Date: 19980826 Docket: C965512 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: MARGARET PANTON PLAINTIFF AND: EVERYWOMAN'S HEALTH CENTRE SOCIETY (1988) DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE PITFIELD Counsel for the Plaintiff: Richard H. Hamilton/ Catherine Vrabec Counsel for the Defendant: Donald Crane Place and Date of Hearing: Vancouver, B.C. August 10 - 14, 1998 Introduction [1] Ms. Panton was employed as a clinical administrator of Everywoman's Health Centre Society (1988), a non-profit society organized to provide abortion and reproductive counselling services in Vancouver. Her employment was terminated on March 1, 1996. Ms. Panton claims damages for wrongful dismissal and says the notice period should be increased because of the Society's conduct in relation to the termination of her employment. [2] The Society says Ms. Panton's employment was terminated for cause due to the fact that she: (a) acted in a manner inconsistent with the terms of her employment when, without advising the board of her actions, she complained on behalf of the Society to the Delta Police Department and asked that it convene a formal inquiry into the conduct of Constable Parker as it affected the Society and certain of its employees; (b) omitted, or refused, to follow the direction of the president to deliver the Society's security logs to crown counsel for use in a prosecution concerned with the constitutionality of the Access to Abortion Services Act, R.S.B.C. 1996, c.1; and (c) challenged the board and its conduct and decisions in an open and hostile manner which undermined its efforts to manage the affairs of the Society. [3] The Society says Ms. Panton's actions represented conduct incompatible with the duties associated with her employment. [4] The onus is on the Society to prove the existence of cause on a preponderance of evidence. [5] Cause is incapable of precise definition. As stated in Thompson v. Boise Cascade Ltd. (1994), 7 C.C.E.L. (2d) 17 (Ont. Ct. (Gen. Div.)) at para. 95: It is also clear that the employees' conduct, and the character it reveals, must be such as to undermine, or seriously impair, the essential trust and confidence the employer is entitled to place in the employee in the circumstances of their particular relationship. In essence, the conduct must be such that the employer can point to it as a good reason for having lost confidence in the employee's ability faithfully to discharge his/her duties. [6] The passage at p. 348 from R. v. Arthurs (1967), 62 D.L.R. (2d) 342 (Ont. C.A.) is also apt: If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer's business, or if he has been guilty of wilful disobedience to the employer's orders in a matter of substance, the law recognizes the employer's right summarily to dismiss the delinquent employee... [7] Reaching a conclusion on the absence or existence of cause is difficult because some of Ms. Panton's actions in the course of her employment were responses to a breakdown in the cooperative management model adopted by the Society. The model contemplated shared decision making by the board of directors and key employees with respect to all important matters affecting the Society. The model worked for a period of time. When it proved unsatisfactory, the board assumed a dominant role in the management of the Society's affairs, notwithstanding the objections of key employees and Ms. Panton in particular. [8] I must consider whether Ms. Panton's conduct constituted cause for dismissal in the employment context. Organization of Society [9] Ms. Panton was a member of the steering committee formed in 1987 by the B.C. Coalition for Abortion Clinics to organize a society to provide abortion services and reproductive counselling. The Society is the successor to a society incorporated for that purpose in 1987. [10] Ms. Panton was a subscribing member of the Society and soon became one of its employees. She was a director until 1989 when she resigned in order to conform to the Society's policy that paid staff should not serve as directors. [11] In 1995 and 1996 the paid staff of the Society consisted of two counsellors, two nurses, a business administrator, a clinical administrator and a communications manager. This group was called the core staff. Ms. Panton was the clinical administrator. None of these individuals was senior to the others in management responsibility. Day to day management decisions affecting the clinic were made by the core staff in committee. [12] The Society's board of directors was comprised of thirteen individuals: the medical director, one member of the core staff to be appointed from time to time by the staff, and eleven persons elected at the annual general meeting of the Society. The business administrator of the clinic was an ex- officio, non-voting member of the board. [13] Bylaw 25(1) provided that the Society's members were to elect a president, vice-president, recording secretary and financial director. Bylaw 39(1) stipulated that the president