Mema Rights decision | nanaimonet.com

B.C. Human Rights Tribunal Ruling

(Please note, some typos may appear due to a computer conversion problem)

Date Issued: August 3, 2023 File: 18093 /CS-000289

Indexed as: Mema v. City of Nanaimo (No. 2), 2023 BCHRT 91 IN THE MATTER OF THE HUMAN RIGHTS CODE,

RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before the BritishColumbia Human Rights Tribunal

BETWEEN:

Victor Mema

COMPLAINANT

AND:

City of Nanaimo

RESPONDENT

REASONS FOR DECISION

Tribunal Member:

Emily Ohler

Counsel for the Complainant:

Adele Burchart

Counsel for the Respondent:

Adrianna Wills

Date of Hearing:

August 4–7, 10 –14, 2020 and February 1-5,

8-12, 2021 with written submissions

November 22, 2021

Location of Hearing:

Vancouver, B.C.

Contents

INTRODUCTION.................................................................................................................. 2
SOCIAL CONTEXT AND STEREOTYPES...................................................................................... 3
PARTIES’ POSITIONS............................................................................................................... 6
SUMMARY OF DECISION......................................................................................................... 7
WITNESSES........................................................................................................................... 8
1. Mema’s witnesses......................................................................................................... 8
2. The City’s witnesses............................................................................................................... 9
EVIDENCE AND FINDINGS OF FACT.......................................................................................... 9
1. The Parties & the Workplace Context................................................................................. 10
2. Mema’s P-card use for personal purchases................................................................. 14
3. Mema’s increasing balance and continued P-card use................................................ 20
4. The City engages auditors to review P-card practices........................................................ 26
5. The P-card Audit Begins..................................................................................................... 30
6. 2018: Matters Escalate...................................................................................................... 35
7. Late January to Late February: Suspicions Flare................................................................. 45
8. The Serious Misconduct Report.......................................................................................... 51
9. The Suspension................................................................................................................ 56
10. The Internal Fall-Out........................................................................................................... 60
11. The termination of Mema’s employment................................................................... 66
12. Impacts on Mema......................................................................................................... 76
APPLICABLE LAW.................................................................................................................... 77
FINDINGS OF DISCRIMINATION................................................................................................ 82
1. The Misconduct Report...................................................................................................... 83
2. The City’s Response to the Misconduct Report: Suspension and Termination................... 94
REMEDIES........................................................................................................................ 100
1. Injury to dignity, feelings and self-respect....................................................................... 100
2. Wage loss........................................................................................................................ 102
3. Expenses........................................................................................................................ 105
ORDER.............................................................................................................................. 106

I INTRODUCTION

The City of Nanaimo [City] employed Victor Mema from 2015 to 2018, primarily as its Chief Financial Officer [CFO]. Mr. Mema was born in Zimbabwe and is a Black person. In April 2018, the City suspended and ultimately terminated Mr. Mema’s employment – a move spurred by a report of serious misconduct filed by a City staff member [Misconduct Report]. Mr. Mema alleges that the City’s conduct breached s. 13 of the Human Rights Code [Code] by discriminating against him on the basis of his ancestry, place of origin, race and colour.

Central to the background of this case is Mr. Mema’s use of a corporate credit card issued by the City [P-card]. P-cards were issued to a large number of City employees and were subject to a cardholder agreement that set out that they should not be used for personal purchases. However, in practice, employees sometimes used their P-cards for personal purchases and would mark such expenses as personal on their P-card statements and repay the City. From 2016-2017, Mr. Mema accrued a high number and quantum of personal purchases on his P-card and had issues with repayment. Finance staff followed up with him for payment over several months and grew concerned as they watched the balance grow. Staff eventually raised the issue with City management, who reprimanded Mr. Mema, agreed to a repayment plan, and ultimately cancelled Mr. Mema’s P-card. The City also engaged auditors to conduct an audit of City staff’s use of P-cards for personal purchases and to recommend any required changes to policy or practice.

The P-card audit determined that while most staff understood P-cards were not to be used for personal purchases, the City had in practice condoned some personal use. It made recommendations for improvements to the P-card agreement and surrounding policies. It also found that there were two outliers who used their P-cards for frequent personal purchases while taking a long time to repay the City. Mr. Mema was one of these two outliers, though the outliers were not identified by name in the final version of the P-card audit report.

By February 2018, City Council was aware of the key findings of the P-card audit and decided to amend the City’s policies and administration of the P-cards. The City staff who had raised concerns about Mr. Mema’s P-card use were unaware of the contents or findings of the P-card audit or what had been communicated about the audit to City Council. They were, however, aware that Mr. Mema and staff were revising the policies, that Mr. Mema no longer had a P-card, and that he had repaid the outstanding balance. According to the concerned staff, however, this was not enough. They viewed City management’s public statements about the findings of the P-card audit as misleading, and viewed Mr. Mema through a lens of suspicion, linking his P-card use to questions they had about his compensation and various other matters about which they knew relatively little. Fuelled by this suspicion, they viewed Mr. Mema as a larger financial risk to the City, leading a City staff member to file the Misconduct Report against Mr. Mema with the City’s human resources department. Human resources sent the report to the City’s Manager of Legislative Services, who put it before City Council. In response, the City suspended Mr. Mema’s employment, “pending an investigation” – a move that was highly publicized locally. The City ultimately terminated Mr. Mema’s employment primarily on the basis of the Misconduct Report.

