Pouliot v. AAPS, 2020 BCPC 222

Citation: Pouliot v. AAPS 2020 BCPC 222 Date: 20200727 File No: 1450236 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: HELENE MARIE POULIOT CLAIMANT AND: THE ASSOCIATION OF ADMINISTRATION AND PROFESSIONAL STAFF OF THE UNIVERSITY OF BRITISH COLUMBIA ("AAPS") DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.F. GIARDINI Appearing on her own behalf: H. Pouliot Counsel for the Defendant: C. Janusz Place of Hearing: Vancouver, B.C.

Dates of Hearing: March 28, 29, April 18, June 25, 29, August 14, 21, September 25, 26, November 28, December 10, 12, 2018, January 31, February 1, March 14, June 17, 18, 21, August 20, 21, 22, September 30, October 1, November 28, 29, 2019 Date of Judgment: July 27, 2020 INTRODUCTION

Nature of claim [ 1 ] Ms. Helene Pouliot (“the claimant” or “Ms. Pouliot”) seeks damages of approximately $25,000 from the Association of Administrative and Professional Staff of the University of British Columbia (“the defendant” or “the Association”) arising from her employment with the University of British Columbia (“UBC” or “the university”) and its subsequent termination. At the time of the termination of the claimant’s employment, she was a member of the Association. [ 2 ] Briefly, Ms. Pouliot worked in an ancillary department in the Faculty of Education for a period or periods of time before 2008.

She was not a member of the Association. In early February 2008, she was appointed to a position in that department - Applied Research and Evaluation Services (“ARES”). UBC said that was a term position subject to a probationary period. In early November 2008, UBC terminated Ms. Pouliot’s employment. The Association declined to file a grievance, so eventually Ms. Pouliot filed a claim in the Provincial Court of British Columbia - Small Claims. [ 3 ] The original Notice of Claim filed on October 31, 2014, was served on the Association and a Reply was filed on November 18, 2014.

Subsequently, on January 15, 2016, the claimant filed an application to amend her original Notice of Claim. [ 4 ] In the original Notice of Claim, the claimant maintained the Association had failed to represent her and to protect her rights in a “wrongful dismissal case” with the university. In particular, the claimant asserted that the Association had not taken appropriate measures, if at all, to deal with the following issues:

a) misrepresentation of her length of service at UBC,

b) payment of severance pay for that length of service,

c) UBC management’s harassment of her,

d) timely communications with her by the Association,

e) payment of banked time,

f) payment of vacation time according to employment standards requirements, and

g) failure to file a grievance against UBC on her behalf. Application to amend Notice of Claim [ 5 ] The claimant applied to amend her original Notice of Claim on January 15, 2016. The proposed amendments were the following:

a) that Ms. Pouliot was a party to the two agreements between UBC and the Association;

b) that the Association stood in a fiduciary relationship to Ms. Pouliot;

c) that the Association was Ms. Pouliot’s agent in dealings with UBC;

d) that the Association had a duty of fair representation resulting from the contractual, fiduciary, and/or agency relationship between Ms. Pouliot and the Association;

e) that the Association had an implied duty of good faith and fair dealing with respect to Ms. Pouliot;

f) that Ms. Pouliot was entitled to at least five weeks paid vacation per year but did not receive that during her employment with UBC. Accordingly, the Association’s failure to grieve this issue resulted in Ms. Pouliot being underpaid for vacation pay;

g) that Ms. Pouliot was treated in a harsh and insensitive matter during the course of her employment at UBC. However, the Association failed to grieve such treatment and did not provide representation to Ms. Pouliot in her dealings with UBC;

h) that the Association failed to challenge UBC’s decision to place Ms. Pouliot on probation in February 2008. Ms. Pouliot maintained the Association should have done so because at the time she had over seven years of service with UBC;

i) that the Association failed to challenge UBC’s failure to pay Ms. Pouliot all the time she had in her time bank and accordingly failed in its duty to represent her in that regard;

j) that Ms. Pouliot was not paid vacation pay in accordance with ACTE and thereby the Association failed in its duty to represent her when it did not grieve that issue;

k) that the Association, in failing to challenge Ms. Pouliot’s dismissal by UBC, failed in its duty to represent her because her dismissal was without reasonable notice or pay in lieu of notice; and

l) in the alternative, that the Association failed to grieve to claim compensation for Ms. Pouliot’s entire fixed term contract under which she was employed by UBC and thereby failed to represent her. [ 6 ] The Association acknowledged it has a common law duty of fair representation to its members. However, the Association opposed the claimant’s application to amend the original Notice of Claim. Its position was that a number of the amendments sought by Ms. Pouliot went beyond clarifying the legal basis for the claim.

In particular, the Association maintained some of the proposed amendments raised new allegations and claims not set out in the original Notice of Claim. Further, the Association maintained some of

the proposed amendments raised new causes of action not contemplated in the original Notice of Claim. Additionally, the new causes of actions and allegations were being added after the expiration of the limitation period. Moreover, the Association said some of the proposed amendments had no reasonable prospect of success. [ 7 ] In a ruling dated August 25, 2017, Pouliot v. Association of Administrative and Professional Staff of the University of British Columbia , 2017 BCPC 275 (the “Amendment Ruling”), I dismissed Ms.

Pouliot’s application to amend her original Notice of Claim to include a claim regarding the probationary period set out in UBC ’s letter of February 1, 2008.

I also dismissed the claimant’s application to amend her original Notice of Claim to include claims based on alleged breaches of the Association’s fiduciary duty, an agency relationship or an implied duty of good faith and fair dealing. [ 8 ] However, a number of disputed issues raised in the claimant’s application to amend were, with the agreement of the parties and at the suggestion of the Association, put over to be addressed at the trial of this matter rather than dealt with on the pre-trial amendment application. Those issues were:

a) the claimant’s assertion that she is a party to the ACTE and Framework Agreement,

b) the claimant’s assertion that she was entitled to vacation pay which arose from employment with UBC before February 2008,

c) the claimant’s assertion that she did not receive the appropriate pay in lieu of notice upon the termination of her employment in November 2008, and

d) the claimant’s request for aggravated and/or punitive damages. This is set out in paragraphs 24 to 26 inclusive of the Amendment Ruling. The parties did not pursue or make submissions on item (

a) above. Therefore, I have not addressed that point in this decision. THE ISSUES [ 9 ] The overarching issue to be decided is whether the Association breached its duty of fair representation. Below I set out the other issues identified by the parties. I have numbered the issues in the manner identified by the Association. I did this for ease of reference only. Issue 1 – – Did the Association improperly fail or refuse to grieve Ms. Pouliot’s termination? Issue 2 – – Did the Association improperly fail to grieve the pay in lieu of notice given to Ms. Pouliot by UBC?

Issue 3 – – Did the Association improperly fail to grieve any unpaid banked time existing on the date Ms. Pouliot was terminated? Issue 4 – – Did the Association improperly fail to grieve vacation pay owing to Ms. Pouliot on the date she was terminated? Issue 5 – – Did the Association fail to grieve and/or assist Ms. Pouliot regarding harassment by representatives of UBC? Issue 6 – – Did the Association wrongly tell Ms. Pouliot she would get her job back if she provided a report to UBC’s Internal Audit? Issue 7 – – Is Ms. Pouliot entitled to aggravated damages due to the actions of the Association and/or Ms.

Cory? Issue 8 – – Is Ms. Pouliot entitled to punitive damages for the Association’s alleged breach of duty of fair representation? BACKGROUND Individuals and organizations involved in this matter [ 10 ] By way of background and to place matters in context I have identified the individuals and organizations involved in this matter. Ms. Pouliot [ 11 ] The claimant worked in ARES at UBC for a number of years. The precise period of time she worked at UBC before February 1, 2008, and the nature of her employment during that period, are matters about which the Association and Ms. Pouliot do not agree.

However, the claimant maintains she began working on an as needed basis in the fall of 2000 and between 2002 and February 2008, she was basically working full-time in ARES. [ 12 ] By letter dated February 1, 2008, UBC offered Ms. Pouliot the position of Test Item Reviewer/Marker in ARES. The position was described as being in the “Educational Programming Family”. The position was for a “definite term ending on 2009 January 31”. It was subject to a probationary period of 12 months during which time Ms. Pouliot’s suitability for the position would be assessed.

That letter set out that as a condition of employment Ms. Pouliot was required to become a member of the Association and her terms of employment were reflected in the ACTE and the Framework Agreement. Ms. Pouliot signed her acceptance of the terms outlined in that letter on February 4, 2008. [ 13 ] On November 10, 2008, Dr. Marshall, Executive Director of ARES, advised Ms. Pouliot that her employment with UBC was terminated effective immediately “due to lack of suitability for this position”. Ms. Pouliot was offered a period of salary continuance from November 10, 2008, through to November 21, 2008.

