involved a premeditated, purposeful,
and not a limited breach of the MOS, argued the Employer.
98. A declaration is wholly insufficient in the circumstances, argued the Employer, as parties
must have confidence that any settlement reached will be respected and not portrayed as a
victory. Anything less, argued the Employer, creates significant barriers to the resolution of
disputes. Ms. Mosbeck breached both the confidentiality and non-disparagement provisions of
the MOS in a manner that was flagrant, ongoing, and deliberate and made known to staff,
management, the public, CLA’s Members, and its partner organizations, argued the Employer.
Ms. Mosbeck had shown extreme disregard for the process and for the settlement, argued the
21
Employer, and had hurt the organization’s reputation and called its leadership into question.
While difficult to establish the extent of the impact, that does not mean that the Employer should
not be compensated, it argued, citing Air Canada, supra. Ms. Mosbeck’s actions in disparaging
the organization and its leadership have also had a profound impact on the personal lives of
management staff, argued the Employer, particularly due to living in a small community. In light
of those overall impacts, the Employer argued for an award of aggravated damages, citing
Algoma Steel, supra. Any criminal conditions are unlikely to remain in place forever, noted the
Employer, and these breaches came five years after the MOS. Therefore, argued the Employer,
any award needs to send a strong message that breaches will not be tolerated so as to provide
true finality to the parties.
Summary Submissions of the Union
99. The Union referred me to the following authorities: Homewood Health and UFCW Local
175, 2018 CanLII 14306 (ON LA) (Randall); Sultan and Islamic Foundation of Toronto, 2013 HRTO
1314 (Muir); Zehrs Great Food and UFCW Local 175/633, supra; William Osler Health System and
CUPE Local 145, 2019 CanLII 72188 (ON LA) (Misra); Lambton Hospitals Group and SEIU Local 220,
2003 CarswellOnt 6065 (Crljenica); OHRC and 571566 Ontario Inc. o/a Cadillac Tavern, 2011
HRTO 1563 (Anderson); Keating and 2229884 Ontario Inc. o/a Skirt, Walter Engel and Sarah
Stunden, 2015 HRTO 1677 (Martin); and R v. Dhillon, 2019 BCCA 373.
100. This grievance, argued the Union on behalf of Ms. Mosbeck, is only a small piece of a
much larger relationship. The full dynamic and context is more complex and included the issuing
of a cease and desist order against Ms. Mosbeck, hand delivered trespass notices, videotaping
Ms. Mosbeck, and triggering the involvement of the police leading to criminal harassment
charges stemming from these same or related incidents.
101. In assessing the evidence, it was necessary to keep in mind that none of the witnesses
were neutral or disinterested, argued the Union. They evidenced an animus against Ms. Mosbeck
and perceive themselves as engaged in an ongoing dispute while relying on events as far back as
2014. Neither Mr. Turner nor Ms. Gushulak were truthful in denying involvement in the
Employer’s challenge to Ms. Mosbeck’s WSIB claim, argued the Union. The characterization of
the ‘protest’ was hyperbolic, argued the Union, reflecting the witnesses’ interest and willingness
to exaggerate thereby disclosing their animus. The Employer’s evidence is not supported by the
materials, argued the Union, and is largely self-serving, rendering it unreliable.
102. There is no evidence of a breach of the confidentiality provision, argued the Union. Any
reference to “hard earned money to keep dirty little secrets” was too vague and/or cryptic to
suggest receipt of a settlement and cannot support a finding of a breach of the MOS, argued the
Union.
103. The fax sent that attached a copy of the MOS was addressed to CLA management and
constituted a communication between parties to the MOS, argued the Union. A breach
necessarily entails disclosure to a third party and there is no evidence that anyone outside
22
management saw the fax, argued the Union. At most, argued the Union, there is a technical
breach but there was no harm to the protected interest.
104. The MOS does not purport to comprehensively regulate the relationship between the
parties, argued the Union. Ms. Mosbeck agreed not to make any disparaging or negative
statements verbally or in writing. It is not an exhaustive prohibition against statements in any
form, argued the Union. It does not include directly or indirectly, argued the Union, so was not
intended to capture indirect statements. Nor does it reference any conduct other than the
making of a written or verbal statement, argued the Union, comparing this MOS to language
found in Homewood Health and Sultan and Islamic Foundation of Toronto, both supra. The MOS
does not prohibit the constituent actions of the ‘protest’, argued the Union, subject only to the
non-disparagement clause.
