dan 9. 2015 9:05AM = Tler Campbell LL! ~P LER CAMPBELL us Fax Transmission ‘January 9, 2015 To Office/City Phone No, Fax No. Danny Kastner ‘Tumpenny Milne LLP 416-868-1457 647-260-0939 From: Priya Sarin, let Campbell LLP Phone No. 416 598-0103 Fax No, 416 598-3484 Email: psarin@ilercampbell.com 22 (including cover page) Court File No: CV-14-517197 Our File B8174 Please see attached. LEGALLY PRIVILEGED & CONFIDENTIAL COMMUNICATION University of Toronto Graduate Students’ Union This fax transmission and any attachments are intended only for the addressee and may contain information which is privileged and confidential. If you are not the intended secipient, aay dissemination, distribution, or copying is strictly prohibited. If you have received this message in error, please notify us immediately by replying to this email or by telephone, ‘Thank you | John Steet 7th Flor Toronto Onto MSV3ES Ta 416.538.0102. Fax 6.598.484 ILERCAMPBELLLLP BARRISTERS AND SOLICTORS rear othdan. 9. 2015 9:05AM — Iler Campbell LLP ~ Ter CAMPBELL «sr January 9, 2015 21.PAGES BY FAX TO: 647-260-0939 Bs 416-86 ‘Tumpenny Milne LLP 2 Berkeley Street, Suite 501 Toronto, Ontario MSA 4J5 Attention: __Danpy Kastner Dear Mr. Kastner, Re: University of Toronto Graduate Smudents' Union Court File No: CV-14-517197 Our File B8174 Please find attached out client’s Statement of Defence and Counterclaim served upon you pursuant to the Rules of Cin Procedure Yours truly, ILER CAMPBELL LLP M : Tae Priya Sarin |= Badl. 150 ohn Soest 7thFlor Toronto Orato MSV 383 Tel416598.103. Fax 4155962684 ILERCAMPSELLLLP BARRISTERS AND SOLICTORS —Uerearaphell.comTer Campbell LLP Jan, 9. 2015 9:05 Court File No, CV-14-517197 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: WALTER CALLAGHAN Plaintiff and HUSSAIN MASOOM, NICKIE VAN LIER, SOALEHA SHAMS, SUSANNE WALDORF KAVITA SIEWRATTAN AND UNIVERSITY OF TORONTO GRADUATE STUDENTS’ UNION Defendants STATEMENT OF DEFENCE AND COUNTERCLAIM, 1. The defendants admit the facts and allegations contained in paragraphs 3, 4, 6 (frst sentence only) and 7 of the plaintiff's Statement of Claim (the “Claim”) 2 The defendants have no knowledge or insufficient knowledge of the facts and allegations contained in paragraphs 2, 24 and 25 of the Claim and deny all remaining paragraphs of the Claim. 3. The defendants expressly deny that the plaintiff, Walter Callaghan (“Callaghan”) is entitled to any of the relief claimed against the defendants in paragraph 1 of the Claim. OVERVIEW 4. Callaghan was elected to be a member of the Executive Committee of the University of Toronto Graduate Students’ Union (“UTGSU”) in the spring of 2014 for a one year term and held the office of Academics and Funding Commissioner, Divisions 1 & 2, He worked with Nickie Van Lies, Soaleha Shams, Susanne Waldorf and Hussain Mascom (the “Otherdan, 9. 2015 9:06AM = Iler Campbell LLP No. 9619 Officers”) on the Executive Committee from May 1, 2014 until he resigned 5 months later. Callaghan only had limited interactions with Kavita Siewrataan in the month of October 2014. All of the Executive Committee members are University students and equal pursuant to UTGSU's organizational hierarchy. Callaghan commenced this claim in December 2014 alleging that he was constructively dismissed from his elected officer role and that the defendants had breached the Hyman Rights Code and caused him mental distress by: 1) voting on political decisions in a manner that Callaghan disagreed with; and 2) investigating complaints of harassment against him by three unionized staff members. The investigation found that Callaghan had harassed UTGSU staff and that the complaints were justified. The defendants deny that there is any merit to Callaghan’s allegations, Fisst, elected officers ate entitled to vote in accordance with their views. This does not constitute discrimination or give rise to any intent to cause harm or mental distress by the Other Officers. Second, Callaghan could not have been constructively dismissed by the defendants because a) the Other Officers were not Callaghan’s employer; b) the UTGSU was not Callaghan’s employer as he held an elected office; and ¢) Callaghan resigned from his office vohuntasily. In the absence of any independent civil cause of action (ie. for wrongful dismissal), che defendants submit that the Ontario Superior Court of Justice does nor have jurisdiction to hhear Callaghan’s human tights claims, which properly belong before the Human Rights ‘Tribunal of Ontario. Alternatively, if Callaghan was an employee of the UTGSU, the UTGSU denies that it breached any obligations to Callaghan under the Human Rights Code, has no knowledge of any discrimination against him on the basis of disability, and pleads thet it properly and fairly investigated the harassment complaints made by staff against Callaghan. Further, the measures taken by