This too is a matter in dispute because Ms. Pouliot said she only received one- week severance pay. In that letter it was noted that: “Your pay will include vacation pay, sick pay, any statutory notice or severance pay or any other pay which may be available to you.” UBC

[ 14 ] UBC is not a party to these proceedings. At one point, Ms. Pouliot wanted to add UBC as a party. However, on November 26, 2015, that application was adjourned generally and subsequently was not pursued. [ 15 ] UBC has a large campus in the Lower Mainland of Vancouver. One of the faculties at UBC is the Faculty of Education. Within or attached to the Faculty of Education was the department of Applied Research and Evaluation Services. Several documents issued by UBC and filed at trial referred to ARES as a department.

However, the position of ARES within the UBC organizational framework was not entirely clear. Nevertheless, for purposes of arriving at a decision on this matter, that is not a specific point which needs to be determined. [ 16 ] ARES, during the relevant period pertaining to issues in dispute, developed and administered tests of English competency among other things. The tests so developed assessed speaking, listening, reading, and writing skills. The tests were used by educational institutions, professional associations, and Citizenship and Immigration Canada. [ 17 ] In 2008, Dr.

Michael Marshall was the Executive Director of ARES; Ms. Joyce Chorney was the Assistant Director, Examinations; and Mr. Alban Goulden was the Head Marker. The Association [ 18 ] The Association is not a trade union as defined under the Labour Relations Code of British Columbia. It is not certified to represent a bargaining unit as provided under that Code . However, it is an incorporated society that has been voluntarily recognized by UBC as the representative for administrative and professional staff at UBC. [ 19 ] Joey Hansen, the current Executive Director of the Association, presented evidence at trial.

The Association was founded in 1977 by members of the administrative and professional staff group at UBC to provide social and other networking activities. It began to present concerns of its members to UBC through regular liaison meetings. In 1987, when UBC unilaterally imposed changes to the terms and conditions of employment, the focus of the Association began to evolve with the objective of negotiating terms and conditions of employment for its members. It obtained a mandate to pursue that objective through a voluntary agreement with UBC.

In the spring of 1995, the Association negotiated a Framework Agreement, which set out the relationship between the Association and UBC. The purpose of that agreement was to establish a framework for discussing and formally negotiating the terms and conditions of employment of management and professional staff pursuant to their shared vision with UBC. [ 20 ] Since 1995 the Association and UBC have entered into agreements respecting the terms and conditions of employment of those UBC employees who are members of the Association. At the relevant time, there were two agreements between the Association and UBC.

One was the Agreement on Conditions and Terms of Employment (“ACTE”) for the period of July 1, 2005 to June 30, 2010. The other was the Framework Agreement dated March 3, 1995 and amended December 1, 2000. [ 21 ] Mr. Hansen was not the Association’s executive director in 2008 so he had no direct knowledge of Ms. Pouliot’s circumstances and no involvement in decisions made by the Association in 2008. I have considered his testimony but have not summarized it in these reasons.

However, several of his observations about the nature of the Association vis-a-vis a union certified under the Code provide useful context. [ 22 ] Mr. Hansen explained that a significant number of the Association’s members (possibly one-quarter to one-half) have some management responsibilities and therefore would never be able to unionize under the Code . Accordingly, the Association does not have access and is not covered by some of the basic terms of the Code . For example, the Association and its members do not have the right to strike. UBC does not have the right to lock out.

As well, the Association and its members do not enjoy the protection provided by the “just cause” provisions of the Code . Therefore, a member of the Association does not have the right to re-instatement that is provided to unionized employees under the Code . Additionally, either the Association or UBC may terminate the voluntary agreement by giving six months written notice to the other party. Witnesses called [ 23 ] The claimant, Helene Pouliot testified on her own behalf.

She also called three witnesses, namely, Lindi Frost who was the UBC Employee Relations Manager at the time, Susanne Schmiesing who was the Director of Finance and Administration for the Faculty of Education at the time, and Johann Boulter who was the Associate Director of Internal Audit at UBC at the time. [ 24 ] The Association called Sharon Cory, the Member Services Officer for the Association, Dr. Michael Marshall, the Executive Director for ARES, Bernice Urbaniak the President and acting Executive Director of the Association in 2008 and Joey Hansen the current Executive Director of the Association.

The hearing [ 25 ] The trial of this matter took a long time to complete. Evidence was heard over 18 days between March 28, 2018, and June 21, 2019. Ms. Pouliot called three witnesses and gave evidence herself. The employer called four witnesses. The parties made final submissions over the course of 7 days between August 20, 2019, and November 29, 2019. I mention this to provide context about the trial process and not to point fingers or blame anyone for the length of time it took to complete this matter.

SUMMARY OF EVIDENCE – MAINLY OF MS. POULIOT AND MS. CORY Ms. Pouliot’s early work at UBC [ 26 ] Ms. Pouliot testified that in late October 2000 she received a telephone call from Alban Goulden, who at the time was head marker in ARES. He asked whether she was interested in marking Language Proficiency Index (LPI) papers as part of a marking committee. Ms. Pouliot was interested and began working at ARES on November 1, 2000. She was called to mark LPI papers on an as needed basis. She did so about eight days a month at that time.

[ 27 ] According to Ms. Pouliot, in the spring of 2001 Mr. Goulden and the manager of ARES approached her to see if she was interested in becoming the deputy head marker of the marking committee. That position involved editing some of the tests to be given to candidates, assisting in the production of the test booklets, and so on. Ms. Pouliot said from mid-2001 onward she generally worked every day. If she was not marking tests, she was working in the office editing forms, coming up with items, generating ideas, and doing general office work. [ 28 ] Ms.

Pouliot said that sometime in 2002, she was contacted at home by the Canada Revenue Agency. She was told that she owed payments for CPP contributions. This request came at about the same time that ARES was in “a kerfuffle” because the Canada Revenue Agency had decided that the markers in ARES were employees. Ms. Pouliot said ARES was “fined” by the Canada Revenue Agency because ARES had too many people working who were not properly identified as employees. [ 29 ] Between 2003 and 2008 inclusive, Ms. Pouliot said she was essentially a full-time employee at ARES.

She believed she probably worked more than a full-time employee. There were no meaningful breaks in her employment. She put into evidence a record of her hire and termination dates. Ms. Pouliot said there might have been times when there were two weeks when she was away from work. However, she would have been paid banked time (as opposed vacation time) presumably based on other hours worked. Ms. Pouliot said she did not receive any records of employment between 2003 and February 2008. Ms. Pouliot was paid by UBC by direct deposits. [ 30 ] Ms.

Pouliot testified that a memo dated January 25, 2008, from UBC Financial Services was the only “appointment memo” she received. Ms. Pouliot received that memo just before her job at ARES was designated “as permanent” in early 2008. However, when Ms. Pouliot later inquired she found out from the financial clerk that these type of memos were issued all the time. The clerk intercepted them and put them on Ms. Pouliot’s employment file. Ms. Pouliot had no idea that her job would be terminated at 5 o’clock one day and then restarted the next morning. [ 31 ] At trial, Ms.

Pouliot filed an undated and unlabelled document called “salary history”. She obtained this from her employee file. It consisted of a number of columns across the top. Those columns indicated date of change, action, reason, date processed, business title, and department. For the period of 08/17/2002 until 12/05/2002 her business title was shown as “casual marker”. Thereafter from 03/01/2003 to 01/01/2008 her business title was shown as “LPI Marker”. Throughout that whole period the department is shown as ARES.

Throughout that period, the “action” and “reason” columns indicated there were regular rehires and terminations. The reason typically given was end of job. Sometimes the dates of termination and the dates of rehire were separated only by a few days. Other times it was for longer periods of time. Offer letter February 1, 2008, Test Item Reviewer/Marker [ 32 ] On February 1, 2008, UBC confirmed its offer of a position of Test Item Reviewer/Marker in ARES. That position was effective February 1, 2008, to January 31, 2009. The letter stated that while Ms.

Pouliot’s appointment was for a “definite term ending on 2009 January 31”, her employment was subject to a 12 month probationary period during which her “suitability” for the position would be determined. The offer letter stated that during her probationary period she could expect to have performance evaluations. Moreover, during the probationary period either Ms. Pouliot or the University could terminate the employment relationship “with notice in accordance with the Employment Standards Act .” [ 33 ] The February 1 st letter noted that as a condition of employment Ms.

Pouliot was required to become a member of the Association and her terms of employment were as reflected in the Association’s agreements with UBC. Ms. Pouliot signed the letter indicating her acceptance of the terms outlined therein on February 4, 2008. [ 34 ] At trial, Ms. Pouliot filed as an exhibit a document from UBC dated 2008 – 01 – 25. It was on UBC letterhead from Financial Services (referred to earlier as an “appointment memo”). It identified Ms. Pouliot, the Faculty of Education and ARES. It showed Ms. Pouliot’s title as LPI marker. The effective date was 2008 – 01 – 01 to 2008 – 01 – 31.

