RODERICK CUMBERLAND Plaintiff, – v. –, 2023 NBKB 065

FC-284-2019 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON Citation: 2023 NBKB 065 BETWEEN: RODERICK CUMBERLAND Plaintiff, – and – MARITIME COLLEGE OF FOREST TECHNOLOGY Defendant, DECISION BEFORE: Madam Chief Justice Tracey K. DeWare AT: Fredericton, New Brunswick DATE OF HEARING: September 12, 13, and 14, 2022 and December 5, 6, 7, 8 and 9, 2022 DATE OF DECISION: May 2, 2023 APPEARANCES: Paul Champ, Solicitor for the Plaintiff

Clarence Bennett, K.C., Chad M. Sullivan and Kathleen A. Nash, Solicitors for the Defendant DEWARE, C.J. INTRODUCTION [ 1 ] This is an action for wrongful dismissal. The Plaintiff, Rodrick Cumberland, (Mr. Cumberland), alleges that he was terminated from his employment with the Defendant, Maritime College of Forest Technology, (the College) without cause. Mr. Cumberland maintains his dismissal was done in a vindictive manner, and the reasons relied upon by the College for the dismissal were not shared with him prior to his termination. Mr.

Cumberland suggests the College’s conduct warrants an award of both punitive and aggravated damages. Mr. Cumberland further submits that the reasons for his dismissal as provided by the College are disingenuous, and he was actually terminated for his views on Glyphosate which were unpopular with some players in the New Brunswick Forestry Industry. The College contests Mr. Cumberland’s narrative and suggests this is a straightforward case involving the termination of an employment contract. The College asserts it had just cause to dismiss Mr.

Cumberland and, if it did not, he was a seven-year employee entitled to a seven month notice period. CONCLUSION [ 2 ] Mr. Cumberland was terminated from his position with the College as a result of his attitude and behaviours which rendered his continued employment impossible. Mr. Cumberland was not dismissed as a result of his views on glyphosate. Mr. Cumberland’s termination was not engineered by J.D. Irving Ltd. The College did not provide Mr. Cumberland with warnings as to the real jeopardy of his position prior to his termination, and he is therefore entitled to a reasonable notice period of seven months.

FACTS [ 3 ] Mr. Cumberland was employed by the College from June 18, 2012, until June 20, 2019. Mr. Cumberland was initially hired in the position of Forest Operations Supervisor but was quickly promoted to the position of Academic Instructor. Mr. Cumberland holds a Bachelor of Science in forestry and is a certified wildlife biologist. Mr. Cumberland’s primary area of interest in his work as a wildlife biologist is deer. Mr.

Cumberland worked for the province of New Brunswick in the Department of Natural Resources for 15 years prior to his employment with the College. [ 4 ] At the time of his hiring in June 2012, Mr. Cumberland signed an employment contract. This employment contract pertained to his work as a Forest Operations Supervisor. A similar employment contract was prepared by the College when Mr. Cumberland transitioned to the position of Academic Instructor; however, this second contract of employment was never signed. [ 5 ] At the time of Mr. Cumberland’s hiring, the Executive Director of the College was Robert Whitney. Mr.

Cumberland spoke with academic instructor Gerald Redmond prior to beginning his employment with the College. Mr. Redmond had previously worked with Mr. Cumberland at the Department of Natural Resources. After Mr. Cumberland began his employment with the College, Mr. Redmond spoke to him about possibly taking over his course work. Mr. Redmond was applying to become the next Executive Director following the retirement of Robert Whitney. Mr. Redmond successfully secured the position of Executive Director and was Mr. Cumberland’s supervisor until his departure from the college in 2017. Mr.

Cumberland enjoyed a good working relationship with both Mr. Whitney and Mr. Redmond. Both previous Executive Director’s testified on Mr. Cumberland’s behalf during the course of this trial. [ 6 ] In 2017, Tim Marshall was hired as the new Executive Director of the College. Mr. Cumberland was not in agreement with the selection of Mr. Marshall as Executive Director given the fact he did not have a forestry background. Mr. Marshall had previously worked for many years in academia at the New Brunswick Community College. Mr.

Cumberland was of the view that one of the other candidates was far better suited for the role. [ 7 ] Mr. Marshall’s approach to his role as Executive Director, as well as the direction he wanted to take the College, was very different than his predecessors. The College had always operated as a forestry college with a somewhat militaristic approach. The College was often referred to as the “Ranger School”. Mr. Marshall wished to break down some of these more rigid practices and to create a more welcoming and inclusive atmosphere at the College. Mr. Cumberland did not share Mr.

Marshall’s point of view with respect to changing the culture at the College. These differing visions for the College appears to have resulted in almost immediate tension between Mr. Marshall and Mr. Cumberland. [ 8 ] In the summer of 2018, a new position was created at the College of Academic Chair. This was announced to the existing faculty, and three faculty members applied for the position - Mr. Cumberland, Gareth Davies, and Sarah Weatherby. Mr. Davies was the successful applicant. Mr. Cumberland was unhappy he had not been awarded the position and felt he had the necessary experience and background. Mr.

Cumberland was of the view Mr. Davies obtained the position due to his friendship with Mr. Marshall. The relationship between Mr. Davies and Mr. Cumberland was immediately strained once Mr. Davies held the senior position. [ 9 ] Mr. Cumberland was never supportive of the choice of Mr. Marshall as Executive Director. However, the working relationship, although strained, appeared to be manageable until Mr. Davies was selected as Academic Chair in the summer of 2018. Mr.

Cumberland consulted a lawyer and sought information on the selection process given his strong view that he was the most qualified person for that position.

[ 10 ] Mr. Redmond and Mr. Cumberland testified as to the atmosphere the faculty sought to create at the college prior to Mr. Marshall’s arrival. The goal was to have students graduate who had become accustomed to being on time, working a full work week, and were reliable employees by the time of their graduation. This included a rigid discipline system. The College operated on a three-strike policy. If a student was subject to a disciplinary action such as for being late for class, they would receive a strike. If a student reached three strikes, they would be removed from the program at the College.

There was a student handbook which clearly set out the expectations and rules for the students to follow which included the importance of being properly dressed and ready to go into the field at any time, hats were not allowed in classrooms or the cafeteria which was designed to show respect, and punctuality was non- negotiable. [ 11 ] The College provided students with a handbook which clearly set out the rules and expectations of students.

The policies incorporated in the student handbook would typically only be changed at the end of the academic year and incorporated into the new student handbook for the following year. Mr. Davies made changes to some of the College’s policies in the middle of the academic year which proved to be another source of friction with Mr. Cumberland. [ 12 ] The 2018 – 2019 academic year was extremely tumultuous. Mr. Davies struggled in his role as Academic Chair and had difficulties managing his relationship with Mr. Cumberland. Mr. Davies received complaints directly from students concerning Mr.

Cumberland’s conduct which he did not discuss with Mr. Cumberland as he found their interactions very stressful. Faculty meetings were tense and as a result, became less and less frequent. Other instructors were voicing complaints concerning Mr. Cumberland’s conduct. Given the accumulation of all of these issues, Mr. Davies and Mr. Marshall reached the conclusion, prior to Christmas of 2018, that Mr. Cumberland’s employment with the college must be terminated.

However, they did not want to disrupt the school year and held off on the actual dismissal until June of 2019 following the conclusion of the academic calendar. [ 13 ] In January of 2019, Mr. Marshall sent Mr. Davies the following email setting out his concerns with respect to Mr.

Cumberland: (…) • Setting classroom clock to wrong time to serve personal agenda • Physically removing student hats • Pre-emptively discrediting presenters for the upcoming Vegetation Management o It’s believed that this (and possibly other methods) encouraged students not to attend o This is also a slight towards the ED who personally validated the presentation content prior to confirming and promoting the presentation to our students • Railroading the Vegetation Management presentation at MFCC o Very low student turnout although schedules were adjusted to accommodate the session and free lunch was provided o Some MCFT staff were embarrassed by Rod’s questions and interaction, including his answering questions raised by attendees and directed to the presenters o Referencing an Irving employee as “Mr.