UTGSU as a result of the harassment investigation were reasonable and necessary for the protection of its staff’ members, UTGSU further submits that, if it was Callaghaa’s employer, there is no cause of action for “negligent infliction of mental distress” against it and this allegation should be struck from 2Jan 9% 2015 9:06AM Tler Campbell LLP the Claim, as should the relief sought in paragraphs 1(a)-(b) of the Claim, which are precluded by section 46.1 of the Haman Rights Code. 10. Finally, Shams and Masoom counterclaim against Callaghan for intentional infliction of mental suffering and harassment resulting from his bullying and discriminatory behaviour towards them. BACKGROUND The Parties 11. The defendant, Soaleha Shams (“Shams”) is a fifth year Ph.D. student in the Department of Cell & Systems Biology (CSB) and the Collaborative Program in Neuroscience (CPIN) at the University of Toronto Neuroscience at the University of Toronto, She was élected to be a member of the Executive Committee of the UTGSU for May 1, 2014 — Aptil 30, 2015 and holds the office of Finance and University Governance Commissioner 12, The defendant, Hussain Masoom (“Masoom”), is a fifth year Ph.D. student in the department of chemistry at the Univetsity of Toronto, He was elected to be a member of the Executive Committee of the UTGSU for May 1, 2014 — April 30, 2015 and holds the office of Academics and Funding Commissioner for Divisions 3 & 4, 13. The defendant, Susanne Waldorf (“Waldorf”), is a 3ed year Ph.D. student in the department of Social Justice Education. She was re-elected for a second year (May 1, 2014 — April 30, 2015) to be a member of the Executive Comminee of the UTGSU and holds the office of Civics and Eavironment Commissioner, 14, The defendant, Nickie Van Lier (“Van Lier”) is a second year Masters student in the department of Social Justice Education. She was elected to be a member of the Executive Committee of the UTGSU for May 1, 2014 — April 30, 2015 and holds the office of Internal Commissioner. 15. The defendant, Kavita Siewrattan (“Siewrattan”) is a 1st year Masters of Education student in the department of Social Justice Education. She was elected as a member at large to the 3Jan, 9 2015 9:06AM = [ler Campbell LLP No. 9819 16. Pp Executive Committee of the UTGSU commencing on October 1, 2014, She had limited interactions with Callaghan and for the purposes of this Defence, denies each and every allegation made against her. Neatly all of the allegations made in the Claim relate to events which occurred before she was a member of Executive Committee. The defendant, the UTGSU, is a non-profit corporation which represents over 15,000 students studying in over 85 departments. The union has previously advocated for increased student representation, funding, and provided services such as health insurance, confidential advice, and a voice for the graduate student body on the various committees of the University. Obligations of the UTGSU Executive Committee 17. 18, 19. 20. a ‘The Board of Directors of the UTGSU is the “General Council” The General Council is responsible for overall governance of the corporation and is made up of approximately 150 elected members. The General Council also disects the Executive Committee to take particular positions on issues directly selevant to all graduate students. The day to day management of the corporation is delegated to the Executive Committee, Six members of the Executive Committee members are officers of the corporation, which includes Callaghan and the Other Officers, Each of these officers chairs various committees related to his or her portfolio and participates in ad hoc committees on other topics. The Executive Committee as a whole also sets priorities each year for the areas they would like to work on for the benefit of graduate students (ce. to improve funding to students). Pursuant to section 7.6 of UTGSU’s by-laws, the Executive Committee is deemed to be the employer of UTGSU’s staff and is required to manage staff in accordance with the collective agreement berween UTGSU and CUPE, Local 1281. UTGSU has 5 permanent staff positions. Axticle 1.02 of the Collective Agreement, states that the staff's employer is the UTGSU as represented by the Executive and one of the Executive Officers, whom are authorized to administer the Collective Agreement.Jan. 9. 