The issue I must decide is whether Mr. Mema’s ancestry, place of origin, race or colour were factors in the City’s decisions to suspend and terminate his employment.

II SOCIAL CONTEXT AND STEREOTYPES

This case alleges anti-Black racism in a predominantly White workplace, in which Mr. Mema was one of very few Black employees. The social context of anti-Black racism in Canada is a critical element. I take notice that, as Mr. Mema submits in argument, “Black people can be treated adversely in the workplace because of a conscious or unconscious stereotype of Black people being criminals, dishonest, of questionable moral character or poor.”

The courts have recognized the prevalence of anti-Black racism in Canada, both conscious and unconscious. Among examples is R. v. Parks (1993), 15 O.R. (3d) 324, where at para. 54, the Court said:

Racism, and in particular anti-Black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil.

The above paragraph was cited by the Supreme Court of Canada in R. v. Spence, 2005 SCC 71 at paras. 31-33.

More recently, the Ontario Court of Appeal addressed the subject in R. v. Morris, 2021 ONCA 680, at para. 1 as follows:

It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis: see R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89-97; R. v.Theriault,2021 ONCA 517, at para.212, leave to appeal to S.C.C. requested, 39768 (July 19, 2021); R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), at p. 342, leave to appeal refused, [1993] S.C.C.A. No. 481; see also Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Toronto: Government of Ontario, 2018), at p. 19; Ontario Association of Children’s Aid Societies, One Vision One Voice: Changing the Child Welfare System for African Canadians (Toronto: Ontario Association of Children’s Aid Societies, 2016), at p. 29. Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased. This appeal requires the court to consider how trial judges should take evidence of anti-Black racism into account on sentencing.

Such stereotypes have also been noted by human rights tribunals in, among others,

Graham v. Enterprise Rent A Car Canada Company representing Enterprise, Alamo, and National Car Rental, 2020 HRTO 424 (para. 13); Balikama v. Khaira Enterprises, 2014 BCHRT 107 at
paras. 585-586; Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 (paras. 300-

303) [Francis]; Bageya v Dyadem International, 2010 HRTO 1589 (para. 130); Chopra v. Canada (Department of National Health and Welfare), [2001] CHRD No 20 (paras 274-275); and Turner v. Canada Border Services Agency, 2020 CHRT 1 (paras. 49-50, 128-130) [Turner].

In Turner, the Canadian Human Rights Tribunal noted at para. 49 that, “[...] Racism, including anti-black racism, is present in society in Canada not only in overt forms but also subconsciously among many people and institutions who operate on the basis of negative racial stereotypes including those directed towards blacks and in particular black males [...]”.

In Francis, the Tribunal said at para. 289, it said:

The Ontario Human Rights Commission identified a number of myths and misconceptions that arise when race discrimination is alleged, which create a climate that prevents any kind of effective response to racial inequality. Of those, the following myths and misconceptions are relevant to this case:

- racialized people play the "race card" to manipulate people or systems to get what they want;

- racialized people are too sensitive, tend to overreact or have a "chip on their shoulder";

- racialized people themselves, and not racism or racial discrimination, are at fault for their disadvantage or state of "otherness," commonly known as "blaming it on the victim";

- if a racialized person has been treated acceptably in the past, then discriminatory treatment cannot take place in the future. (Guidelines, p. 17; Brar, para. 724)

Ultimately, I have applied the above in my consideration of whether the evidence as a whole could support an inference that, on a balance of probabilities, Mr. Mema’s protected characteristics factored into the City’s suspension and termination of his employment.

III PARTIES’ POSITIONS

I heard this matter over nineteen days. Thirteen witnesses testified. Hundreds of pages of evidence were submitted. Many material facts were not in dispute.

Both parties filed lengthy closing submissions. This is an overarching summary of the arguments advanced, not a recital of each point raised.

Mr. Mema argued that the P-card agreement was open to interpretation and personal use of P-cards was widespread. He argued that the City treated his personal P-card use differently from that of other employees. He argued that the Misconduct Report compiled and linked a number of unrelated issues in a way that cast a shadow of suspicion on him. He argued that the Misconduct Report was informed by racial stereotypes, and the City’s reliance on it to suspend and terminate his employment without investigation was discriminatory.

The complaint also alleges that the report of serious misconduct was “a pretext to get rid of all black Africans employed at the City”. At the hearing, Mr. Mema confirmed that his complaint was not a systemic or group complaint, and its focus was on the suspension and termination and their impacts on him. As the issue I must decide is whether Mr. Mema’s protected characteristics were factors in the suspension and termination of his employment, I have not found it necessary to address the question of whether the City carried out a “well orchestrated plan to eliminate all black African employees”, as the complaint alleges.

The City denies discriminating and put forward a defence of non-discriminatory justification. It argued that Mr. Mema had engaged in misconduct that “constituted a failure by him as a fiduciary”, and that its decisions to suspend and terminate his employment were based solely on that misconduct. The City relies on allegations regarding Mr. Mema’s P-card use, his “willing receipt of further salary and benefits not consistent with the Respondent’s policies”, his improper approval of the payment of legal invoices for the City’s Chief Administrative Officer [CAO], and “his role in the hiring of two individuals into senior management positions who had no management experience”. The City argued that after receiving the Misconduct Report, it did not need to investigate further because the P-card audit

had investigated the material issues and was sufficient to inform the City’s suspension and termination decisions.