Irving” o Member of the complex expressed concern about Rod’s “message” as an employee of the college o MCFT Two board members contacted the ED with their concerns • Participating in the UNB/Wu Center Vegetation Management o I believe this happened during regular MCFT work hours, and Rod was not on approved leave o I’ve been informed that Rod tried to dominate the meeting o One MCFT board member contacted the ED with concerns.

This board member was approached by 2 members of the NBFTA who also expressed concerns about Rod’s questions and interactions • Lack of respect for Gareth in his role as Academic Chair, and as Rod’s immediate supervisor • Student complaints o Being treated as children o Not being show any respect (…) [ 14 ] The issue of Mr. Cumberland’s potential termination was raised at the Executive Committee of the Board of Governors of the College on April 23, 2019. The “HR Matter -Discussion” was recorded in the minutes of the meeting as follows: (…)

7. HR Matter – Discussion Tim introduced and provided sensitive background information concerning an HR matter involving Rod Cumberland. Since his arrival, Tim has been monitoring and gauging the general atmosphere at the college and documenting specific circumstances. He has had numerous discussions with MCFT faculty and students; in conclusion, the inquiries all point to Rod as being implicated and the common denominator.

The variety of issues include his approach to enforcing rules and disciplinary action with students, disrespect for other members of the faculty & management, undermining the authority of his immediate supervisor and openly dismissing the values and culture of the College. The issues go well beyond the College campus where Rod has publicly criticized the forestry sector regarding certain forest management practices, potentially jeopardizing the College’s reputation and continued support.

The Executive digested the information and discussed next steps; this included setting and communicating expectations, identifying and documenting the issues, and determining the right approach towards disciplinary action and/or termination and weighing pros and cons of each. Peter Adams also added they would consult with an employment lawyer to assess the circumstances and help determine a course of action by the College. (…) [ 15 ] Several past and current staff members from the College in addition to Mr. Cumberland testified at this trial.

The relevant testimony from the various witnesses will be considered during the analysis of the allegations set out in support of Mr. Cumberland’s dismissal. [ 16 ] Following the termination of his employment in June of 2019, Mr. Cumberland continued to run his small business as he had during the course of his employment with the College. This included his work on urban tree removals and making ax handles. Mr. Cumberland secured employment with the People’s Alliance party in the Fall of 2019 and worked with them until December of 2019. Mr.

Cumberland ran unsuccessfully as a candidate for the People’s Alliance party in the 2020 provincial election. Mr. Cumberland secured full time employment in the forestry industry in May 2022. ISSUES [ 17 ] The issues for the Court to resolve in this matter are as follows:

(1) Did the College have just cause to terminate Mr. Cumberland’s employment in June of 2019?

(2) Was the contract signed by Mr. Cumberland in June 2012 still enforceable at the time of his termination as he had changed positions and did not sign a new contract of employment?

(3) If the College did not have just cause to terminate Mr. Cumberland’s employment, what is the appropriate notice period?

(4) Did Mr. Cumberland mitigate his damages, and should the self-employment income he generated post termination be deducted from the amounts owing under the notice period, if any?

(5) Is Mr. Cumberland entitled to moral, aggravated or punitive damages as a result of the manner which his employment was terminated?

(6) Costs. POSITION OF THE PARTIES [ 18 ] Mr. Cumberland points out that in New Brunswick employers cannot rely on issues not set out in the written termination letter to subsequently bolster reasons for a just cause dismissal. Mr. Cumberland further argues that an employer cannot raise issues of misconduct to justify a just cause dismissal if these issues have never been previously raised with the employee. Mr. Cumberland suggests that he was dismissed because of his views on the use of glyphosate, as his views ran counter to the interests of certain individuals or groups associated with the College. Mr.

Cumberland further maintains that the reasons set out in his letter of termination raise allegations of misconduct that were never previously discussed with him. It is Mr. Cumberland’s assertion that he was dismissed for expressing his views on glyphosate publicly, and the College subsequently searched for reasons to justify his dismissal. Mr. Cumberland argues the manner of his dismissal as well as the publicity which followed created challenges in securing new employment. Mr.

Cumberland claims moral, aggravated, and punitive damages in addition to a 14 month notice period given the manner his termination was handled, and the comments made by the College after the fact. [ 19 ] The College maintains Mr. Cumberland was acutely aware that both Mr. Davies and Mr. Marshall were unhappy with his vocal resistance to the changes that Mr. Marshall was attempting to make at the College prior to his dismissal. The College suggests that Mr.

Cumberland was aware of complaints students made about him, was aware of the harassment complaint made by another employee, and he was aware that his relationship with his supervisor, Mr. Davies, had completely broken down. The College suggests it is disingenuous for Mr. Cumberland to suggest that he was not aware that his employment was in jeopardy and points out he had even started looking for alternative employment prior to his termination. The College is steadfast that Mr. Cumberland’s views on glyphosate played no role in the decision to terminate his employment. The College argues that Mr.

Cumberland is not entitled to a notice period as he was dismissed with just cause. Alternatively, if the Court determines that a notice period is appropriate, then it should be seven months representing Mr. Cumberland’s seven years of service. The College disputes Mr. Cumberland’s entitlement to any damages be it moral, aggravated, or punitive damages and points out that to the extent that Mr. Cumberland’s dismissal was in the public domain, this was as a result of Mr. Cumberland and his friends making the dismissal public.

LAW AND ANALYSIS [ 20 ] Mr. Cumberland’s employment was terminated on June 20, 2019. That day, he was called into a meeting with Mr. Marshall and was given a letter of termination.

The letter of termination sets out in eight bullet points the reasons for the with cause termination as follows: • Preventing students who are enrolled in your class from attending your class because they were late; • Intentionally adjusting the clock in your classroom ahead by a few minutes to give the illusions that students were late arriving to your classroom; • Physically removing hats from the heads of students, confiscating said hats and requiring that students apologize to you, in front of their class, in order to regain possession of their hat; • Making inappropriate and offensive comments in your classroom; • Undermining the content of the seminar on the Science of Vegetation Management and actively discouraging students from attending the seminar, despite the fact that the seminar was vetted and approved by the MCFT; • Engaging in communication and a course of conduct, both at MCFT and in the community at large, that constitutes harassment and has caused embarrassment and damage to reputation of MCFT; • Making disparaging remarks, both at MCFT and in the community at large, myself, about the management of MCFT and your fellow instructors, and • Failing to recognize and adhere to the instructions provided to you by your immediate supervisor, the Academic Chair. [ 21 ] In addition to setting out the reasons for the dismissal, the letter also includes the following: “The above behavior is unacceptable and constitutes violations of the Faculty and Staff Policies including but not limited to the policies concerning Student Discipline and Workplace Harassment.

You have previously been advised that the above-noted conduct is unacceptable and nonetheless, continued to engage in it. Further in circumstances where you were acting as an ambassador of MCFT, you have engaged in inappropriate conduct and have caused embarrassment and damage to the reputation of MCFT. Additionally, you have engaged in acts of insubordination.” [ 22 ] In considering the reasons set out by the College to justify Mr. Cumberland’s with cause dismissal, the complaints can be broken down into three categories:

(1) Mr. Cumberland’s interactions and communications with students inside and outside the classroom;

(2) Mr. Cumberland’s conduct at the Forest New Brunswick seminars in January 2018; and

(3) Mr. Cumberland’s relationship with his co-workers, in particular his supervisors, Mr. Davies, and Mr. Marshall. INTERACTIONS WITH STUDENTS [ 23 ] The College has put into evidence various emails exchanged between Mr. Cumberland, students, and staff members during his employment with the College. Mr. Cumberland does not dispute he wrote these emails. In my view, these emails in Mr. Cumberland’s own words are the best means to address allegations he made inappropriate or offensive comments to students as well as the concerns surrounding his interactions with students. [ 24 ] In December of 2016, Mr.

Redmond, then Executive Director, received a complaint via email from the parents of a student who were displeased with the manner Mr. Cumberland addressed their son in an email. The email sent by the student to Mr. Cumberland on December 21 st , 2016, stated as follows: Good afternoon Phil, Rod Do I need to write both exams as I know that I passed the fish exam and I only need 1 point to pass the class...

