Mark Brickell vs. The NPCA

Court File No.
/N° du dossier du greffe: CV-19-00012463-0000
Electronically issued
: 14-Feb-2019
Délivré par voie électronique
Welland
Court File No.
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARK BRICKELL
Plaintiff
and
NIAGARA PENINSULA CONSERVATION AUTHORITY

Defendant
STATEMENT OF CLAIM
TO THE DEFENDANT
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the

Plaintiff. The Claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting

for you must prepare a Statement of Defence in Form 18A prescribed by the Rules of
Civil Procedure, serve it on the Plaintiff’s lawyer or, where the Plaintiff does not have a
lawyer, serve it on the Plaintiff, and file it, with proof of service in this court office, WITHIN
TWENTY DAYS after this Statement of Claim is served on you, if you are served in
Ontario.
If you are served in another province or territory of Canada or in the United States
of America, the period for serving and filing your Statement of Defence is forty days. If
you are served outside Canada and the United States of America, the period is sixty days.
Instead of serving and filing a Statement of Defence, you may serve and file a
Notice of Intent to Defend in Form 18B prescribed by the Rules of Civil Procedure. This
will entitle you to ten more days within which to serve and file your Statement of Defence.
IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN

AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF
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Electronically issued / Délivré par voie électronique : 14-Feb-2019 Court File No./N° du dossier du greffe: CV-19-00012463-0000
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YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL
FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL
AID OFFICE.
IF YOU PAY THE PLAINTIFF’S CLAIM, and $750 for costs, within the time for
serving and filing your Statement of Defence you may move to have this proceeding
dismissed by the Court. If you believe the amount claimed for costs is excessive, you
may pay the Plaintiff’s claim and $400 for costs and have the costs assessed by the Court.
TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has

not been set down for trial or terminated by any means within five years after the action
was commenced unless otherwise ordered by the court.
Date Issued by
Local Registrar
Address of 102 East Main Street

court office: Welland, ON L3B 3W6
TO: Niagara Peninsula Conservation Authority

250 Thorold Rd.
3rd Floor West
Welland, ON L3C 3W2
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CLAIM
1. The Plaintiff claims:
(a) A declaration that he was wrongfully terminated from his employment on or
about December 6, 2018 or, alternatively, on or about December 12, 2018;
(b) A declaration that the Defendant breached an employment agreement it
entered into with the Plaintiff, and in particular Section 12.0 thereof, which
agreement required that the Defendant pay the Plaintiff pay in lieu of
compensation owed over a thirty-six (36) month period, as particularized
below;
(c) Damages in the amount of $465,000, representing thirty-six (36) months of
base salary;
(d) Damages on account of any additional income payable due to anticipated
increases in salary pursuant to the Defendant's "Non-Union Salary
Schedule", particulars of which will be provided at of before trial;
(e) Damages on account of the value of accrued and unused vacation and
"administrative time" owed to the Plaintiff, particulars of which will be
provided at of before trial;
(f) Damages on account of the value of the loss of employee benefits during
the thirty-six (36) month notice period, including but not limited to, damages
for the loss of health and dental benefits and accidental death and
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dismemberment insurance, particulars of which will be provided at or before
trial;
(g) Damages, particulars of which will provided at or before trial, on account of
the loss of reimbursement by the Defendant of amounts the Plaintiff would
have incurred as part of various training and educational programs;
(h) Damages on account of the loss of enrolment in the OMERS defined benefit
pension plan during the thirty-six (36) month notice period, particulars of
which will be provided at of before trial;
(i) Damages in the amount of $36,000, representing the value of the Plaintiff's
monthly vehicle allowance;
(j) Damages, particulars of which will be provided at of before trial,
representing a tax gross-up to account for the loss of the tax advantages
the Plaintiff would have enjoyed had the Defendant complied with its
contractual obligations to the Plaintiff;
(k) A declaration that Mr. Brickell was terminated without lawful authority
pursuant to Section 14(4.3) of the Conservation Authorities Act, R.S.O.
1990, c. C. 27;
(l) General and/or moral damages in the amount of $800,000 due to the
Defendant's breach of the duty of good faith in the manner of dismissal;
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(m) Punitive, aggravated, and exemplary damages in the amount of
$1,000,000, or such other amount as this Honourable Court deems just;
(n) Pre-judgment interest in accordance with section 128 of the Courts of
Justice Act, R.S.O. 1990, c. C.43, as amended;
(o) Post-judgment interest in accordance with section 129 of the Courts of
Justice Act, R.S.O. 1990, c. C.43, as amended;
(p) the costs of this proceeding, plus all applicable taxes; and,
(q) Such further and other relief as to this Honourable Court may deem just.
2. The Plaintiff Mr. Brickell claims, in the alternative to the claims outlined in the
prayer for relief at paragraphs 1(b) – 1(j):
(a) A declaration that the termination clause contained in the aforesaid
employment agreement entered into between the Plaintiff and Defendant is
null, void, or unenforceable;
(b) A declaration, as a consequence of the declaration sought in para. 2(a), that
the Plaintiff is entitled to damages on account of all salary and benefits
payable under the aforesaid employment agreement during the full duration
of this agreement, and this to June 24, 2022;
(c) Damages in the amount of $548,958.30, representing forty-two and a half
(42.5) months of base salary;
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(d) Damages on account of any additional income payable due to anticipated
increases in salary pursuant to the Defendant's "Non-Union Salary
Schedule", particulars of which will be provided at of before trial;
(e) Damages on account of the value of accrued and unused vacation and
"administrative time" owed to the Plaintiff, particulars of which will be
provided at of before trial;
(f) Damages on account of the value of the loss of employee benefits during
the forty-two and a half (42.5) month period of the employment agreement,
including but not limited to, damages for the loss of health and dental
benefits and accidental death and dismemberment insurance, particulars of
which will be provided at of before trial;
(g) Damages, particulars of which will provided at or before trial, on account of
the loss of reimbursement by the Defendant of amounts the Plaintiff would
have incurred as part of various training and educational programs;
(h) Damages on account of the loss of enrolment in the OMERS defined benefit
pension plan during the forty-two and a half (42.5) month notice period,
particulars of which will be provided at of before trial;
(i) Damages in the amount of $42,500, representing the value of the Plaintiff's
monthly vehicle allowance; and,
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(j) Damages, particulars of which will be provided at of before trial,
representing a tax gross-up to account for the loss of the tax advantages
the Plaintiff would have enjoyed had the Defendant complied with its
contractual obligations to the Plaintiff.
A. The Parties
3. The Plaintiff, Mark Brickell ["Mr. Brickell"] is a fifty-six (56) year old man who
resides in the City of St. Catharines. He was at all material times employed by the
Defendant.
4. Mr. Brickell began his employment with the Defendant in 2014.
5. On or about June 26, 2017, he was promoted to the position of Chief Administrative
Officer/Secretary Treasurer ("CAO") of the Defendant, the position he thereafter held until
his employment was terminated.
6. The Defendant, the Niagara Peninsula Conservation Authority ("NPCA" or the
"Defendant"), is a statutory body corporate pursuant to the Conservation Authorities Act,
R.S.O. 1990, c. C. 27 and is capable of being named as a party to the present Action.
7. In Ontario, the boundaries of a Conservation Authority are determined by its
"watershed", rather than by the boundaries of its municipalities. A watershed is defined
in the Conservation Authorities Act as an area of land that drains water into a common
body of water. The Conservation Authorities Act therefore provides for the creation of a
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Board of Directors composed of appointees from the multiple municipalities within the
watershed's boundaries.
8. With respect to the NPCA specifically, the Board of Directors has, at all material
times, been composed of fifteen (15) members, twelve (12) of whom were appointed by
the upper-tier Niagara Region municipality (one (1) for each of it's twelve (12) constituent
lower-tier municipalities). At all material times, two (2) members were appointed by the
Hamilton Municipality and one (1) by the Haldimand municipality.
B. Mr. Brickell's Initial Employment with the NPCA

