2010-09-27_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentaireCity of Saint John
Common Council Meeting
Monday, September 27, 2010
Location: Common Council Chamber
Supplemental to Agenda
13.0 Committee of the Whole Report: Commissioner of Finance Performance Review
13.5 Rockwood Park Advisory Board: Recommendations Regarding the Sandy Point Road
Planning Study
13.6 Committee of the Whole Report: Margaret Totten v. The City of Saint John
City of Saint John
Seance du conseil communal
Le Lundi 27 Septembre, 2010
Lieu Salle du conseil communal
Ordre du jour supplementaire
13.0 Comite plenier: commissaire aux finances examen
du travail
13.5 Conseil consultatif du parc Rockwood: Recommendations sure 1' etude de
planification portant sur le chemin Sandy Point
13.6 Comite plenier: Margaret Totten v. The City of Saint John
RESOLVED that the Commissioner of Finance has met expectations of Council and that his
salary be moved to Group 9 step F on the 2008 City of Saint John Management Salary Grid
effective September 27 2010.
The City of Saint John
September 24, 2010
Members of Common Council,
The Rockwood Park Advisory Board, having met on September 22.2O1O makes the following
recommendations to Common Council:
,110000
SAINT JOHN
a) establish boundary to Rockwood Park (75m to 150m) from Sandy Point Road and to
include golf course and zoo;
b) request that the Province transfer lands adjacent to Rockwood Park to the City of Saint
John to become part of Rockwood Park;
c) that the City identify other tands to be incorporated into Rockwood Park;
d) that Council refer land sales to Rockwood Park Advisory Board;
e) new trail be established on boundary, Sandy Point Road trail;
f) there is to be no further development beyond the 150 meter depth from Sandy Point
Road;
g) that Rockwood Park boundary be clearly and legaily defined;
h) that all developments in the 7 clusters adhere to the LEED principles/design excellence;
1) tbat7ofthe8clustersbedeve|oped,butnot"K4";
j) money from sale of lands be dedicated to Rockwood Park;
k) that all clusters be linked with new trail and provide public access (trailheads) and these
be connected to existing trails in the park;
RO. Box 1971 Saint John, NB Canada E2L 4L1
www.mintjohnzo
C.R 1971 Saint John, N.-B. Canada E2L 4L1
The City of
That the clusters be developed with low to medium density housing (no apartment
building/vinyi siding);
SAINT JOHN
m) that appropriate environmental assessments be done for development of the 7 clusters;
n) that future development at Rockwood Park be referred to the Rockwood Park Advisory
Board
o) to include the GoIf Course and Cherry Brook Zoo as part of Rockwood Park
have included the Rockwood Park Advisory Board's September 22, 2010 minutes for your
information, which includes the recommendations from the Saint John Horticultural
Association.
Sincerely,
Mayor Ivan Court,
Chair of the Rockwood Park Advisory Board
P.O. Box 1971 Saint John, NB Canada E2L4U v*xxw��do�nza C.P. 1971 Saint John, N.-B. Canada E2L 4L1
Rockwood Park Advsory Meeting: September 22, 2010
Also Present:
Present: Members
Bernie Morrison
Mayor Court
Greg Burgess Nayan Gandhi
StephenLangiUg Brian White
John Acker Joan Pearce
Atsuko Nose
TomChesvvorth
John Hoddin Monica Chaperlin
Henry Briggs
5:45 p.m. meeting called to order
1) Presentation made by F.O.R.P. and S.P.R.N.G. by Joan Pearce, Atsuko Nose and Monica
[haperOn.
Presentations included 2 recommendations each from S.P.R.N.G. and F.O.R.P.
(presentation information to foltow)
2) Presentation made by Nayan Gandhi re: Planning Study background
3) Presentation made by Brian White, A.D.I., about Study, answered questions from Board.
4) The recommendations to Common Councii are as foliows:
a) establish boundary to Rockwood Park (75m to 150m) from Sandy Point Road and to
include golf course and zoo;
b) request that the Province transfer lands adjacent to Rockwood Park to the City of Saint
John to become part of Rockwood Park;
c) that the City identify other lands to be incorporated into Rockwood Park;
d) that Council refer land sales to Rockwood Park Advisory Board;
e) new trail be established on boundary, Sandy Point Road trail;
f) there is to be no further development beyond the 150 meter depth from Sandy Point
g) that Rockwood Park boundary be clearly and legally defined;
h) that all developments in the 7 clusters adhere to the LEED principles /design excellence;
i) that 7 of the 8 clusters be developed, but not "M
j) money from sale of lands be dedicated to Rockwood Park;
k) that all clusters be linked with new trail and provide public access (trailheads) and these
be connected to existing trails in the park;
O that the clusters be developed with low to medium density housing (no apartment
building /vinyl siding);
m) that appropriate environmental assessments be done for development of the 7 dusters;
n) that future development at Rockwood Park be referred to Rockwood Park Advisory
to include the Golf Course and Cherry Brook Zoo as part of Rockwood Park
I have included the recommendations from S.J.H.A. meeting of September 21, 2010.