I thought I was good as I wasn't failing the class until now and I was told to ask you both if there is anywhere that an adjustment could be made somewhere to get me 1 point as I have a 59 I have 3 exams that I need to rewrite and 2 of them I definitely need to rewrite as I did poorly and I cannot afford 300$ for exams especially when all I need is 1 point if there is anything possible that could help me that would be greatly appreciated. Enjoy the rest of your Christmas breaks and I'll be looking forward to hearing from you's. Sincerely

[ 25 ] Mr. Cumberland’s response to the student on the same day in its entirety was as follows: Perhaps I am misreading your e-mail, but it appears that you are asking me to "find you a mark"…..Are you serious???!!! Who "advised" you to approach us??? You failed the wildlife section. Period! You failed the course. Period! One thing I am is FAIR. If I "give" you a mark…..I need to go back and give everyone who did the same thing wrong a mark. To do otherwise is to favour you over others who also lost a mark on the same question.

Further, you misunderstand just how many marks are needed on your final to equate to one mark on a course grade. I don't just find you one mark. It would take you 6 (SIX) marks on your final to "push" you over the bar. I'd like to make myself - and the 70+ years of our institution's rules - perfectly clear to you. We do NOT push people "Over the bar"...You get over the bar ON YOUR OWN. You are now a man, not a kid who needs people to bend rules. That your supplemental exam costs $100 was clearly described in the Academic Policy.

If my plan was to coast through MCFT I'd have read this to be perfectly clear what it would cost me. There are many other students that have to write supplemental exams - Do you think your money is harder to come by than theirs ??? Mr. (-) — I am appalled that you had the audacity to make this request. Put on your big boy pants and man up that you didn't put forth the effort to garner a passing grade. That you failed several course tells me you need to re-adjust your attitude and life if you want to be successful here.

That's not going to happen by trying to sweet talk an instructor into "giving" marks that are not earned. Some lessons in life are tough to learn. Some of my hardest lessons cost me a heck of a lot more than $100. You had better CLEARLY communicate to whoever told you this advice that it is NOT how things at MCFT operate. [Emphasis mine] [ 26 ] Mr. Cumberland was contacted by a student on January 22, 2019, who arrived at class to find a locked door.

The student set out his disappointment in an email as follows: Hey Rod I was met by a locked door today 3 minutes before the hour and just wanted to let you know that I wasn't going to come to school today because I've been dealing with a cold since last week but I didn't want to miss your class so I made the decision to come. After seeing the closed door I felt let down by your actions. I was there with time to spare and I don't think it's fair to expect everyone to set all their clocks to match the clock in the classroom especially since everyone has a universal way of telling time.

I don't feel like you have inviting personality and sometimes push it to far in the other direction. I would have liked to hear what you had to say but I also will not show up to class earlier than the assigned time. [ 27 ] In response to these concerns, Mr. Cumberland replied to the student as follows: Thanks for letting me hear your perspective. Now I will share with you mine. I have a job to do - to teach 50 students concepts on F&W management because future employers have told us these concepts are very important for their employees to know and understand.

I only have 50 minutes to do this as other instructors are on tap to follow. In my endeavor to accomplish my job the past year, I have experienced nothing but disrespect from many in your class....far more than any previous class I have ever taught. You may think it is the norm because all you see is what your class does...but we have the perspective of having taught many classes over the years.

We notice all these things such as not arriving on time, handing in things late, expecting instructors to be available at all hours on evenings and weekends, wearing ball caps in the classroom, leaving during the lecture, talking while the instructor is trying to lecture - and could go on and on. Your class continues to show disrespect but are lightning fast to whine if you feel you are in any tiny way disrespected.

It is high time many in your class stop and take a look in the mirror …… In 3 short months you will be graduating, and our employers are expecting us to teach you a little about punctuality, respect, commitment, self-discipline, and accountability. These are actually MORE IMPORTANT to employers than most of the course material we teach; However - each time any one of us tries to instill this by deadlines, sticking to policy, assignments or curfews we are met with whining and excuses rather than responsibility. It's always someone else's fault.

My suggestion is you synchronize your clock with the clock on the classroom computer (which is synchronized with all computers here at MCFT) and be in class with a bit of time to spare. In life - poop happens. If you don't allow yourself some time to account for things going wrong, you're going to be sending a lot of e-mails like your last one. [ 28 ] Mr. Davies and Mr. Marshall testified that various students came to see them with complaints concerning Mr. Cumberland. One of these students, William Haley, testified at trial. On January 22, 2019, Mr. Haley sent an email to Mr.

Davies with complaints concerning two instructors. Mr. Haley’s comments concerning Mr. Cumberland were as follows:

Today (Jan. 22, 2019), Rod Cumberland started class at 0858 when the class was scheduled to start at 0900. He stated that the school computer said it was 0900 so the door would be locked and no "late" students could enter. I confronted him about this in front of the class by pointing out that we have always (since the start of MCFT) went by the wall clock in the classrooms. He himself told us this in first year and held us accountable to it. He said that since “if you're not early, you're late" he would not change his decision to unlock the door.

I then respectfully explained that the school computers are all several minutes early, and that the new clock installed in the second year classroom can be changed by anyone at anytime and that we need a better solution to this issue. He explained how employers would not accept this, it's not professional, etc. which i responded with the fact that we (the students) are all paying for the services of learning at this institution, and not being paid to provide a service. We have the right to be in class, and the right to privacy if someone is late or needs to leave class.

I understand individuals may abuse this, but that should be dealt with on an individual basis, not punishing the whole class. For someone who tells us we're all adults and need to prepare for the "real world", Rod treats us like children, changes his rules arbitrarily, and has no understanding or empathy of what a student may be going through or why they were late.

Last week (Tuesday Jan. 15, 2019) Rod walked up behind and physically removed the hat off of a students (Marcus Davey) head (a few minutes before class started), took the hat to his lectern, and held it until the end of class when an apology was required to get it back. He demanded that Dylan Mulder remove his toque, bring it up to the front of the class, where Rod would keep it until Dylan resolved the issue after class. I understand and agree that if an instructor wants to have a no hat policy in their class, that it should be respected.

Physically interacting with a student without any context or consent should not be tolerated, nor should someone have the authority to confiscate personal property with the goal of "teaching someone a lesson". This gets back to my earlier complaint about being told we're adults but being treated like children. There is also an overbearing forced indoctrination from these and a few other instructors. They act like this is when they went through school and expect everyone to adopt a "Ranger School" mentality, seemingly trying to force a militaristic/authoritarian attitude on everyone.

I applied to, was accepted to, enrolled in, and soon will graduate from the Maritime College of Forest Technology, not the ranger school, and will be proud to say I did. I came to this wonderful school to learn and expand and find avenues to wanted career paths. I did not return to school as an adult to be told that I'm not allowed to go to the bathroom when I need to. I hope some positive change can come out of this, as I truly do believe in the need for well respected and well educated Institutions Iike MCFT. (…) [ 29 ] Mr. Cumberland and the student, Marcus Davey, had a disagreement when Mr.

Davey did not return a key to Mr. Cumberland on time. The exchange between Mr. Cumberland and Mr. Davey concerning the policy and the enforcement of a tardy return of the wet lab key was as follows: On Thu, Jan 17, 2019, 11:59 AM Rod Cumberland Persons keeping the wet lab key after midnight forfeit their student ID and are fined $100. Your ID is forfeit and your account will be charged $100. You need to see me ASAP to explain why you signed out a key intended for wildlifers, and why it was not returned Thursday, Jan 17, 2018 Marcus Davey Wrote: Hey Rod Not sure what your talking about.

No one told me anything about needing to return the key by any deadline. I refuse and will not to pay the fine. I will be expecting the return of my student id and I’m positive you don’t have the authority to fine me. I came by your office to explain why i used the key and why i didn’t return it by “midnight” but you were not there. Thanks On Fri, Jan 18, 2019, 8:10 AM Rod Cumberland Marcus; My advice is you think long and hard about how you plan to address the predicament you find yourself in. I will meet you at noon today. However, My advice is you lose the defiance and belligerence.