105. Determining whether a statement is disparaging, argued the Union, is an objective test.
One cannot import knowledge of the history between these parties to inform the person on the
street, argued the Union. The vast majority of the statements made are so vague they cannot be
characterized as disparaging the Employer or its managers, argued the Union.
106. In light of the onus on the Employer, it cannot rely on an adverse inference to complete
gaps in its case, argued the Union, citing William Osler, supra. Any argument that the ‘protest’
was inherently disparaging, must be rejected, argued the Union. The signs did not convey
negative messaging, argued the Union. Even assuming some could be interpreted as disparaging,
it was not obvious to whom they were directed, argued the Union. Much of the evidence was
speculative, included hearsay, and amounted to bald assertions, and ought to be given no weight,
argued the Union. At most, there was likely confusion as to what Ms. Mosbeck was doing and
questions as to what she wanted, but there was no evidence that by engaging in the ‘protest’ Ms.
Mosbeck breached any term of the MOS, argued the Union.
107. Relying on the decision in Globe & Mail (The), supra, the Union asserted that a strict and
narrow reading be given to any statement made, and that it be unambiguous that it disparages
the Employer or persons identified in the MOS before a finding of a breach of the MOS can be
made. If the message is ‘hidden’ as Ms. Gushalak testified, and needs to be de-coded, argued the
Union, by definition it cannot be found to disparaging on an objective test. No reasonable person
would conclude that any of the signs displayed by Ms. Mosbeck were disparaging of the
Employer, argued the Union. The newspaper article is positive and inspirational, argued the
Union, and reports that Ms. Mosbeck’s protest speaks to the importance of advocating for
respect and fairness, without mentioning the Employer.
108. The Facebook posts, even while somewhat negative in tone, make no direct reference to
the Employer, argued the Union, and a reasonable person would not interpret the posts as
disparaging of the Employer. Nor is there any indication that Ms. Mosbeck is speaking about
herself, and there is no disclosure of the terms of the MOS, so as to breach any confidentiality
provision, argued the Union.
23
109. The posts of August 9, August 11, and September 19, 2020 (filed at Tabs 4, 5, and 28 of
Exhibit 2) are both negative and disparaging, conceded the Union, asserting that the post at Tab
28 was made by Ms. Mosbeck immediately after being arrested in an altercation with police who
had likely been called by the Employer.
110. The MOS does not contain a re-payment clause, so the appropriate principles to consider
are those in Cadillac Tavern and Keating, both supra, argued the Union. There is no automatic
entitlement to repayment just because of a breach of the MOS, argued the Union. Any claim is
based on actual damage that was reasonably foreseeable.
111. Repayment has been ordered for breaches of a confidentiality clause, argued the Union,
in that once breached, the provision loses its value, making the breach harder to remedy. The
same considerations do not apply to the non-disparagement provision, argued the Union.
112. In the circumstances, argued the Union, there is no basis for an order for full repayment
or for aggravated damages. One must look to the actual harm caused solely by any breaches of
the MOS. There was a lot of ‘noise’ in this case, argued the Union, which had to be separated
from consideration of both whether a breach of the MOS occurred and what, if any, damage
resulted. No reputational damage had been established, argued the Union, either to CLA or to
Mr. Turner. In fact, witnesses confirmed that Mr. Turner’s reputation remained fully intact,
argued the Union, and that the capital project has proceeded successfully even during COVID,
and notwithstanding Ms. Mosbeck.
113. The Employer has not lost the benefit of the non-disparagement clause, and there is no
evidence that anyone knows the terms of the MOS who should not, argued the Union. Nor is
deterrence an issue, argued the Union, as there is no assertion that any breach is ongoing. Having
conceded that certain posts breached the MOS, the Union asserted that an appropriate remedy
would be $500 per post for a total order for repayment of $1500.