2015 9:07AM Tier Campbell LLP Article 1.04 of the Collective Agreement states that one member of the Executive Committee will be designated the Employer's Representative and will be authorized and empowered to make decisions on behalf of the Employer and to act as the point of contact for the Union and staff. Article 3.01 states that the Employer's representative will be the final authority to represent the Employer to the Union and staff members. Van Lier is the Employer's Representative and authotized to make decisions on behalf of the UTGSU with respect to staff and administration of the collective agreement, NO DISCRIMINATION AGAINST CALLAGHAN BY THE EXECUTIVE/UTGSU 24, At paragraphs § — 20 of the Claim, Callaghan makes numerous false allegations in an attempt to suggest that the Other Officers and UTGSU discriminated against Callaghan on the basis of his disability. As set out further below, the Other Officers and UTGSU treated Callaghan fairly and respectfully throughout his term in office. Moreover, the allegations made by Callaghan, even if true, do not give rise to any couse of action against the defendants. Initial Meetings of the Executive Committee 25. 26. 27. Contrary to the allegations made in paragraph 8 of the Claim, the Executive Committee members, except for Shams (who was out of the country), attended an orientation session on May 12, 2014 at which their roles and responsibilities were explained to them by UTGSU staff Jn the course of discussing when required weekly Executive Meetings would be scheduled, Callaghan advised that he had difficulty attending early morning meetings due to insomnia and could not meet on Tuesdays due to physiotherapy and other medical appointments. He requested that he be accommodated in this regard and the Executive Committee agreed. Callaghan did not provide any specific details to the Executive Committee about his suffering from PTSD at this time, nor did he request any accommodation of his meatal health issues, other than scheduling meetings in the afternoons.dan, 9. 28. 29. 2015 9:07AM Tler Campbell LLP At Callaghan’ request, the Executive Committee also approved amendments to the Executive Absences Policy in May 2014 to inchide mental health reasons as an express acceptable reason for missing Executive Committee meetings. Accordingly, the UTGSU accommodated Callahan's disability and met its obligations to him sunder the Haman Rights Code Visioning Session on May 24, 2014 30. 31. 32, 33, “The defendants expressly deny the allegations made at paragraphs 9 and 10 of the Claim On May 21, 2014, during the ‘Planning & Visioning Day’, which was managed by an external facilitator, the Executive Committee brainstormed to create a list of approximately 15 - 20 potential issues that the Executive Committee could work on that would make up its foci for the year. Subsequently, each committee member chose 3-5 priorities from that list that each thought were the top issues for its members for the upcoming year. ‘The statements made in paragraph 10 of the Claim axe patenty false. Callaghan, former exeoutive member, Leah Bender and Shams, each voted in favour of mental heats of graduate students as a priority: At no time did Masoom or Van Lier object to making mental health issues a priority or top priority. Even if they had, this would not have amounted to” discrimination or any personal attack on Callaghan. During the course of discussion on the top 3-5 priorities, Waldorf reminded the Executive that an ad bor committee of the UTGSU called ‘Grad Minds’ had been formed the previous year, which works solely on mental health issues, She suggested that it would make more sense for the Executive Committee to support Grad Minds’ initiatives rather than duplicating theix work, Furthe:, because UTGSU by-law 6.7 protects the jurisdiction of committees from Executive power, this meant that mental health issues could not be an independent Executive focus, but would effectively require collaboration with Grad Minds,Jan, 9. 2015 9:07AM 35. 36. Campbell LL! ‘Through the course of a democratic vote, the Executive Committee selected the following as. its top two priorities: member engagement and funding Therefore, mental health issues were not “downgraded” and there was no discrimination against Callaghan as a result of this democratic vote on collective Executive Committee priorities In any event, mental health issues remained a priority for the Executive Committee, For example the Executive Committee has actively supported, provided funding and other resources to the Grad Minds Committee, and brought issues about mental health forward to the University of Toronto administration. Additionally, Callaghan became the executive liaison to the Grad Minds committee and was able to focus on his primary aren of interest. Canadian Federation of Students Conference 37. 