Workplace Investigations

Downham 2005

Downham Ontario Superior Court December 2005

This case, Downham v County of Lennox and Addington, like those mentioned below, showed a fundamentally flawed investigation which adversely impacted the damages suffered by the plaintiff and allowed for enhanced damage claims due to the shoddy and unfair investigation undertaken by the corporation to justify the termination of a long-standing senior employee. This issue is reviewed here from a principled perspective.

William Downham was employed by the County of Lennox in the position of Manager, Non-Profit Housing. Downham was, as was his wife, involved with the Salvation Army. He had met a convicted paedophile and offered to stand as his surety to allow for the terms of his release from jail, allowing this person to reside with him to this end. Mr. Holmes, the person in question, overstayed his welcome in the Downham residence.

The issue arose as to whether Downham misused his authority to influence the candidacy of Holmes for a residence in certain facilities funded by the County and hence under his jurisdiction.

This resulted in an investigation undertaken by a Mr. Williams, an employee of the County, which regrettably was found to be considerably flawed, resulting in the termination of Downham and hence this proceeding.

The trial judge, Ferguson J., had these comments on the nature of the investigative steps, referring to Mr. Williams, the investigator:

His background of poor relations with Mr. Downham, his total lack of regard for the interests of Mr. Downham as his staff member, his shoddy and unfair investigation, his biased and unfounded statements in his report, the extravagant terms used in his letter of termination, his communications with the representatives of the United Way and Quinte and his lame explanations for them, and his demeanour and testimony in the witness stand convince me that he acted with bias and malice throughout this unfortunate story.

[182]                          I conclude that Mr. Williams had decided to fire Mr. Downham at the time of the meeting on March 5.

[183]                          The content of the report he purportedly relied on was fundamentally false.  If the false and unfounded information and conclusions are removed the remaining content is not sufficient to justify dismissal.

Aggravated - $50,000, Punitive - $100,000, Intentional Infliction - $20,000, Notice 15 plus 5

The trial judge awarded the plaintiff a notice claim of 15 months to which a further 5 months was added due to the unfair allegations made against the plaintiff. 1 Also, awards were made of aggravated damages of $50,000, intentional infliction of mental distress of $20,000, punitive damages of $100,000 and damages for defamation of $1,000.

This case is a text book example of how not to carry on an investigation and regrettably provided a vivid reflection of the nature of emotional damages suffered by a person who has been unfairly treated.

The determination of the award set by the trial judge was summarized by him as influenced by the following factors:

(a)There was no effort to contact Mr. Downham at the outset to ascertain his position and to minimize the damage.

(b)The investigation was biased, shoddy and substantially undocumented (despite the direction to create a paper trail).  The information allegedly obtained from Mrs. Beaudrie and Ms. Stebbins was the underpinning of the report but was not recorded.   The absence of such a record resulted in false and distorted information being included in the report and the inability of Mr. Downham to respond to it.

(c)Mr. Downham was left for a long period in ignorance of what was happening which would foreseeably increase his anxiety.

(d)Mr. Downham was treated unfairly by not being informed of the details of the allegations against him so he could give his version.

(e)The report of Mr. Williams was recklessly prepared and contained numerous statements of fact and conclusions which were unfounded and which would have been discovered to be false if Mrs. Beaudrie had been carefully interviewed.

(f)There was no consideration given to assisting Mr. Downham as an employee.  The only focus was on minimizing political fall-out and in justifying his dismissal.

(g)The letter exaggerated the grounds for dismissal set out in the report.

(h)The letter contains extremely serious findings which are essentially groundless.

(i) The letter was intended to cause Mr. Downham personal distress and to destroy his  professional career.  It accomplished its purpose.  He was not able to find any full-time job until October 2003 and was never able to find comparable employment and finally left the social service field.

(j) When the appeal letter of Mr. Downham disclosed information at odds with the content of Mr. Williams’ report, none of the senior management staff involved in the appeal made any further investigation.  Mr. Williams knew that the contrary information in the report was not well-founded.

(k)The report was circulated to policiticans whose knowledge would inevitiably lead to problems in a small community.

(l)The plaintiff has had to live with the consequences of the County’s unfounded allegations from March 2002 until December 2005.  This has affected all areas of his life including his social life, his volunteer activites, his employment and his having to deal with and feel responsible for the effects on his wife.

(m) At trial the County maintained its position and contended that the errors they acknowledged in Mr. Williams’ report were inconsequential.

(n) At trial the County maintained its position on the basis of facts and conclusions which they knew or should have known before trial would be contradicted by Mrs. Beaudrie who was the primary source of the information.  Mrs. Beaudrie was the County’s witness.  The County could not reasonably proceed to trial without interviewing her before trial.

It is to be noted that this decision came well before the Supreme Court of Canada decision of Keays v Honda which was released in June of 2008.