*
114. In reply, the Employer responded to a number of evidentiary conclusions drawn by the
Union. Any assertion of a lack of truthfulness, argued the Employer, could be explained by the
fact that the WSIB claim was not relevant to these proceedings and that a claim from five years
ago was unlikely to have been reviewed in preparation for this hearing. The Employer argued
that the MOS cannot be read so narrowly as to conclude that a 2-month protest does not
constitute a breach, as that would wreak confusion as to what was acceptable conduct and what
was not. The Employer noted that the decisions in Barrie Police Services Board, Zehrs Great Food,
and Antoncic, supra, all dealt with breaches of non-disparagement clauses. Any difficulty in
quantifying the extent of reputational damage does not mean it should not be compensated,
argued the Employer. Finally, the Employer argued, deterrence was a factor as current conditions
limiting Ms. Mosbeck’s activities could prove to be temporary.
24
DECISION
115. Let me first say that, having regard to all of the evidence, I have no doubt that Ms.
Mosbeck’s actions during the period July to October 2020 were directed at CLA and members of
its management team, and specifically Mr. Turner. Notwithstanding the release provided to the
Employer by Ms. Mosbeck in the MOS, she continues to engage with CLA, whether directly or
indirectly, in an effort to discredit the workplace and Mr. Turner’s leadership.
116. The Union argued that witnesses evidenced an animus against Ms. Mosbeck and
perceived themselves as engaged in an ongoing dispute with Ms. Mosbeck, relying on events as
far back as 2014. To the extent that such may be true, it appears to follow Ms. Mosbeck’s actions
in not moving on from the events of 2014 and 2015 and accepting the terms of the MOS. It is Ms.
Mosbeck who has continued to revisit those earlier events, not the Employer. While Ms. Mosbeck
has tried to assert that she is focussed on the present, a review of her actions in their totality
makes clear that she remains grounded in her past complaints, including raising issues in 2020
that relate to events allegedly occurring in 2013.
117. The Union is correct in noting that I have been apprised of only some of the history
between these parties and that much of that context is not a matter of public record or
knowledge, even as a result of Ms. Mosbeck’s conduct. That will change somewhat with the
release of this decision.
Confidentiality
118. The harm resulting from a breach of confidentiality is both to a party to the MOS, in this
case the Employer, and to the settlement process. Arbitrator Davie reviewed both aspects in her
decision in Globe and Mail (The), supra. In that case, the grievor, having signed a settlement with
respect to her departure from employment, wrote and published a book disclosing, among other
statements, that she had received “a big, fat cheque” from her ex-employer. The harm to the
parties was described as follows:
26 As in the case of other types of litigation "nondisclosure" and "no admission of liability
clauses" are also a recognition of the fact that parties settle grievances for a variety of reasons
which may be unrelated to liability or wrongdoing. Employees may settle discharge grievances
not because they accept that they have engaged in culpable misconduct warranting dismissal,
but because they need money as they are now unemployed and can't afford to wait the weeks,
months or years for their grievance to be decided. Employers may settle discharge grievances
not because they agree that they acted unjustly, but because it is less costly than proposed
litigation, or simply more expedient to deal with circumstances immediately rather than await
the outcome of lengthy litigation. Parties may settle matters because each fears that potentially
acrimonious litigation will negatively impact ongoing relations. There are as many reasons why
parties settle grievances as there are interests and objectives at stake in the grievance. The
common thread in all settlements however is certainty of result. By entering into minutes of
settlement the parties achieve both finality and certainty of result on terms which they have
concluded are acceptable to them. By agreeing that the terms of a settlement will not be
25
disclosed the parties ensure that their agreement to settle matters will not be misconstrued by
others.
…
60 Certainly the harm here is intangible and not easily or readily quantifiable. That
however does not detract from the fact that the evidence indicates that for one party, the
Employer, a key and integral part of the bargain struck in the MOA was that the grievor would
not disclose the terms of the settlement. With the publication of the OOTB book, and the
disclosures which breach the grievor's obligation, the Employer has lost the benefit of the
bargain struck. Breach of confidentiality provisions are generally difficult to remedy because
once there has been a breach, the confidentiality can't be restored. In this case the Employer
has been deprived forever of the confidentiality and nondisclosure which was a significant
factor in its willingness to enter into the MOA and make the payment it did to the grievor.
(emphasis added)
119. Arbitrator Davie further considered the harm to the settlement process:
30 …In this regard the Employer referred to the ES Veolia award where the arbitrator
stated
…arbitrators must hold parties accountable for the labour relations agreements they
negotiate and execute in resolving their own disputes. Anything less would be
irresponsible to the parties and those they represent as it would deny unions,
employers and employees the opportunity to receive the benefits of the labour
relations bargains they arranged and signed.