was the chair of all meetings of the directors unless the directors decided otherwise. Bylaw 32(1) stipulated that the directors could delegate any, but not all, of their powers to committees consisting of such persons as they thought fit. [14] As I noted previously, there was no single manager of the core staff. Bylaw 39(2) stipulated that the president, who was elected by the members of the Society and required to be a director, was the chief executive officer of the Society. This provision notwithstanding, Ms. Panton testified that the core staff assumed the role of executive director responsible for operations, the security of the clinic, and the development of the policies and procedures necessary for its operation. Some of the policies and procedures developed by the core staff were approved by the board while others were acted upon without board approval. [15] Among the procedures approved by the board and staff was one designed to promote the resolution of conflict between or among personnel. As I will explain, the existence of the procedure was a factor in the dispute between Ms. Panton and the board. [16] Until early 1995, the board and core staff were jointly involved in the hiring and termination of staff. They were also jointly involved in the security committee responsible for monitoring and ensuring the safety and security of the clinic, the staff and the patients. The committee's activities were important to the Society given the opposition of a segment of the community to abortion and to the existence and work of the Society. The opposition was readily apparent and expressed in a variety of ways. The work of the security committee was a factor in the dispute between Ms. Panton and the Board. [17] Generally, until early 1995, the directors and core staff acted as partners in the management and operation of the clinic. Decisions of consequence were made on a consultative basis without reference to, or reliance upon, any organizational hierarchy. Conduct and Termination [18] The matters in the context of which the presence or absence of cause for Ms. Panton's termination must be determined fall into three categories: her conduct in relation to the Delta Police Department inquiry into the conduct of Constable Parker; her conduct in relation to the prosecution of one Mr. Lewis who was charged with violating the Access to Abortion Services Act, R.S.B.C. 1996, c. 1, and the relationship between the board and Ms. Panton. [19] The events leading to Ms. Panton's termination on March 1, 1996 began in the spring of 1995 when the board of directors, whose president was then Ms. Kim Zander, became concerned about reported tensions and disagreements among clinic staff affecting their working relationship. [20] Several external factors contributed to the tension. Individuals who opposed the Society and its operations picketed the premises regularly. In August 1994, Ms. Panton was assaulted by one of those opponents. Those same opponents threatened to commence legal proceedings against Ms. Panton. In November 1994, a Vancouver doctor who provided abortion services was shot and seriously injured in his home. In the fall of 1994 the Society learned that a member of the Delta Police Department had used a police computer to search licence plates to identify the names of staff at the clinic. In December 1995, two abortion clinics in the United States had been subjected to violent attacks resulting in injury and death to staff. [21] As I will describe presently, there were internal tensions as well which were evident in strained relations among staff and between board and staff. It was evident, as well, in hate mail addressed to Ms. Panton but originating with a Society employee. The employee eventually resigned over the incident. [22] The accumulation of events and their effect on Ms. Panton caused her to consult with a clinical psychologist in the spring of 1995. [23] The events leading to Ms. Panton's termination occurred against this background. The Parker Inquiry [24] In late 1994, the Society learned that Constable Parker of the Delta Police Department had used the police computer to search the licence numbers of vehicles to obtain the names of Society staff. Ms. Panton was one of those identified by him. His search was unauthorized and apparently made for the benefit of opponents of the Society. [25] On May 17, 1995 Ms. Panton and other staff members filed complaints under the Police Act, R.S.B.C. 1996, c. 367, with respect to Constable Parker's conduct. An internal investigation by the department was carried out. The chief constable reported the findings and Parker's suspension to Ms. Panton on June 2, 1995. The letter advised that if Ms. Panton was not satisfied with the result, she could request a public inquiry. The request was to be made within 30 days of receipt of the letter. [26] Ms. Panton was away on holidays in early June and learned of the letter on or about June 16th. On June 29, 1995 Ms. Panton wrote to the chief constable