38, 39. Callaghan “attended” the Canadian Federation of Students (“CFS”) General Meeting from June 5-8, 2014 in Orawa as part of the UTGSU delegation with Van Lies, Masoom and former Executive member, Brad Evoy. Despite going to Ottawa for this purpose, Callaghan did not actually attend the vast majotity of meetings. The defendants expressly deny the allegations made in paragraphs 11 and 12 of the Claim regarding a proposed CFS policy amendment. Specifically, Van Lier encouraged Callaghan to publicly share his views on the CFS amendment and the group (including Van Lier and Masoom) voted as a team to defeat it, The UTGSU delegation only had one vote. At no time did any of the team members suggest to Callaghan that he was overreacting in his views. Rather, they told him that they would support whatever decision he made on the amendment given how strongly he felt about the issue. His colleagues supported him fully. Callaghan's Role on the Litigation Committee 40. As stated above, each of the officers was responsible for participating in various UTGSU committees. In addition to Grad Minds, Callaghan was the liaison for the Litigation Committee, which was tasked with managing litigation between CFS and UTGSU.Jan. 9. 2015 9:08AM Tler Campbell LLP No. 9817 FT A. 43. 45. ‘As liaison to the ad Jor Litigation Committee, Callaghan was responsible for updating the Executive Committee on the litigation, producing minutes of meetings (which he did not do), and consulting with the Executive Committee, so that it could provide input into decision-making. Callaghan was expressly responsible, pursuant to the Litigation Committee's mandate, for representing the will of the Executive on the Litigation Comminee. Contrary to the allegations made at paragraphs 12 and 13 of the Clsim, on June 12, 2014, the Executive Committee asked Callaghan for further information, because it had not seen any minutes, did not understand what the litigation was about, or know what decisions had been made in the ad hoc committee. The Executive had not been consulted as it should have been. It was the Executive's right to ask these questions and obtain that information. Callaghan's assertions that these questions were being asked due to the Other Officers pto-CFS views, or wanting to end the litigation, are both false and irrelevant. Callaghan was ‘not meeting his obligations as the liaison to the ad Jvc Litigation Committee. On June 18, 2014, during a General Council Meeting, certain Council members and Executive Committee members raised concerns about Callahan's lack of communication and whether Callaghan was able to remain neutral about the CFS lidgation given his open and well known dislike for the CFS. Membership in the CFS was a political issue and had no relationship to Callaghan or his disability. None of the defendants stated that Callaghan was “acting unprofessionally” and the raising of the above concezns by Council or the Executive was not discriminatory within the meaning of the Human Rights Code or otherwise. The vote held by General Council at the June 18, 2014 was not to “setain” Callaghan as chair of the Litigation Committee, but rather to extend the term of the litigation committee, because it was an ad hoc committee and the term was expiring.Jan, 9. 2015 9:08AM = Iler Campbell LLP Socially Supportive Workplace Workshop 46. 4" 49, In mid-July 2015, UTGSU siaif organized a workshop on maintaining « supportive workplace, including being aware of mental health issues and accommodation. Waldorf was ‘not present at this workshop as she was on academic leave. Callaghan was disruptive during the workshop and argumentative with the presenter, Callaghan expressed the view that the training was overly simplistic and that the presenter ‘was lacking in knowledge. Distespectfully, Callaghan then abruptly walked out of the training part way through. The est of the staff and Executive Committee members attended the workshop to the end, showing respect for the training process and importance of accommodating mental health issues in the workplace, ‘The defendants expressly deny that any of them were dismissive towards Callaghan or made “audible sighs” in eesponse to his comments to the presenter. Indeed, other members of the Executive Committee agreed that the training was overly simplistic; however, given the importance they placed on mental health issues, preferred to use the training as a good starting point to discuss the issues. Callaghan Never Complained to the UTGSU 50. 51. Callaghan never complained to the Board of Directors of the UTGSU (the “General Councif”) about any alleged discrimination from his colleagues prior to his resignation, ‘The UTGSU submits that it cannot be held liable for any alleged discrimination that it'was unaware of and denies that Callaghan was discriminated against in any manner. CALLAGHAN HARASSES HIS COLLEAGUES Callaghan Repeatedly Bullies Shams 52. Despite Callaghan’s assertion in the Claim that the defendants were uasupportive of his mental health issues, Callaghan himself was intolerant and aggressive towards his colleague 9Jan, 4. 53, 55. 56. 57. 58. 