I am your instructor…not some kid on the street. We teach respect here…..and you have shown ZERO thus far. Rod On Friday, Jan 18, 2019, 1:16 pm Rod Cumberland

Are you still around? The lunch and learn went the whole hour. My apologies – I had no control over that Rod From Marcus Davey – Friday, Jan 18 at 5:05pm: Rod: I came by your office mulipul times over the noon hour. You were not there. I feel you have wasted my time and I do not appreciate it. If you would still like to meet with me, arrange a new time. Thanks [ 30 ] Following his interactions with Mr. Davey, Mr. Cumberland wrote to Mr. Davies to express his frustration as follows: (…) Gareth; I have appended a string of e-mails between Marcus Davey and I about the wet lab key last week.

The defiance in these are obvious. In my class last week I had another student not turn in his hat to me and argued with me in class about whether I have the “right” to take it from him. I had a third tell me he was not giving his hat to me because it was his personal property and I had no right to take it. This is the first time in my 30+ years of being around MCFT/MFRS that I have ever witnessed defiance and belligerence towards instructors – particularly me.

It also is not surprising to me because this is exactly what happens when you remove our authority as instructors as was done last fall over the fall camp drinking issue; they now think we are a joke (very obvious by Marcus’ comment about my lack of authority). (…) One of the core values of MCFT was always respect; we were supposed to model this and being consistent with our policies and rules instills this into students. What occurred last fall was a very undermined approach to usurping instructor authority.

This situation must be addressed by those in authority; Seeing as you have stripped me of mine it lies with you and Tim to rectify this. (…) [Emphasis mine] [ 31 ] In addition to the various email correspondence, the College alleges that Mr. Cumberland made disparaging and at times sexist comments in his classroom. There are other allegations that he made inappropriate references to religion or creationist theories in class. During the time that Mr. Redmond was Executive Director, there is evidence before the Court that he met with Mr. Cumberland and raised these concerns with him.

However, I can identify nothing in the materials before this Court where either Mr. Marshall or Mr. Davies would have raised these issues directly with Mr. Cumberland. Finally, it must be noted that some of the incidents raised during the trial concerning Mr. Cumberland’s interactions with students occurred prior to the involvement of Mr. Marshall and Mr. Davies. [ 32 ] A significant issue arose at Fall Camp in 2018. Fall Camp was held at Fundy Park each fall for the students to do field work.

Fall Camp was known as a dry camp, where students were not allowed to consume drugs or alcohol during their time at the camp. In 2018, the students had requested permission to go to the local hotel in Alma to watch a hockey game. The students were informed that they could go to watch the hockey game but had to follow the rules of the camp, including the fact that alcohol consumption was prohibited. [ 33 ] After the students had left for the hotel, Mr. Cumberland went into Alma and stopped in at the hotel. Once at the hotel, Mr. Cumberland observed several of the students to be drinking. Mr.

Cumberland advised the students that they were breaking the rules. Mr. Cumberland reminded the students they were still subject to the dry camp rules even though they were in the hotel. Most of the students put away their drinks following Mr. Cumberland’s intervention; however, a few did not. Mr. Cumberland returned to the camp where he advised his fellow instructors as to what had transpired. Mr.

Cumberland then decided to return to the hotel where he observed some of the students had continued to drink alcohol despite his clear instructions that this was against the rules. [ 34 ] Following the conclusion of the Fall Camp, some of the students who had continued to consume alcohol, after Mr. Cumberland’s directions to stop, where brought before the Disciplinary Committee of the College. It was Mr.

Cumberland’s impression, as well as other instructors present at the meeting of the Disciplinary Committee, that these students would be punished for their behavior breaking the dry camp rules and their perceived insubordination to Mr. Cumberland’s directions once caught in violation of the rules. However, as Academic Chair, Mr. Davies determined it was not appropriate to discipline the students in such circumstances which further strained the

relationship between Mr. Davies and Mr. Cumberland. Mr. Cumberland felt strongly that the students’ behaviour at the Fall Camp could not go unchecked and in fairness, he was not alone in that opinion. The other two instructors who were present at the Fall Camp were also unhappy with Mr. Davies’ decision. [ 35 ] Mr. Davies communicated his decision not to discipline the students in a lengthy email on October 22, 2018, addressed to Mr. Cumberland and the two other instructors that were present at Fall Camp, Sarah Weatherby and Phil Hughes. Mr. Hughes clearly expressed his disagreement with Mr.

Davies’ decision in an email also dated October 22, 2018. In this email, Mr.

Hughes notes: Here is what I clearly see: • The students were told before leaving that the camp was dry and that there were no drugs or alcohol allowed at camp (There was no declaration of any boundaries associated with this which would assume it meant camp in its entirety.) • The students arranged the outing and asked Sarah if they could go...which assumes they understood Sarah was in charge and therefore required her permission to go. • Sarah explicitly asked if they knew the rules and that they were to be adhered to which they answered in the affirmative. • The students broke the rules and got caught. • That even after getting caught some students continued to break the rules.

This in my opinion is TOTALLY black and white I do believe the incident may have been poorly handled by the DC, but that doesn't negate the fact that the students knowingly broke the rules, and that if nothing is done they will have essentially "gotten away with it", and the message that sends to the student body regarding how they conduct themselves. I would speak more to that but as you know I am placing the dissolution of the DC as an item of discussion for the staff meeting. [ 36 ] Following various email exchanges between the Fall Camp instructors and Mr. Davies concerning his October 22, 2018 email, Mr.

Davies confirmed on October 26, 2018, that none of the students would be disciplined for what transpired. Mr. Davies’ email states as follows: Hi Everyone, I appreciate everyone’s input and perspective with regards to all o the events and details surrounding the Fall Camp Drinking Incident. I do not find any student guilty of breaking any rules or of bad or disorderly behaviour. I do not find that we have the authority to police what adult students do off-site-especially in a private space/establishment. Gareth [ 37 ] In response to Mr. Davies’ email, Mr.

Cumberland reached out to the other two Fall Camp instructors commenting as follows: … This decision is absolutely ridiculous. We always have given responsibility for students, and if we are responsible, then we also have authority to enforce whatever rules we are GIVEN from on high. There is no way Gareth can stop us of our authority without also addressing responsibility. Not the sharpest tack in the box . [Emphasis mine] [ 38 ] While none of the instructors involved with the Fall Camp episode were happy with the manner in which it was resolved, the other two instructors moved on. Mr.

Cumberland could not accept that there was no discipline imposed on the students involved, and this further strained his relationship with Mr. Davis. Mr. Cumberland repeatedly referred to this incident as contributing to the lack of respect he was experiencing from students. Mr. Cumberland was also concerned about potential liability issues should the students be drinking while involved in field camps run by the College. Mr. Cumberland’s preoccupations in that regard cannot be said to be unreasonable. Mr.

Cumberland engaged with the College’s insurer and sought a legal opinion which validated the concerns he had raised. However, the significance of this incident is that Mr. Cumberland refused to accept the decision of his supervisor that the students would not be punished. Mr. Cumberland returned to this issue over and over again in his communications with Mr. Davies and Mr. Marshall. SEMINARS OF JANUARY 2018 [ 39 ] A significant amount of time at trial was spent discussing the incidents which occurred surrounding the Forest NB seminars held in January of 2019. On January 8, 2019, Mr.

Davies sent an email to staff and students at the college inviting them to a lunch and learn presentation to be offered both at the college and UNB by Forest NB. In response to this email, Mr. Cumberland emailed Mr. Davies on

January 18, 2019, with the following requests: I was over to chat this morning. Not sure how familiar you are with this session but have experienced it twice now. I know how this came about and the intent behind It. Who at MCFT is championing/organizing this event? Whoever is, I would like to speak with them (I assume either you or Tim) and if we want an informative session, I would like the same amount of time as the other presenters to present my research and data.

However, I'm pretty sure as soon as we ask for this, it will be denied by Mike (Forest NB) because of the intent and purpose of the session; It is not about ALL the science, it is not about asking difficult questions - it is solely about trying to convince people that only half the research matters on this issue and to maintain our present form of forest management (clearcut, plant and spray) alive and well and totally ignores recent research that shows a totally different picture.