9. On or about February 18, 2014, Mr. Brickell commenced his employment with the
NPCA in the position of Project Manager.
10. In his nearly five (5) year period of employment with NPCA, Mr. Brickell was
successful in achieving a number of promotions. Between February 18, 2014 and April
28, 2017, Mr. Brickell was promoted to and worked as Manager of Operations and
Strategic Initiatives before being promoted to and working as Director of Operations and
Strategic Initiatives.
11. On or about April 28, 2017, Mr. Brickell was appointed as the Acting Chief
Administrative Officer/Secretary Treasurer, or Acting CAO.
12. While Mr. Brickell was serving as the Acting CAO, the NPCA Board of Directors
undertook a competitive process to find the best candidate for the permanent CAO
position. Approximately one-hundred (100) candidates were considered for the role.
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13. At the completion of this recruitment process, on or about June 23, 2017, Mr.
Brickell was appointed unanimously by the NPCA's Board of Directors as CAO under a
five (5) year fixed-term Executive Employment Agreement (the "Employment Contract").
14. Mr. Brickell pleads that, at all times during his employment as CAO, he reported
directly to the NPCA Board of Directors and, in particular, to the then Chair of the Board,
Sandy Annunziata.
C. Further Particulars Surrounding Mr. Brickell's appointment as Chief

Administrative Officer/Secretary Treasurer
15. Mr. Brickell began his appointment as CAO at a time when the governance,
operation, and public perception of the NPCA faced challenges.
16. After a significant period of mounting public criticism of the governance of the
NPCA, on or about October 25, 2017, the Standing Committee of Public Accounts of the
Ontario Legislative Assembly passed a motion requesting that the Office of the Attorney
General conduct an audit of the NPCA.
17. The Office of the Attorney General conducted an audit of the NPCA between
January 8, 2018 and July 31, 2018. This office released its final Report, entitled "Special
Audit of the Niagara Peninsula Conservation Authority", in September 2018 (the "Lysyk
Report").
18. The audit and the Lysyk Report was focused primarily on the NPCA's operations
in the five (5) year period between 2013 and 2017.
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19. The Lysyk Report uncovered a number of long-standing problems with the
governance and operations of the NPCA during this five (5) year period, problems with
which Mr. Brickell was confronted as he began his tenure as CAO in June 2017.
20. Some of the issues uncovered by the Lysyk Report with respect to governance
included, inter alia:
(a) Many of the members of the Board of Directors were also elected officials
of their respective municipalities. While this is not prohibited by the
Conservation Authority Act, it nevertheless created a situation in which
municipal priorities sometimes conflicted with Board responsibilities. The
Lysyk Report identified that, as of May 2018, 12 of 15 members were
elected officials, including 11 of the 12 members appointed by the Niagara
Region;
(b) Conflicts of Interest were not clearly defined and understood;
(c) Members of the Board of Directors were inappropriately involved in the day-
to-day operations and decision-making of the NPCA, compromising the
Board's objectivity in its oversight role of management; and,
(d) A need for more transparency regarding the Board members' use of Per
Diem Payments – including honorariums, per diems, and travel expenses.
21. The Lysyk Report identified the circumstances surrounding the appointment of the
NPCA's former CAO, Carmen D'Angelo, as an example of a potential conflict of interest
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and of perceived unfairness in the hiring process. Mr. D'Angelo was previously a member
of the Board of Directors. He stepped down from his role on the Board in October 2013
and began to provide consulting services to the NPCA. Then, in April 2014, Mr. D'Angelo
was appointed to the position of CAO. Mr. D'Angelo resigned as CAO on or about
November 13, 2016.
22. After Mr. D'Angelo resigned as CAO, another senior employee, Peter Graham,
briefly served as Acting CAO before resigning from this position, at which point Mr. Brickell
was appointed Acting CAO on or about April 28, 2017.
23. In addition to these issues with the governance of the NPCA, the Lysyk Report
also uncovered a number of historical operational and human resources management
problems, including, inter alia:
(a) Frequent reorganizations that have affected the NPCA's delivery of
mandated services;
(b) That some of these restructuring decisions were not made based on the
NPCA's needs;
(c) Significant delays in responding to public complaints about violations of the
Conservation Authorities Act;
(d) An inability to always determine the number of actual violations; and,
(e) Improved processes in Human Resources implemented in 2014 frequently
not being followed.
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D. Mr. Brickell's Role as Chief Administrative Officer/Secretary Treasurer