The salary was shown as $34.10 per hour. The note referred to her “appointment” having been approved. It further stated that the appointment was funded, at least in part, from funds external to the university’s general-purpose operating budget and could only be continued as long as those funds were available. [ 35 ] Ms. Pouliot maintained that on February 1, 2008, she was given a permanent position in ARES. On February 1, 2008, Ms. Chorney sent out an email to all staff regarding Ms. Pouliot’s new position. In that email Ms. Chorney wrote that Ms.

Pouliot, “has joined ARES as a full-time employee in the position of Test Item Review/Marker.” Ms. Chorney also noted that Ms. Pouliot had been and would continue to be involved in test item construction, review, marking, and LPI reviews. Ms. Pouliot relied on this email and testified the only change from her prior role was that now she was a member of the Association. [ 36 ] In cross-examination, Ms. Pouliot explained she believed the position was permanent.

She received an explanation from one of her colleagues, who was a clerk, that term positions were where UBC put individuals who worked in positions that needed to have funding approved. Ms. Pouliot understood that such positions would be automatically renewed on a yearly basis, subject to funding being available. Ms. Pouliot acknowledged she did not speak to anyone at the Association about this; neither did she speak to anyone at UBC’s human resources department. [ 37 ] Ms. Pouliot acknowledged that the February 1 st offer letter provided a start date and an end date.

She also acknowledged that nowhere in the offer letter was there anything that confirmed this was a permanent position. Ms. Pouliot said she did not review the Association’s collective agreement (ACTE) at the time. She believed she did not review it until after she had been dismissed. However, in her mind, anyone who was receiving benefits at UBC was an employee who she would consider to be in a permanent position. Ms. Pouliot’s early interactions with the Association [ 38 ] Ms. Pouliot had interactions with and sought assistance from the Association. She primarily dealt with Ms.

Sharon Cory the Member Services Officer for the Association. The evidence regarding the nature and substance of those interactions was largely based on Ms. Pouliot’s recollection and was supplemented by notes from her Association file, which Ms. Pouliot obtained through a freedom of information request. It was also supplemented by various emails and responses thereto between Ms. Cory and Ms. Pouliot as well as

others in the workplace. [ 39 ] The initial contact between Ms. Pouliot and Ms. Cory appeared to have been on April 16, 2008. Notes, which Ms. Cory identified as being in her handwriting, indicated a possible concern about employee status longer than identified on the offer letter and that Ms. Pouliot was looking to buy back “pension service”. There were only two pages of notes. It was not clear from the notes or the evidence at trial whether these notes were the complete record of that interaction. [ 40 ] It appeared there was further contact with the Association in late May or early June 2008.

A document was filed as an exhibit, which appeared to be a memo addressed to Dr. Marshall and Ms. Chorney. It referred to what is clearly an evaluation report and to a meeting that took place on June 2 nd . Ms. Pouliot was seeking clarification of various comments made in an evaluation document she had been given. [ 41 ] On June 13, 2008, a set of notes identified as being in Ms. Cory’s handwriting, identified three points: payroll issue – actual service time, evaluation issue, benefits pension materials/when can she join. In this regard, there was also an undated draft email from Ms. Cory to Dr.

Marshall regarding what appeared to be “some discrepancies”. Ms. Cory raised issues about the time Ms. Pouliot had been in the position and her status as a university employee. There was also the pension issue, which was being followed up on with pensions. It was not clear on the evidence whether this email was ever sent. However, Ms. Cory testified she believed that, at some point, she received information that Ms. Pouliot was not eligible for a pension buy-back. Evaluation report and assistance from the Association [ 42 ] Documents submitted by Ms. Pouliot and the Association and testimony from Ms.

Pouliot and Ms. Cory established that Ms. Pouliot sought Ms. Cory’s assistance in relation to an evaluation report for the period of February 7, 2008, to May 29, 2008. Ms. Pouliot acknowledged she asked Ms. Cory to help her regarding the evaluation report she had received. She felt some of the statements contained in the report were not correct. Ms. Pouliot received the evaluation report at a meeting with Ms. Chorney and Dr. Marshall held on June 2, 2008. Following that meeting, Ms. Pouliot spoke with Ms. Cory on June 3, 2008. [ 43 ] In early July 2008, Ms. Pouliot continued to deal with the evaluation report.

On July 7, 2008, Ms. Pouliot met with Dr. Marshall and Ms. Chorney. At that meeting, she reviewed prepared notes regarding concerns she had with the original evaluation report. On July 9, 2008, Ms. Cory and Ms. Pouliot discussed the performance review. Ms. Pouliot sent an email to Ms. Cory on July 10, 2008, going over the discussion and the points she had raised with management. Handwritten notes made by Ms. Cory indicated that Ms. Pouliot met with Dr. Marshall and Ms. Chorney. On July 10, 2008, Ms. Cory was waiting to hear back from Ms. Pouliot. Another handwritten note made by Ms.

Cory on July 14, 2008, noted Ms. Pouliot had called. [ 44 ] Ms. Pouliot signed an evaluation report in July 2008. Regrettably, the evaluation report filed as an exhibit did not clearly show the date that it was signed. It appeared to have been signed July 10, 2008. Although Ms. Pouliot signed off on the evaluation, she noted she did not agree with the assessment. [ 45 ] Ms. Cory acknowledged at trial that she assisted Ms. Pouliot regarding a performance evaluation prepared by Ms. Chorney. Ms. Cory said she received a call from Ms. Pouliot about the evaluation she had received. Ms.

Pouliot felt there were areas of discrepancy. Further, Ms. Pouliot felt she was not given credit for the good work she was doing. [ 46 ] Ms. Cory testified that under the terms of ACTE, the Association is not entitled to participate in meetings where evaluations are discussed by UBC management and an Association member. She also testified that performance evaluations are not grievable under ACTE. However, Ms. Cory said the Association could provide assistance to a member who was not satisfied with his/her evaluation report.

That assistance included reviewing the evaluation report with the member, identifying what the issues in question are, and answering questions from the member. The Association could also help the member in identifying and responding to areas of concern. [ 47 ] Ms. Cory testified that Ms. Pouliot provided her with a copy of the original evaluation report Ms. Pouliot received from Ms. Chorney. It was not clear when Ms. Cory received that document and whether she met personally with Ms. Pouliot or discussed the evaluation over the phone. However, Ms. Corey spent time with Ms.

Pouliot reviewing the evaluation and assisting her regarding a response. Ms. Cory identified one page of handwritten notes dated June 3, 2008. Those notes indicated that “Joyce” and “Mike” were present at the evaluation. There was a note in quotations, “if the manure hits the proverbial rollerblades we will pull this out”. During the course of the trial, Ms. Pouliot attributed this to Dr. Marshall. In Ms. Cory’s notes, there also was a notation that “professionalism” was discussed in 14 different places. There was also the notation, “ready to whistleblow”.

There was a separate notation that the marker seniority list was changed and that Alban changed the seniority list. [ 48 ] An email sent from Ms. Pouliot to Ms. Cory on July 10, 2008, indicated that Ms. Pouliot met with Ms. Chorney and Dr. Marshall on July 7 th to discuss the evaluation report. However, before the July 10, 2008, review with management, Ms. Cory had spoken to Ms. Pouliot on July 9, 2008. The discussion was an update on the performance review discussion. Ms. Cory’s handwritten notes of that discussion noted a number of things including that Ms. Cory was going to review the document and assist Ms.

Pouliot with a response. [ 49 ] Another point that was raised during the discussion on July 9, 2008, was that Ms. Chorney had wanted to set up a meeting with Mr. Goulden and Ms. Pouliot. Ms. Pouliot wanted to have an Association representative with her. Ms. Cory had agreed to attend because Mr. Goulden was a consultant and not an employee. However, it was noted they ought to wait to see if such a meeting was scheduled. A copy of the revised evaluation report was sent to Ms. Cory. It appeared to have been faxed on the same day, July 9, 2008. Ms.

Cory identified handwritten notes on that copy of the evaluation report as her handwriting. [ 50 ] Ms. Cory also identified handwritten notes dated July 10, 2008, which indicated that Ms. Cory and Ms. Pouliot met to go over the revised evaluation report and “crafted” a new document. Ms. Pouliot was scheduled to meet with Ms. Chorney and Dr. Marshall that same day. It was not clear what time of day the meeting between Ms. Cory and Ms. Pouliot took place. However, on the morning of July 10, 2008, Ms. Pouliot sent Ms. Cory a detailed email setting out notes about the July 7, 2008, meeting that she had had with Dr.

Marshall and Ms. Chorney.