on Society letterhead requesting a public inquiry. The letter purported to be written "on behalf of Everywoman's Health Centre and of the individual staff members whose licences were searched". The letter was signed by Ms. Panton in her capacity as clinical administrator of the Society. [27] None of the Society's security committee members or any member of the board was advised by Ms. Panton of her action. [28] Ms. Panton testified that she wrote the letter on behalf of the Society because of the pending expiry of the time for the request and her desire to keep the Society's options open. There was no satisfactory explanation of her omission to advise any of the security committee members, Ms. Zander or any other board member of the letter from the chief constable or her reply to it. The Parker inquiry was a matter of some consequence to the Society. She had ample time to discuss or advise of her actions before and after June 29, 1995 and should have done so. [29] In mid-July, Ms. Panton was advised by telephone of the need for a new request for a public inquiry. She received a letter dated July 27, 1995 from the chief constable confirming that, because of Police Act technicalities, a new request had to be provided. The request was supplied on August 25th by Ms. Johal, a member of staff, who merely copied Ms. Panton's letter of June 29th. She purported to sign the letter on Ms. Panton's behalf. Ms. Panton told no one on the security committee or the board of the telephone conversation or the letter of July 29, 1995. [30] In November 1995, the board and Ms. Zander learned for the first time that the Society had requested a public inquiry. Ms. Zander testified to her concern that the request had been made without board consultation or approval. At trial she testified that because the requests of June 29th and August 25th appeared to have been made by the Society, it could not have withdrawn from the inquiry process without a resulting loss in credibility had the board decided that was the appropriate course of action. Ms. Zander had not expressed that concern to Ms. Panton or anyone else before trial notwithstanding she had the opportunity to do so. [31] Ms. Panton was not reprimanded for her actions in November 1995. That may have been due to the fact she was then on medical leave. The Lewis Prosecution [32] Following upon the proclamation of the Access to Abortion Services Act which restricted the right of citizens to demonstrate in opposition to abortion within a specified radius of an abortion clinic, one Mr. Lewis deliberately violated the Act in order that he would be charged permitting him to challenge the constitutional validity of the legislation. He achieved his purpose. [33] The Lewis trial commenced in late November 1995. Ms. Panton was scheduled to meet with prosecutors on Sunday, December 3rd, at the Hotel Vancouver to review the evidence she was to give at the trial. [34] On December 1st, Ms. Zander met with Ms. Panton. She advised that the board had decided that the Society's security logs would be made available to prosecutors for use in the case. Ms. Zander instructed Ms. Panton to deliver a copy of the logs to the prosecutors when she met with them. [35] Ms. Panton was aware of disagreement among members of the security committee on the question of whether the logs should be so used. She also questioned whether Ms. Zander was acting on behalf of the board rather than on her own initiative. Ms. Panton was steadfast in her opposition to the use of the logs at the trial because of her concern that disclosure of the contents would affect the security and safety of the staff and volunteers. [36] Over the weekend Ms. Panton determined that she would take the logs to the meeting with the prosecutors, place them on the table and announce that while the board had authorized their use, she would cease to be a voluntary witness should the prosecutors take the logs for review. [37] I do not accept Ms. Panton's evidence that she said she would testify if served with a subpoena. Her evidence at trial is inconsistent with that at her examination for discovery. I am satisfied the import of her message to the prosecutors was that she would not be a willing witness in any circumstances if the logs were reviewed or used. [38] Ms. Panton saw Ms. Zander at the hotel on December 3rd. She did not advise her of the terms upon which she had decided to deliver the logs to the prosecutors. She met with the prosecutors and advised of her position. The action had the desired result. The prosecutors did not take the logs and the information in them was not used at trial as a result. [39] While Ms. Zander was told by prosecutors on December 3rd of a problem surrounding the logs and Ms. Panton's evidence, it was not until late February 1996 that Ms. Zander and the board learned that the prosecutors had not taken the logs because of Ms. Zander's position with respect to her evidence. Relations Between Ms. Panton and the Board [40] As the tension in the