If - as I expect - they do not want me to present during this session, then If this session does go ahead without me, I would like to be allowed the same amount of time to present the other side of the research to the same group of people at another "lunch and learn". I am TOTALLY open to Mike, Dr. Ritter or any of these proponents to be present for my presentation - and I believe it should be announced during their session that there will be another session exploring the other side so people are aware this is just one perspective and not "the final say" on a very controversial issue. [ 40 ] Mr.

Cumberland subsequently sent an email to all students and staff on January 16, 2019, raising his concerns with the NB Forest seminars. In this email, Mr. Cumberland included the following comments: Dear MCFT Faculty and Students; I am glad you have been provided with the opportunity to attend a "seminar" this Friday on vegetation management. While this seminar is being promoted as "including the experts" on this issue, it has not included a number of experts with very divergent research and perspectives on this topic.

I have shared this with Gareth, and with the host of the event (UNB Forestry Faculty),and would like you to consider why I have issue with the current format. … Rather than simply accepting the opinions that will be shared at this forum as the final word on this issue, it might be more balanced and wise to caution you that there is an entirely different perspective held by very qualified and decorated scientists and practitioners - both here in NB and in the greater research community, but to date they have not been provided the opportunity to present their research or opinions. [ 41 ] Mr.

Cumberland attended both NB Forest seminars. While Mr. Cumberland maintains that his behaviour at the seminars including the questions he posed were entirely appropriate, other instructors from the College raised concerns with what transpired. After the event, fellow instructor Rob Neish sent an email to Mr. Marshall and Mr. Davies raising the following: (…) The nature of Rod’s interactions and line of questioning at the presentation was combative and sought to once again, discredit the presenters and to further his personal agenda.

Rod’s questions were dominated by leading questions and appeared to be more of a cross examination than an attempt to learn or understand anything. At one point he referred to Andrew Willett, A JDI employee, as “Mr. Irving”, during a line of questioning that was clearly an attack of JDI and the companies practices. I am very frustrated by his behaviour as it risks coloring all MCFT staff and faculty with the same brush. As a member of the faculty of MCFT, I am far from interested in being viewed as sharing Rod’s views and am concerned that this type of behaviour will do nothing to serve the good of MCFT.

His personal mission has no place in our institution. (…) [ 42 ] Sarah Weatherby was present at the seminars and testified at the trial. Ms. Weatherby was also embarrassed by Mr. Cumberland’s behaviour at the seminar which took place at the College. Ms. Weatherby felt Mr. Cumberland dominated the question- and-answer period and was not genuinely interested in answers. Ms. Weatherby actually left the seminar because she was so uncomfortable with Mr. Cumberland’s behaviour. [ 43 ] Mr. Davies was at the seminars and was also distressed by Mr. Cumberland’s behaviour. Mr. Davies testified Mr.

Cumberland consumed 90% of the Q and A session while being very combative with the presenters. Mr. Davies recalled Mr. Cumberland referred to one of the speakers as “ Mr. Irving ”. Mr. Davies went to Mr. Marshall with his concerns regarding Mr. Cumberland’s behaviour at the seminars and asked Mr. Marshall to address it. Mr. Davies explained that at this point in January 2019, he was already finding it very difficult to communicate with Mr. Cumberland. [ 44 ] One of the presenters at the NB Forest Seminars, Chris Edge, who is a scientist employed by the federal government testified at trial. Significantly, Mr.

Edge did not feel Mr. Cumberland’s conduct at the seminars was particularly aggressive or inappropriate. Mr.

Edge met with Mr. Marshall after the seminars when Mr. Marshall apologized for Mr. Cumberland’s behaviour. However, Mr. Edge saw nothing in Mr. Cumberland’s behaviour that required an apology. Mr. Edge did take issue with Mr. Cumberland’s suggestion in his email that the presenters were biased, and their scientific work was questioned. Mr. Edge felt that the comments in the email were unfair and inappropriate. [ 45 ] Mr. Marshall also apologized to another one of the speakers, Nelson Thiffault, who is also a federal scientist, regarding Mr. Cumberland’s behaviour. Mr. Marshall stated the following to Mr.

Thiffault in his email of January 24, 2019: (…) I have been out of the office for much of the past 2 weeks and only yesterday learned of some of what transpired around the lunch & learn session here at the forestry complex. I have received a copy of the message that was sent to our faculty and students, and want you to know that the views expressed by Rod Cumberland and not views shared or supported by myself of MCFT. On behalf of MCFT I want to apologize for this situation, and want you to know that I am following up on my end to address this with Rod.

I know you are not located locally so a face-to-face meeting is not practical, but if you like to discuss things over the phone, I will make myself available to do so. Just let me know of your availability. (…) [ 46 ] From my review of the evidence, despite the concerns that were raised concerning Mr. Cumberland’s emails prior to the seminar and his conduct at the seminar, neither Mr. Marshall nor Mr. Davies ever raised these issues with Mr. Cumberland. While there were many conversations and communications taking place concerning Mr.

Cumberland and the NB Forest Seminars, none of this information was shared with Mr. Cumberland prior to the day of his termination. Mr. Cumberland was not aware that Mr. Marshall had apologised to Mr. Edge or Mr. Thiffault as again, it was never raised with Mr. Cumberland. [ 47 ] Mr. Marshall was contacted by individuals expressing concerns surrounding both Mr. Cumberland’s email sent prior to the seminars and his conduct at the seminars. On January 24, 2019, Peter Fullarton sent an email to various people including Jason Limongelli, Vice President, Woodlands, J.D.

Irving Ltd, wherein he stated as follows: (…) This is to inform you that I sent a note to Tim Marshal this afternoon expressing our disappointment and concerns regarding an e-mail that Rod Cumberland sent to students and staff last week prior to the Vegetation Management presentations. I expressed concern for his lack of respect for our researchers, the inaccuracies of his assertions, and his bias in attempting to influence staff and students at MCFT. (…) [ 48 ] On January 18, 2019, Andrew Willett, an employee of J.D.

Irving Ltd, sent an email to Derek MacFarlane at the National Research Council of Canada inquiring as follows: (…) Derek, I am hearing Rod Cumberland sent a letter to your scientists and copied his students expressing the inappropriateness of federal scientists participating in the presentation today. Any truth in this? Can we see a copy of the letter? Thanks. Andrew (…) [ 49 ] It appears that Mr. Willett’s email was also sent to Jason Limongelli, Vice President, Woodlands, who was a member of the College’s Board of Governors. The subsequent email exchange between Mr. Limongelli and Mr.

MacFarlane was as follows: (…) Derek, If this is right, we should bring it to the Board of MCFT for a discussion. MCFT instructors should not be undermining federal scientists. Jason

(…) We will look into this Jason. DD [ 50 ] This was not the first time Mr. Cumberland’s actions in sending emails voicing his concerns on herbicide spraying was questioned. On January 28, 2014, Blake Brunsdon, Chief Forester at J.D. Irving Limited, sent a letter to Robert Whitney setting out concerns regarding Mr. Cumberland: Dear Mr. Whitney, We were very surprised to see the attached Email letter being widely circulated by on of your instructors – Rod Cumberland – under the Maritime College of Forest Technology (MCFT) logo.

While we recognize and agree that everyone is entitled to their own personal opinions, we are very disappointed that an MCFT instructor is playing such a leadership role in a biased, non-science based “ban forestry herbicide use” campaign, and is promoting Mr Theriault’s anti-forest industry campaign and web series on MCFT premises during his paid workday. Many of the opinions expressed by Mr Cumberland are contradicted by numerous published research papers by reputable independent organizations. We hope that the MCFT leadership team and Board of Governors do not condone this type of behaviour and activity.

We are also very concerned how Mr Cumberland’s personal opinions are being shared with and communicated to students at MCFT. [ 51 ] Mr. Cumberland and his supporters started a “ Friends of Rod Cumberland ” Facebook page following his dismissal. The Facebook page was created on June 27, 2019. On June 30, 2019, Mr. Redmond posted the following comments on the Facebook page: WHAT WAS THE REAL REASON THAT ROD WAS FIRED?