[ 51 ] The meeting between Ms. Pouliot, Dr. Marshall and Ms. Chorney to discuss the evaluation took place on July 10, 2008. It was confirmed in a note written by Ms. Cory dated July 14, 2008. Ms. Pouliot called Ms. Cory and told her the meeting was fine. Ms. Pouliot had some concerns but signed the evaluation, however, she did not agree with it. In that note, Ms. Cory wrote that Ms. Pouliot was not sure what would happen now. Ms. Pouliot was leaving for vacation and would be back on August 19, 2008. Ms. Cory wrote a sidebar note that she would review how to get Ms. Pouliot signed on for pension. [ 52 ] Ms.

Cory testified that throughout this process of evaluation Ms. Pouliot kept her advised. Ms. Cory and Ms. Pouliot met to go over the evaluation and they prepared a response to the points made in the evaluation report. Ms. Cory said, in the course of discussions she had with Ms. Pouliot about the evaluation report, she suggested options to Ms. Pouliot and things to think about as Ms. Pouliot went ahead with the evaluation review. [ 53 ] Ms. Cory was asked by Association counsel to review the final evaluation signed by Ms. Pouliot and to give her opinion about how she characterized it. Ms.

Cory said, in her view, the evaluation report was not a good review. She said there were a number of items in the various categories covered by the evaluation report that raised concerns or shortfalls. Ms. Cory also noted that the narrative in the evaluation report had been changed so that both parties could be somewhat in agreement. Nevertheless, the employer had continued to list areas in the evaluation report where there had been no growth and areas where there were still concerns. [ 54 ] Ms. Cory believed she had provided Ms. Pouliot with a lot of support. Ms.

Pouliot was concerned that she was not being treated fairly. Therefore, Ms. Pouliot wanted assistance so she did not miss anything along the way. Ms. Cory said the Association assists probationary employees with probationary evaluations. However, the amount of time she spent on Ms. Pouliot’s evaluation was considerable. [ 55 ] Ms. Cory acknowledged that the final evaluation report signed by Ms. Pouliot was not grievable. She said that in most cases an employee is not terminated for a poor performance review. Ms.

Cory said, when there is a poor performance review, the employer usually monitors and reassesses the employee. The employer provides support to help the employee improve his/her performance. Ms. Cory could not recall any case where an employee had been terminated on the basis of a poor performance review. Ms. Cory also could not recall a case where the employer had specifically pointed to a poor performance review in an attempt to justify termination for lack of suitability. She said UBC did not usually set out the specific reasons it relied on for lack of suitability terminations.

Events in late summer/early fall 2008 [ 56 ] Ms. Pouliot returned from her vacation on or about August 19, 2008. She was asked to call together a marking committee for a marking session on or around August 25, 2008. [ 57 ] Ms. Pouliot was also directly involved in marking on the September 2008 long weekend. She made inquiries about whether markers would be paid for marking on a statutory holiday. Ms. Chorney clarified the policy in that regard. Ms. Chorney gave Ms. Pouliot permission to mark on the Sunday. On the holiday Monday, September 1, 2008, Ms. Pouliot received a call at home from Mr. Goulden. Ms.

Pouliot said that Mr. Goulden phoned her to tell her that there had been a complaint about her from one of the markers. [ 58 ] Ms. Pouliot said that on or about September 2, 2008, she had a telephone conversation with Ms. Cory. Her recollection was that Ms. Cory had a conversation with Ms. Schmiesing in which it was indicated that Ms. Pouliot’s supervisor (Ms. Chorney) had a problem with Ms. Pouliot. As a result, Ms. Cory set up a meeting with Ms. Schmiesing. [ 59 ] On September 2, 2008, Ms. Chorney sent an email to Ms. Pouliot and another employee in ARES. It was part of an email chain going back to the summer.

In that email, Ms. Chorney addressed the situation of two brothers who had taken private LPI sittings. Those two brothers did not get their level V scores and it appeared Mr. Goulden did not know about it. Ms. Chorney advised Ms. Pouliot and her co-worker that Mr. Goulden needed to be told about these kind of situations and shown the papers. He was the head marker and if there were any challenges to the LPI scores, he would be the one dealing with the individuals who had taken the exams. [ 60 ] Ms. Pouliot and her co-worker met with Ms. Chorney regarding that issue and communications within the office.

They were told that all decisions regarding marking, re-reads, reviews, markers, etc. should be taken to Mr. Goulden. They were also told that Mr. Goulden could direct them regarding these matters and there was no need to obtain Ms. Chorney’s permission. [ 61 ] On September 3, 2008, notes written by Ms. Cory indicated there was a discussion between Ms. Pouliot and Ms. Cory. The notes included a reference to Mr. Goulden telephoning Ms. Pouliot on the evening of September 1, 2008. There was also a note that Ms.

Pouliot was worried, presumably about the tone of the Monday phone call, and the attitude in a marking session on September 2, 2008. There was a further notation that Mr. Goulden was a bully and that Joyce (Chorney) was in his pocket. The September 3, 2008, notes also indicated that Ms. Cory called Ms. Schmiesing and discussed a meeting that was confirmed for the next day. [ 62 ] Ms. Cory testified that Ms. Pouliot had raised concerns with her about her work relationship and interactions with Mr. Goulden and with Ms. Chorney. Ms. Cory referred to her notes of September 3, 2008, and said Ms.

Pouliot was worried about Mr. Goulden’s tone and his attitude in a marking session on September 2, 2008. She also confirmed the comment that Mr. Goulden was a bully and that the supervisor, Ms. Chorney, was in his back pocket. Ms. Cory said as a result of that discussion she called Ms. Schmiesing. Ms. Cory’s recollection is that the meeting with Ms. Schmiesing was set up at Ms. Pouliot’s request. However, Ms. Pouliot’s recollection is that the meeting with Ms. Schmiesing was set up at Ms. Cory’s suggestion. September 4, 2008, meeting with Ms. Schmiesing [ 63 ] In her testimony, Ms.

Pouliot acknowledged she and Ms. Cory attended a meeting with Ms. Schmiesing. Ms. Pouliot’s recollection was that the September 4 th meeting came about because Ms. Schmiesing called Ms. Cory and said that Ms. Chorney had made a comment about Ms. Pouliot. Ms. Schmiesing apparently wanted to know what was going on. As a result, Ms. Cory set up a meeting. [ 64 ] Ms. Pouliot said the September 4, 2008, meeting was approximately an hour and a half long. According to Ms. Pouliot, she had a

wide-ranging discussion with Ms. Schmiesing. The nature of the questions Ms. Schmiesing asked Ms. Pouliot made her uncomfortable because they dealt with what she understood to be other issues and concerns about the operation of ARES. Ms. Pouliot had the distinct impression, because of what was discussed at that meeting, that Ms. Schmiesing wanted to be more involved in what was going on in ARES. Ms. Pouliot said some of the questions Ms. Schmiesing asked her obviously related to information that had been brought forward to Ms. Schmiesing by another employee. [ 65 ] Ms. Pouliot also testified that Ms.

Schmiesing “identified the whistleblower avenue to me” at the meeting of September 4 th . Ms. Pouliot said, because of the discussion she had with Ms. Schmiesing that day, she left the meeting convinced that she was a whistleblower. It was Ms. Pouliot’s understanding that Ms. Schmiesing wanted her to provide information about ARES. This included approaching other colleagues to encourage them and ask them to speak to Ms. Schmiesing about what was going on in the department and their concerns about some of the matters identified by another employee. [ 66 ] In her testimony, Ms.

Pouliot referred to the handwritten notes made by Ms. Cory about the September 4, 2008, meeting. Ms. Pouliot testified she received those notes through a freedom of information request she made. Ms. Pouliot was not certain if all of the notes pertaining to that meeting were provided. Moreover, she questioned whether some of the notes might have been redacted. [ 67 ] Ms. Pouliot testified she was supposed to have a meeting with her supervisor but that meeting was delayed. It was Ms. Pouliot’s understanding the meeting was delayed so that Ms.

Schmiesing could participate in team-building meetings between her and Ms. Chorney. [ 68 ] Ms. Cory testified she attended the meeting of September 4, 2008, with Ms. Schmiesing and Ms. Pouliot. At that meeting, Ms. Pouliot provided information to Ms. Schmiesing about her work at ARES and her concerns. Ms. Cory’s recollection of that meeting was based on her handwritten notes. During that meeting, Ms. Pouliot informed Ms. Schmiesing of a number of things that were happening in ARES. Ms. Pouliot raised a number of issues regarding Mr. Goulden, including that he wanted everything to go through him and that Ms.

Chorney let Mr. Goulden “do all”. Ms. Cory testified she did not recall Ms. Pouliot discussing anything to do with financial improprieties in ARES during that meeting. There was nothing in her notes of that meeting in that regard. It appeared that at the meeting of September 4, 2008, an issue may also have been raised by Ms. Pouliot about Ms. Chorney’s competence. Ms. Pouliot told Ms. Schmiesing that she felt Dr. Marshall knew that Ms. Chorney was not capable. [ 69 ] The Association’s counsel asked Ms. Cory why Ms. Pouliot would have raised concerns about Mr. Goulden with Ms. Schmiesing. At first, Ms.