S.J.H.A. supports in principle the report of A.D.!. with the following conditions:
1) There is no further development beyond the 150 meter depth from Sandy Point Road.
2) That the Park boundary be defined clearly and legaily.
3) That all developments in the 7 clusters adhere to the L.E.E.D. principles/design excellence.
4) That7oftheBc|uotersbedeve|oped,butnot"K4".
5) Money from sale of lands be dedicated to Rockwood Park.
6) That all clusters be Iinked with new trail and provide public access (trailheads) and these be
connected to existing trails in the Park.
7) That the clusters be developed with low to medium density housing (no apartment
building/vinyl).
8) That appropriate Environmental Assessments be done for development of the 7 clusters.
9) That City make every effort to buy Provincial land next to Park.
10) All future development pEans be approved by R.P. Advisory,
RESOLVED that, and on advice of independent legal counsel, a payment of $145.000 be made
to Ms Margaret Totten as a recovery in costs, interest and general damages as a full and final
settlement of all claims as between The City of Saint John and Margaret Totien including but not
restricted to her claim of discrimination under the New Brunswick Human Rights Act dated
October 26 2087; such payment is also in exchange for an agreed comprehensive Release in
favour of the City and an agreement, as in the Minutes of Settlement, to hold harmless and
indemnify the City for any taxes arising with the Canada Revenue Agency from such settlement.
Such payment is divided as between the City and its insurers with each contributing one half or
$72 each to the settlement fund. And it is further Resolved that such payment to be made
in accordance with Minutes of Settlement submitted to Common Council onSepUarnber27 m
2010, to be executed by the City of Saint John and Ms. Totten and the New Brunswick Human
Rights Commission and a comprehensive Release to be executed by Ms. Totten in favour of the
Haynes LAW
September 24, 2010
Mayor Ivan Court
and Common Council
for the City of Saint John
15 Market Square
P. O, Box 1971
Saint John, NB E2L 4L1
200 1718 Argyle Street, Halifax, NS B3J 3N6 Canada
902- 422 -8400 NS /NB /PE 1- 888- 880 -7774 www.haynestaw.ca
Ross Haynes, Q.C.
E. haynes @hayneslaw,ca
T. 902 -492 -7622
C. 902- 499 -3730
F. 902- 422 -4465
Our File No. 10022
Dear Mayor Court and Members of Council;
Re: Margaret Totten v. City of Saint John
In 2007, former employee of the City of Saint John, Margaret Totten, filed a claim with New Brunswick
Human Rights Commission, alleging discrimination by the City and its officials. In addition to the
Human Rights complaint, there is also the matter of a claim by Ms. Totten for damages for wrongful
dismissal.
The Human Rights Commission continues to investigate the complaint and demands, which is their
right, to interview over a dozen City employees and councilors. With three years having passed, this
process will now move more quickly with the Commission insisting that its investigation timeline be
adhered to. The conclusion of their investigation will, in my opinion, most probably result in the
finding that there is evidence for a formal hearing on the issue.
In respect of the claim for wrongful dismissal, we expect to begin that process, resulting in a significant
amount of time and money being spent disclosing documents and discovering witnesses. These
documents and the City officials interviewed will be the same as those involved in the Human Rights
matter. While the facts in both these cases are the same, the issues differ because of the nature of the
adjudicative forums and remedies sought.
There is never any certainty in the outcome of a case when you are dependent on a decision- making
forum you do not control. This is magnified in a Human Rights case because the legislative and social
purpose of the Human Rights process is to better and more easily enable people who are aggrieved to
be successful.
My opinion is that, in dealing with these two matters, the legal cost would run, conservatively, into the
$100,000 to $200,000 range by this time next year. That is only for one year and it would take at least
another two to three years before there could be a conclusion to these matters, were they to run the
course of their respective judicial processes.
Haynes LAW
Be reminded that the Human Rights process only requires a complainant (Margaret Totten) to show
that the respondents' (City of Saint John) conduct imposed a distinction or disadvantage on them.
Furthermore, discrimination need not be intentional; the focus is on how the respondents' conduct
made the complainant feel, and this is a subjective standard of proof very easily achieved.