201 5 9:08AM Iler Campbel Shams who had openly disclosed her mental health issues to him and the Executive ‘Committee in an effort to obtain accommodation. In patticular, Shams advised Callaghan that she had been harassed and assaulted by the police and military in her country of origin. As a xesult of this, she suffered from depression, anxiety and post-traumatic stress disorder She advised that her anxiety and depressive episodes were wiggered by: military references and aggressive language or gestures. Callaghan, who admits in the Claim that he served in the military and that he was pone 10 exhibiting behaviour that was perceived to be aggressive, made no effort to modify his behavior in light of Shams’ disclosure. Callaghan continued to make militarized references and to speak to her in a demeaning and aggressive manner. For example, Callaghan referred to the staff as “his soldiers;” called che staff grievances against him “FUBAR” and then proceeded to explain to Shams that this was a “military term” and what it implied; made legal and physical threats against Shams and snyone who supported the Canadian Federation of Students; repeatedly declared that he had use-of-force training; and persistendy used unnecessary graphic or visual language to explain his views including making such comments as “having a gun to the head” or that “ie takes remarkably litle kinetic force to the head to kill someone”. In addition, between July and September 2014, Callaghan publicly referred to Shams by derogatory terms such as: a “Kool-Aid Kid,” an “imbecile,” “dumb as shit” and “a puppet.” The term “Kool-Aid Kid” was known to refer to Van Lier, Shams and Masoom and was frequently used by Callaghan as part of hateful and sometimes violent posts on social media directed at these thtee Executive Committee members. All three individuals suffered anxiety and distress on becoming aware of these posts. Contrary to the assertions made at paragraphs 17 and 20 of che Claim, Callaghan was 30 hostile towards Shams in the August 14, 2014 mecting that she began suffering a panic attack and left the meeting in tears. At no time did Shams make any reference to Callaghan's mental 109. 2015 9:09AM Tler 59, 60. 61. health issues or “bringing personal issues to work”. Shams asked Callaghan to be more aware of the language he used 10 a not ¢o trigger traumatic memorits for ber. Shams vehemently denies that she made aay comments to Callaghan about his medication and states that until receipt of the Claim, she had no knowledge that he was even taking any medication for his disability Shams attempted to meet with Callaghan to discuss her issues with him and the manner in which his treatment was affecting her, but he brushed her off. As a result of Callaghan's behaviour and treatment of Shams, she has suffered extreme depression and ansiety and has required additional medical treatment since August 2014, ‘The false and vexatious claims made against her in this Action have further contsibuted to her mental distress and resulted in significant concerns about her ability to graduate from her PAD. program on time in 2015. Shams pleads that she is entitled to damages from Callaghan for intentional infliction of mental distress and the tort of harassment. Callaghan Discriminates against and Harasses Masoom 63. 65, In late May or early June at a planning meeting, Callaghan referred to Masoom as a “suicide bomber” because of the manner in which he was carrying his bag and because he identifies as Muslim. Masoom was horrified and offended by these discriminatory remarks, but Callaghan thought they were funny. Callaghan knew or ought to have known that such a comment was racist and inappropriate On or about June 8, 2014, during the course of the CFS meeting in Ottawa, Callaghan advised that he had attended a protest on parliament hill by war veterans regarding their tzeatment by the Canadian government, The other half of the hill was booked by a group from the Muslim Brotherhood who were protesting against the situation in Egypt. Callaghan recounted that an argument ensued between the two groups of protesters. Callaghan stated 1dan, 66. 67, 68, 69. Campbell LLP 9:09AM that once the police were called, the police focused their energy on the Muslims because, “Muslims were the trouble makers and they were the ones who caused problems” Callaghan made this comment to Masoom in a hostile manner and gestured so as to imply that Masoom was a problem because of his religious beliefs, Further, between July and September 2014, Callaghan publicly referred to Masoom by various derogatory terms such as: a “Kool-Aid Kid”, an “imbecile”, “dumb as shit” and “a puppet. Callaghan also made several threats online about what he intended to do to the “Kool-Aid kids”. He posted lytics to songs such as “Next time you open your mouth Til put my fist down your throat” The above incidents of harassment and discrimination by Callaghan alienated Masoom, created a toxic work environment and caused him significant emotional distress. In particular, he suffered extreme stress, increased agitation, difficulty