Cory said she did not recall. However, after looking at her notes of September 3, 2008, she said that Ms. Pouliot wanted to meet with Ms. Schmiesing and so Ms. Cory set up the meeting. [ 70 ] On September 5, 2008, Ms. Pouliot sent Ms. Cory two emails, one after the other. They both related to the meeting of September 4 th with Ms. Schmiesing. They were draft emails that Ms. Pouliot proposed to send the Ms. Schmiesing that she was running by Ms. Cory. [ 71 ] On September 8, 2008, Ms. Chorney asked Ms. Pouliot to have a short meeting with her. They had a meeting in the cafeteria.

One of the items they talked about was “professional conduct”. Ms. Chorney told Ms. Pouliot that she should not talk about Mr. Goulden’s tone in front of others. Instead, she should bring it up with Ms. Chorney. Ms. Pouliot wanted to call the Association. However, Ms. Chorney continued. Ms. Chorney told Ms. Pouliot that she should not make comments about having to take direction from someone who was on contract. Ms. Chorney told Ms. Pouliot that such concerns should be brought to her. Ms. Pouliot pointed out that she had done so. Ms. Pouliot apparently told Ms. Chorney she had spoken to her about Mr.

Goulden’s tone several times. Ms. Pouliot asked Ms. Chorney whether she had spoken to Mr. Goulden about Ms. Pouliot’s concerns. Ms. Chorney said she had and suggested that this be brought up with Dr. Marshall. Ms. Pouliot asked to have the Association in attendance at that meeting, which eventually took place on September 25, 2008. Ms. Pouliot sent two notes to Ms. Cory about the meeting with Ms. Chorney that same day, September 8, 2008. [ 72 ] Ms. Cory testified that Ms. Pouliot sent her emails to keep her informed about all actions and interactions Ms. Pouliot had in the department. Ms.

Pouliot wanted to make sure Ms. Cory had everything in case something should happen to her, namely, termination. Ms. Pouliot was looking for assistance. Later in the evening of September 8 th , Ms. Pouliot sent another email to Ms. Cory. She apologized for having called (presumably earlier) in such a panic. Ms. Pouliot was convinced Ms. Chorney was intending to fire her. In that email, Ms. Pouliot set out the background to the particular interaction with Ms. Chorney and Ms. Pouliot’s concerns about Ms. Chorney’s criticism of her. [ 73 ] On September 9, 2008, in the early afternoon Ms. Pouliot sent an email to Ms.

Cory. She wrote that she was a bit concerned. She asked why Patrizia Todaro from human resources would tell Ms. Chorney that Ms. Pouliot could only bring in an Association representative for a disciplinary matter. She wondered whether a termination letter was being prepared for her. Ms. Cory responded to Ms. Pouliot later that afternoon by email. She wrote that a meeting with Dr. Marshall would be an opportunity for Ms. Pouliot to share her concerns about Mr. Goulden’s style. Ms. Cory wrote that she did not know what management was going to do. However, she would try to find out from Ms.

Schmiesing whether she had any indication about what was going on. Ms. Cory said she had not heard anything that suggested information about the meeting with Ms. Schmiesing was “out there”. She told Ms. Pouliot she would be available on Thursday to attend a meeting. [ 74 ] Ms. Cory testified that by sending that response to Ms. Pouliot she was trying to calm her. She made herself available to meet with Ms. Pouliot and agreed to attend the meeting with Ms. Pouliot. Ms.

Cory testified that the kind of meetings the Association believed it could attend and accompany a member were: disciplinary, investigatory, harassment and bullying, and return to work accommodation. September 25, 2008, meeting with management [ 75 ] On September 25, 2008, there was a meeting arising out of concerns/comments Ms. Pouliot had raised with Ms. Chorney in the cafeteria meeting on September 8 th . Present at that meeting were Dr. Marshall the Executive Director of ARES, Ms. Chorney the Assistant Director, Examinations, Patrizia Todaro from human resources, Ms. Schmiesing, as well as Ms. Pouliot and Ms.

Cory.

Ms. Pouliot testified that team-building meetings with Ms. Chorney and Ms. Schmiesing were setup. However, Ms. Pouliot noted that once those meetings were in place Ms. Chorney began to watch her. Ms. Pouliot noted Ms. Chorney would check her watch, even when Ms. Pouliot took washroom breaks. Ms. Chorney also reviewed work done by Ms. Pouliot and so on. [ 76 ] Ms. Cory attended the meeting of September 25, 2008. She relied primarily on her notes. She identified three pages of handwritten notes she had made at that meeting. She was not able to expand on many of the points written in her notes.

Her notes indicated that various issues were discussed. Dr. Marshall indicated he was unaware of issues that had arisen. Ms. Todaro spoke about “trust factor” and the fact that the relationship was strained. It appeared Ms. Todaro noted that a conversation needed to start and then Ms. Chorney could better communicate. Ms. Chorney apparently wanted to be able to have meetings and Ms. Pouliot wanted a safe environment. The notes indicated that Ms. Chorney mentioned a fresh start and that Ms. Schmiesing offered to “scribe”. Future meetings were to take place between Ms. Pouliot and Ms. Chorney with Ms.

Schmiesing in attendance. [ 77 ] Ms. Cory testified about what she meant when she used the term that Ms. Schmiesing offered to “scribe”. Ms. Cory said that a scribe is a person who takes notes. She did not believe that Ms. Schmiesing offered to mediate because mediation usually was provided by third-party mediators. Ms. Cory testified that in preparing and reviewing materials for trial she had seen an email that referred to Ms. Schmiesing as a facilitator. Ms. Cory said her understanding was that the meetings were going to be between Ms. Pouliot, Ms. Chorney and Ms. Schmiesing. As far as Ms.

Cory could recall those meetings took place. Ms. Cory said that in the meetings between Ms. Pouliot, Ms. Chorney and Ms. Schmiesing further issues in the workplace were identified by Ms. Pouliot. Ms. Pouliot sent Ms. Cory emails from time-to-time regarding the work she was assigned. Official complaint from a marker [ 78 ] As previously noted, Mr. Goulden had mentioned to Ms. Pouliot in early September 2008, that a marker had made a complaint. However, it was not until October 2, 2008, that Ms. Chorney gave a copy of the complaint to Ms. Pouliot. The formal complaint was dated September 2, 2008.

The letter was from Ms. Mitchell who stated that she had not been contacted about a marking session that was held on Monday, August 25, 2008. However, another committee member, with less seniority than her, was contacted and given that opportunity to work. Ms. Mitchell claimed she had been bypassed before when Mr. Goulden was on holidays. [ 79 ] When Ms. Chorney gave Ms. Pouliot a copy of the September 2, 2008, letter she told Ms. Pouliot this matter was under an official investigation and Ms. Pouliot was not to speak to any of the markers about it. Ms.

Pouliot detailed the background to the complaint and the exchange she had with Ms. Chorney in an email dated Sunday, October 5, 2008, which she sent to Ms. Cory. In that email, Ms. Pouliot noted Ms. Chorney told Ms. Pouliot she had planned to give her the complaint letter at the meeting of September 25, 2008, but had not wanted to blindside her. In that email, Ms. Pouliot provided background information about Ms. Mitchell’s claim and the complaint. [ 80 ] In that email, Ms. Pouliot set out her opinion about what may have motivated an official complaint, given other practices in the department. Ms.

Pouliot noted the atmosphere in the office was suffering. She noted she was to have a meeting with Ms. Chorney and Ms. Schmiesing about the official investigation at 11 AM on October 6, 2008. On October 6 and 7, 2008, there was an exchange of emails between Ms. Pouliot and Ms. Cory. Ms. Pouliot wondered how far she was willing to go. She explained to Ms. Cory that the situation at work was negatively affecting her health. Ms. Pouliot wrote she did not want to quit her job but given the effect the workplace situation had on her she needed to re-evaluate. Ms. Cory wrote back inquiring what Ms.

Pouliot wanted in terms of putting closure to the situation. In other words, what did Ms. Pouliot expect from the workplace to resolve the issue and what did she see as the issue. [ 81 ] At one point in her testimony, Ms. Pouliot explained she was under a great deal of stress in the fall of 2018. She spoke to Ms. Cory about her situation at work and how stressful it was for her. Ms. Cory suggested Ms. Pouliot might wish to go through the employee family assistance program. Ms. Pouliot did so and as well consulted with her family doctor. Ms. Pouliot said the fall of 2008 was a very difficult time for her.