…
34 In O.P.S.E.U. v. Ontario (Ministry of the Attorney General), supra it was held
The breach of a confidentiality provision also causes harm to the grievance settlement
process, which is critical to the proper functioning of labour relations and grievance
administration. For settlements to work, parties must be sure that all of the terms will
be honoured and enforced. This is equally true for employers, unions and grievors. A
remedy must ensure that confidentiality clauses will be adhered to without being
punitive.
(emphasis in original)
120. And see O.P.S.E.U. v Ontario (Minister of the Attorney General), supra, at paras. 86-87. Do
the facts support a breach of paragraph 6 of the MOS that prohibits Ms. Mosbeck from disclosing
the terms of the settlement and, more specifically, prohibits her from disclosing any information
relative to paragraph 2 of the MOS which provides financial consideration to Ms. Mosbeck in
exchange for executing the release in favour of the Employer?
121. The evidence relating to a potential disclosure of “any information relative to paragraph
2” of the MOS includes Ms. Mosbeck’s July 13, 2020 post, wherein she states, in part:
26
…and well because of personal reasons I know for a fact that the other organization...has
paid out a lot of Provincial money to some very hard working employees who are sad about
leaving a job they held...
122. Ms. Mosbeck does not name CLA specifically. Nor does she identify herself except
obscurely by reference to “personal reasons”. She indicates that a lot of money has been paid to
unnamed employees who have left their job with the “other” organization. I have no doubt that
Ms. Mosbeck was referring to CLA when she referenced this “other” organization. I also have no
doubt that she was intentionally careful in not being specific, having regard to her response to
the cease and desist letter, her comments in the September 19, 2020 post, her letter contained
in the September 15, 2020 fax, as well as her failure to testify.
123. In that regard, an adverse inference drawn from Ms. Mosbeck’s failure to testify is not a
basis for filling a gap in the Employer’s case (see William Osler Health Centre, supra, at paragraph
71), but a failure to respond to the Employer’s cogent evidence of Ms. Mosbeck’s intentions as
revealed in those communications. It cannot be said that this is a case where Ms. Mosbeck
misunderstood the restrictions placed on her by the terms of the MOS, even as confirmed by
paragraph 8 of the MOS. Those communications link the ‘civil protest’ to CLA and Mr. Turner. I
am persuaded that Ms. Mosbeck deliberately and carefully tried to skirt the restrictions imposed
on her by the terms of the MOS.
124. However, do these breadcrumbs in her July 13, 2020 post disclose to a reasonable person
that Ms. Mosbeck received financial consideration from the Employer upon leaving her
employment? One might appropriately be more specific and ask about a reasonable person living
in Atikokan. While the comment likely gave rise to curiosity and speculation as to the
circumstances to which she refers (which was very much the intended result in my view), I am
not persuaded that the comment, on its face, discloses any information relative to paragraph 2
of the MOS. (See also Lambton Hospitals Group, supra, at paragraph 91.)
125. The complaint sent by email to the office of CLA’s counsel on August 10, 2020 identifies
CLA, identifies that money was paid out to staff in connection with bullying and harassment, and
states that Ms. Mosbeck is related to those payments. While oblique, these comments may well
be sufficient to breach the confidentiality provision but for it having been sent to the office of
CLA counsel where privilege would attach.
126. However, the fax sent to CLA on September 15, 2020 was sent in direct violation of the
MOS. It was not sent only to CLA management as asserted by the Union. It was sent simply to
CLA and not marked as confidential or directed specifically to management’s attention. Having
worked for years at CLA, Ms. Mosbeck must be taken to have been aware that the fax machine
was available to and utilized by all staff, not simply those already privy to the terms of the MOS.
The fact that the MOS may have been buried at the end of the document is irrelevant.
127. While it may affect the measure of harm, the fact that the Employer did not establish that
anyone other than Mr. Turner saw the fax is irrelevant to a finding of a breach of the MOS. Given
27
Ms. Mosbeck’s knowledge of the workplace, sending the fax was, at minimum, reckless and was
done without regard to her agreement and obligation to maintain the confidentiality of the MOS.