In short: Mr. Mema argues that the City singled him out and took steps that were disproportionate to his conduct in ways that were connected to his protected characteristics. The City argues that the concerns raised in the Misconduct Report and the City’s approach to those concerns were reasonable and non-discriminatory in the circumstances, informed by Mr. Mema’s alleged misconduct and the prevailing circumstances at the City, not by his protected characteristics.

IV SUMMARY OF DECISION

I have found that while Mr. Mema certainly made poor decisions regarding his use of the P-card, understandably raising concerns, the City’s decisions to suspend and terminate his employment were discriminatory, contrary to s. 13 of the Code.

I find that the Misconduct Report was inflected with racial bias and stereotype – likely unconscious – which ran through each of the key points of the report. As a result, Mr. Mema’s protected characteristics were a factor in the Misconduct Report. The Misconduct Report, in turn, was the foundation for the City’s decision to suspend and terminate Mr. Mema’s employment. As I have found the Misconduct Report discriminatory, and that the Misconduct Report was the driver of the termination decision, I have found the City’s suspension and termination of Mr. Mema’s employment discriminatory.

Having found the complaint justified, I award various remedies.

Below are my reasons. I begin by summarizing the evidence and my findings of fact. Next, I set out the law and apply it to my findings in this case. I then consider the remedies sought by Mr. Mema and confirm my order.

V WITNESSES

I may believe none, part, or all of a witness’ evidence, and may attach different weight to different parts of their evidence: R. v. DR, [1996] 2 SCR 291 at para. 93. I have considered whether each witness’ evidence was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.) at 357; Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186. Where there are disputes in the evidence about material facts, I have applied the principles set out in Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392 at para. 186 and explain why I prefer certain evidence over others.

A. Mr. Mema’s witnesses

Mr. Mema testified on his own behalf. The City submits that Mr. Mema was not credible on crucial points because he is an “interested individual with financial and other personal interests at stake” who has filed a complaint under the Code seeking “significant financial benefits”. I do not accept this submission; it would render any party to litigation not credible by virtue of being a party to a proceeding. Any party inherently has personal interests at stake. Mr. Mema gave clear, straightforward, and consistent answers regarding a number of matters. On other matters, Mr. Mema was not as forthcoming. At times, I have preferred the evidence of other witnesses to Mr. Mema’s. Where that is the case, I explain why.

Three former City Councillors – William Bestwick, William Yoachim and James Kipp – testified on Mr. Mema’s behalf. The City urges me to regard their evidence “with great care, given their aggression and refusal to answer questions directly”. I do not share that view of their evidence. I am satisfied that they made best efforts to recall events and to be straightforward and direct. While there may have been some frustration that came through during cross-examination, I found all three to be credible witnesses.

Tracy Samra, former City CAO, testified on Mr. Mema’s behalf. As with Mr. Mema, the City submits that Ms. Samra is not credible because she is an “interested individual with

financial and other personal interests at stake” who, like Mr. Mema, has also filed a human rights complaint against the City seeking “significant financial benefits”. My comments above in respect of these arguments and Mr. Mema’s evidence apply equally here. The City goes on to suggest Ms. Samra’s evidence must be treated “with significant caution” because, the City alleges, her evidence contains internal inconsistencies, she refused to admit certain things on cross-examination until being presented with competing evidence, and because of her conduct in the course of the audit process. In other words, the City relies on its contested narrative of the facts of this case to undermine Ms. Samra’s credibility. I do not accept this argument. As with Mr. Mema, I have at times accepted Ms. Samra’s evidence and at other times preferred that of others. Where I do not accept her evidence, I explain why.

Linda Ngomesia and Nick Mloyi also testified on Mr. Mema’s behalf. Both were clear, forthcoming and readily acknowledged when they did not know or remember something. I found both to be credible witnesses.

B. The City’s witnesses

Nancy Adie-MacKay and Gerhard Benade, testified for the City. They are employees of KPMG, the firm retained by the City to conduct the audit into P-card use. Both were involved in the audit. I found both to be credible witnesses.

The City also called Laura Mercer and Jamie Slater (who worked in the City’s accounting department at the material time), John Van Horne (the City’s Director of Human Resource), and Adam Coronica (Senior Financial Analyst with the City). I found each to be credible witnesses.

VI EVIDENCE AND FINDINGS OF FACT

In this section I set out the evidence before the Tribunal and my findings of fact. I do not refer to all of the evidence and argument that the parties presented, though I have considered all of it. I refer only to what is necessary to reach my decision.

A. The Parties & the Workplace Context

The City is a local government, governed in part by the Community Charter, SBC 2003, c. 26, which sets out its responsibilities, functions and powers. The Community Charter provides for the creation of statutory positions which have defined responsibilities, namely, the Corporate Officer (or Manager of Legislative Services) and the Financial Officer.