While the City's insurer has reserved their rights on any coverage for these claims, it has agreed to
provide the defence. In recognizing the extraordinary legal costs involved, the insurer has agreed to
assist the City with the shared contribution to settlement, which is viewed to be in the interest of all
concerned.
In discussions with Ms. Totten's lawyer, we have been able to negotiate a settlement for both monetary
compensation and a public statement. This proposed settlement will conclude all issues between the
City and Ms. Totten.
I recommend these matters be settled for the all-inclusive amount of $145,000 and the issuance of an
agreed public statement.
In this settlement, the City of Saint John and its insurer will each bear half the settlement cost.
Without doubt, if these claims are unresolved, it will result in the City of Saint John spending a great
deal more in terms of resources and workforce productivity. Resolving the claim now will end the
extraordinary costs in finances and human resources for all concerned.
Yours truly
Hayne
Ross nes
RH/
cc:
Client
2
MINUTES OF SETTLEMENT made in duplicate as of this 27th day of
September, 2010.
BETWEEN:
MARGARET TOTTEN, of the City
of Saint John in the Province of
New Brunswick, (hereinafter called
the "Complainant
and
THE CITY OF SAINT JOHN, a
body corporate (hereinafter called
the "Respondent
and
THE NEW BRUNSWICK HUMAN
RIGHTS COMMISSION
WHEREAS the Complainant became employed by the Respondent on
or about July 1992;
AND WHEREAS the Complainant was, during her employment with
the Respondent, challenged by a disability as contemplated under the Hinman
Rights Act of New Brunswick;
AND WHEREAS, in 2007, the Respondent took actions which resulted
in widespread and repeated publication of confidential information regarding
the Complainant's disability and, also, considerable negative publicity for the
Complainant;
AND WHEREAS the Complainant filed a complaint of discrimination
with the New Brunswick Human Rights Commission against the Respondent
on the basis of her alleged disability (hereafter the "Complaint
AND WHEREAS the Complainant and the Respondent have agreed to
resolve their differences in order to avoid the expense, inconvenience, stress
and uncertainty of proceeding further with the Complaint;
AND WHEREAS the parties wish to evidence the terms of settlement
in these Minutes of Settlement;
2
NOW THEREFORE, THIS AGREEMENT WITNESSETH that, in
consideration of the premises and agreements herein contained and for good
and valuable consideration the parties agree as follows;
FINANCIAL PAYMENTS
1. The Respondent agrees to pay the Complainant the sum of $100,000.00
as general damages for the injury to her dignity, feelings and self-
respect which she claims to have incurred as a result of the alleged
discrimination, having regard to the fact that she required significant
medical intervention and treatment as a result.
2. The Respondent agrees to pay the Complainant the sum of $18,375.00,
representing interest at 7% over a period of 1.75 years.
3. The Respondent agrees to pay the Complainant the sum of
$26,625.000.00 as a contribution to the legal expenses incurred by the
Complainant in respect of the matter.
4. The Respondent understands and agrees that the general damages and
reimbursement set forth in paragraphs 1, 2 and 3 of these Minutes of
Settlement are not income.
The Complainant shall indemnify and save the Respondent harmless
from any claims or demands for payment hereafter made against it by
any governmental authority including, without limitation, the Canada
Revenue Agency and the Employment Insurance Commission in
respect of any payment made in consideration of these Minutes of
Settlement. The Complainant acknowledges and agrees that, should
any taxes or other amounts be owed or demanded by any governmental
authority whatsoever with respect to the payment made in
consideration of these Minutes of Settlement, the payment of such
taxes or other amounts is her sole responsibility.
No ADMISSION OF LIABILITY
6. It is understood and agreed that the various payments and other
actions contemplated by this Agreement are made by the Respondents
without any admission of liability to make such payments or take such
actions, are not to be construed as an admission of liability or
responsibility for any alleged breach or violation of the Human Rights
Act on the part of the Respondents and liability is expressly denied.
OTHER TERMS
7. The Respondent and the Complainant agree that they will each issue a
joint press release in the form attached hereto as Schedule "A".
RELEASE
8. The Complainant agrees to execute the General Release in the form
annexed hereto as Appendix "B" in favour of the Respondent, upon
execution of this Agreement;
9. The Complainant further agrees to discontinue and withdraw any and
all claims, complaints, or other proceedings commenced or filed with
any governmental agency regarding her employment with the
Respondent or the termination thereof, including without limitation
the Complaint filed with the New Brunswick Human Rights
Commission.