128. Paragraph 6 of the MOS forecloses Ms. Mosbeck’s ability to disclose not just paragraph 2
of the MOS but any and all terms of the MOS. However, no other statements were adverted to
as constituting a breach of confidentiality.
129. I FIND THEREFORE that Ms. Mosbeck breached paragraph 6 of the MOS by sending the
fax to CLA on September 15, 2020.
Disparagement
130. There is no dispute that the MOS prohibits Ms. Mosbeck from making “any negative or
disparaging statement” about, inter alia, the Employer or its employees “either verbally or in
writing”.
131. The decision in Atoncic, supra, considers the nature of a non-disparagement provision.
The clause in this MOS includes the words “any negative statement”, so arguably is broader than
that considered in Atoncic. However, it is a test that I adopt here:
24 In my view, the ordinary meaning of the word disparagement does not require that a
statement meet the legal test for defamation. … for instance, paragraph 14's statement that the
Ministry relied on an erroneous investigation report in order to wrongfully terminate Mr.
Antoncic, are disparaging in the sense of critical or disapproving, … I find the statement in
paragraph 14 to be disparaging of the employer in the ordinary, rather than tortious, sense of
the word. Moreover, I am not persuaded that the language, to which Mr. Antoncic voluntarily
agreed, is so broad as to constitute an improper limit on his freedom of speech.
(emphasis added)
132. And see Dhillon, supra, at paragraph 37 that defines disparage as “to discredit”.
133. There is no reliable evidence of verbal statements made by Ms. Mosbeck that are negative
or that disparage the Employer or its employees with one exception. Ms. Mosbeck’s comments
to Mr. Turner on September 8, 2020 in front of Ms. Lafond constitute a violation of paragraph 7
of the MOS as she sought to disparage Mr. Turner by stating that he had been fired from his
employment in Geraldton. That assertion (repeated more than once and wholly unsubstantiated)
was intended to discredit Mr. Turner and constitutes a breach of paragraph 7 of the MOS.
134. In all other respects, witnesses conceded that they could not overhear conversations had
by Ms. Mosbeck with Members or with members of the public, except in one instance involving
Ms. Lafond overhearing a Member asking Ms. Mosbeck for a cigarette. Evidence of reports made
to witnesses were not established by direct evidence.
28
135. The decision in Zehr’s speaks to an asserted breach of a non-disparagement clause in the
context of complaints made to professional bodies having either regulatory or informal oversight
of an individual’s professional practice. No finding is made as to whether such a complaint
violates the non-disparagement provision. That cannot assist in this case as Ms. Mosbeck made
no such complaint. She engaged in her ‘civil protest’ and utilized Facebook.
136. The Union conceded that the Facebook posts made by Ms. Mosbeck on August 9, August
11, and September 19, 2020 breached paragraph 7 of the MOS. Those posts overtly and expressly
disparaged Mr. Turner’s leadership, integrity, and character and indirectly but clearly discredit
CLA as an employer and service provider. The comments about Mr. Turner would cause a
reasonable person to question whether there was anything behind them. That questioning
undermines the trust placed in Mr. Turner to conduct the affairs of CLA appropriately. There can
be no issue in 2021 that comments posted to someone’s Facebook page are public, regardless of
how one structures their settings. These posts constitute a significant breach of paragraph 7 of
the MOS.
137. Finally, the fax containing Ms. Mosbeck’s letter also violates paragraph 7 of the MOS as it
contains negative and disparaging statements about Mr. Turner. The Union referred me to the
HRTO’s decision in Sultan, supra, to argue that a non-disparagement clause is not intended to
preclude conversation between the parties after a settlement. Even assuming that to be the case,
Ms. Mosbeck knowingly sent the letter to a fax machine available to persons other than the
parties to the dispute and without regard to who might find and read it.
138. Ms. Mosbeck attempted to avoid being caught by the terms of the MOS by suggesting
that her civil protest concerned the present not the past, was about health and safety, was in
front of Atikokan Hydro, and was the result of a COVID-19 blessing in disguise. Notwithstanding
her assertion that her protest was about the present, her September 19, 2020 post publicly
named CLA and connected her historical issues with Mr. Turner to her protest when she said she
“will leave my ‘civil protest’ at home in my yard…Only when Mr. Turner learns to respect people
in his Community…”. Her reference to health and safety issues was a reference to the alleged
‘toxic work environment’ in her September 15, 2020 letter to CLA, the allegation against Mr.