24. As pleaded above, Mr. Brickell was appointed unanimously by the Board of
Directors to the CAO role after the searching and competitive selection process outlined
above.
25. Mr. Brickell executed the Employment Contract to become CAO on or about June
23, 2017 and began in this role on or about June 26, 2017.
26. Mr. Brickell pleads, and the fact is, that the CAO position was at all material times
the highest level executive position within the NPCA. As such, Mr. Brickell was tasked
with significant duties and responsibilities within the organization, including general
supervisory responsibility and managerial authority over all employees within the NPCA.
27. As CAO, Mr. Brickell was responsible for the hiring and discharge of all NPCA
personnel and contractors.
28. At all material times, as CAO, Mr. Brickell had the right and authority to contract
and make other commitments on behalf of the NPCA.
29. The Plaintiff pleads, and the fact is, that he was never disciplined while employed
with the Defendant.
30. The Plaintiff pleads, and the fact is, that he received consistently positive feedback
throughout his employment with the Defendant. While he did not receive a formal
performance review during his tenure as CAO, his work was consistently met with positive
responses by members of the Board of Directors.
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31. Further to paragraphs 29-30, Mr. Brickell's diligent work and dedication to the
NPCA as CAO included, inter alia,
(a) the initiation of a major re-organization to modernize and focus the
operations of the organization;
(b) the commencement of a number of initiatives to improve communication
and transparency of the NPCA's mandate to the public, including the
establishment of a Strategic Initiatives Team;
(c) the implementation a new Project Management Framework;
(d) the development of a fifteen (15) year Capital Budget Plan; and,
(e) the introduction an Asset Management Plan.
E. Events Leading to Mr. Brickell's Non-Disciplinary or Administrative Leave

of Absence and Subsequent Termination
(i) the Majority of Niagara Region Board Members are voted out of
elected office
32. As pleaded above, twelve (12) out of the fifteen (15) members of the NPCA Board
of Directors, including eleven (11) out of the twelve (12) members from the Niagara
Region, were also elected officials in their local municipalities.
33. Shortly after the Lysyk Report was released in September, 2018, municipal
elections were held on or about October 22, 2018.
34. The Plaintiff pleads that, of the eleven (11) Niagara Region members of the Board,
two (2) did not run for re-election, six (6) were defeated, and only three (3) won re-election.
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35. The Plaintiff pleads that there was a general public expectation, reflected in media
reports, that these election results meant that the NPCA Board of Directors, or at least a
majority of its members, would be replaced.
(ii) Mr. Brickell terminates the employment of David Barrick
36. Mr. Brickell pleads that, on or about November 9, 2018, he came to a decision that
he would terminate the employment of David Barrick. Particulars of the reasons for this
termination are known to the Plaintiff and are fully known to Mr. Barrick.
37. At that time, Mr. Barrick was employed by the NPCA as Senior Director of
Corporate Resources. He is a former elected Regional Councillor for the Niagara Region.
38. The Plaintiff pleads that, as CAO, he had complete authority over the decision to
terminate Mr. Barrick's employment.
39. Mr. Brickell pleads that, out of courtesy to members of the Board of Directors and,
further or in the alternative, because the Plaintiff knew that Mr. Barrick had a close
relationship with a number of the Board members, Mr. Brickell decided that he would
consult the Board about this decision before taking any action.
40. Mr. Brickell pleads, and the fact is, that on or about November 16, 2018 and prior
to taking this matter to the Board of Directors, he instructed an NPCA Human Resources
Consultant, Misti Ferrusi, to draft a letter of termination for Mr. Barrick that would include
a description of his entitlements upon a termination made a on without cause basis.
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41. Mr. Brickell pleads that he is entitled as a matter of law to plead and rely on what
took place thereafter in relation to the termination of Mr. Barrick's employment but, owing
to his relationship to the NPCA as its past CAO, refrains from particularizing the events
that took place between him and the NPCA's Board of Directors in relation to the
termination of Mr. Barrick's employment.
42. Mr. Brickell merely pleads, and the fact is, that the NPCA's Board of Directors, Ms.
Ferrusi, and then Board Clerk Lisa McManus were aware of the decision to terminate Mr.
Barrick's employment before said employment was terminated.
43. On or about November 23, 2018, Mr. Brickell notified Mr. Barrick that his
employment was terminated, and this during a meeting between Mr. Brickell and Ms.
Ferrusi on behalf of the NPCA, and Mr. Barrick on his own behalf. Mr. Brickell likewise
provided Mr. Barrick with a letter advising him of the termination of his employment on a
without cause basis.
(iii) Mr. Brickell receives notice of a meeting of the Board of Directors
44. Two days' later, on Sunday, November 25, 2018, Mr. Brickell was copied on an
email to NPCA Board members calling them to a meeting on November 28, 2018 at the
Holiday Inn Express on York Road in Niagara-on-the-Lake, and this for a Special Meeting
of the Full Authority regarding an undisclosed employment matter.
45. Mr. Brickell pleads that this was the first time he became aware of the meeting.
46. Contrary to past practice, no public notice of the meeting had been posted on the
NPCA website.
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47. Mr. Brickell then contacted the NPCA's Board Chair, Mr. Annunziata, to inquire
about the nature of the Board meeting because, as the CAO, he was the only direct
employee of the NPCA's Board of Directors.
48. The Plaintiff pleads that Mr. Annunziata confirmed that the meeting was being
called to evaluate Mr. Brickell's job performance as CAO. The Plaintiff advised Mr.
Annunziata that this process did not follow NPCA policy. Mr. Annunziata responded that
he could do anything he wants.
49. Mr. Brickell pleads that he did not believe there was any reason to be concerned
about his job performance. While NPCA policy sets out that the CAO was to undergo
annual formal evaluations, Mr. Brickell had yet to receive a formal evaluation well past
the first anniversary of his employment as CAO.
50. Mr. Brickell pleads that he had inquired on two prior occasions, in May 2018 and
again in October 2018, about when the Board of Directors would conduct his formal job
evaluation.
51. Further, as pleaded above, Mr. Brickell consistently received informal praise from
the Board regarding his performance as CAO.
52. Mr. Brickell pleads that Mr. Annunziata informed him that the he would be
permitted to sit in on the meeting and that no other staff members would be involved in
the meeting.
(iv) Mr. Brickell is placed on an administrative and/or non-disciplinary