The City is governed by a City Council composed of an elected Mayor and Councillors. The day-to-day operations of the City are run by a Chief Administrative Officer [CAO], supported by an executive team that includes a Chief Financial Officer [CFO]. The executive team are in turn supported by staff organized into departments. The CAO and executive team report to the Mayor and Councillors and seek decisions from them on various matters that are beyond the executive team’s authority. The Council is organized into various Committees, including a Finance and Audit Committee, which provide oversight of City operations in the respective area.

Mr. Mema holds a degree in Accounting and Management Information Systems and a Master of Public Administration degree in public finance. He holds a professional designation as a Certified Treasury Practitioner and became a certified professional accountant [CPA] in Alberta in 2014. He has traveled, lived and worked in countries in North America, Europe and Africa, has served on various boards, and has published a number of articles on financial planning and management. Mr. Mema worked as Manager of Financial Planning for a Municipality in Alberta from 2009 to 2013. He then moved to British Columbia, where he held the role of Director of Finance for the municipality of Sechelt until 2015.

In September 2015, the City hired Mr. Mema as Director of Finance. Mr. Mema’s employment was subject to the City’s bylaws 2005 No. 7000, “management terms and conditions of employment”, and 2006 No. 7031, “officers appointment and delegation”. His initial salary was $136,245, with salary adjustments to be made in accordance with the exempt compensation policy. He was also allowed reasonable moving expenses, but he did not use them at the time of hire as he continued to live in the Lower Mainland with his family.

Section 149 of the Community Charter sets out the duties of financial officers, which included the Financial Officer. Those duties include expending municipal money in the manner authorized by the Council and exercising control and supervision over all other financial affairs of the municipality. The Job Description indicates that the incumbent is to adhere to “City policies and objectives”.

Section 147 of the Community Charter gives the CAO authority for the overall management of the operations of the City, for ensuring that the policies and directions of Council are followed and for advising and informing Council on the operation and affairs of the municipality.

Tracy Samra became the CAO for the City in or about 2016. Ms. Samra is an Indigenous woman.

Sometime in 2016, the City underwent a reorganization and in early 2017, the City expanded Mr. Mema’s role and changed his title to the CFO. It appears this arose following a request from Mr. Mema for a title and rate of pay change that was eventually approved by Ms. Samra. As CFO, Mr. Mema occasionally functioned as acting CAO when the CAO was absent.

At the time material to the complaint, the City’s operations were organized through departments. The Department of Human Resources was led by Mr. Van Horne, who is a White man. The Department of Finance was led by Mr. Mema, supported by a deputy. The Deputy Director of Finance [DD] at the time Mr. Mema joined had been with the City for some time and was particularly well-regarded by City staff. Approximately 40 employees staffed the Department of Finance. The Department of Finance was divided into five groups, headed by Managers: Accounting Services (managed by Ms. Mercer, a White woman); Assets and Financial Planning; Payroll; Revenue Services; and Purchasing and Stores. Positions excluded from union membership included the CFO, the Deputy, and the five Managers. All other employees of the Department are members of a union, including the senior accountants like Ms. Slater (also a White woman), who typically hold Chartered Professional Accountant [CPA] certifications.

It was clear throughout the evidence that all was not well within the City around this time. There was acrimony within City Council, with the Mayor and Ms. Samra having a particularly acrimonious relationship. The Council appeared split in its support of the CAO, and this acrimony in turn permeated through to City staff. In his evidence, Mr. Van Horne said that Ms. Samra’s confirmation in the role of CAO was polarizing from the start, with Council fractured into two camps.

Ms. Samra’s relationship with staff was also difficult. Between early 2016 and the end of 2017, she initiated the termination of employment of approximately 10 managers. Ms. Mercer testified that through the period following November/December 2015, “You would see [the terminated managers] be walked out of the building and wonder, what had they done?” Ms. Mercer stated that there was fear, paranoia and anxiety which had an increasingly detrimental effect on staff.

Mr. Mema was well-liked, however, when he took up his new role at the City. Ms. Slater, who worked in Accounting Services, was impressed by his ideas for change, describing them as “refreshing”. At the time, Mr. Van Horne said that “people loved the guy”, noting Mr. Mema was well thought of, bright and energetic. He referred to Mr. Mema as “a breath of fresh air”. Mr. Van Horne said that Mr. Mema proved a good defender of staff, insulating them from some of the more challenging behaviours of Ms. Samra.

Beginning some years prior to Mr. Mema’s arrival at the City, the City adopted a practice of issuing corporate credit cards to staff, referred to as P-cards. Staff were subject to an agreement regarding its use [P-card Agreement], which included the following provisions:

3. I understand that under no circumstances will I use the [P-card] to make personal purchases. Failure to do so could be considered as misappropriation of City funds. Failure to comply with this Agreement may result in either revocation of my user privileges or other corrective action, up to and including termination of my employment.

4. I agree that should I violate the terms of this Agreement and use the [P-card] for personal use or gain, that I will reimburse the City for all incurred charges and any fees related to the collection of those charges.

In practice, however, some personal use of P-cards was accepted. Where someone used their P-card for personal expenses, they were expected to indicate that expense as personal on their P-card statement and reimburse the City. There were no guidelines for the timelines for such repayment, but most people repaid promptly.

Councillor Kipp testified that he had concerns about the use of P-cards by City staff as far back as 2010. He said that there had been questions about people using P-cards for personal expenses for some time.