sleeping, hair loss, difficulty with social relationships and ultimately sought medical help for consequential impacts on his health. Masoom pleads that Callaghan recklessly or inteationally made the above comments in order to cause him harm, Masoom is entitled to damages from Callaghan for intentional infliction of mental distress and harassment. HARASSMENT AND BULLYING OF STAFF BY CALLAGHAN Early Efforts to Address Callaghan's Mistreatment of Staff 70. m1 Tn June 2014, the UTGSU Human Resource Committee began receiving complaints from staff that they found Callaghan’s attitude towards them demeaning and thar he behaved in a demanding and aggressive manner towards them. In particular, Callaghan would demand that they perform tasks that were not patt of their job description, complain if not done quickly or to his liking, would refer to staff as his “assistant” Accordingly, on July 3, 2014, the issue of appropriate and sespectful communication was placed on the agenda of the Executive Committee meeting. Ia particular, the Human 2Jan 72. 73, 74, PLA 76. 2015 9:09AM = Tler Campbell LLP No. 9019 Resources Committee and staff emphasized to all Executive Committee Members the importance of respectfully asking for staff time and assistance with due regard to their job responsibilities and developing a respectful communication style. Despite the above, there was no change in Callaghan’s treatment of staff. On July 28, 2014, the UTGSU Human Resources Commitee received a written complaint fom a staff ‘member about an email that Callaghan sent which staff viewed to be condescending, aggressive and abusive. Similarly, staff complained about contemporaneous posts that Callaghan had made on social media sites, which diceculy insulted staff members. These concerns were raised with the staff's union steward and union representative Van Lier as the Employer's Representative for staff agreed to raise these concerns with Callaghan at a meeting of the Human Resources Committee. UTGSU and Van Lier were obligated to do so in order to comply with theit obligations under the Occupational Health and Safety Act to provide a safe working environment for UTGSU employees. Contrary to the assertion made by Callaghan at paragraphs 18 and 19 of the Claim, on August 13, 2014, Callaghan was specifically advised of the nature of the complaint made against him and referred in specific detail to the email he sent and Facebook posts that he made. Callaghan was gently reminded to adjust his communication style with staff and to be more cautious about what he posted on social media given that he was a representative of the Employer, Callaghan did not apologize for his behaviour or give any indication that he would work to improve.on his communications with staff As indicated by the plaintiff in the Claim, Callaghan denied that he was aggressive towards staff and became defensive in the meeting. He expressly told the Human Resources Committee that he could post “whatever he wanted to online,” because that was his personal space, or words to that effect. The UTGSU Human Resources Committee was left with the impression that Callaghan had no intention of addressing the concerns taised by staff. The following day, Callaghan posted comments online mocking the meeting held on August 13, 2014 and denying that there was any truth to the allegations against him. 13dan. 9 2015 9:10AM Tier Campbell LL The defendants submit that while Callaghan’s aggressive manner may have been related to hhis post-traumatic stress disorder, or as he suggested in the meeting, “a remnant of his time in the armed forces,” this did not lessen the UTGSU’s obligation to ensure that its ‘employees were protected from harassment and bullying in the workplace. Staff Grievance and Internal Investigation 78. 79. a1. ‘The allegations made by Callaghan at paragraphs 21 - 23 of the Claim regarding a grievance filed by unionized staff members ate both shocking and absurd. As a result of Callaghan’s continued harassment and bullying of staff in late August 2014 Ge through writen communications), CUPE, Local 1281 (“the Union”) fled a group grievance against UTGSU in relation to Callaghas’s misconduct (the “Grievance”) including harassment and breach of confidentiality The defendants did not encourage staff to file a grievance for political reasons, nor was the investigation process a secret. The staff members were guided by the Union as theit zepresentative in relation to their legitimate concerns. On September 19, 2014, Van Lier received a copy of the Grievance from the Union along with a request for a meeting at Step 1 of the grievance process, in accordance with the Collective Agreement. She was instructed not to distribute written copies of the Grievance for confidentiality reasons - an issue of particular concern with respect to Callaghan. ‘Van Lier called an emengency meeting of the Executive Committee, which took place on September 23, 2014. Callaghan attended this meeting, Van Lier read the entize Grievance aloud (excluding the names of the grievors for confidentiality reasons) to all members of the Executive, including Callaghan, and as such Callaghan was aware of the patticulass of the Grievance. Ac that same meeting, in the presence of Callaghan, che Executive Committee agreed that ‘Van Lier and Waldorf would investigate the complaint on behalf of the UTGSU, as the representative of the employer, in accordance with an investigation protocol established with the Union, 483, 85. 