leave of absence with no explanation
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53. Mr. Brickell pleads that he attended at the Holiday Inn Express on November 28,
2018 in order to attend the aforementioned meeting.
54. Mr. Brickell pleads that all members of the NPCA's Board of Directors, except for
April Jeffs, Frank Campion, and Jim Diodati, were present at this meeting.
55. Mr. Brickell pleads that, contrary to what he was told by Chair Annunziata on
November 25, 2018, staff member Lisa McManus, then Board Clerk and Administrative
Assistant to Mr. Brickell, was also in attendance at the meeting. Mr. Brickell further pleads
that another staff member, Michael Reles, Manager of Communications, was included
towards the end of the closed session.
56. Mr. Brickell pleads that, although he was initially invited to attend the meeting,
when he entered the meeting room, he was asked to leave because the Board advised
that it was entering into a closed session. The Plaintiff pleads that he was not permitted
to attend any portion of the closed session. The Plaintiff pleads that Ms. McManus
attended the entire closed session, Mr. Reles attended a portion of the closed session
towards the end, and that Ms. Ferrusi did not attend any portion of the closed session.
57. Following the closed session, contrary to both past practice and the NPCA's
administrative by-laws, the Board failed to inform interested parties that the meeting
returned to open session.
58. Mr. Brickell further pleads, and the fact is, that contrary to past practice, the open
session of this November 28, 2018 meeting was not made available for public viewing
through live stream on the NPCA's website.
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59. The Plaintiff pleads that, following the Board meeting, he was invited by Chair
Annunziata to a meeting in another room that was attended by himself, Chair Annunziata,
Vice-Chair James Kaspersetz, and Human Resources Consultant Misti Ferrusi.
60. The Plaintiff pleads that Chair Annunziata proceeded to read aloud a letter dated
November 28, 2018 stating that Mr. Brickell was being placed on administrative leave
with pay effective immediately. Mr. Brickell was asked to surrender his NPCA keys and
cell phone.
61. The Plaintiff pleads that this letter further advised that this leave of absence was
administrative and/or non-disciplinary in nature.
62. During this meeting, Mr. Annunziata alluded to a matter that Mr. Brickell had
allegedly failed to advise the Board about, but would did not tell him what that matter was.
63. Mr. Brickell responded to this assertion by stating that he had always kept the
Board informed.
64. Mr. Brickell pleads that he was not, and has not since, been given any further
explanation for the leave of absence.
(v) Vice-Chair Kaspersetz threatens Mr. Brickell with termination for just
cause unless he agrees to resign
65. Mr. Brickell pleads that, immediately after receiving the non-disciplinary leave of
absence letter on November 28, 2018, and at the same meeting pleaded at paragraphs
59-64, above, Mr. Kaspersetz told the Plaintiff "you either resign or you will be fired for
cause, your choice" (or words to like effect).
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66. The Plaintiff pleads the Mr. Annunziata pressured the Plaintiff to submit a letter of
resignation immediately, with terms of settlement to be determined afterwards.
67. Mr. Brickell responded by indicating his willingness to negotiate terms of
resignation but that he refused to submit his resignation before such terms were
negotiated and accepted.
68. Mr. Brickell and representatives of the NPCA then agreed to meet two days later,
on or about November 30, 2018, to continue discussions on the terms of Mr. Brickell's
potential resignation.
(vi) Mr. Brickell refuses to resign, and is again threatened with