Turner resolved by the MOS. Although in her public posts she indicated that she was In front of
Atikokan Hydro, in her September 15, 2020 letter to CLA, she stated that it was because she was
holding onto positive employment memories that she was parked outside CLA. It is not difficult
to draw the conclusion that Ms. Mosbeck’s ‘civil protest’ was an intentional exercise to seek to
undermine Mr. Turner and CLA based on Ms. Mosbeck’s inability or unwillingness to accept the
terms of the MOS such that she continued to rely on those past allegations as the foundation for
her ongoing assertions.
139. Contrary to her email to CLA counsel, and to the extent that Ms. Mosbeck is predisposed
to see certain actions of Mr. Turner and/or CLA in a negative light, she is precluded by the terms
of the MOS from making statements about those actions, regardless of when those events occur.
While perhaps not a criminal offence, Ms. Mosbeck has agreed in paragraph 7 of the MOS to limit
29
the kind of statements she will make. She is expected to uphold her end of that agreement, failing
which CLA can appropriately seek a remedy for any such breach.
140. That is because, in asserting as fact those matters contained in her various
communications, Ms. Mosbeck is relaying what she perceives to be true. By signing the MOS she
was relieved of the necessity of having to prove her allegations against the Employer, while
receiving the benefits accorded by the settlement. She is in effect trying to ‘have her cake and
eat it too’. See Zehr’s, supra, at paragraph 53.
141. The Employer argued that Ms. Mosbeck’s actions had to be considered in the context of
the parties’ agreement for finality. In Atoncic, supra, the employer alleged that Mr. Atoncic had
breached various provisions of the settlement of his unjust dismissal complaint by bringing a civil
action for conspiracy and defamation against two employees who were alleged to have factored
into Mr. Atoncic’s dismissal from employment. In addition to asserting a breach of the
confidentiality and non-disparagement provisions of that agreement, the employer asserted a
breach of the release clause. The Vice-Chair found:
16 In sum, given the broad language of the Minutes of Settlement, I find the civil suit to
be a breach of the Minutes of Settlement, as it treats matters relating to the grievor's past
employment as unresolved, and deserving of further damages, when the settlement, on its
face, was a full and final resolution of all matters relating to the grievor's past employment.
Simply put, continuing to litigate issues related to his previous employment with the Ministry
is not compatible with the Minutes of Settlement the grievor signed.
142. I agree with the Union that paragraph 7 of the MOS only prohibits Ms. Mosbeck from
making negative or disparaging statements either verbally or in writing and that her activities in
engaging her ‘civil protest’ largely fall outside that limitation.
143. However, to the extent that Ms. Mosbeck’s conduct may be seen as treating matters
relating to her past employment as unresolved, it is arguable that such conduct could constitute
a breach of paragraphs 9 and 10 of the MOS. The Employer did not assert a violation of those
provisions in this instance. However, that does not preclude it from doing so in the future.
144. I FIND THEREFORE that Ms. Mosbeck breached paragraph 7 of the MOS in making her
posts of August 9, August 11, and September 19, 2020, in making her comments to Mr. Turner
on September 8, 2020 in the presence of Ms. Lafond, and in sending the fax dated September 15,
2020.
Remedy
145. Relying on the HRTO decision in Cadillac Tavern, supra, the Union argued that it was open
to the parties to negotiate a specific penalty in respect of a breach of the MOS and that they
failed to do so. Further, it argued, there was no principle of law that damages necessarily attend
a breach of a settlement. In that case, the respondent employer had failed to pay monies
pursuant to a settlement. The HRTO confirmed the terms of the settlement and ordered that
30
interest accrue and be payable in respect of the delay in meeting the terms of the settlement.
Those circumstances are distinct from those before me. I similarly do not find the decision in
Keating, supra, to be of assistance in the circumstances here.