She was under an enormous amount of stress. In retrospect, she believed that she was not able to make decisions about her own well-being given the stress she was under. [ 82 ] On October 17, 2008, Ms. Cory sent an email to Ms. Schmiesing with the subject title “Complaint Response”. She noted her understanding that Ms. Schmiesing was going to meet with Ms. Chorney and Ms. Pouliot that day. Ms. Cory wrote that she wanted to confirm the Association had concerns about Ms. Pouliot being requested to respond to the complaint made against her (calling markers from a call list). Ms.

Cory noted the concern arose because a consultant (Mr. Goulden) had created the process and asked Ms. Pouliot to use it. Ms. Cory said the Association’s position was that the management team should be responding to any concerns. The implication was it should not be the consultant. [ 83 ] On October 22, 2008, Ms. Pouliot sent an email to Ms. Cory attaching a draft response to the letter of complaint made by Ms. Mitchell. She explained (obviously a reference to a previous discussion) why she felt Ms. Chorney was trying to trap her with this issue. Ms. Pouliot felt Mr. Goulden and Ms. Chorney were targeting her.

It appeared the possibility of going on sick leave might have been discussed with Ms. Cory. In response to that, Ms. Pouliot noted that going on sick leave would only introduce another problem and would give Ms. Chorney an excuse to say Ms. Pouliot was falling behind in her work. [ 84 ] On October 31, 2008, Ms. Chorney sent a formal response to Ms. Mitchell regarding her letter of complaint dated September 2, 2008. A copy was also sent to Ms. Pouliot. In the formal response Ms. Chorney indicated that Ms. Pouliot was confused about the marker call-out protocol and that may have been responsible for Ms.

Mitchell not being contacted for work. Following receipt of that email and letter, Ms. Pouliot wrote back to Ms. Chorney with a copy to Dr. Marshall to set the record straight. Ms. Pouliot wrote that she in no way indicated she was confused. At the trial, Ms. Cory was asked about Ms. Pouliot’s response. She said she thought the response from Ms. Pouliot was “confrontational”. Ms. Pouliot’s work assignments and November 3, 2008 email from Dr. Marshall [ 85 ] In late October 2008, Ms. Pouliot sent Ms. Cory several emails regarding work she had been assigned by Ms. Chorney. On October 28, 2008, Ms.

Cory sent to note to Ms. Schmiesing, with a copy to Dr. Marshall, raising concerns about work being assigned to

Ms. Pouliot. Ms. Cory noted the Association believed there was a demonstration of “mental manipulation” in the practice being conducted by Ms. Chorney and Mr. Goulden. Ms. Cory noted that the meetings between Ms. Chorney and Ms. Pouliot were not scheduled for a while but she was concerned that both Ms. Chorney and Mr. Goulden continued to manipulate “work and involvement”. She also raised concerns that Mr. Goulden, who was a consultant, continued to direct the workforce. [ 86 ] Ms.

Pouliot testified that in the late fall of 2008 she was asked to do repetitive work, for example, she would be given the same document to edit and re-edit. She would make edits and then the document would be given back to her to check the edits. Ms. Pouliot described this as “nonsense work”. In fact, she said the document she was asked to edit was one that was to have been “retired” and not published. Ms. Pouliot felt these work assignments were a form of manipulation and harassment. [ 87 ] On November 3, 2008, Dr. Marshall sent an email to Ms. Cory with copies to Ms. Schmiesing, Ms. Chorney, Mr. Goulden, and Ms.

Pouliot. It was a response to Ms. Cory’s email of October 28 th . In that email Dr. Marshall raised his dissatisfaction with the way the Association had been handling issues raised by Ms. Pouliot, in particular issues regarding her treatment by Mr. Goulden. Dr. Marshall wrote that Ms. Pouliot should have put the complaints in writing but had failed and refused to do so. He also said that nothing had ever been brought to his attention by Ms. Pouliot. In particular, Dr. Marshall wrote that complaints made about Ms. Pouliot’s supervisor, namely, Ms. Chorney should have been made directly to him either by Ms.

Pouliot herself or by the Association. [ 88 ] Dr. Marshall stressed he was the head of the department and he should have been given notice. He appeared to be particularly concerned that some communications had been addressed to Ms. Schmiesing. Dr. Marshall wrote that he would be meeting with Ms. Pouliot and would insist on a full accounting about exactly what the problems were. Dr. Marshall noted that given the allegation of “mental manipulation” and harassment Ms. Cory might wish to acquaint Ms. Pouliot and herself on the laws pertaining to libel and slander. Dr.

Marshall went on to say he was very disappointed with Ms. Cory’s actions and those of Ms. Pouliot and what he viewed as a lack of courtesy and respect shown to him as department head. [ 89 ] On November 3, 2008, Ms. Pouliot sent an email to Ms. Cory about Dr. Marshall’s email. She confirmed her resolve to move forward on this issue. She took offense at Dr. Marshall’s email belittling her concerns. She also took offense at the fact Dr. Marshall reprimanded her for seeking the advice of her professional association. She further took offense at being criticized for what she inferred were making comments about him.

Most of all she took offense at the tone of Dr. Marshall’s email. She said there was no evidence in that email of Dr. Marshall trying to resolve an issue but only of trying to intimidate staff. Ms. Pouliot wrote she had no intention of quitting. Impromptu meeting November 4 and follow-up [ 90 ] On November 4, 2008, Dr. Marshall wanted to meet with Ms. Pouliot. According to Ms. Pouliot, he was quite upset and was intimidating in the meeting. Ms. Cory attended the meeting. Dr. Marshall was very upset that Ms. Cory joined the meeting. He did not want the Association representative there.

At that meeting, there was a brief mention of marking costs. Ms. Cory suggested that Ms. Pouliot could prepare a

summary regarding wastefulness in the marking sessions that ARES was doing. She did so and later sent the

summary to Ms. Chorney. [ 91 ] On November 5, 2008, Ms. Pouliot sent an email to Ms. Cory with a draft email she was planning to send to Ms. Chorney and Dr. Marshall and an attachment regarding marking costs. Ms. Pouliot testified she was seeking some input from Ms. Cory. Ms. Pouliot said she had been in a meeting with Dr. Marshall (she could not remember the day but it likely was November 4 th ). Ms. Pouliot said she asked Ms. Cory to attend that meeting because it had begun to feel very intimidating. Ms. Cory attended the meeting and the discussion continued.

At that meeting, it was brought up that there were some concerns about how the marking was conducted, namely, that it was not cost efficient for the department. Ms. Cory raised that concern. Ms. Cory asked Dr. Marshall, if Ms. Pouliot could come up with something regarding marking costs, would he look at it. Dr. Marshall said he would but he preferred that information to be sent to Ms. Chorney. Accordingly, the email of November 5, 2008, was a draft of what Ms. Pouliot planned to send to Ms. Chorney. She acknowledged there was an attachment (not included in the exhibit) regarding marking costs. [ 92 ] Ms.

Cory testified at trial that she was absolutely astounded by Dr. Marshall’s response in the email of November 3, 2008. She sent a reply email to Dr. Marshall on November 5, 2008. She sent copies to the same people to whom Dr. Marshall had sent his email. Ms. Cory added Ms. Johnston from UBC human resources but removed Mr. Goulden from the list of people who were sent a copy because he was a consultant. In the November 5, 2008, email, Ms. Cory briefly reviewed the history that led to the meetings between Ms. Pouliot, Ms. Chorney, and Ms. Schmiesing. Ms.

Cory noted she had been in the process of responding to the points Dr. Marshall had raised when she was called into an impromptu meeting on the afternoon of November 4, 2008, between Dr. Marshall and Ms. Pouliot. Ms. Cory noted that when she left that meeting, she felt that the intent and content of Dr. Marshall’s email may have been corrected or clarified. [ 93 ] Ms. Cory testified that by sending the reply email she was trying to respect Dr. Marshall’s position, calm down the situation, and have Dr. Marshall understand that the Association had a responsibility to support and protect a member of the Association.

Ms. Cory very briefly addressed a comment made in Dr. Marshall’s email regarding slander/defamation. She said that by doing so she was seeking to defend Ms. Pouliot and herself. [ 94 ] Ms. Pouliot testified that on Thursday, November 6, 2008, Dr. Marshall began interviewing all of her office colleagues, “on the sly”. Her co-workers were directed not to tell her about these interviews. However, one of them told her because that person was very embarrassed by the situation. Ms. Pouliot said she was under considerable strain and called in sick on Friday, November 7, 2008.

She later learned that on the weekend of November 8 th and 9 th Dr. Marshall phoned approximately 12 markers from ARES at home to question them about her. [ 95 ] On Monday, November 10, 2008, (see below) Ms. Pouliot’s employment was terminated. Ms. Pouliot believed her employment was terminated because she expressed concerns about the ARES department. Ms. Pouliot did not believe she was terminated for lack of suitability as stated in UBC ’s letter. Ms. Pouliot pointed to the fact that she had been doing the job for eight years.