The City issued Mr. Mema a P-card when it hired him, and he acknowledged receiving the P-card Agreement. In his role, Mr. Mema began receiving other employees’ P-card statements for his approval. He explained that on reviewing other staff’s P-card statements, he observed the practice of indicating personal expenses as such and reimbursing the City. Based on this, he said that he understood that the City had condoned the practice. While he accepted that it needed to be improved, as long as such expenses were identified and repaid, he saw no risk to the City. In other words, Mr. Mema’s understanding was that it may not have been good practice, but it was the practice at the City.

Even though he acknowledged in his evidence that it was not good practice, Mr. Mema did not amend it when he became CFO. Rather, he continued to condone the practice in reviewing other staff’s P-card statements. He also adopted this practice and used his P-card for City expenses and for personal purchases based on his understanding that this was allowed. As CFO, his own P-card statements were reviewed and approved by the CAO. It seems this consisted essentially of Ms. Samra receiving Mr. Mema’s P-card statements and “signing off” on them by sending them to finance staff for processing.

There was no dispute that Mr. Mema consistently identified personal purchases appearing on his P-card statements as such.

By April 2016, the acrimony at the City had escalated, with Council having to address ongoing confrontations between the Mayor and Ms. Samra. To that end, the Council authorized Ms. Samra to spend up to $10,000 to obtain personal legal advice regarding alleged

defamation, bullying, harassment and discrimination by the Mayor and a Councillor, after Council’s directing them to “work collaboratively and respectfully” with Ms. Samra.

B. Mr. Mema’s P-card use for personal purchases

While Mr. Mema used his P-card for personal purchases, he always repaid promptly until the summer of 2016. At that time, both Mr. Mema’s wife and mother became very ill. He began having difficulty with repayment.

Ms. Slater, a senior accountant, was part of the finance team that processed P-card expenses. She ensured people signed off on the P-card Agreement and was involved in the day- to-day reviewing and processing of P-card statements. Ms. Slater wrote to Mr. Mema on September 12, 2016 reminding him that he had some outstanding personal charges on his P- card. The amount payable to the City for personal charges from June – August was $4,276.80. Mr. Mema replied that same day, “Will make the payments. The last one should be reversed by Air Canada [...].”

Ms. Slater followed up with him again on September 28, 2016 as no payment had been received. Ms. Slater testified that she had never encountered this situation before at the City. Up to this point, she said, everything was going great with Mr. Mema. She testified that she became concerned when Mr. Mema’s personal transactions increased in number and amount, and Mr. Mema had not begun repaying this outstanding balance until she and her colleagues “forced” the issue.

On November 10, 2016, Ms. Slater wrote to Mr. Mema again noting that there were still receivables for his June, July and August 2016 P-card statements. She suggested that “we could look into a payroll deduction if that’s easier.” The balance owing for those periods remained the same.

Ms. Mercer, who was the Manager of Accounting services, then emailed Mr. Mema on December 2, 2016, about the outstanding P-card balance and “a couple of repayment options”. Mr. Mema replied, “noted. Expect it done.” But it was not done by December 14, and Ms.

Mercer followed up again, asking if it could be cleared up in time for the City’s regular annual audit.

Ms. Mercer and Ms. Slater both testified that a number of finance staff were involved in processing P-card accounts, and as such, many were aware of the situation with Mr. Mema’s P- card. Ms. Slater testified that initially she was glad there were layers of controls in place, and she expected Ms. Samra, as CAO, to do something about the situation, but was confused when Ms. Samra continued to approve Mr. Mema’s P-card statements with personal charges on them. However, aside from following up with Mr. Mema for repayment, no one raised their concerns with Mr. Mema, and no one raised the repayment issues he was having with the CAO, Ms. Samra.

Mr. Van Horne testified, and it was not disputed, that the working environment at the City was “terrible” at this time, with poor Council-staff relations, staff being terminated and escorted out of the building, and difficult labour relations. None of these issues related to Mr. Mema, however, he said. Mr. Van Horne gave evidence that he found his job as Director of Human Resources very challenging during this period. He believed that he was giving Ms. Samra the best human resources advice he could, which she would sometimes disregard, with the result of people getting fired for “crossing” her or for being “too close” to the Mayor. Mr. Mema, meanwhile, seemed to be able to do a lot of good for staff by managing Ms. Samra’s tensions with finance staff and “calming her down”. Eventually, however, Mr. Mema came to be seen by many finance staff as closely aligned with Ms. Samra.

In late 2016 and early 2017, Mr. Mema went on a medical leave. Before that, Mr. Mema gave the City a post-dated cheque for the outstanding amount owed on his P-card. His wife was also still experiencing some health challenges around this time. When Mr. Mema returned to work, he was advised by City finance staff that the post-dated cheque had bounced [NSF cheque].

On February 9, 2017, Mr. Mema emailed a finance staff member, copying Ms. Mercer, asking that they set up a recurring payroll deduction of $500 per pay period until further notice

to repay the outstanding balance. This approach is consistent with what Ms. Mercer and Ms. Slater had previously suggested. In the meantime, Mr. Mema continued accruing personal charges.