termination for cause
69. The Plaintiff pleads that he attended a meeting on or about November 30, 2018
with Mr. Annunziata and Ms. Ferrusi to further discuss his potential resignation.
70. Mr. Brickell pleads that Mr. Annunziata began the meeting by referencing rumours
of the Plaintiff's potential departure from the NPCA on social media.
71. Mr. Brickell responded to Mr. Annunziata that, if there were rumours spreading on
social media, they could only have come from Board members, in his estimation.
72. Mr. Brickell pleads that Mr. Annunziata said the words, or words to the effect of,
"what's more important to you, money or your reputation?".
73. Mr. Brickell pleads that he then explained to Mr. Annunziata that he hoped they
could come to a fair resolution but that he would not submit his resignation without an
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agreement of terms. The Plaintiff pleads that Mr. Annunziata stated that Mr. Brickell
should submit his resignation immediately and that fair terms could be worked out later.
74. Mr. Brickell pleads that, at the same November 30, 2018 meeting, he asked Mr.
Annunziata whether Mr. Annunziata had been given authority to negotiate the terms of
the Plaintiff's resignation on behalf of the NPCA's Board of Directors.
75. Mr. Brickell pleads, and the fact is, that Mr. Annunziata responded that he did not
have such authority.
76. Mr. Brickell pleads, and the fact is, that Mr. Annunziata nevertheless pressured the
Plaintiff to submit his resignation immediately.
77. Mr. Brickell pleads that Mr. Annunziata responded by saying, or by using words to
the effect of, "I don’t know what the Board will do when it reconvenes on Monday
[December 3, 2018]."
78. Mr. Brickell pleads that he understood this comment to constitute another threat
that the Board would dismiss the Plaintiff for cause.
79. Mr. Brickell claims that the meeting ended on the understanding that the Plaintiff
would not resign his position before there were agreed-upon terms.
(vii) Continued negotiation fails to come to a resolution
80. On or about December 3, 2018, the Plaintiff received an email from Ms. Ferrusi
stating that Mr. Annunziata had now been given authorization by the Board of Directors
to negotiate on behalf of the NPCA Board of Directors.
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81. The Plaintiff pleads that he met with Mr. Annunziata and Ms. Ferrusi two more
times, on December 4, 2018 and December 5, 2018, to negotiate potential terms of his
resignation, neither of which came to a resolution.
82. The Plaintiff pleads that the December 5, 2018 meeting ended with another threat
by Mr. Annunziata that the Board would likely move forward with terminating Mr. Brickell
for cause.
(viii) Mr. Brickell is notified of the intended termination of his employment

by email on December 6, 2018
83. The Plaintiff pleads that, at 12:35pm on December 6, 2018 Mr. Brickell's now legal
counsel received a letter from a lawyer purporting to act on behalf of the NPCA, which
letter outlined the NPCA's final without prejudice offer.
84. The Plaintiff pleads that this letter reiterated Mr. Annunziata's threats, in writing,
that if Mr. Brickell did not accept the offer that he would be terminated for cause at 5:00pm
that same day. Mr. Brickell pleads that he responded by email, through his lawyer Mr.
Moreau, rejecting the offer at 12:55pm on December 6, 2018. Particulars of the offer itself
are not pleaded given that it was purported to be made on a without prejudice basis.
85. On or about December 6, 2018, at 5:53pm, Mr. Moreau received an email from
NPCA legal counsel stating that Mr. Brickell's employment had been terminated for cause
effective at 5:01pm on December 6, 2018.
86. The Plaintiff pleads that the email stated that a formal termination letter would
follow in the mail in the next few days.
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87. The Plaintiff pleads that he had not been notified of his termination at any time
prior to this email sent to Mr. Moreau at 5:53pm on December 6, 2018.
(ix) Mr. Brickell's Termination was made without lawful authority
88. The Plaintiff pleads that, at or around 5:15 pm on December 6, 2018, the Niagara
Regional Counsel passed a motion to remove and replace a majority of the members of
the NPCA Board of Directors, including Mr. Annunziata.
89. The Plaintiff pleads that the removal and replacement of the majority block of the
Board of Directors took immediate effect pursuant to section 14(4.3) of the Conservation
Authorities Act, R.S.O. 1990, c. C. 27.
90. The Plaintiff therefore pleads that the notification of his termination at 5:53pm on
December 6, 2018 was made without lawful authority.
91. The Plaintiff pleads that, following the removal and replacement of the Board of
Directors of the NPCA on December 6, 2018, there was significant public controversy and
confusion regarding who held authority to act on behalf of the NPCA.
92. The Plaintiff pleads that any ambiguity on this issue was resolved by the release
of an Order from Justice J. Ramsey of the Ontario Superior Court of Justice. The Plaintiff
pleads that the Order confirms that the removal and replacement of a majority of the
members of the NPCA Board of Directors on December 6, 2018 took immediate effect.
{C2487728.1}
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(x) Mr. Brickell is provided with termination letters of questionable