As you know, Rod has been an outspoken critic of the negative impacts of forest herbicide spraying [Glyphosate/RoundUp] on deer populations and other fauna in New Brunswick and other regions of the Maritimes. This subject is very controversial and currently under intense scrutiny by some legislators at the Legislative Assembly of New Brunswick. Two of the four political parties are demanding that this chemical be banned from use in New Brunswick.

Rod has been in the cross-hairs of this issue for some time, but he has always presented his professional opinion as a respected and qualified Certified Wildlife Biologist using sound scientific evidence and professionalism. He is passionate about the health of deer herds in the Maritimes and the impacts of toxins on other biota.

His stance on this important subject has drawn intense criticism from the Forest Industry in the Maritimes, but he has held his ground and revealed numerous scientific-based research that demonstrates that Glyphosate and it’s adjuvants harm wildlife and other biota, including soil organisms, insects, small and large mammals and birds. Recent changes in leadership of the College have precipitated the termination of Rod’s tenure at MCFT.

Recent appointments of new forest industry representatives and supporters to the MCFT Board of Governors and the 2017 board appointment of an Executive-Director [with zero experience or background in natural resources] have suspiciously culminated in the dismissal of Rod Cumberland from the college faculty. [Emphasis mine] [ 52 ] Mr. Cumberland had been reprimanded in 2014 when he expressed views on the use of herbicide spraying. This was during the tenure of Mr. Whitney and Mr. Redmond. The manner which Mr. Cumberland had expressed his views using college letterhead was raised with him by Mr. Redmond. Mr.

Cumberland apologized and acknowledged the error. In the absence of the other issues including the way he interacted with students, his insubordination to the leadership of Mr. Marshall and Mr. Davies, as well as the friction he caused amongst his colleagues, the issue of the NB Forest seminars would not have led to his dismissal. If the other overwhelming problems were not ongoing, I strongly suspect Mr. Marshall would have dealt with the NB Forest Seminars as Mr. Redmond had in 2014.

However, by the time the seminars took place in January 2018, the employment relationship appears to have been irrevocably broken down. That said, neither Mr. Marshall nor Mr. Davies raised Mr. Cumberland’s behaviour at the January 2018 seminars, nor his emails sent prior to the sessions with him directly. In failing to do so, again, they did not give him the opportunity to address their concerns. However, there is ample evidence before this Court that Mr. Cumberland was dismissed as a result of his conduct, not as a result of his “views” on glyphosate.

RELATIONSHIP WITH CO-WORKERS AND SUPERVISORS [ 53 ] The College suggests that Mr. Cumberland’s strained relationships with many of his colleagues as well as the insubordination towards both Mr. Marshall and Mr. Davies were sufficient to justify his dismissal. The College points the court to Holwen v. Alberta Plywood Ltd., 2005 ABQB 464 at para 63 as follows: “I find, however, that the incidents that occurred from November 27, 1997 onward constitute cumulative grounds for

summary dismissal. I view Holwen’s sullen, menacing attitude toward those in authority as described by Schuster, Gillis, Rosin, Rockwood and Lesniewski as evidence that although he did his own work well, his failure to properly respect and interact with his supervisors and

his co-employees was a disruptive and destructive force at Alberta Plywood for most if not all of his career there . In the last few months of his employment he basically rejected Schuster’s authority to the point where other employees perceived him to be a privileged employee.” [Emphasis mine] [ 54 ] The evidence at trial left the Court with no doubt that Mr. Cumberland is an individual of strong convictions and not someone who can easily embrace the points of view of others when such views do not align precisely with his own. Mr.

Cumberland’s rigid personality and strong opinions caused friction with his fellow instructors. It was clear from the evidence of Ms. Weatherby and Mr. Davies that they avoided confrontation with Mr. Cumberland at all costs because it was simply too difficult. In the case of Ms. Weatherby, they were colleagues; however, in the case of Mr. Davies, his inability to manage Mr. Cumberland contributed to the breakdown of the relationship. Following my consideration of the totality of the evidence at this trial, I accept that following Mr. Marshall’s appointment as Executive Director, Mr.

Cumberland became a disruptive and destructive force within the College. [ 55 ] The College argues that Mr. Cumberland’s behaviour towards both Mr. Davies and Mr. Marshall was a deliberate challenge to their authority and demonstrated a refusal to accept decisions taken by his supervisors. The College maintains that Mr. Cumberland was openly disrespectful to his supervisors and other employees of the College which harmed the employment relationship while also creating a poisonous atmosphere for other employees. I agree with this assessment. [ 56 ] Mr.

Cumberland and one of his fellow instructors, Rob Neish, had a conflict concerning the criteria surrounding the CIF Gold Medal Award which was an award granted each year to a student at the College. Mr. Neish sent an email to Mr. Cumberland expressing his frustration and concerns following a meeting which took place to discuss this issue. Portions of Mr. Neish’s email from February 7, 2018, are quoted below: Rod, … I expect that your measure of “contributes most” may exclude metrics that I, and perhaps others, value. The fact of the matter is that we all value things differently.

Since respect for the individual is a core value here, I would ask, and expect, that you would respect my right to place value on things that you perhaps do not. There are people that make contributions every day here that are of more or less value to some than others. The point of the core value is that it is a benchmark from which we all operate, despite our differences.

I do not feel respected as an individual by you in this circumstances . … Your behaviour at our meeting and the emails that followed are nothing short of attempts to force your perspective on others without truly listening and considering alternate points of view. You created an environment that is no longer a safe, respectful and open forum for communication. Please STOP. I would welcome an apology from you for your attempt to steer our decision making in line with your desired outcomes without first clearly understanding what the criteria meant. Rob [Emphasis mine] [ 57 ] In response to Mr. Neish’s email, Mr.

Cumberland sent an email to Mr. Marshall attaching the email received from Mr. Neish and commenting as follows: Hi Tim; I was infuriated when I read this e-mail. However, I have refrained from sending what I want to send. We need some strong leadership from your right now. The error in judgement in Rob’s perspective suggests to be there is a lot deeper issues here – resentful issues. I shared my perspective and opinion. If he has a problem with that – who is the intolerant one? “STOP”… “apology”… please address this nonsense This thinking here is getting out of hand.. Rod [Emphasis mine]

[ 58 ] A review of some of the correspondence between Mr. Cumberland and his supervisors is helpful in analysing the breakdown in the working relationships. An issue arose between Mr. Cumberland and Mr. Davies as a result of a comment Mr. Cumberland’s son had made in Mr. Davies’ class. Mr. Davies was concerned that the comments expressed by Mr. Cumberland’s son concerning the end of days might have been ill received from some of the other students, and he spoke to the student about that. Mr. Davies subsequently became aware that Mr. Cumberland felt his son had been harassed by Mr.

Davies as a result of his religions beliefs. On November 5, 2018, Mr. Davies sent Mr. Cumberland an email apologizing for any negative impact from his discussion with Mr. Cumberland’s son following the incident in the classroom. Mr.

Davies’ email stated: (…) Hello Rod, (I include Tim in this email only because you communicated with directly regarding this issue.) Tim has brought to my attention that you have accused me of harassing your son Ben Cumberland during the winter semester of 2018 – with regards to Ben’s statement of his Christian faith in my Forest Management class in January 3 rd , 2018. (I have attached the discussion questions used in this class where Ben mad his comment.) I am deeply sorry that you feel this way about what happened last winter between Ben and I. I feel terrible to learn that you feel this way.

Ben was not only my/our student, but also your son – I am horrified to learn that you feel that I abused the teacher-student relationship by harassing him regarding his Faith. I want you to know that I had no ill-intent towards Ben – despite questioning his decision to use the forum of our classroom to speak to his Faith. I want you to know that I did not want Ben to apologize for his Faith. I am deeply sorry if this was yours or Ben’s impression. I had several students come forward with complaints regarding Ben’s religious statement in my class.

I had not desire to bully Ben with regards to this statement- I simply wished for him to consider how it might be interpreted by others and how it might undermine his relationships with his peers. Regardless of my intent- I clearly must have mishandled this situation if you believe that I harassed your son. Please forgive me. Your son was a “star” student in my classroom- a true asset to his classmate, and a priceless addition to the forestry profession and the Ranger School Legacy. (…) [Emphasis mine] [ 59 ] In response to Mr. Davies’ apology, Mr.