Ms. Mercer testified that the situation with Mr. Mema’s use of the P-card for personal purchases, staff having to follow up with him for repayment, and the accumulating outstanding balance was very stressful for her. She felt that she could not go to the CFO for guidance because he was the problem. She decided to chat with DD as the Deputy Director of Finance. Together, Ms. Mercer and DD decided to bring their concerns to the Director of Human Resources, Mr. Van Horne. That conversation happened on February 14, 2017. Ms. Mercer expressed her concern about the amount of personal charges accrued and unpaid (by this time, $8,260.21), the NSF cheque, the payroll deduction repayment plan, and the frustration amongst finance staff about the situation. DD was not called as a witness at the hearing. While nothing in my decision turns on it, I note that the evidence before me was that she attended this meeting with Ms. Mercer and Mr. Van Horne, and echoed the concerns expressed by Ms. Mercer.

Mr. Van Horne testified that he considered Mr. Mema a friend and was “devastated” to learn of the situation with Mr. Mema’s P-card. Mr. Van Horne testified that it was his understanding at this time that it was clear to staff that the P-card should not be used for personal purchases. He testified that he was concerned about the situation for several reasons. Mr. Mema was a director, and he considered it important that directors set the tone at the top and guide their departments. He was concerned that the issue was going to become public knowledge because so many people knew about it, and he was concerned that the charges continued to accrue. He was also concerned that the CAO might not address the situation, given she had to have seen the personal charges when signing off on his statements, although, I note, neither Ms. Mercer, Ms. Slater or DD had informed Ms. Samra of the repayment issues or otherwise raised their concerns with her. Mr. Van Horne was also concerned about the prospect of the upcoming annual audit embarrassing the City and Mr. Mema.

Mr. Van Horne immediately raised the issue with Ms. Samra during one of their regular meetings. Ms. Samra was shocked to learn about the situation. Ms. Samra asked why the issue was only coming up now if it had been going on for months. They considered what to do, and Ms. Samra wondered if Mr. Mema was struggling financially. Ms. Samra supported the payroll deduction repayment plan and told Mr. Van Horne she would talk to Mr. Mema about stopping his use of the P-card.

Mr. Van Horne testified that in his conversation with Ms. Samra, she focused less on correcting the issue than on how to assist Mr. Mema with his financial issues. She asked about the possibility of paying out Mr. Mema’s sick time and a vacation payout, but Mr. Van Horne told her this was not allowed. She directed Mr. Van Horne to give Mr. Mema three more paid weeks of vacation as he had already cashed out his 2017 vacation, increasing his vacation for that year from 4 to 7 weeks. Mr. Van Horne testified that Ms. Samra asked him about a “commuting allowance” that could be connected to the relocation allowance that Mr. Mema had not used because he had not relocated to Nanaimo. His notes showed Ms. Samra asking him to estimate moving costs from Vancouver to Nanaimo then paying Mr. Mema 50% of that as a monthly allowance with a repayment agreement per the City’s normal relocation policy.

Mr. Van Horne and Ms. Samra met again the next day. On the commuting allowance, Mr. Van Horne said that he advised Ms. Samra that this was not appropriate as Mr. Mema had not relocated and it was 1.5 years since his hire.

Ms. Samra recalled this discussion differently. She testified that she wanted to provide Mr. Mema with a relocation allowance to encourage him to relocate and to do for him what the City Council had done for her when she began. She said that she ultimately authorized the payment of a retroactive relocation allowance on the advice of Mr. Van Horne. She said that she obtained legal and City Managers’ advice on everything that she did, with Mr. Van Horne drafting her letters for her. Ultimately, Ms. Samra authorized a monthly payment to Mr. Mema of $300 retroactive to the start date of his employment, in lieu of relocation expenses, payable for a total of 24 months [commuting allowance]. However, because of the City’s accounting system, it had to be classified as a “vehicle allowance”.

I do not need to resolve the disputes in evidence between Ms. Samra and Mr. Van Horne about what they discussed at this meeting or what advice Ms. Samra received, as these disputes are not material to the issues I must decide. It is undisputed that the commuting allowance was authorized for Mr. Mema, that it was coded in the system as a vehicle allowance, and that Mr. Van Horne was aware of the genesis of the commuting allowance. It is also undisputed that Mr. Mema was uninvolved aside from receiving the commuting allowance. Mr. Van Horne testified, and it is not disputed, that he never discussed the commuting allowance with Mr. Mema as it had been allowed by their boss, the CAO.

On February 15, 2017, Mr. Van Horne emailed Ms. Mercer advising that Ms. Samra would be speaking with Mr. Mema to ensure the P-card situation did not continue, and that Ms. Samra had agreed to the $500/payroll deduction plan. Mr. Van Horne also wrote that Ms. Samra had appreciated Ms. Mercer bringing the matter forward, and the efforts that she made to resolve the issue in a discreet and respectful manner. On this point, I note that the City had been rife with leaks to the media, and concerns about confidentiality were manifold.

Ms. Slater testified that at this time, Ms. Mercer had told her that the City was setting up a payroll “garnishment” to pay down Mr. Mema’s balance.

Ms. Samra spoke with Mr. Mema about the P-card concerns. At one point in her evidence, she recalled telling him that his use of the P-card for personal purchases was not allowed and needed to stop, though at a later point in her evidence, she said she was unsure of whether she had conveyed this at the time. Mr. Mema disputes being told this at this time. He asserted that Ms. Samra did not say anything at that time about his stopping the use of the P- card for personal expenses. Mr. Mema recalled that his meeting with Ms. Samra ended with her saying she was satisfied with the payroll deduction plan.