86, 87. 88, 9: TQAM Tler Campbell LLP Because Callaghan was named in the Grievance as a respondent, he was no longer permitted to participate in aay meetings discussions where the employer was making decisions on how to respond to the Grievance. This did not make the process “a secret”. The Grievance specifically requested that the employer put in place separation measures to limit any direct contact between staff and Callaghan. Callaghan agreed to the terms of the separation protocol on September 23, 2014 and voluntarily offered to return his key to the staff office as a gesture of good faith. On or about September 27 - 28, 2014, Callaghan broke the separation protocol and breached confidentiality regarding the Grievance. He also posted public comments on social media which indicated an intention by Callaghan to commit violence against staff members at an upcoming meeting. Due to the nature of the threats against staff, campus security was called. Contrary to the allegations made at subparagraph 21(b) of the Claim, Van Lier and Waldoxf sent Callaghan numerous emails tying to schedule an interview with him as part of the investigation process (ie. on October 6, 2014; October 7, 2014; and October 8, 2014). He was invited to bring legal counsel to the interview if he wished. He was also advised thar the interviews of all parties needed to be completed by October 14, 2014. Callaghan initially ignored che emails and then ultimately refused to participate in the investigation process on October 8, 2014 on the basis that he did not have a waitten copy of the grievance (even though it had been read to hit) and on the basis that he did not have access to the Director’s & Officer’ insurance policy (which had, in fact, been sent to him by email on July 15, 2014). Callaghan was warned repeatedly that if he did not attend an intexview that he would be waiving his right to provide his side of the story and a decision would have to be reached without his input Callaghan did not bother responding until after the deadline for completing the interviews had passed, Nonetheless, the investigation team took his email into consideration. 15Jan, 9, 89, 90. 1. 92. 2015 9:10AM Tler Campbell LLP On October 20, 2014, the Investigation Team completed its report and found that Callaghan hhad harassed staff and subjected them to an unsafe and hostile work environment Given that many of the allegations in the Grievance pertained to Callaghan’s written emails and Facebook posts, which could be seviewed objectively for threatening, intimidating, or demeaning language, Callaghan’s refusal to participate in the investigation had litle impact con the ultimate conclusion that was reached by the Investigation Team. Contrary to Callaghan’s assertions at paragraph 21(¢) of the Claim, the UTGSU considered Callaghan’s mental health issues and the xole they may have played in the actions giving rise to the Grievance. Despite a finding of harassment and threats of violence by Callaghan, the defendants took a measured approach to their recommended solutions. The Executive Committee did not seck to have Callghan removed from his position or take any disciplinary action against him. Instead, the Executive Committee voted on and agreed to measures that would prevent Callaghan from having any ditect contact with staff (online ot in person) and restricted him from making public statements about staff members. These were reasonable measures that struck a fair balance between the rights of the staff members and Callaghan who was a representative of their employer. As the employer of the grievors, and pursuant to UTGSU by-laws and the Collective Agreement, the UTGSU and Executive Commitee had every right and obligation to negotiate the settlement that it did with the staff Union and to impose the above measures on Callaghan, whether as a member of the Executive Committee or a general member of the UTGSU. CALLAGHAN WAS NOT CONSTRUCTIVELY DISMISSED 93. The defendants deny that Callaghan was constructively dismissed. First, Callahan was not employed by the defendants. He was an elected officer accountable to the membership of the approximately 15,000 members of the student union, He was not paid regular wages or a salary, bur received an honorarium, 1694, 95. Second, Callaghan voluntarily resigned from his position on the Executive Committee. Callaghan was not asked to resign; he was not threatened with impeachment; and no one suggested to him that he should resign expressly or impliedly. Notably, Callaghan resigned prior to zeceiving the Sindings of the harassment investigation or of being advised as to what measures would be taken to address the complaints. The defendants submit that Callaghan resigned because he knew he had acted inappropriately. ‘THE DEFENDANTS DID NOT CAUSE MENTAL DISTRESS TO CALLAGHAN 96. 