origin and authority
93. Mr. Brickell received an email from Ms. Ferrusi on or about 6:30pm on December
11, 2018 stating that a formal letter of termination was attached to this email.
94. In the attached letter, also dated December 11, 2018:
(a) Mr. Annunziata's typed name appears as the signatory and sender or writer;
and,
(b) nobody signed the letter, including Mr. Annunziata.
95. The Plaintiff pleads that he also received this unsigned letter by mail on December
14, 2018.
96. Mr. Brickell pleads that this letter was not drafted by Mr. Annunziata, read or
reviewed by Mr. Annunziata, or authorized by Mr. Annunziata.
97. Alternatively, if this letter was drafted, read, reviewed, and/or authorized by Mr.
Annunziata, Mr. Annunziata lacked any authority to so draft, read, review, and or
authorize this letter.
98. Alternatively, if the letter was drafted by one or more persons, that person or
persons did not have Mr. Annunziata's authority to draft or send the letter.
99. Alternatively, if Mr. Annunziata delegated any aspect of the making, signing, or
sending of this letter, Mr. Annunziata at all times lacked lawful authority to so delegate.
{C2487728.1}
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100. On or about December 11, 2018, Mr. Brickell's legal counsel responded to this
letter by email demanding that a letter signed by someone purporting to hold themselves
out as acting with authority on behalf of the NPCA be sent, and that this letter be served
to the Plaintiff in a manner that meets the requirements set out in O. Reg 288/01 under
the Employment Standards Act 2000, S.O. 2000, c. 41.
101. The Plaintiff pleads, and the fact is, that the letter of December 11, 2018 was not
provided to him in accordance with O. Reg 288/01 under the Employment Standards Act
2000, S.O. 2000, c. 41. He pleads and relies on O. Reg 288/01 under the Employment
Standards Act 2000, S.O. 2000, c. 41.
102. The Plaintiff pleads that, on or about December 12, 2018, he received an email
from Ms. Ferrusi that attached a signed version of the same letter. The Plaintiff then
received a copy of this letter by courier on December 13, 2018.
103. The Plaintiff pleads that the letter contains the signature of someone other than
Mr. Annunziata.
104. The Plaintiff pleads that, next to the signature, the words "as chairman" are affixed
in what appears to be a different person's hand-writing.
105. The Plaintiff pleads that his legal counsel responded to the receipt of this letter by
email on December 12, 2018, demanding:
(a) the name of the person who signed the letter;
{C2487728.1}
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(b) particulars as to the affixing of said signature, in particular whether it was
an electronic signature;
(c) particulars as to how the words "as chairman" had been affixed to the letter;
(d) in the event that the letter was signed by someone other than the signatory,
particulars concerning who gave the person who attached the electronic
signature the authority to do so; and,
(e) in the event that the signatory, or person who affixed the signature, was not
Mr. Annunziata, particulars concerning when and how Mr. Annunziata gave
that person authority to affix the signature on his behalf.
106. The Plaintiff pleads that neither he, nor his lawyer, received any response to these
demands.
107. Mr. Brickell pleads that this version of the letter was not drafted by Mr. Annunziata,
read or reviewed by Mr. Annunziata, or authorized by Mr. Annunziata.
108. Alternatively, if this version of the letter was drafted, read, reviewed, and/or
authorized by Mr. Annunziata, Mr. Annunziata lacked any authority to so draft, read,
review, and or authorize this letter.
109. Alternatively, if this version of the letter was drafted by one or more persons, that
person or persons did not have Mr. Annunziata's authority to draft or send the letter.
{C2487728.1}
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110. Alternatively, if Mr. Annunziata delegated any aspect of the making, signing, or
sending of this version of the letter, Mr. Annunziata at all times lacked lawful authority to
so delegate.
111. The Plaintiff pleads, and the fact is, that this version of the letter sent to him by
email on December 12, 2018 was not provided to him in accordance with O. Reg 288/01
under the Employment Standards Act 2000, S.O. 2000, c. 41. He pleads and relies on
O. Reg 288/01 under the Employment Standards Act 2000, S.O. 2000, c. 41.
112. In each and every version of the letter terminating or purporting to terminate Mr.
Brickell's employment, the NPCA alleged just cause to terminate Mr. Brickell's
employment, relying at all times on bald, generic statements and conclusions that
purportedly give rise to just cause.
113. Mr. Brickell denies any allegations of cause to terminate his employment, either as
set out in the NPCA's many letters of termination or at all, and places the Defendant to
the strict proof thereof. He reserves the right to address in Reply any allegations of cause
that the Defendant may continue to rely on in this Action.
114. The Plaintiff pleads that no investigation into his conduct or into the allegations or
conclusions of cause set out in any of the letters to him was conducted by the Defendant.
115. The Plaintiff pleads that no interviews were conducted in relation to the
Defendant's allegations of cause.
{C2487728.1}
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116. The Plaintiff pleads that the Defendant has not produced any documentation
supporting any allegations of cause.
117. The Plaintiff pleads that he was not questioned about any of the Defendant's
allegations of cause.
118. The Plaintiff pleads that he has was given no opportunity to respond to any of the
Defendant's allegations of cause.
F. Post-Termination Events
(i) Mr. David Barrick is Appointed Interim CAO
119. On or about December 6, 2018, the same day Mr. Brickell was unlawfully
terminated, the NPCA announced on its website that Lisa McManus had been appointed
as the interim CAO.
120. The Plaintiff pleads that, on or about December 6, 2018, Ms. McManus rescinded
the termination of Mr. Barrick. Further, or in the alternative, one or more persons
purporting to act on behalf of the NPCA and/or its Board of Directors, rescinded the
termination of Mr. Barrick.
121. The Plaintiff pleads that, shortly thereafter, Ms. McManus took a leave of absence
from her position as interim CAO or, further or in the alternative, had resigned as interim
CAO.
{C2487728.1}
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122. On or about December 14, 2018, the NPCA announced that David Barrick, who
was terminated without cause on November 23, 2018, as pleaded above, had been
appointed as the new interim CAO of the NPCA.
123. The Plaintiff pleads that the appointment or the purported appointment of Mr.
Barrick as Mr. Brickell's interim replacement was made unlawfully by past members of
the NPCA Board of Directors who had already been removed and replaced, as pleaded
above.
124. Further to paragraph 123, or in the alternative to paragraph 123, Mr. Barrick's
appointment was not made following a recommendation or meeting of the NPCA's Board
of Directors or, alternatively, his appointment, if made following a recommendation or
meeting of the NPCA's Board of Directors or some members of this Board of Directors,
was made unlawfully and without authority.
(ii) Confidential Communications from Mr. Brickell's Lawyer are Leaked