clinic mounted in early 1995, the board became more involved in its management and operation. The board received complaints with respect to the conduct of an employee of the Society. It reacted by retaining Ms. Deborah White to interview staff in order to obtain particulars of the complaint regarding the employee. [41] In the course of her interviews, Ms. White was advised that staff was also critical of Ms. Panton. Ms. Panton advised Ms. White she would not discuss personnel issues saying they should be addressed in the manner contemplated by the conflict resolution procedure. Ms. Panton advised Ms. White that the problems surrounding the Society required structural changes. [42] Ms. White reported her findings to the board. On June 14, 1995 Ms. Zander telephoned Ms. Panton to advise that numerous concerns had been expressed about her conduct and role in the clinic. Both Ms. Zander and Ms. Panton testified that the conversation did not go well. Ms. Panton refused to discuss issues and insisted upon being provided with a letter which would outline the process Ms. Zander proposed to use to deal with the complaints and evaluate Ms. Panton's performance. [43] In a letter to Ms. Panton also dated June 14th, Ms. Zander expressed her view that the conflict resolution process in place was not working and did not extend to the kind of issues under review. She said she wished to meet with Ms. Panton to advise her of the concerns and obtain Ms. Panton's comments in relation to them, after which there would be a discussion about how to deal with the information. She advised that options were open and said that board had some ideas and they wanted those of Ms. Panton. Ms. Zander concluded by reiterating the fact that the board wanted to "work these things through" with Ms. Panton. [44] On July 13th, Ms. Panton and Chris Gaynor, who was described as a support person, met with Ms. Zander and another board member. The concerns were outlined. They were summarized in a letter drafted July 19th in anticipation of a second meeting on July 20th. In the draft Ms. Zander stated the following: At the July 13th meeting we provided you with information we had received through employee feedback, our experience, and the facilitation process. This information dealt primarily with three general areas of concern: 1) your communication style; 2) your behaviour at the clinic;, and 3) your interpersonal skills. The main issues are that you often deal with other people, both staff and board, in a hostile and disrespectful manner, that you are not working as part of the overall team, that you are seen to be in a position of more power than any other staff and to be using that position in a negative way, and that you withhold information from some people. It is also seen that you are in conflict with the board and that you appear to be undermining the process of change the board and staff are undertaking. This perception is causing undue stress for many of the staff. Some of your actions around issues that have arisen in the facilitation process and actions that have come out of the facilitation process have been irresponsible. These issues are of such a wide spread and consistent nature that we consider them to be critical to address immediately. They are affecting staff in the clinic, many of whom feel threatened and retaliated against and this in turn affects the operations of the clinic. We indicated to you that this situation cannot continue. [45] On July 21, 1995 Ms. Panton advised the board and staff that she was going on medical leave. Her doctor proposed that it should begin immediately. Ms. Panton delayed in order to be satisfied that her tasks had been reassigned to other staff. She concluded a memorandum to board and staff saying that she would arrange with the board representatives about how the evaluation process involving her would continue. Her medical leave commenced August 8th. [46] After August 8th, relations between Ms. Panton and the board steadily deteriorated. The board convened a meeting of staff and board to discuss the structure and organization of the Society. Ms. Panton did not attend because she had committed to represent the Society at a meeting of the B.C. Coalition for Abortion Clinics taking place on that date. Ms. Zander improperly noted her absence and inferentially, if not directly, criticized Ms. Panton's non-attendance in the course of the meeting. [47] Another meeting of board and staff occurred September 23, 1995. Initially the board decided Ms. Panton, who was then on medical leave, should not attend the meeting. The decision was reversed on September 22, 1995 and late that day, she was invited. She did not attend. She provided a memorandum explaining her absence asking that it be read at the commencement of the meeting. The request was not acted upon. [48] On September 27, 1995 Ms. Zander wrote to Ms. Panton summarizing the course of, and conclusions reached, at the meeting of July 20th. It had been agreed at the July 20th meeting that the