Termination letter November 10, 2008 [ 96 ] Ms. Pouliot testified that on November 10, 2008, she was called into a meeting with Dr. Marshall and others. Ms. Pouliot was given a letter signed by Dr. Marshall, which said that her employment at UBC was terminated effective immediately “due to lack of suitability for this position”. The letter set out that the university was prepared to continue her salary from November 10, 2008, through to November 21, 2008. It noted that the offer was beyond the terms set out in ACTE. She was asked to indicate her acceptance by signing the letter and returning it to Ms.

Johnston. [ 97 ] Ms. Pouliot testified that the reference to salary continuation starting on November 10, 2008, led her to believe the plan had been to terminate her on Friday, November 7, 2008. However, she had been off sick that day. Ms. Pouliot expressed concern that Dr. Marshall contacted markers in ARES the previous week to get information about her. She later learned there were also telephone conversations that took place over the weekend. Ms. Pouliot believed Dr. Marshall had been looking for evidence to show that she did not get along with people. Ms.

Pouliot testified it was her belief that her employment was terminated for revealing marking cost discrepancies, but there was an attempt by ARES management to make it look like she was terminated because co-workers had complained about her. That evening, Ms. Pouliot called Ms. Cory to tell her of the termination of her employment. [ 98 ] Ms. Cory testified she did not specifically remember speaking with Ms. Pouliot on November 10, 2008, after Ms. Pouliot had been terminated from her employment. Ms.

Cory accordingly, testified generally about her practice, which included putting the member at ease, reviewing the termination letter, if the termination was for lack of suitability explaining what that meant and so on. [ 99 ] Ms. Cory was referred to handwritten notes, which she identified as her own dated November 10, 2008. Those notes indicated she received a call from Ms. Pouliot at 5:10 PM and was told by Ms. Pouliot that she had been terminated from her employment. Ms. Cory noted that at approximately 6:35 PM that evening she called Ms. Schmiesing at home. Ms. Cory asked Ms.

Schmiesing what was going on and was told that Dr. Marshall had gone to human resources. There was a note which appeared to indicate Ms. Pouliot had been found to be unsuitable – “following $ identification and protocol concerns”. Ms. Cory said she could not recall what she meant by that note and other notations she had made at the time. [ 100 ] Ms. Cory said she did not fully remember what the notations meant. However, Ms. Cory remembered that Ms. Pouliot was very distraught. She said Ms. Pouliot had been distraught a number of times before in meetings and/or during telephone calls. However, Ms.

Cory specifically remembered how distraught Ms. Pouliot was when they spoke on November 10, 2008. Ms. Pouliot wanted time to think about the situation, so they left it at that. It was after that discussion that Ms. Cory called Ms. Schmiesing at home. Ms. Cory acknowledged she believed she reviewed the letter of November 10, 2008, that had been given to Ms. Pouliot but she could not say so for certain. [ 101 ] On the evening of November 13, 2008, Ms. Pouliot received an email sent out earlier that day by Dr. Marshall to a number of her co-workers in the ARES department. Dr.

Marshall thanked them for the information they had provided when he interviewed them. He acknowledged that for some the questions he asked were difficult questions. He also asked Mr. Goulden to thank other individuals for whom he did not have an email address. Whistleblower/harassment issues [ 102 ] On November 14, 2008, Ms. Pouliot wrote an email to Ms. Boulter at internal audit. The email was titled “whistleblower requirements” in that email Ms. Pouliot introduced herself, noting that she believed Ms. Cory had spoken to Ms. Boulter about Ms. Pouliot coming forward with some information. Ms.

Pouliot testified that this email showed Ms. Cory was involved in Ms. Pouliot’s decision to go to internal audit. It also showed that Ms. Pouliot did not know what information she was supposed to provide. Ms. Pouliot testified that at a later date she prepared and provided to Ms. Boulter in internal audit a detailed document outlining various concerns relating to ARES. [ 103 ] Both Ms. Cory and Ms. Pouliot confirmed that Ms. Cory sat down with Ms. Pouliot at some point and provided an outline of the matters she should discuss in the document she was going to send to internal audit. [ 104 ] Ms.

Boulter, who in 2008 was the Associate Director of Internal Audit, testified she did not recall the email of November 14, 2008, referred to by Ms. Pouliot. However, she could not deny receiving it. Ms. Boulter also testified that internal audit did an investigation of ARES. However, she could not recall the specifics. She did not recall receiving a report prepared by Ms. Pouliot. She thought the timeframe of the investigation was in approximately December 2008 but she could not recall the exact date. [ 105 ] On November 17, 2008, there were a series of emails between Ms. Pouliot and Ms. Cory.

The heading was “Harassment Complaint”. Ms. Pouliot said she sent an email to Ms. Cory on the morning of November 17 th . She had many questions and was not getting any answers. She was confused about why she could not go forward to the Dean of Education with a harassment complaint against Dr. Marshall, Ms. Chorney, and Mr. Goulden. She referred to what she understood had happened, namely, that Dr. Marshall had interviewed some of her colleagues both in the office and on the weekend. It was described by some as a “witch hunt”. That is what Ms. Pouliot thought it was.

She felt that behaviour definitely fell within the parameters of the Respectful Environment Statement issued by UBC. [ 106 ] Ms. Pouliot noted in her email that her co-workers were told by Dr. Marshall that what they said to him would never be associated with them. Ms. Pouliot believed Dr. Marshall was using what he had learned in those interviews as a basis for finding her “unsuitable”. Ms. Pouliot was of the view that Dr. Marshall’s behaviour went well beyond hounding and definitely showed a lack of respect for UBC’s policies and her rights to a safe workplace. She ended the email by asking Ms.

Cory to “pass this matter forward as an official complaint”. [ 107 ] Ms. Cory responded later that morning. Ms. Cory noted she had learned Ms. Pouliot had not been able to speak to internal audit. She suggested that Ms. Pouliot keep trying. Ms. Cory also said Ms. Pouliot could go to someone else in the department if she was not able to contact or hear back from the original person. Ms. Cory also noted that the Equity Office was available to Ms. Pouliot regarding

harassment complaints. She specifically noted, “This is the office where official complaints are put forward. The Equity office will be able to counsel you regarding a harassment complaint against the Dean.” [ 108 ] Ms. Pouliot wrote back almost immediately and explained she was not seeking to file a complaint against the Dean. However, she felt the way Dr. Marshall and Ms. Chorney had hounded her was precisely what was covered by the Respectful Environmental Statement from the university president.

She noted that did not fall under the 13 categories of harassment under Equity (the grounds under the Human Rights Code ). She said that apparently UBC did not want to see what was going on. Ms. Pouliot asked whether the Dean should be advised of this, particularly since others had brought forward similar complaints. [ 109 ] Ms. Cory responded to Ms. Pouliot and sent copies to two members of the Association executive. She wrote she understood but noted that if Ms. Pouliot had not spoken to the Equity Office perhaps it was something she should do. Ms. Cory wrote it would be good for Ms.

Pouliot to have a full understanding of the processes in this arena at UBC. She further wrote that Ms. Pouliot would probably have a better understanding following a discussion with the Equity Office about where she would like to address the respectful workplace concerns. [ 110 ] Ms. Cory testified about the email exchange with Ms. Pouliot. She said that in September 2008 Ms. Pouliot had raised the matter of harassment by her manager Ms. Chorney. At that time, Ms. Cory said all parties agreed, following a meeting with management, that Ms. Schmiesing would meet with Ms. Chorney and Ms. Pouliot.

The purpose of those meetings was to work through those issues and why Ms. Pouliot felt she was being harassed. She said the matter, initially, had not gone forward as a harassment complaint. That was because a different process was agreed to by the parties, i.e. team-building meetings between Ms. Chorney and Ms. Pouliot that involved Ms. Schmiesing. [ 111 ] After the termination of Ms. Pouliot’s employment, Ms. Cory explained she did not directly assist Ms. Pouliot to bring a complaint under the Respectful Environment Statement. Ms.

Cory said she had spoken to the Association’s legal counsel who had considered the circumstances and told her that there was no further action and no grievance could be had. [ 112 ] Ms. Cory also testified that although the Association could be a resource for members who wanted to file respectful workplace complaints, the Association itself could not file a grievance. A complaint would need to be filed by the individual member. She explained that the Association could not file a grievance because the subject matter was not covered by the collective agreement.

The respectful environment policy was a university policy and not part of the terms bargained by the Association. Ms. Cory concluded that the issues raised by Ms. Pouliot regarding her workplace interactions did not fall under any of the 13 protected grounds covered by the Human Rights Code . [ 113 ] Ms. Cory thought it would be useful for Ms. Pouliot to go to the Equity Office. Ms. Cory did not know whether the Equity Office would pursue a complaint on Ms. Pouliot’s behalf. However, she pointed out that was an option available to her. Ms. Cory also said she referred Ms.

