Employment lawyer Jim Fyshe says he has never seen a wrongful dismissal case handled in the way the one he recently wrapped up on behalf of two former City of Hamilton employees. Hamilton’s legal department has advised the Bay Observer that the total bill for external council will be in excess of $916,000—a third of that amount spent in the last year alone as the two parties were heading towards mediation. “From the beginning, the city approached this case in an overly aggressive fashion,” Fyshe said. He confirmed that he was warned that even if the city lost the case they would appeal to a higher court. Asked if he thought the City was trying to scare off his clients, Fyshe said “there is no other explanation that comes to mind except that they did not want this case to go to court. I concluded the City wanted to beat down the litigants irrespective of the merits of the claim.” The legal action stemmed from a 2004 confrontation between the late Councillor Bernie Morelli and city taxi inspector Michael Francoeur.. Court documents indicate that in December 2004, Morelli received a complaint from a taxi operator friend that city taxi inspector Francoeur was being overzealous in pulling cabs off the road. Sworn testimony describes a scene where Morelli appeared at the taxi inspector’s workplace, using obscene language and threatening Francoeur’s employment. By way of background the 2004 incident came in the midst of a taxi safety blitz that was being carried out jointly by police, MTO and the city in response to numerous complaints about aging and rundown taxis in Hamilton. Cab drivers were angry at the crackdown and at one point picketed City Hall with their cabs. Taxi inspectors were being threatened. It was a tense environment with even then Mayor Larry DiIanni’s driver threatening taxi inspectors on behalf of his brother who drove a cab.
The Morelli exchange ultimately led to the firing of two city licensing managers, Tom Redmond and Randy Charlton who were not present at the incident but were fired, apparently for not adequately defending Francoeur against Morelli, as well as for a series of subsequent events that Francoeur alleged were systematic acts of harassment. The most serious of these, with which Redmond and Charlton had no involvement, was the carrying out of Morelli’s threat to have Francoeur removed from his job. A few months after the confrontation Morelli’s seatmate Sam Merulla, moved to require that taxi inspections be performed by licensed mechanics, effectively disqualifying Francoeur from his job. Redmond and Charlton say they recommended in writing exactly the opposite with regard to using licensed mechanics but their report was doctored by higher-ups.
Even though they were not present during the Morelli-Francoeur exchange, Randy Charlton and Tom Redmond somehow became the targets of what they claimed was an unfair and prejudicial investigation process. A Toronto fact-Finder Anne Grant was brought in to conduct the investigation. Court documents say the two managers were not advised during the interviews with Grant that it was their conduct that was under investigation nor that the investigation could lead to terminations. They did not have counsel present and were not even allowed to take notes of the interviews with Grant. All of this took place more than 6 years ago. In a statement issued when the lawsuit was launched Charlton said “we were judged by a different standard than councillor Morelli who suffered no consequences from his intemperate act which led to our dismissal;” adding in their statement of claim, “the real perpetrator of harassment against Francoeur was…city Counsellor, Morelli”…Since losing their jobs Redmond and Charlton have accepted lower level jobs in neighbouring municipalities. While pursuing first, an attempt to have a judicial review look into their firings, and then the just-concluded wrongful dismissal suit. City council was made aware of the rising legal bill at a closed door session in 2012. Most of the same councillors were present six years ago when council unanimously refused to take any action against Morelli for the Francoeur incident. The nearly $1 Million the city spent does not include use of internal legal staff time, nor whatever settlement for damages the two former employees may have received. Declaring himself “shocked” at the nearly $1 Million spent on the case Fyshe said, “if the amount is correct, as a taxpayer, I think the city owes an explanation as to why they would spend so much money.”