Mr. Van Horne testified that the P-card issue did not impact his personal relationship with Mr. Mema, who he said felt like his only friend at the City. He said it was briefly awkward between them, but they had a chat about it and carried on, so it was “a blip on the radar” that did not strain the relationship.

This was not the case for Ms. Slater. Ms. Slater testified that she found her relationship with Mr. Mema awkward by this time because they had never “had it out” about the P-card and she still had to follow-up with him for repayment as he continued to accrue new charges. At the same time, she acknowledged that Mr. Mema probably did not know how she felt about the P- card situation. Aside from her having asked him via email for repayment, she never spoke about it with him. In this context, it is not clear to me what she expected in terms of “having it out” . She had pursued repayment with him; she had raised the issue with her manager Ms. Mercer (which resulted in the issue being escalated to the Director of Human Resources, and subsequently the CAO); and a repayment plan was in place.

Around the end of February, Ms. Samra went on a leave for several months following what she described as a physical assault by a City Councillor. Mr. Mema became Acting CAO, holding this and the CFO positions concurrently.

On April 3, 2017, the City adjusted Mr. Mema’s pay, effective March 6, to compensate him for the additional responsibilities he had assumed as Acting CAO in Ms. Samra’s absence.

On August 29, 2017, though Ms. Samra was still on leave, she directed Mr. Van Horne to pay a 12.5% bonus to Mr. Mema and three weeks’ non-cashable leave. When Mr. Van Horne asked for clarification, Ms. Samra confirmed the bonus was for his work “holding down the fort for more than five months now without a break” in the role of Acting CAO while still carrying out his CFO duties.

Mr. Van Horne said that he had never seen or heard of a bonus like this, especially after Mr. Mema had been given acting pay for taking on the acting CAO duties. However, he acknowledged that Council had approved a lump sum bonus for Ms. Samra at some point before. Ms. Samra testified that Mr. Van Horne told her it was okay to award a bonus, noting that she had previously approved pay bumps for all City Directors following requests in 2016 and 2017, and that she always relied on Mr. Van Horne for advice about “the rules”.

Once again, I do not find it necessary to resolve this dispute in the evidence between Mr. Van Horne and Ms. Samra. It is undisputed that these payments were authorized by Ms.

Samra, and there is no evidence that Mr. Mema was involved in the process aside from receiving them. I note that the City argued that Mr. Mema's passive receipt of these payments, without assessing whether their payment complied with City policy, is relevant to the City's defence to the complaint, because it goes to whether Mr. Mema engaged in misconduct. I will return to this issue below; however, I note that there was no evidence before me that this bonus and leave payment were considered by City Council when it reviewed the Misconduct Report and decided to terminate Mr. Mema's employment.

C. Mr. Mema’s increasing balance and continued P-card use

By September 2017, Ms. Samra was back in the workplace. Mr. Mema’s outstanding P- card balance for personal purchases had increased despite the payroll deductions. Ms. Mercer testified that by then, nearly everyone in the Finance Department had approached her at some point asking about Mr. Mema’s use of the P-card because they had not seen this type of use before. Ms. Mercer said that she had never had to follow up with an employee to seek repayment for personal charges to a P-card, and the situation raised particular concern coming from the highest financial officer in the organization.

Ms. Mercer testified that earlier that month, Mr. Mema contacted her to ask why his P- card had been declined on a recent transaction. She reviewed the account and saw that Mr. Mema was over his monthly limit. She also saw a $1,200 charge from a resort in Mexico. She testified that for her this was “a breaking point”. However, she did not ask Mr. Mema about the charge. I note that in his evidence, Mr. Mema denied having asked Ms. Mercer why his P-card had been declined on a recent transaction. Mr. Mema also testified that he made the Mexico charge in error. Ms. Mercer said that it was around this time that she saw a newspaper article about Mr. Mema’s former municipal employer, Sechelt, suing him for alleged unpaid personal charges billed to his corporate credit card. The evidence before me was that Ms. Slater also became aware of the article around this time, and that the news article piqued Ms. Slater and Ms. Mercer’s concerns about Mr. Mema. Ms. Mercer emailed Mr. Van Horne attaching the article, saying “I would like to discuss this with you”.

In the meantime, Ms. Mercer testified that she had started learning of phone calls from Mr. Mema’s creditors about his personal debts, as his voicemails at the City were forwarded to her. She testified that she could not understand why the CFO was treating his P-card like his personal line of credit and continued to do it even after she understood he had been told to stop. She said, “good people make bad decisions when they’re forced into a corner” and viewed these things as a mounting “warning sign”. Curiously, Ms. Mercer said she did not forward the creditor voicemails to Mr. Mema, nor did she speak to him about them.

Ms. Mercer met with Mr. Van Horne on September 29, 2017. At this meeting, Ms. Mercer explained to Mr. Van Horne that Mr. Mema was continuing to use his P-card for personal purchases, that the balance was continuing to grow despite the payroll deductions, and that the CAO, Ms. Samra, was still signing off on his P-card statements. Ms. Mercer did not raise the issue with Ms. Samra at this time, however. She said she was struggling with what she felt was her ethical duty to report the issues to the governing body for CPAs, and with a loss of confidence in Mr. Mema and his handling of public funds. She felt embarrassed and that staff were looking to her to do something. She said that no one felt they could raise the P-card issue for fear of losing their job because, “[t]he person we would normally go to was the problem and his boss [the CAO] was engaged in the same misconduct”. Mr. Van Horne suggested that she talk to Mr. Mema, but she felt that it would be too uncomfortable because Mr. Mema was her boss.