Cumberland sent an email stating, inter alia, as follows: (…) I am confused about what you have tried to communicate. There are two issues here, but most important to me is clarity around our roles as instructors.

Your initial question is wide-open and has no boundaries; There is no way (particularly given the scope of the question, and the widely divergent responses from other students) that anyone could take offense to a perfectly applicable statement - whether it was based on personal, religious or other criteria - to a question on "the future for planet earth" - particularly given that religion is central to the human race, and that most human actions - rightly or wrongly, have some basis or rationale on a religious basis. I am not writing this as a parent.

I did not get involved last year as a parent - because we do not allow parents to get involved in student affairs, and quite frankly, this is not the issue. The issue is our approach to such situations as instructors, what we have the ability/authority to do, how students are treated, and how we as a faculty handle discussions of a "religious" nature in our classes. Also - that you brought him back to your office after his apology is clear evidence to me of repeated harassment and unsound judgement. (…)

The second issue in your e-mail is one of an offered "apology"; however, you repeatedly apologize for the way I feel and what I believe …..I do not understand the logic of these statements. An apology is admission to our own faults, not to the way others feel, believe or react. Gareth - I would forgive you in a heartbeat, because we all make mistakes. However, it is quite unclear what you are admitting to doing that was wrong. Regardless of intent, your actions are a violation of our harassment policy and the Canadian Charter of Rights and Freedoms .

When I read these, as well as the Criminal Code of Canada , there is a clear violation of a student's constitutional rights and freedoms by your actions, and your actions based on our policy is an "abuse of power and authority to intimidate". No other student was treated this way based on their wild comments - only Ben's - and because they were "religious" in nature, and because it offended you. Clearly - your actions constitute harassment, and infractions to the Charter .

Forgiveness is a very simple thing for me to extend Gareth - I have been forgiven much and it is at the core of all I believe; freedom exists there. However, your e-mail does not help me at all understand what you are apologizing for. (…) [Emphasis mine] [ 60 ] On November 22, 2018, Mr. Cumberland sent the following email to Mr.

Davies concerning the hiring and assignment of tasks to a new instructor: (…) Having taught BOTH courses, and having REAL LIFE expertise as a practicing Biostatistician, as well as a Wildlife Biologist, it is my not-so-humble opinion that Adrian CAN teach F&W and would have much less frustration doing this than Biostats. This was the reason we went with this decision in the first place. If there is more to this – please be clear, because with what you have communicated , you have undermined the confidence of our newest instructor without giving him a chance.

Obviously someone things he is capable given his changing role, and I would agree. I would be prepared to deliver one or two lectures for him on things I have expertise in (such as regulations and modeling). Given ALL we talked about – this was our original, and what I believe is the best, solution. There is a very disturbing pattern here. You meet with people, discuss a reasonable outcome….then go away and “think” about it (or “speak with others” is likely more appropriate) – then reverse your decision. This approach does little to instill trust and undermines a positive work environment and is exclusive.

It has the possibility to create (and already has) immense frustration and mistrust. (…) [Emphasis mine] [ 61 ] On November 26, 2018, Mr. Cumberland sent Mr. Davies the following email concerning students drinking alcohol during the Santa Clause Parade: (…) The MCFT float in the Santa Clause Parade once again highlights the short-sightedness of your unilateral decision to remove instructor authority for enforcing college rules at “off-site” events. We requested a meeting with you about this issue and have heard nothing. (…) [ 62 ] On February 28, 2019, Mr. Cumberland sent Mr.

Marshall the following email expressing frustration over an incident with another student: (…) You and Gareth have created this situation with honesty, integrity, and respect by undermining authority of instructors and changing

rules mid-term. Joel has already demonstrated he has little respect for me – and this goes for several students in his class ever since my authority was undermined last fall – and this still has not been rectified by you or the chair to the second year class. Until this is rectified, it creates this continual questioning of anything I do that doesn’t sit well with these few students, and they continually stream to you and Gareth attempting to over-ride any decision I make that they disapprove of.

They do this because it worked once (last fall), twice (with classroom deportment) and will continue until you put an end to it and stand behind your staff and existing policies instead of changing and over-riding them and our authority which breeds this contempt and confusion. (…) [ 63 ] The reason for quoting from these emails is simply to demonstrate how Mr. Cumberland reacts to anyone who challenges his behaviour or asks him to consider a different perspective. Rather than reacting to Mr.

Neish’s email with concern that a colleague felt disrespected or unsafe in their interactions, he immediately suggests to Mr. Marshall that something needs to be done with Mr. Neish. Rather than accepting Mr. Davies’ apology, he accuses him of being in violation of the Criminal Code and the Canadian Charter of Rights and Freedoms . Again, this simply underscores Mr. Cumberland’s inability to step out of his own reality to consider the opinions, perspectives, or even the feelings of others. [ 64 ] Despite the obvious toxicity Mr. Cumberland’s behaviour was creating at the College, neither Mr. Marshall nor Mr.

Davies did anything to address the significant concerns directly. Mr. Davies retreated from the issue by refusing to communicate with Mr. Cumberland and cancelling regular faculty meetings. Mr. Marshall, likewise, did not address the problems head on. Mr. Cumberland’s supervisors likely determined the employment relationship was not salvageable and thereafter chose to take the path of least resistance with Mr. Cumberland. [ 65 ] On April 1, 2019, Mr. Davies sent Mr. Cumberland an email advising that he would no longer respond to his emails. Mr.

Davies explained: Hello Rod, I find your email communications towards me in recent months to be abusive and a form of harassment – full of accusations, judgment, condemnation, and contempt. Please cease this behaviour immediately. Until further notice – the only email that I will accept from you is a request for an in-person meeting- with a very brief description of what you wish to discuss. Please note that it will be unlikely that I will be willing to meet with you alone. Until further notice- you do not have permission to enter my personal office when I am not present.

If you wish to deliver anything to me, please put it in my mailbox or deliver to MCFT Reception. Regards, Gareth [ 66 ] Mr. Cumberland and Mr. Neish had experienced a significant breakdown in their working relationship during the previous academic year. When this occurred, Mr. Marshall had hired a professional mediator to come to the College and assist in the resolution of the challenge. This process was designed to address the need for a respectful workplace at the College. Mr. Cumberland was not impressed with the process, nor the mediator. Mr.

Cumberland explained that the mediator failed to focus on “ his ” issues and did not address any of “ his ” concerns. Professional intervention in the context of creating a respectful workplace had been of little success in dealing with Mr. Cumberland in the summer of 2018. [ 67 ] Mr. Cumberland sent an email to Mr.

Marshall setting out his dissatisfaction with the mediator and the experience of mediation on November 1, 2018 stating, inter alia, as follows: (…) In regards to her being called in to “mediate” – my lawyer (a national expert in Employment Law) reviewed the facts and policies around my situation and felt very strongly that this was simply a case of two employees who have a difference of opinion and values – but it was written up and made to appear as a case of harassment. Indeed – many of the words chosen in Rob’s e-mails were taken directly out of our MCFT harassment policy.

Because Rob made this appear as a formal harassment complaint (rather than a disagreement between two employees) I experienced two more meetings with Sally. At both of these meetings I found Sally's behavior unprofessional and biased; she continued to curse; she used the "F" bomb and several other choice words to describe other examples she felt added to the discussion.

We spend considerable time going over several of the situations that Rob and I were engaged in; however, we always ended the sessions with Sally and Rob focusing on my behavior (an issue that Rob obviously wanted addressed) and how I could do things differently to address the problems created by Rob's irresponsible behaviour.

In any relationship - it takes TWO people; and I have found in life - even in most marriage issues - that indeed BOTH parties share someblame, and for resolution, both must work towards resolution and accept responsibility. Within the warped process I experienced this didnot occur. The concerns I shared at BOTH meetings when I met with Sally alone were never addressed. I found these meetings -although touted as some form of "mediation" - always ended up with the two of them focusing on one issue, and my concerns were neverdealt with - this is not "mediation". (…) In

summary, l found Sally very unprofessional; her choice of words, unprofessional conduct and ridiculous examples were unnecessaryand unwelcomed. She could not maintain balance and provide an unbias approach as a "mediator". Quite frankly, it was a waste ofMCFT funds from my perspective. On a positive note, I do believe Rob found it beneficial to have someone in his corner advocating forhis sensitivities....so from this point alone perhaps it was worth the effort.