letter would be forthcoming. Ms. Zander did not explain in the letter or her evidence why it took her more than two months to write. [49] In November 1995, Ms. Zander reprimanded Ms. Panton for attending at the clinic to shred documents. Ms. Panton subsequently explained that her actions conformed to the Society's document destruction policy. Ms. Zander's criticism was inappropriate and made without proper inquiry on her part. [50] When writing to Ms. Panton with respect to the documents, Ms. Zander asked Ms. Panton to return her clinic keys to a board member pending her return from medical leave. Ms. Panton returned the keys to a staff member and explained her action in a letter dated November 11, 1995. In a letter dated December 12, 1995 Ms. Zander reprimanded Ms. Panton for having returned her keys to the clinic to a staff member rather than a board member as she had been asked to do. [51] Ms. Zander expected that Ms. Panton would return to work from medical leave in mid-December 1995. In late November the board learned that her return would be delayed until January 1996. This knowledge prompted Ms. Zander to write Ms. Panton on December 8th advising that her paid sick leave from the Society would cease and that she should apply for long term disability. The elimination period under the insurance policy had expired. The Society stopped paying Ms. Panton on December 5th. She was without compensation until February 21, 1996 when the insurer approved her claim for long term disability and retroactively paid benefits from December 5th. [52] Finally, Ms. Zander accused Ms. Panton of the unauthorized removal of security photographs from the clinic. In fact, the photographs had been removed by prosecutors for purposes of the Lewis prosecution. [53] The unfounded accusations directed at Ms. Panton by Ms. Zander as I have described and the actions of the Society in relation to long term disability do not reflect well upon Ms. Zander in her role as president and, therefore, chief executive officer of the Society. The best that can be said on her behalf is that her actions may have resulted from Ms. Panton's attitude toward the board from June 1995 until her termination in March 1996. [54] I need not recount the details of Ms. Panton's memorandum of September 23, 1995 to which I have referred; her letters of October 12, November 11, December 5, December 13, and December 29, 1995; her two letters dated January 5, 1966; her letter of February 3, 1996; her two letters of February 6, 1996; and her letter of February 28, 1996. [55] The substance of the letters, in aggregate, is that Ms. Panton was outspoken in disputing the board's right to address complaints about her performance outside the established conflict resolution procedure applicable to disputes between or among personnel; she criticized Ms. Zander, her leadership of the Society, and her conduct and actions as they pertained to Ms. Panton; she confirmed her concern about, and disagreement with, board decisions; and she was outspoken in her criticism of the manner in which the board made its decisions. [56] The correspondence permits only one conclusion: Ms. Panton had no confidence in Ms. Zander or the board and its ability to govern the Society. Termination [57] On February 28, 1996 the board resolved to terminate Ms. Panton's employment and to pay four months' severance. In a letter dated March 1, 1996 the board advised Ms. Panton it had concluded that her "behaviour and actions have had and continue to have a negative effect on the operation, are disruptive and undermine the board's responsibilities". The letter stated that the offer to pay four months' salary was made notwithstanding the board's view that just cause existed for termination and without prejudice to the board's right to rely on just cause should that become necessary. [58] Ms. Panton did not respond to the board's letter. On March 22, 1996 the board sent Ms. Panton the severance cheque net of deductions saying its delivery would fulfill the legal obligations of the Society to her. Ms. Panton returned the cheque to the Society. Justification for Dismissal [59] Counsel on behalf of Ms. Panton says that the dismissal was wrongful. In context, the disagreements between Ms. Panton and the board, most frequently represented by Ms. Zander, were understandable and did not justify summary dismissal; Ms. Panton's actions in relation to the Parker Inquiry were motivated by her desire to ensure the Society's options were kept open; and in acting as she did in relation to her evidence in the Lewis prosecution, Ms. Panton was exercising her legal right to stipulate the terms upon which she would or would not testify. [60] Counsel on behalf of the Society says that Ms. Panton's attitude toward the board, her failure to advise of her actions in relation to the Parker Inquiry, and her actions in relation to the use of the security logs constituted, in aggregate, cause for dismissal. [61] I observe that Ms. Panton accepted employment with