Court File No. CV-19-00012463-0000 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MARK BRICKELL Plaintiff and NIAGARA PENINSULA CONSERVATION AUTHORITY Defendant REPLY 1. The Plaintiff, Mark Brickell, denies each and every allegation made in the Defendant's Statement of Defence (the "Defence") unless otherwise expressly stated herein. The Plaintiff further repeats and relies on each and every paragraph of the Statement of Claim. Alleged Misconduct and Alleged Cause 2. The Plaintiff denies the Defendant's claim that he acted in such a way that constituted misconduct, and places the Defendant to the strict proof thereof. 3. Further, if the Plaintiff engaged in any acts of misconduct, which is not admitted but expressly denied, the Plaintiff denies that the Defendant had cause to terminate his employment for any misconduct, as alleged or at all 4. While the Plaintiff wholly denies any allegations of misconduct and just cause to terminate his employment, and relies first and foremost on these denials, he is in a position to respond to a few allegations in the Defence more specifically. (cmAlleged Performance Appraisal 5. In paragraph 6 of the Defence, the Defendant [the "NPCA’] intimates that the NPCA's Board's Chair and Vice-Chair engaged in a nearly month long performance appraisal of the Plaintiff from approximately October 23 to November 22, 2018. 9. Ifa performance appraisal was conducted by the NPCA, which is not admitted but is expressly denied, the Plaintiff had no knowledge of it or involvement in it whatsoever. 10. By way of context, if such a performance appraisal was conducted as alleged by the NPCA, the first date on which the appraisal was supposedly conducted (October 23, 2018) is the day after a majority of NPCA Board members were voted out of elected office in the municipal elections held on October 22, 2018. 11 The Plaintiff pleads that he first became aware that the NPCA Board was conducting or apparently conducting an appraisal on November 25, 2018, when he inquired to Vice-Chair Annunziata as to the purpose of the Special Meeting of the Board (c2sua00 9)s scheduled for November 28, 2018. In fact, until he first read the Defence, the Plaintiff was unaware that any part of his appraisal had apparently even been conducted prior to the meeting on November 28, 2018. 12. The Plaintiff repeats the he was given no notice of a performance appraisal that is alleged to have commenced on, or around, October 23, 2018. 13. The Plaintiff further repeats that he did not participate in this alleged performance _ the content of this alleged performance appraisal prior to reading paragraph 12 of the "Defence. Allegations of Insubordination 16. In paragraph 14 of the Defence, the NPCA alleges that the Plaintiff committed one or more acts of insubordination by allegedly seeking to negotiate terms of his potential resignation instead of discussing his performance. 17. The Plaintiff pleads that the NPCA has no basis to claim this was insubordinate, especially given its own admission, at paragraphs 15 and 16 of the Defence, that the -NPCA both authorized and participated in such negotiations. ass)4 18. The Plaintiff pleads that it cannot have been insubordinate for him to engage in activities expressly approved and authorized by the NPCA Board, to which he directly reported in his role as Chief Administrative Officer (CAO), 19. Atno time did the NPCA advise the Plaintiff that his behaviour was insubordinate, that he should cease and desist in engaging in such behaviour, and, further or in the alternative, that the failure to so cease and desist would be grounds for discipline, up to and including termination of employment. 20. The Plaintiff accordingly pleads that the only apparent justification for the plea of just cause, his alleged insubordination, is wholly without any basis in fact or in law. Allegations of Unprofessional, Aggressive, and Intimidating Conduct 21. In paragraph 12(d) of the Defence, the NPCA alleges in general, non-specific terms, that the Plaintiff engaged in “unprofessional, aggressive and intimidating conduct towards NPCA staff" 22. The Plaintiff wholly denies this allegation and has no knowledge as to what — particular conduct the Defence may be referring to. He places the Defendant to the strict proof of this alleged conduct. 23. The Plaintiff likewise pleads that this alleged misconduct is wholly irrelevant given the NPCA's exclusive reliance on entirely different allegations of insubordination as the sole basis to justify their plea of just cause. The NPCA's reference to wholly denied allegations of "unprofessional, aggressive and intimidating conduct towards NPCA staff" is gratuitous. (cossa00 15 24. — By way of further response, on or about October 3, 2017, a person employed with the NPCA did launch some sort of complaint against the Plaintiff conceming alleged conduct which may fall within the language of “unprofessional, aggressive and intimidating conduct towards NPCA staff" 25. In response to the complaint, the NPCA retained an independent third party to investigate the complaint. 26. The Plaintiff fully cooperated with the ensuing investigation and participated in one or more investigation meetings with the investigator. 27. On or about January 18, 2019, the independent investigator determined that the allegations were unsubstantiated. 28. The Plaintiff pleads that, as a result of this finding, the NPCA dismissed the complaint and wrote a letter to the Plaintiff to like effect. The letter was signed by Krystle Caputo, the then Director of Communications and Administration of the NPCA. April 11, 2019 CAVALLUZZO LLP 474 Bathurst Street, Suite 300 Toronto ON MST 286 Stephen J. Moreau, LSO# 48750Q Kaley Duff, LSO# 74986A Tel: 416-964-1115 Fax: 416-964-5895 Lawyers for the Plaintiff teasseae 1)TO: soasses 1) HICKS MORLEY LLP Barristers and Solicitors 100 Regina Street South Suite 200 Waterloo ON N2J 4P9 Glenn P. Christie, LSO# 40391 Tel: 519-883-3125 Fax: 519-746-4037 glenn-christie@hicksmorley.com Melissa |. Roth, LSO# 620010 Tel: 519-883-3103 Fax: 519-746-4037 melissa-roth@hicksmorley.com Tel: 519-746-0411 Fax: 519-746-4037 Lawyers for the DefendantMARK BRICKELL -and- NIAGARA PENINSULA CONSERVATION AUTHORITY Defendant Court File No. CV-19-00012463-0000_ ONTARIO SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT WELLAND. CAVALLUZZO LLP 474 Bathurst Street, Suite 300 Toronto ON MST 2S6 Stephen J. Moreau, LSO# 48750Q Kaley Duff, LSO# 74986A Tel: 416-964-1115 Fax: 416-964-5895 Lawyers for the Plaintiff 2, Sv * 201g (cess