Rob seems to be doing much better so far this term - so thatfrom my perspective is great -although there are likely other reasons for this renewed vigor. (…) [68] Mr. Cumberland is a rigid individual who does not have the ability to appreciate alternate perspectives or consider with anyinsight differing points of view. These characteristics are apparent in reviewing the various correspondence Mr. Cumberland wroteduring his employment and were evident during his trial testimony. Despite the difficulty both Mr. Marshall and Mr. Davies experiencedin dealing directly with Mr.

Cumberland as his immediate supervisors, they had an obligation to inform him of what was going on. Oncethe decision was made to terminate Mr. Cumberland’s employment, there was also a decision made to simply ride out the balance of theacademic year with as little confrontation with Mr. Cumberland as possible. [69] Justice Grant spoke of the need for progressive discipline in Jardine v.

Phoenix Petroleum Ltd., 2021 NBQB 94 atparagraph 118: [118] The law on wrongful dismissal in Canada is clear that for an employer to satisfy its burden of proving that it has dismissedan employee for cause it must demonstrate that it has employed a system of progressive discipline leading up to the dismissalunless a single incident is so egregious that it warrants

summary dismissal: see Henry v. Foxco Ford Ltd., supra. at para.104. Noneof the reasons alleged as cause for dismissing Mr. Jardine would, if proven, warrant

summary dismissal with the possible exception ofhis alleged failure to adhere to the new mileage policy. The remainder of the alleged behaviors occurred over a period of time andPhoenix, therefore, had to prove that it used progressive discipline before dismissing Mr. Jardine for those causes. [Emphasis mine] [70] In The Law of Dismissal in Canada, Third Edition, Canada Law Book, the author, Howard A. Levitt noted at paragraph 7:10:10: “If an employer learns of

an act of misconduct on the part of an employee, the employee must be terminated immediately or after theemployer takes a reasonable time to consider its position. If the employer does not do so, the employee’s misconduct will be held tohave been condoned and the employer will then be precluded from dismissing the employee for

an act at some later date.” [Emphasis mine] [71] The College submits that warnings in the case of Mr. Cumberland would have been fruitless given the rigidity of his personalityand his inability to adapt to the changing culture at the College. The College refers the Court to the comments of Justice Marshall of theAlberta Court of Queen’s Bench in Hyland v. Royal Alexandra Hospital, 2000 ABQB 458 , where Justice Marshall discussedthe obligation to warn as follows: [29] I have considered the obligation of the Hospital to warn the Plaintiff and give him an opportunity to correct his actions.

It isevident that he had such an opportunity when Morris had a full discussion and expressed his serious concerns to him on April 8. ThePlaintiff could have changed his position after that meeting before his April 21 termination. I observed, however, from the Plaintiff’stestimony, that he remains completely convinced that there was nothing improper in his actions. It would have been fruitless tohave provided him with a further opportunity to change his position. [Emphasis mine] CONCLUSION ON JUST CAUSE DISMISSAL

[ 72 ] In the event Mr. Marshall or Mr. Davies had provided clear warnings regarding his conduct to Mr. Cumberland throughout 2018 and 2019, they would have been successful in convincing this Court that Mr. Cumberland was dismissed for just cause. Mr. Cumberland’s communications with several students are completely inappropriate regardless of the culture of the academic institution. Mr. Cumberland’s interactions with several of his colleagues are equally unacceptable. Mr. Cumberland’s insubordination demonstrated towards both Mr. Davies and Mr. Marshall is simply untenable.

All these issues, if properly brought to Mr. Cumberland’s attention, and if likely ignored by Mr. Cumberland, would have easily paved the way for a just cause dismissal. However, Mr. Marshall and Mr. Davies did not take that approach and in so doing deprived Mr. Cumberland of the ability to curb his behaviour and address their concerns. Given the rigidity of Mr. Cumberland’s mindset, I find it unlikely that he could have adequately addressed their concerns if properly advised; however, he was never given the chance, and he is therefore entitled to the benefit of the doubt.

For these reasons alone, I do not accept the College has met the burden upon them to establish just cause for the dismissal. WAS THERE A CONTRACT OF EMPLOYMENT IN PLACE? [ 73 ] Mr. Cumberland signed a contract of employment with the College at the time of his hiring in June of 2012.

That contract pertaining to his role as a Forest Operations Supervisor contained the following termination clause: • Subsequent to completion of the probationary term of employment, the employer may terminate the employment of the employee at any time: o For just cause at common law; for unprofessional behaviour (e.g. inappropriate relationships with students, use of MCFT resources for personal profit, conduct that undermines or harms the reputation of MCFT); or conduct that conflicts with the MCFT's core values of respect for the individual (faculty, staff, students), integrity, and honesty. o Without just cause, in which case the employer shall provide the employee with advance notice of termination or compensation in lieu of notice equal to: ▪ One month plus two weeks per year of completed service with the employer, to a maximum of fifteen (15) months . • The employee may terminate employment at any time by providing the employer with at least sixteen (16) weeks advance notice of intention to resign. [Emphasis mine] [ 74 ] Mr.

Cumberland was provided with a new contract of employment when he was offered the position of Academic Instructor.

The termination clause in the contract for the position of Academic Instructor, which was never signed, states as follows: Subsequent to completion of the probationary terms of employment, the employer may terminate the employment of the Employee at any time in the event of: ➢ Just cause at common law, for: • Unprofessional behavior (i.e. inappropriate relationships with students, use of MCFT resources for personal profit, conduct that undermines or harms the reputation of MCFT). • Conduct which conflicts with MCFT's core values of respect for the individual (faculty, staff or students), integrity and honesty. ➢ Without just cause, in which case MCFT shall provide the Employee with advance notice of termination or compensation in lieu of notice equal to: • One month plus two weeks per year of completed service with MCFT to a maximum of fifteen months ➢ The Employee may terminate employment at any time by providing MCFT with at least four (4) weeks advance notice of intention to resign. [ 75 ] Mr.

Cumberland was well beyond his probationary period at the time of his termination. Mr. Cumberland had not signed the contract of employment following his hiring as an Academic Instructor. While the terms of the new contract of employment are essentially identical, the fact is there was no signed contract of employment at the time of the termination. The College could have required Mr. Cumberland to sign the new contract and perhaps simply due to oversight they did not. There is no suggestion that the College pursued Mr.

Cumberland for a signed employment contract or that the failure to execute the contract was in any way attributable to the actions of Mr. Cumberland. [ 76 ] The College submits that if Mr. Cumberland was wrongfully dismissed, his notice period should be that which is set out in the written employment contract. Pursuant to the employment contract, the College argues Mr. Cumberland would be entitled to 4.2 months salary in lieu of notice. The College points out that the increase in salary was minor, approximately $4000, and the change in duties was also negligible as Mr.

Cumberland had been teaching in his role as Forest Operations Supervisor. Further, the College maintains that Mr. Cumberland accepted the terms and conditions of his new position as Academic Instructor regardless of whether the employment contract was signed.

[ 77 ] In all the circumstances, the failure for either party to sign the new employment contract appears to have been an oversight. I will allow Mr. Cumberland to argue in the absence of a signed contract of employment, his notice period must be calculated pursuant to common law principles. NOTICE PERIOD [ 78 ] Mr. Cumberland argues that as a 53-year-old man working in a specialized field, his notice period should extend beyond the common law standard of one month per year of service. Mr.

Cumberland points out that he was recruited from his employment of 15 years with the Department of Natural Resources to join the staff at the College. Mr. Cumberland maintains that there are a limited number of positions available in the province of New Brunswick for individuals with specialized training like himself. Mr. Cumberland argues that he only found full time employment in his field in May of 2022. [ 79 ] The New Brunswick Court of Appeal set out in Abrams v.

RTO Management , 2020 NBCA 57 at paragraph 84 the factors that must be considered when assessing an appropriate notice period: Reasonable notice in any given case is arrived at by considering all pertinent circumstances, ch

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