AGREEMENT BINDING
3
10. These Minutes of Settlement are entered into freely and voluntarily,
the parties having had the benefit of independent legal advice and
shall be binding upon and enure to the benefit of the parties hereto
and their respective heirs, executors, administrators, beneficiaries,
successors and assigns.
IN WITNESS WHEREOF the parties have executed these Minutes of
Settlement on the dates indicated below their respective signatures.
SIGNED, SEALED AND DELIVERED)
MARGARET TOTTEN
Witness
Date:
(1.s.)
4
CITY OF SAINT JOHN
(1.s.)
Per
Date:
NEW BRUNSWICK HUMAN RIGHTS
COMMISSION
Draft Joint Release
This evening, Mayor Ivan Court on behalf of Common Council and Ms. Margaret Totten, former
Manager of Tourism, are announcing the resolution of an outstanding dispute between the parties. In
making this statement, both parties wish to thank representatives of the New Brunswick Human Rights
Commission for their efforts in bringing the parties together.
Mayor Court stated:
"This was a most unfortunate situation that developed between the City and a valued employee. The
release of personal information concerning Margaret, unintentional or otherwise, resulted in a series of
print media articles that were plainly inappropriate and, as her employer, the City recognizes now that
the situation ought to have been dealt with differently at the time. Unfortunately, the coverage was
extended beyond anyone's expectation.
The truth is that Ms. Totten was not only an excellent employee but also a recognized leader in the
Tourism field both provincially and nationally. Contrary to what the print media had implied,
Margaret Totten was not hired by her spouse, our former City Manager. She was a valuable and hard-
working City employee before Terry Totten became City Manager. It is also important to know that
Terry Totten was not part of any selection committee that chose Ms. Totten as the City's Manager of
Tourism. Instead, she was chosen by a committee of private sector representatives and Human
Resource professionals. Ms. Totten did not report directly to her spouse and, indeed, they had very
little interaction in the workplace. Under Margaret's leadership, the City's tourism department had
many great successes.
The City wants to make it very clear that Ms. Totten did not violate the terms of any sick leave policy of
the City of Saint John, as implied by the print media coverage. Through this unfortunate situation, the
City has learned valuable lessons that have been applied to improve our management practices."
In response to Mayor Court's comments, Margaret Totten said:
"I believe the tone and the volume of media coverage at the time, (including anonymous emails and
unsubstantiated statements published by the Telegraph Journal), were sensational and uncalled for. As
a long -term employee of the City, I was most disappointed with my employer's lack of public response
or support, specifically with respect to my privacy, but understand that further comment from the City
could have resulted in further disclosure of private information. In light of this, I pursued this action to
try to defend my reputation, and to attempt to ensure that other employees are not subjected to such
treatment in the future. After all this time, I believe some of those responsible may no longer be with
the City. I appreciate the opportunities the City provided me in my fifteen years of employment, and I
wish the present Council and staff alI the best as they work toward moving Saint John forward."
*This has been prepared by Haynes LAW and is subject to Solicitor Client privilege. 16
FINAL RELEASE
IN CONSIDERATION of the payment of the sum of One-Hundred and Forty -Five
Thousand Dollars ($145,000), which is directed by the undersigned to be paid as follows:
TO: LAWSON CREAMER "in trust" $145,000
THE UNDERSIGNED does for herself, her heirs, executors, administrators, successors
and assigns release and forever discharge the City of Saint John its employees, officials,
officers, agents, successors and assigns from any and all actions, causes of action, claims,
and demands which she ever had, now has, or which her successors, assigns, or any one
of them hereafter may have for or by reason of any damages, loss, or injury, relating in
any way, directly or indirectly, to her employment at the City of Saint John and
cessation thereof and without limiting the generality of the foregoing any and all
actions, claims, and demands set out in the Human Rights Complaint dated the 26 day
of October, 2007.
AND FOR THE SAID CONSIDERATION it is further agreed not to make claim oz take
proceedings against any other person or corporation who might claim contribution or
indemnity under the provision of any statute or otherwise.
IT IS UNDERSTOOD AND AGREED that the said payment is not deemed to be an
admission of liability on the part of the said City of Saint John.
AND it is hereby declared that the terms of this settlement are fully understood; that the
amount stated herein is the sole consideration for this release and that the said sum is
accepted voluntarily for the purpose of making a full and final compromise,
adjustments, and settlement of all claims for injuries, losses, and damages resulting or to
result from the said claims.
WITNESS my hand and seal this of 2010.
READ BEFORE SIGNING
SIGNED, SEALED AND DELIVERED
presence of r
Witness
MARGARET TOTTEN