THUNDER BAY - The Ministry of the Attorney General is denying allegations of a former Crown attorney who claims he was the subject of constructive dismissal and discrimination following his suspension and subsequent early retirement in the wake of an investigation into allegations of sexual harassment.
Daniel Mitchell filed a $1.7 million lawsuit against the Ministry of the Attorney General in May 2018 following his retirement from the position of Crown attorney for the district of Thunder Bay in February 2018. Mitchell claims the actions of the Ministry constituted a breach of contract and constructive dismissal, while also alleging he was discriminated against under the Ontario Human Rights Code on the basis of age and gender.
“The Ministry of the Attorney General at all times acted in a fair and reasonable manner in the conduct of the investigation regarding the allegations made against the plaintiff,” the statement of defense reads.
The statement goes on to say that Mitchell “became medically unable to work while he was on paid administrative suspension pending the outcome of an investigation under the Employer’s Respectful Workplace Policy,” and he chose to voluntarily retire after the short term sick leave days were exhausted.
Mitchell was first placed on administrative suspension in May 2017 following two sexual harassment complaints and seven personal harassment complaints filed by an assistant Crown attorney.
The Ministry said the suspension was necessary “on the basis that the complainant did not feel comfortable working in the same office as, and reporting to, the Plaintiff.”
As part of the suspension, Mitchell was required to relinquish his government issued Blackberry and Thunder Bay Courthouse security pass, which the Ministry said is standard practice for anyone facing an administrative suspension and is not a violation of the contract with the employee.
According to the statement of claim, the Ministry of the Attorney General west region director, who first informed Mitchell of the suspension during a conference in Niagara Falls, is alleged to have told Mitchell, “If you are thinking of going for a walk tonight, I wouldn’t get too close to the falls.”
The west region director has no recollection of making those comments, the Ministry said, and the director was “cognizant of the gravity of the conversation that had taken place at that time and did not see it as a moment to inset jocularity.”
Mitchell claims he suffered from post-traumatic stress disorder and depression and sought psychiatric care following the suspension and his statement of claim alleges, “There was no apparent consideration for how the consequences of the suspension would affect Mr. Mitchell, his mental health, his future authority over his office, or his reputation.”
The statement of defense counters that the suspension of Mitchell was “reasonable and appropriate in the circumstances.”
“Due to the sensitive and serious nature of the allegations, it was decided that suspending the Plaintiff with pay during the course of the investigation was both necessary and appropriate in order to protect the complainant, the respondent, and any witnesses in the workplace.”
The Ministry made attempts to accommodate Mitchell’s return to work, the statement of defense continues, and that it was in no way a breach of the employment contract.
“Rather, the Ministry of the Attorney General at all times provided accommodation and support to the Plaintiff during his medical leave with the hope and expectation that he would return to work,” the statement reads.
“Despite the Ministry of the Attorney General’s accommodation and support, the Plaintiff, without having made any attempts to return to work, freely and voluntarily chose to retire.”
The statement of defense concludes by arguing Mitchell is not entitled to any relief claimed and the Ministry denies any of its employees or agents acted in bad faith, nor exhibit any discrimination against Mitchell based on age or sex.
“Accordingly, an award of damages for either lost wages or for injury to feelings, dignity and self-respect and public interest remedies as a result of such discrimination are unwarranted in this case.”
The Ministry is asking that the matter be dismissed. It is also requesting that because of Mitchell’s 28 years serving as the Thunder Bay district Crown attorney that if the matter is to be heard in court, the venue should be changed to Toronto where the Ministry is located.
