McGraw v. Southgate, 2021 ONSC 7000
The question that this case raises and answers is how can rumours, hearsay, gossip and innuendo be utilized in a workplace investigation.
The Facts
Melanie McGraw (“McGraw”) was a volunteer Fire Captain firefighter with the Dundalk Fire Department (“DND”), a part-time administrative assistant with the DFD as well as an instructor at the Ontario Fire College. David Milliner (“Milliner”) was the Chief Administrative Officer of Southgate.
Milliner received information wherein he believed McGraw was negatively affecting the DFD and contributed to its high turnover rate. Milliner sought Southgate Council’s approval for the termination of McGraw on a without cause basis as he could not provide evidence to support a with cause termination based upon the information he had received about McGraw. Milliner had the authority on his own to terminate McGraw but still sought council approval. Milliner in his efforts to secure the Council’s approval of McGraw’s termination spoke of various issues he attributed to McGraw without any evidence to support same including:
- Making inappropriate statements to council that McGraw had engaged in inappropriate behaviour;
- Relying upon gossip and rumours he received about McGraw from his daughter and son-in-law who were firefighters in different jurisdictions;
- A rumour that McGraw had sent inappropriate pictures of herself to other firefighters;
- McGraw was the reason for the DFD high turnover rate;
- McGraw had engaged in a sex-for-grades scheme at the Fire College; and
- A general allegation of improper relationships within the DFD implicating McGraw.
The Decision
The Court found that Milliner’s investigation was flawed for a number of reasons:
- Milliner never interviewed McGraw or other relevant parties during his investigation to ascertain the truth of the statements which were made and relied upon in her termination;
- He never obtained or saw any inappropriate photo’s that were allegedly circulated;
- Milliner never spoke with any person who had seen the alleged inappropriate photos;
- He unfairly placed blame for the DFD’s turnover rate upon McGraw; and
- Milliner admitted to fabricating the sex-for-grades allegation.
The Court found that the ‘rumours’ presented at trial were based upon hearsay and were mostly unfounded, malicious and sexist falsehoods. Accordingly, the Court awarded McGraw:
- Pay in Lieu of Notice: 6 months
- Moral Damages: $75,000
- Human Rights Code s. 46.1 discrimination in employment based on sex: $35,000
- Defamation: $20,000
- Punitive damages: $60,000
TOTAL AWARD: 6 months pay in lieu of notice, plus an additional $190,000 in other damages.
Key Takeaways
It is critical and foundational to any investigation, to always interview the relevant parties so that the parties have an opportunity to respond to the allegations being levied. Further, while rumours, gossip, hearsay and innuendo may point you in a particular direction leading to further questions and investigation, absent evidence in support of the claims, it remains an unsubstantiated allegation that is simply a rumour, gossip, hearsay or innuendo with no factual basis. As such, you must assess the rumours, gossip, hearsay and innuendo by testing the information in seeking evidence to ascertain its truth. It is improper to rely upon any such rumours, gossip, hearsay or innuendo absent evidence in support of same. In this case, the failure to conduct a proper investigation and reliance upon rumours, gossip, hearsay and innuendo that was not supported by any evidence resulted in significant financial liability to Southgate.