to the Media
125. The Plaintiff pleads that his legal counsel, Mr. Moreau, sent a confidential letter on
December 10, 2018 to Mr. Jim Bradley, Regional Chair of the Niagara Regional Council,
with a copy to Ms. Ferrusi. This letter outlined Mr. Brickell's legal position.
126. The Plaintiff pleads that this letter was released to the media appearing in full in
an article published on the St. Catharines Standard website on or about December 11,
2018.
{C2487728.1}
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127. The Plaintiff pleads that he did not release the letter publicly and that Mr. Brickell
did not authorize anyone to release the letter.
128. On or about December 21, 2018, Mr. Moreau sent a confidential and "without
prejudice" letter to now counsel for the NPCA and to Mr. Bradley outlining the Plaintiff's
updated position.
129. The Plaintiff pleads that this December 21, 2018 letter, and its without prejudice
contents, was referenced in an article published on the St. Catharines Standard website
on or about January 7, 2019.
130. The Plaintiff accordingly pleads that this December 21, 2018 letter was released
to the media sometime after December 21, 2018 and by January 7, 2019.
131. The Plaintiff pleads that he did not release this letter publicly and that Mr. Brickell
did not authorize anyone to release the letter.
(iii) Unsubstantiated and False Allegations About Mr. Brickell Are Widely
Distributed by an Anonymous Source
132. The Plaintiff pleads that an email containing false and unsubstantiated allegations
against Mr. Brickell was sent on or about December 27, 2018 from the email address
"aconcernedcitizen905@gmail.com", purporting to come from someone named "Gary
Wilson".
133. The Plaintiff claims that this email, containing false and unsubstantiated
allegations, was addressed to dozens of recipients, including the email addresses of
{C2487728.1}
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members of the NPCA's Board of Directors, members of the local media, Premier Doug
Ford, and Prime Minister Justin Trudeau.
134. Mr. Brickell pleads that a second email from the same email address and
containing the same or similar false and unsubstantiated allegations against the Plaintiff,
was sent on or about January 21, 2019. The Plaintiff does not have any knowledge as to
the full recipients of this second email.
135. The Plaintiff claims that the content of both emails contain references to
information that could only have been known by a person or persons within the NPCA
with access to highly confidential information.
G. The Claim Particularized

136. Mr. Brickell's employment was terminated without cause no earlier than 5:53pm on
or about December 6, 2018 by someone holding out apparent authority to so act on behalf
of the NPCA.
137. Alternatively, Mr. Brickell's employment was effectively terminated on or about
December 12 or 13, 2018 when he received a signed termination letter dated December
11, 2018.
138. While it is expressly denied that, on either occasion, or at any other time, Mr.
Brickell was terminated by anyone with actual authority to do so, his employment with the
NPCA has been effectively terminated since his salary and benefits were discontinued as
of December 6, 2018.
{C2487728.1}
-31-
139. Further to paragraph 138, on or about December 6, 2018, the NPCA informed
administrators with Mr. Brickell's pension plan, OMERS, that his pensionable service was
discontinued effective December 6, 2018, thus placing Mr. Brickell's future financial
security in jeopardy.
140. Mr. Brickell was employed by the NPCA under a five (5) year fixed-term contract,
the Employment Contract, for a period of time starting on June 26, 2017 and ending June
24, 2022.
141. Pursuant to the Employment Contract, upon his termination without cause within
the first two (2) years of the five year term (i.e. before June 26, 2019), Mr. Brickell was
and is entitled to thirty-six (36) months of pay in lieu of notice.
142. Mr. Brickell pleads that he was terminated within the first two (2) years of his
Employment Contract and that he has not been provided with any pay in lieu of notice.
The Plaintiff accordingly claims damages against the Defendant in respect of the loss of
anticipated income during the thirty-six (36) month notice period, all as outlined in the
prayer for relief at paragraph 1 above.
143. The Plaintiff's benefits – including the continued participation and enrollment in the
OMERS defined benefit pension program and other ancillary employment benefits,
including health and dental benefits, accidental death and dismemberment benefits, car
allowance, and participation in the Chartered Directors Program delivered by the
Conference Board of Canada and DeGroote School on Business – all formed an integral
{C2487728.1}
-32-
part of his total compensation. Damages in lieu of any such items during the thirty-six
(36) month notice period are accordingly claimed.
144. Alternatively, if the termination clause in the Employment Contract is interpreted to
limit entitlement to base salary during the notice period, an interpretation Mr. Brickell
wholly rejects and which is wholly untenable, Mr. Brickell pleads that the entire termination
clause would therefore become null and void.
145. Further to paragraph 144, the Plaintiff pleads and relies on the Employment
Standards Act, 2000, S.O. 2000, c. 41.
146. If the termination clause in the Employment Contract is null and void, the Plaintiff
claims damages for all pay and benefits and remuneration payable on account of the
remaining balance of the Employment Contract.
147. Accordingly, as all salary and benefits have been discontinued as of December 6,
2018, damages on account of the period of December 6, 2018 to June 24, 2022
(approximately 42.5 months) is owed. Damages on account of same are pleaded at
paragraph 2, above.
148. Mr. Brickell claims general, aggravated, and punitive damages due to the
Defendant's failure to comply with its duty of good faith and fair dealing in the manner of
dismissal. In that regard, he pleads that, when the parties entered into the contract of
employment, it was contemplated that if the Defendant were to breach its duty of good
faith and fair dealing upon termination, it was reasonably foreseeable that this would
cause Mr. Brickell mental distress.
{C2487728.1}
-33-
149. Mr. Brickell pleads and relies, in support of his claim of a breach of this obligation,
on the facts pleaded above including inter alia:
(a) the manner of his termination;
(b) the after-the-fact use of false, unsubstantiated, bald allegations of just
cause;
(c) the failure on the NPCA's part to perform any kind of investigation or provide
any opportunity for Mr. Brickell to respond to the non-particularized and
vague allegations seemingly levelled against him;
(d) the use of a threat or threats to terminate Mr. Brickell for just cause unless
he agreed to resign;
(e) the termination of Mr. Brickell's employment without lawful authority
pursuant to Section 14(4.3) of the Conservation Authorities Act, R.S.O.
1990, c. C. 27;
(f) the repeated failure to provide notice in the proper manner as required by
O. Reg. 288/01: Termination and Severance of Employment under the
Employment Standards Act, 2000, S.O. 2000, c. 41;
(g) the failure to pay proper, or any, pay in lieu of termination notice as required
by the Employment Standards Act, 2000, S.O. 2000, c. 41;
{C2487728.1}
-34-
(h) The disclosure of confidential and/or without prejudice documents to the
media, including the disclosure with the malicious intent to malign the
Plaintiff; and,
(i) The dissemination of false, libellous, and defamatory comments by email,
which emails and the particulars concerning the sender or senders of same
are outlined above.
150. Accordingly, Mr. Brickell claims general and/or moral damages in the amount of
$800,000.
151. The Plaintiff also claims punitive, aggravated, and exemplary damages in the
amount of $1,000,000 as a result of the callous and high-handed actions of the
Defendant, as set out above.
PLACE OF TRIAL
152. The Plaintiff proposes that this action be tried in the City of Welland.
(Date of issue) CAVALLUZZO LLP