146. Ms. Mosbeck has been found to have breached both paragraphs 6 and 7 of the MOS.
There is no specific penalty set out in this MOS for a breach of its terms. There is no dispute that
any remedial order is within my discretion to consider and award. In Vanderpol, supra, the
arbitrator determined that any remedy assessed for breach of a confidentiality clause would
depend on all of the circumstances involved in the breach:
23 Some of the considerations to be made in such circumstances are: what was said or written
that constituted the confidentiality breach, in what forum, and the degree to which specific
financial and other key settlement details were disclosed; whether the confidentiality breach
was intended, premeditated and deliberate as opposed to being inadvertent; whether the
confidentiality breach was a one time only occurrence by a party or whether there was a pattern
of confidentiality breaches by that party.
24 In some cases, a declaration alone that a confidentiality breach had occurred would be
considered appropriate. In other cases, particularly where deterrence is a proper factor to be
considered because of the nature of the confidentiality breach and the circumstances relating
to it, a remedy of damages may also be considered appropriate in addition to the breach
declaration [See Green Grove Foods Corp. v. U.F.C.W., Local 175 (2012), 218 L.A.C. (4th) 267
(Ont. Arb.)].
147. In Tremblay, supra, it was noted:
[20] …. The fact that she did not disclose the amount of the settlement is not relevant to the
determination of whether there was a breach. By her comments she disclosed that there was a
monetary settlement, which was a term of the Minutes of Settlement. The extent and content
of the breach of confidentiality is a relevant factor to consider in assessing the remedy for the
breach.
(emphasis added)
148. And see Zehr’s, supra, at paragraph 49.
149. Repayment of some or all of the financial consideration paid in order to achieve the MOS
has been determined to be an appropriate enforcement mechanism to deter breaches of
settlement provisions. In Globe and Mail (The), supra, the arbitrator concluded that repayment
of all of the funds was not unconscionable, unfair, or a penalty, stating:
61 … the provisions of paragraph 8 should not be viewed as a "penalty" which requires
proof of damages. Rather, it is an enforcement mechanism which seeks to ensure that the
grievor lived up to a component of the deal the parties made which was key to the Employer.
Just as the payment, the Employer's acknowledgment that she was sick, and the ability to
disparage the Employer and tell her story after August 2009 were key to the grievor, the
nondisclosure of the terms of the settlement was key to the Employer. Moreover, with the
31
publication of OOTB the Employer has forever lost that benefit for which it bargained. The
prohibited disclosure that she received a payment is in the public domain and can't be retrieved.
Publication of the book means that the genie is out of the bottle and can't be put back with the
result that the breach is ongoing…
150. In Air Canada, supra, the disclosure of terms of an agreement was found to have been
limited and not premeditated. Yet an amount of one-third of the financial compensation
provided for in the settlement was ordered to be re-paid to the employer because deterrence
was found to be a factor. While that decision speaks to the resulting “harm”, there was no
evidence of specific proof of damages.
151. These cases do not suggest that proof of damage is required in assessing an appropriate
penalty for the breach of a confidentiality clause in a settlement agreement. The harm is
understood in the loss of the bargain as discussed above in Globe and Mail, (The), supra.
152. The same may be said for a breach of a non-disparagement clause. In a case of civil
defamation, one might require proof of damage, such as damage to reputation or financial harm.
However, like a breach of the confidentiality clause, the breach of a non-disparagement provision
contained in a settlement gives rise to the same inherent harm. It is the loss of the bargain
contained in the MOS. The same factors relating to the extent and content of the breach similarly
apply in assessing an appropriate remedy for breach of a non-disparagement clause. I am thus
disinclined to engage an assessment of actual damage suffered as that implies a requirement for
proof. That is to be distinguished from evidence as to the circumstances and scope of the breach.
153. The harm is found in the breach of the MOS and, although a widespread and intentional
display of a breach of a settlement may imply greater damage, I am inclined to consider those
factors as relating to the level of respect (or lack thereof) accorded to the terms of the MOS by
the individual breaching the MOS, and thereby the lack of respect shown to those intended to
receive the benefit of those terms, rather than requiring proof of external harm. To that extent,
intangible injury arising from the breach may be given consideration as part of the determination
regarding the appropriate enforcement of the MOS. See also the comments at paragraph 60 of
Globe and Mail (The), supra, cited at paragraph 122 above. In sum, I am not persuaded that actual
proof of reputational or other harm is required when the breach is grounded in one’s prior
express agreement not to engage in the very conduct complained of.
