By Gerry Barker
July 8, 2019
Opinion based on facts
Last Thursday, the final stage of the lawsuit brought by Mark Amorosi claiming I had defamed him was heard in the Wellington County Courthouse presided over by Superior Court Justice, Cynthia Peterson.
This was a hearing in which the court heard submissions from the two lawyers representing Barker and Amorosi. There was no testimony by the principals.
First up was Ian MacKinnon, lawyer for Amorosi. Over a three-hour submission, MacKinnon submitted evidence that Barker had defamed his client. He based his submission on sworn statements including a five-hour cross-examination recording consisting of more than 674 questions, of Barker.
During this submission, there were sworn statements attributed to Amorrosi, who was not present, that formed the basis of the lawsuit.
Amorosi, who launched his lawsuit November 16, 2016, attended the proceedings. He has claimed $400,000 in damages and $100,000 in exculpatory damages. He was reported in the Mercury Tribune that the city was paying his legal expenses.
It was stated by Mr. MacKinnon that Mr. Amorosi left the city two months following the lawsuit filing. In fact, CAO Derrick Thomson fired his friend Amorosi for cause February 9, 2017.
The termination was due to the leaking of some 50,000 private staff emails sent to the lawyer representing Building Inspector Bruce Poole. Mr. Poole was previously fired by the former CAO, Ann Pappert, and was suing the city for $1 million for wrongful dismissal. As this was part of Amorosi’s management portfolio, he was dismissed.
The subsequent settlement between the city and Mr. Poole was sealed and never revealed.
The facts of the handling of this case bungled by the Information Technology Department of which Amorosi was in charge, was another humiliating mismanagement by the administration, specifically Mr. Amorosi.
If not council, who signed off on those salary increases?
Moving on, Mr. MacKinnon told the court that Amorosi, in his sworn affidavit supporting his claim, that council did not approve staff salaries. All increases were in the annual budget.
The question is, if council did not approve that $98,202 salary increases given to CAO Pappert, Deputy Chief Administration Officers (DCAO) Mark Amorosi and Derrick Thomson, then who did?
If what Amorosi is stating in a sworn document, why was the closed-session of council ever needed?
During Barker’s lengthy cross-examination by Mr. Mackinnon in Mississauga last February, he was asked if he was aware that council did not approve staff. Barker replied that, it was the fiduciary responsibility of council to review and approve salary increases.
Mr. MacKinnon said that provincial authority stated that senior members of the public staff did not have to reveal salary data, including performance reviews.
He added that under the municipal CAO bylaw, only the Chief Administration Officer reviews and approves staff remuneration, including the senior staff.
That appears to be an attempt to curry favour with members of council who in the background are supporting payment of Amorosi’s legal expenses and supporting his lawsuit against Barker. To defend himself, Barker must pay his legal expenses from his personal resources.
It’s now ironic that former CAO Derrick Thomson abruptly left the city for unknown reasons. The 2018 Sunshine List showed Thomson’s salary was $335,000. That was an increase over his 2017 salary of $67,000. On March 18, 2019, Mayor Cam Guthrie announced the Thomson increase was in recognition of his role in the merger between Guelph Hydro and Alectra Utilities.
Historical evidence shows that former CAO Ms. Pappert was paid $153,412 for seven months when she was no longer employed. That tops Derrick Thomson’s $67,000 bonus paid for work done in 2017 and announced in March 2019.
Attempting to Destroy Barker’s credibility
Throughout his three-hour submission, Mr. MacKinnon accused Barker of making no attempt to request information from Amorosi who was in charge of city finances. He said Barker’s columns’ contents were false and deliberately written to discredit his client. He accused Barker of malice based on a series of posts that revealed details of the senior manager’s salary increases over 12 months.
These posts in 2016 said the increases were covered up for almost four months when the 2015 salaries were published at the end of March 2016.
What Mr. MacKinnon did not explain during the four moths of non-exposure of the increases, two of the three senior managers receiving the 2015 increases, Pappert and Thomson, had resigned.
It begs the question, why during the first six months of 2016 was Amorosi not selected to be CAO, even on an interim basis?
The fourth member of the senior management, Albert Horsman left the city in August 2015. Did he know that the senior managers were going to receive large increases for 2015? Allegedly, they were approved December 10, 2015 in closed-session conducted by city council.
In January 2016, Barker attempted to obtain the minutes of the December 10, 2015 closed-session council meeting. Four months later he was notified that his request was denied with no explanation.
More unanswered questions: When did CAO Ann Pappert decide to resign? In August 2016 the city HR manager told Coun. Cathy Downer that part of Ms. Pappert’s 2015 package included a $27,000 performance bonus plus another $10,000 in unused vacation and sick leave benefits, and sundry expenses.
Was this not an employee preparing to leave? She resigned two weeks after the 2015 Sunshine List was published and left May 26, 2016.
Witnessing Mr. MacKinnon’s performance, with statements that were hurtful, personal and a distortion of Barker’s motives, plus his methods of collecting facts, undermined Mr. MacKinnon’s arguments.
During Barker’s cross-examination, he was asked to reveal his contacts. Barker refused.
The defence of free speech
Barker’s counsel, Jordan Goldblatt, spoke chiefly about the laws governing free speech. He quoted case histories concerning other Strategic Litigation Against Public Participation (SLAPP). He outlined the rights of a citizen to criticize municipal administrations. Justice Peterson interacted with Barker’s counsel submission.
The case histories and the application of the Ontario legislation governing the rights of public participation focused on Guelph resident Barker’s right to comment. The two underlying burden of proof elements of the SLAPP legislation are what tangible damage was done to the plaintiff and was the subject matter in the public interest?
A decision on the motion to dismiss the lawsuit by Justice Peterson is not expected until September.