Pouliot to the Equity Office in her email of November 17 th , because she had not been able to get Ms. Pouliot to “hear” what she was telling her. Ms. Cory thought that if someone else explained the options that were available to Ms. Pouliot and what the outcome might be, Ms. Pouliot might listen. [ 114 ] On the morning of November 17, 2008, during the period that Ms. Cory was communicating with Ms. Pouliot, she also sent an email to Anne Marie Fenger and Bernice Urbaniak who were on the Association’s board. In that email, Ms. Cory advised them that Ms. Pouliot’s situation was one of termination. She noted Ms.

Pouliot had tried to identify items that were occurring in the department. Ms. Pouliot had noted from the beginning that she was afraid she would be terminated. Ms. Cory wrote that at one point Ms. Schmiesing had identified the whistleblower avenue to Ms. Pouliot. Ms. Cory further noted that although Ms. Pouliot was terminated for “unsuitability” Ms. Cory was not certain whether the background of information in the department is what got Ms. Pouliot terminated. [ 115 ] In that email, Ms. Cory noted that being terminated was devastating. She said the Association would continue to address all legal aspects.

She wrote she had Mr. Laughton looking at/reviewing the termination. She noted that Ms. Pouliot was constantly bringing forward questions, thoughts and concerns. Ms. Cory wrote she would continue to direct Ms. Pouliot to the appropriate areas. Ms. Cory was placing the issue on the agenda for the joint Labour and Advocacy Committee that was meeting that day so that she and Ms. Fenger could get a better understanding of the university’s position. [ 116 ] Ms. Cory also testified she had made brief notes on November 17, 2008, regarding a discussion she had with Lindi Frost before adding Ms.

Pouliot’s matter to the joint Labour and Advocacy agenda. She believed the discussion was in a telephone conversation she had with Ms. Frost before the joint Labour and Advocacy Committee meeting. She believed she placed the call. Ms. Frost noted during the call that there were concerns raised about Ms. Pouliot’s employment. At the time, this led Ms. Cory to believe that someone in ARES or in the executive had gone to human resources to discuss Ms. Pouliot. Ms. Cory noted in her discussion with Ms.

Frost that although the termination letter said lack of suitability, because of other issues that had been raised by Ms. Pouliot, Ms. Cory wondered whether there might be some other reason. [ 117 ] Ms. Cory acknowledged she was wondering whether this was starting to sound like cause. In wondering about that she considered the fact that Ms. Pouliot was a probationary employee. Ms. Cory was aware of five different matters/concerns that had been raised/discussed with Ms. Pouliot. Those five matters were Ms. Pouliot’s performance review, an issue regarding Ms. Pouliot’s relationship with her supervisor Ms.

Chorney, an issue regarding Dr. Marshall’s conduct, a student concern, and a complaint by a co- worker. Ms. Cory could not recall and/or did not know whether Ms. Frost was referring to the same five areas Ms. Cory had identified when Ms. Frost spoke about concerns raised regarding Ms. Pouliot’s employment. [ 118 ] In cross-examination, Ms. Pouliot asked Ms. Cory about the five points the Association considered in choosing not to grieve her termination. She listed the five items and asked if that was correct. Ms. Cory said it was not.

She explained she had blended the student issue with the working relationship Ms. Pouliot had with Ms. Chorney and the concerns Ms. Chorney was raising. She apologized for having blended the two points. Ms. Cory further said the four concerns she raised were not reasons not to grieve. She said that the four concerns were passed on to Mr. Laughton when she asked for an opinion about what the Association should do or whether they could proceed with a grievance in this matter that might be successful. On being further questioned about the four issues and whether the legal

opinion was based on those four concerns, Ms. Cory said she did not know what Mr. Laughton based his response on. [ 119 ] In cross-examination of Ms. Cory, Ms. Pouliot continued to probe about the four concerns identified by Ms. Cory in her testimony. Ms. Cory agreed that Dr. Marshall had written in an email that the complaint from the marker, Ms. Mitchell, was closed. However, she noted, even though the matter was considered closed by Dr. Marshall, she wanted to ensure that the Association’s lawyer had all the information regarding the background circumstances of Ms. Pouliot’s employment.

She acknowledged that included Dr. Marshall’s assertion that the matter of the complaint from the marker was closed. [ 120 ] Ms. Cory acknowledged that the November 3, 2008, email from Dr. Marshall made it clear that Ms. Pouliot had not instituted any harassment complaint regarding Ms. Chorney. Ms. Cory noted at the time Dr. Marshall wrote the November 3, 2008, email there was no official harassment complaint in place because Ms. Pouliot had elected not file a harassment complaint. At that point, Ms. Pouliot was working with Ms. Schmiesing on the relationship with Ms.

Chorney. [ 121 ] On November 17, 2008, there was a joint Labour and Advocacy Committee meeting between Association representatives and Lindi Frost. Ms. Cory was there. One of the items for discussion under new items was Ms. Pouliot. The description of the issue was: “Termination, lack of $ on last payday. Open discussion regarding service.” [ 122 ] In a subsequent email dated November 20, 2008, from Ms. Cory to two Association board members, Ms. Cory summarized Ms. Pouliot’s situation. Under the heading “issue”, she noted that Ms. Pouliot’s termination “is done”. However, Ms.

Cory had forwarded the file to the Association’s lawyer for review regarding potential legal action. Ms. Cory’s email noted that Ms. Pouliot had compiled a report and would be meeting with internal audit. She also noted that the whistleblower policy could not save Ms. Pouliot from termination, but Ms. Cory did not know where the results of an internal audit inquiry might lead. [ 123 ] In that email, Ms. Cory noted the next issue was that other Association members were coming forward with similar concerns. She planned to direct those members to Ms.

Schmiesing who had apparently agreed to be a resource to the staff. However, Ms. Cory noted that since Ms. Pouliot had been terminated other Association members viewed Ms. Schmiesing in a very negative and untrusting manner. Ms. Cory noted she was going to contact Ms. Schmiesing to see what the department could do to assist. Her other thought was she could direct other Association members to whistleblower/internal audit. [ 124 ] Ms. Pouliot testified that she only received the November 20, 2008, email from Ms. Januz, legal counsel for the Association.

The exact date she received it was not clear but it appears that it was provided to Ms. Pouliot as part of the disclosure order leading to this trial. Ms. Pouliot said this was the first time there was an indication that her termination was “done” as of November 2008. Further communications with Ms. Pouliot in 2008/2009 [ 125 ] On January 2, 2009, Ms. Pouliot sent an email to Ms. Cory requesting information regarding banked time, statutory holidays and so on. She also noted she would like confirmation that the Association was still pursuing a settlement on her behalf and, if so, where that stood. Ms.

Pouliot followed up by sending another email on January 9, 2009, to ask whether Ms. Cory had the chance to consider her previous email. [ 126 ] On January 15, 2009, Ms. Pouliot received a voicemail message from Ms. Cory. In that voicemail message, Ms. Cory confirmed that she had received the email of January 2, 2009, but the office had been closed. Ms. Cory’s message went on to say that she had been following up between the lawyer and trying to monitor what the department was doing. [ 127 ] On January 15, 2009, Ms. Pouliot sent an email to Ms. Cory thanking her for the voicemail. Ms.

Pouliot noted that in the voicemail Ms. Cory had mentioned talking to a lawyer. Ms. Pouliot asked what the Association’s position was and what they were seeking regarding her termination. She also noted that she had not received any breakdown of her last pay. [ 128 ] Ms. Pouliot testified that as of January 15, 2009, which was over two months after she had been terminated, the Association was still talking to the lawyer. Ms. Pouliot did not have any indication of where this was going. Ms. Pouliot also testified she had been told by Ms. Cory on several occasions that her job would probably be offered back to her.

This had been said to her during telephone conversations with Ms. Cory after Ms. Pouliot’s employment had been terminated. Ms. Pouliot said she was also told this the day she went to see Ms. Cory at her office. On that occasion, they discussed the submission Ms. Pouliot was going to make to internal audit. [ 129 ] Ms. Pouliot testified that Ms. Cory made suggestions to her to the effect that the Dean would call an investigation and through that investigation he would decide whether he wanted Dr. Marshall to remain in his position as Executive Director of ARES. There would then be a reorganization and Ms.

Pouliot would either be offered a job or invited to apply for a job. Ms. Pouliot said these conversations with Ms. Cory occurred often. She said Ms. Cory’s practice was to put a suggestion to her by saying something like… “Let me put a situation in front of you,” or words to that effect. Ms. Pouliot testified that on or around February 23, 2009, after Dr. Marshall had been terminated, Ms. Cory again told her that she would probably be offered her job back. Ms. Pouliot said that the statements were always made by Ms. Cory in an indirect way.

Scenarios were put to her suggesting there would be an investigation and through the investigation she would either be offered a job or asked to apply to another job. [ 130 ]

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