154. In this case the breaches of paragraph 7 of the MOS were deliberate and repeated. If Ms.
Mosbeck had wanted to be able to tell her story after leaving CLA, there is little likelihood that
the MOS would have been signed in the first place. Rather, she would have been put to the test
of proving her allegations against CLA and against Mr. Turner.
155. Instead, these parties each agreed to go their separate ways with Ms. Mosbeck agreeing
not to speak negatively about or disparage CLA or its employees and Directors. She has instead
waged a campaign against CLA and specifically Mr. Turner. She signed the MOS and received the
benefit of both a resignation and financial consideration without having to establish any of the
32
allegations she made against Mr. Turner or CLA. Those allegations were specifically and expressly
denied and Ms. Mosbeck cannot legitimately assert her version of events as constituting the
truth.
156. As noted, the breaches of paragraph 7 of the MOS are serious. They were made
intentionally, without regard to the terms of the MOS, they were repeated, and they overtly
sought to discredit CLA and both discredit and denigrate Mr. Turner.
157. Deterrence is also a significant factor in this case.
158. The Employer asked for an award of aggravated damages in addition to full repayment of
the monies paid to Ms. Mosbeck in the settlement. I was referred to the decision in Zehr’s, supra,
where a request for punitive damages was made in circumstances where the grievor, having
signed a settlement, immediately proceeded to disclose it and all of its terms to a wide variety of
people and institutions in an effort to resile from the agreement. Rather than awarding damages,
the arbitrator issued a cease and desist order, having upheld the specific penalty clause in the
settlement and relieving the employer of its obligation to pay any of the amount agreed to in the
settlement, while also finding that the MOS continued to be valid and enforceable in all other
respects.
159. In Zehr’s the request was for punitive damages based on what the employer felt was a
significant need for deterrence. The Employer here has asked for an award of aggravated
damages, compensatory (not punitive) damages payable in respect of aggravated injury,
reflecting intangible injuries such as distress and humiliation. See Chénier, supra, at paragraph
37. However, having regard to my comments above, that intangible harm can be considered as
part of the respect shown (or not) for the terms of the MOS in enforcing the terms of the MOS
through a remedial order. I therefore decline to make an order for aggravated damages.
160. Having regard to all of the above and in response to the finding that Ms. Mosbeck violated
both paragraphs 6 and 7 of the MOS, I find that an order for the repayment of $3000.00 from
Ms. Mosbeck to the Employer to be appropriate. The repayment of this amount should send a
strong message that the terms of the MOS are to be respected both in fact and in spirit. Nor can
this amount be considered punitive. I retain jurisdiction to make such further and other orders
as may be appropriate should circumstances warrant. This order is therefore in the nature of an
interim award and is made expressly in conjunction with the retention of jurisdiction in order to
increase the likely efficacy of this remedial response. Should Ms. Mosbeck engage in further
behaviour that breaches any term of the MOS the Employer will be entitled to seek a further
order pursuant to the terms of the MOS and this award that she repay further amounts of the
financial consideration paid under the terms of the MOS. Ms. Mosbeck need understand that her
behaviour to date will be considered should she again breach the terms of the MOS.
* * *
33
Conclusion
161. Therefore, having regard to all of the above and in summary, I hereby find that:
a) Ms. Mosbeck breached paragraph 6 of the MOS (confidentiality) by sending the
September 15, 2020 fax.
b) Ms. Mosbeck breached paragraph 7 of the MOS (non-disparagement) in making
her August 9, August 11, and September 19, 2020 Facebook posts, by discrediting Mr.
Turner in the presence of Ms. Lafond on September 8, 2020, and by sending the
September 15, 2020 fax.
c) Ms. Mosbeck engaged in a deliberate exercise to discredit and disparage CLA and
Mr. Turner but due to the limited scope of paragraph 7 of the MOS, I decline to find that
her ‘civil protest’ violated paragraph 7 of the MOS.
162. Having regard to these breaches of the MOS, I HEREBY ORDER Ms. Mosbeck to pay to
Community Living Atikokan the sum of $3000.00 by no later than March 31, 2022.
163. I remain seized with respect to any further allegations of a breach of the MOS and in
respect of any issues arising from the interpretation and/or implementation of this award.
Dated at Toronto, Ontario this 8th day of October, 2021.
“Marilyn A. Nairn”
________________________________________________
Marilyn A. Nairn, Arbitrator.