the Society which had adopted an atypical governance and operating model requiring joint and collegial decisions of the board and core staff in respect of matters of critical importance to the Society. The board and the core staff were, in a sense, partners in the Society's undertaking. The objective of governance through cooperation was laudable. It was achievable and achieved until tensions from internal and external sources made collective decision-making impractical. [62] As the board asserted its authority over the affairs of the Society, Ms. Panton opposed board initiatives, was unwilling to participate in a discussion of her role in the Society absent agreement on process, and was prepared to persistently challenge the board. In the case of the Parker inquiry and the Lewis prosecution, she departed from the co- operative model she espoused to act on her own without gaining consensus or reporting her actions to anyone in a position of authority. [63] Ms. Panton was aware that ultimate responsibility for the management and governance of the Society rested with the board. She had acknowledged the board's authority in her letter of January 5, 1996 to board members. She had been involved in the successful election of a slate of directors, including Ms. Zander, to replace the incumbents in 1993 in order to ensure that a proposal supported by the incumbents, but thought by many members of the Society to be against its interests, would not be acted upon. [64] As Ms. Panton challenged Ms. Zander and the board, and as Ms. Zander made unjustified allegations against Ms. Panton, each developed a profound distrust of the other. [65] If, by her challenges to the board, which had ultimate responsibility for the management of the Society, she had not previously crossed the line of acceptable and respectful disagreement with an employer over difficult issues requiring resolution through discussion rather than confrontation, she most assuredly did so on December 3rd when her actions caused prosecutors to refrain from reviewing the security logs to determine their usefulness in the Lewis prosecution. [66] Mr. Lewis was acquitted at trial because the legislation was found to be unconstitutional. The acquittal was reversed on appeal to this Court where the legislation was held not to be in violation of the Charter of Rights and Freedoms: R. v. Lewis, [1997] 1 W.W.R. 496. One of the difficulties with the case was the absence of direct evidence on which to base a finding with respect to the proportionality of the legislative restriction on free speech and assembly. [67] One need not speculate about the course of the trial had the prosecutors had access to the logs. It is sufficient to note that Ms. Panton's conduct at her meeting with prosecutors was calculated to ensure the utility of the logs would not be assessed and that they would not be used as evidence in the trial. [68] Ms. Panton's actions were a contravention of the employer's directive in relation to a matter of vital importance to the Society and its operations. Regardless of her motive, her actions on this occasion were inimical to the interests of the Society and the board. [69] In my opinion, it is not sufficient, as counsel argues, to say that Ms. Panton was entitled to give or not give her evidence on such terms as she might decide. While she may have been entitled to stipulate the terms on which she would testify, she was not entitled to undermine the board's decision and attempt to dissuade the prosecutors from reviewing or using the security logs. If she was not prepared to carry out the employer's directive because of conscientious objection or doubt about board authorization of Ms. Zander's directive, she should have advised Ms. Zander that was the case. The Society would then have been in a position to counteract the intended effect of Ms. Panton's conduct. [70] Ms. Panton's decision in relation to the logs, alone or in conjunction with her other actions, constituted a repudiation of her responsibilities as an employee. With knowledge of her actions, the employer could not reasonably be expected to have any confidence in Ms. Panton's ability to perform her duties or act in the best interests of the Society. The Court of Appeal stated in Stein v. British Columbia (1992), 65 B.C.L.R. (2d) 181, at 184, that the law in this regard was properly stated in Laws v. London Chronicle (Indicator Newspapers) Ltd., [1959] 1 W.L.R. 698 (C.A.) as follows: To my mind, the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master and that, unless he does so, the relationship is, so to speak, struck at fundamentally... I think that it is not right to say that one act of disobedience, to justify dismissal, must be of a grave and serious character. I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. [71] I am satisfied on the whole of the evidence that Ms. Panton's conduct justifies dismissal without notice. [72] The action is dismissed. [73] If necessary, the parties may speak to costs. "Pitfield J."