474 Bathurst Street, Suite 300
Toronto ON M5T 2S6
Stephen J. Moreau, LSO# 48750Q

Kaley Duff, LSO# 74986A
Tel: 416-964-1115
Fax: 416-964-5895
Lawyers for the Plaintiff
{C2487728.1}
MARK BRICKELL -and- NIAGARA PENINSULA CONSERVATION AUTHORITY
Plaintiff Defendant
Court File No.
ONTARIO
SUPERIOR COURT OF JUSTICE
PROCEEDING COMMENCED AT
WELLAND
STATEMENT OF CLAIM
CAVALLUZZO LLP
Electronically issued / Délivré par voie électronique : 14-Feb-2019
474 Bathurst Street, Suite 300

Toronto ON M5T 2S6
Stephen J. Moreau, LSO# 48750Q

Kaley Duff, LSO# 74986A
Tel: 416-964-1115
Fax: 416-964-5895
Lawyers for the Plaintiff
{C2487728.1}
Court File No./N° du dossier du greffe: CV-19-00012463-0000

Mark Brickell vs. The NPCA

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Mark Brickell vs. The NPCA

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Court File No.

/N° du dossier du greffe: CV-19-00012463-0000

NIAGARA PENINSULA CONSERVATION AUTHORITY

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting

IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN

TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has

Address of 102 East Main Street

TO: Niagara Peninsula Conservation Authority

1. The Plaintiff claims:

(a) A declaration that he was wrongfully terminated from his employment on or

about December 6, 2018 or, alternatively, on or about December 12, 2018;

(b) A declaration that the Defendant breached an employment agreement it

compensation owed over a thirty-six (36) month period, as particularized

(c) Damages in the amount of $465,000, representing thirty-six (36) months of

(d) Damages on account of any additional income payable due to anticipated

increases in salary pursuant to the Defendant's "Non-Union Salary

Schedule", particulars of which will be provided at of before trial;

"administrative time" owed to the Plaintiff, particulars of which will be

provided at of before trial;

dismemberment insurance, particulars of which will be provided at or before

(g) Damages, particulars of which will provided at or before trial, on account of

the loss of reimbursement by the Defendant of amounts the Plaintiff would

have incurred as part of various training and educational programs;

which will be provided at of before trial;

monthly vehicle allowance;

(j) Damages, particulars of which will be provided at of before trial,

contractual obligations to the Plaintiff;

pursuant to Section 14(4.3) of the Conservation Authorities Act, R.S.O.

Defendant's breach of the duty of good faith in the manner of dismissal;

(m) Punitive, aggravated, and exemplary damages in the amount of

$1,000,000, or such other amount as this Honourable Court deems just;

(n) Pre-judgment interest in accordance with section 128 of the Courts of

Justice Act, R.S.O. 1990, c. C.43, as amended;

(o) Post-judgment interest in accordance with section 129 of the Courts of

Justice Act, R.S.O. 1990, c. C.43, as amended;

prayer for relief at paragraphs 1(b) – 1(j):

(a) A declaration that the termination clause contained in the aforesaid

employment agreement entered into between the Plaintiff and Defendant is

null, void, or unenforceable;

(b) A declaration, as a consequence of the declaration sought in para. 2(a), that

the Plaintiff is entitled to damages on account of all salary and benefits

of this agreement, and this to June 24, 2022;

(c) Damages in the amount of $548,958.30, representing forty-two and a half

(42.5) months of base salary;

(d) Damages on account of any additional income payable due to anticipated

increases in salary pursuant to the Defendant's "Non-Union Salary

Schedule", particulars of which will be provided at of before trial;

"administrative time" owed to the Plaintiff, particulars of which will be

provided at of before trial;

benefits and accidental death and dismemberment insurance, particulars of

which will be provided at of before trial;

(g) Damages, particulars of which will provided at or before trial, on account of

the loss of reimbursement by the Defendant of amounts the Plaintiff would

have incurred as part of various training and educational programs;

particulars of which will be provided at of before trial;

monthly vehicle allowance; and,

(j) Damages, particulars of which will be provided at of before trial,

contractual obligations to the Plaintiff.

4. Mr. Brickell began his employment with the Defendant in 2014.

his employment was terminated.

6. The Defendant, the Niagara Peninsula Conservation Authority ("NPCA" or the

"Defendant"), is a statutory body corporate pursuant to the Conservation Authorities Act,

7. In Ontario, the boundaries of a Conservation Authority are determined by its

"watershed", rather than by the boundaries of its municipalities. A watershed is defined

Hamilton Municipality and one (1) by the Haldimand municipality.

B. Mr. Brickell's Initial Employment with the NPCA