97. 98. 99. As set out above, the individual defendants did not discriminate against or mistreat Callaghan in any way: the defendants agreed to Callaghan’s only request for accommodation; the Other Officers were at all times sespectful cowards Callaghan during the various meetings and workshops that the Executive Committee members attended; and the manner in which the UTGSU handled the harassment complaints received against Callaghan was fair. ‘There ate no facts whatsoever to support the allegation that the defendants’ conduct was outrageous or calculated to cause harm to Callaghan. On the contrary, Callaghan’s conduct towards his colleagues on the Executive Committee was reprehensible and calculated to cause them emotional distress. The defendants deny that Callaghan suffered any mental distress as a result of the actions of the other Executive Committee members and plead that Callaghan is not entitled to an award of damages for negligent or intentional infliction of mental distess, punitive damages or bréach of the duty of good faith Further, the UTGSU submits that there is no longer any cause of action against an employer for negligent infliction of mental distress and these allegations ought to be dismissed, CALLAGHAN IS NOT ENTITLED TO THE REMEDIES SOUGHT 100. ‘The defendants plead and rely on section 46.1 of the Human Rights Code to preclude Callaghan from continuing this action unless Callaghan has an independent cause of action other than for a human rights remedy Further, the defendants plead that the declaratory relief requested by the plaintiff in paragraphs 1(a) and 1 (b) of the Claim is improper. v7Jan 9. 101. 102. 103. 104, 105. 106. 2015 9:11AM Tier Campbell LLP No. 3019 Pa Callaghan is not entitled to damages for constructive dismissal because he was not an employee and because he resigned from his position. Alternatively, if Callaghan was constructively dismissed, then the damages claimed by him ate excessive. The balance of the honorasium owing until the end of Callaghan’s term amounted approximately $7500. ‘The defendants deny that there is any basis for an award of aggravated damages relating to the manner of dismissal. Callaghan was not dismissed from his position and the defendants did nothing to humiliate him or harm his reputation, The defendants were extremely cautious about keeping all matters relating to the Grievance confidential ‘The defendants requests that the plaintiff's action be dismissed with costs awarded to the defendants on a substantial indemnity basis. The defendants agree to the trial of this Action in Toronto. COUNTERCLAIM ‘The defendants (plaintiffs by counterclaim), Shams and Masoom claim damages against Callaghan for: a, _ Intentional infliction of mental distress and/or committing the tort of harassment in the amount of $50,000; b. —_Pre-judgment and post-judgment intesest in accordance with sections 128 and 129 of the Courts of Justice Act, RS.O, 1990, ¢. C43) c. Costs of this action on a substantial indemnity basis; and d Such further and other relief as to this Honourable Coust seems just. Shams and Masoom tepeat and rely on the facts as set out at paragraphs 52-69 of the Statement of Defence above in support of their Counterclaim for damages in relation to Callaghan’s intentional infliction of mental suffering and harassment of them, 18No, 9019 Jan 9. 2015 9:12AM, Tler Campbel 107. Shams and Masoom request that this Counterclaim be heard at the same time as the main action and be tried in Toronto. Date: January 9, 2015 ILER CAMPBELL LLP Barristers & Solicitors 150 John Street, 7" Floor Toronto, Ontatio M3V 3E3, Priya Sarin (LSUC No. 53481W) Telephone: (416) 598-0103 Fax: (416) 598-3484 Lawyers for the Defendants TO: Turnpenny Milne LLP 2 Berkeley St, Suite 501 Toronto, ON, M5A 4J5 Danny Kastner (LSUC No. 540190) Tel: (416) 868-1457 Fax: (647) 260-0939 Lawyers for the Plaintiff 19ad j8ly OP. No. er Campbell LLP sirepuayacy aq) 307 sx9as7] An18hes °N OAST £0LO-R6S SAE ASW OFHUG ‘UOTE, 100fe] gL TANS UYOL OST STOHDIOS 29 STaISTEREG, «TH TATA YAH WIV1O¥S.LNNO9 CNV SONSAad 10 LNAWH.LVLS oquoroy, 3 psousunnos Surp920%q aOLLsAL 40 LaNOD YorRIaaNs ORIVINO LOLLIS HEAD #ON IRE TOD Jan 9 2015 9:12AM Gsrmepoayoq) (wpcreta) 1? WOOSYW NIYSSOH “pow NVHOVTIVO WALETVAN