Following her meeting with Mr. Van Horne, Ms. Mercer decided to send an email to Mr. Van Horne, Ms. Samra and Mr. Mema outlining her concerns. She also contacted the City’s regular auditors to alert them to the issue with Mr. Mema’s P-card use.

On October 4, 2017, Ms. Mercer and the deputy director, DD, emailed Mr. Van Horne, Ms. Samra, and Mr. Mema with the subject, “CFO personal use of a corporate credit card”. The email was also copied to Ms. Slater. The email was sent from Ms. Mercer’s email account, but signed by both Ms. Mercer and DD, though DD’s email address was also copied.

In the email, Ms. Mercer and DD summarized the background of Mr. Mema’s personal use of his P-card beginning in May 2016 up to the NSF cheque. They then described their conversation with Mr. Van Horne in February 2017 about their concerns, and that following that conversation, they understood that the matter was raised with the CAO, and a “repayment program” was put in place. They noted that since then, personal expenses continued to be incurred by Mr. Mema. They wrote that, “[c]urrent City practice is to consult with the CFO where a cardholder has continued personal use of a City credit card and to determine appropriate follow up.”

In the email, Ms. Mercer and DD said that staff were concerned that the situation was inconsistent with the City’s policy (which I understand to be referring to the P-card Agreement) and that the approval for Mr. Mema’s continued use of the P-card was not in place. Ms. Mercer and DD also said that City staff who were professional accountants were concerned about their professional obligations in the circumstances. Ms. Mercer and DD asked that Mr. Mema’s P-card be rescinded until the outstanding balance was paid in full, and that the City’s auditors be consulted to ensure the appropriate P-card approvals and processes were in place going forward. Ms. Mercer and DD also advised that they had contacted the City’s regular auditor, Ms. Adie-MacKay at KPMG, to raise their concerns about Mr. Mema’s P-card use.

Mr. Van Horne testified that Ms. Samra’s response to the email was “volcanic”. His and Ms. Samra’s evidence was consistent in that she was particularly troubled by the way Ms. Mercer and DD had raised their concerns. She was concerned about staff having raised the issue with the City’s auditors without first approaching or notifying her. She was also concerned about whether there was a “smear campaign” against Mr. Mema, whether DD was “out to get” Mr. Mema, and whether the email could be made public under a freedom of information request. Ms. Samra testified that she took the email very seriously, especially having been “under the microscope” herself for over two years. In her testimony she identified two categories of concerns arising from the email: (1) staff handling of the City’s confidential information; and (2) Mr. Mema’s continued use of his P-card for personal expenses.

Ms. Samra sought legal advice about how to address Mr. Mema’s P-card issues, then met with Mr. Mema and Mr. Van Horne on October 6, 2017. Ms. Samra followed up with a letter to Mr. Mema on October 11, 2017. The letter began by confirming that the purpose of the October 6 meeting was to review Mr. Mema’s use of the P-card for personal expenses and repayment of those expenses. Ms. Samra wrote, among other things:

please note that there is no allegation of fraud; rather, this is a matter of the city’s policy related to the use of corporate purchasing cards. [...]

We previously discussed this issue in February of this year, and you advised that you were making regular payments to the City via payroll deduction for the expenses incurred to that date. We are exceedingly disappointed that, despite that discussion and direction, you have continued to make use of the card for personal purchases.

While there are elements of the attached policy that may be viewed as being ambiguous and which require revision and updating, you ought to have understood my expectations clearly and not continued to use the City's card for personal purchases.

Clearly, your continued use of the corporate purchasing card for personal expenses, even when those expenses are paid back, cannot continue. It is my expectation that the amounts owing will be paid in full immediately.

Given your repeated failure to comply with direction, I have no choice but to temporarily suspend your purchasing card. You and I can discuss this matter again when full repayment is made to the City. Any future use of the corporate purchasing card is to be only for City expenses. Please return the City's purchasing card to me immediately.

These steps are being taken as an interim measure, pending a broader review of purchasing card and cell phone use practices throughout the City. A final course of action will be determined once I have had the chance to conduct that review.

I trust you will take whatever steps are necessary to remedy this situation. If you have any questions or concerns, please bring them to me directly.

As I have noted earlier, in his evidence, Mr. Mema denied having been told to stop using the P-card for personal purchases prior to receiving this October 2017 letter. He says he was disappointed when he read Ms. Samra’s statements that he “ought to have understood my

expectations [in February] clearly” and her reference to a “failure to comply with direction”, because she never directed him to stop using the P-card for personal expenses. He began to feel that he was “being set up”, particularly as he believed both Ms. Samra and Mr. Van Horne had personal expenses on their P-card.

In her evidence, as I have mentioned above, Ms. Samra agreed she was not certain that she told Mr. Mema to stop using his P-card for personal expenses at their February meeting. Regardless, it is undisputed that it was made plain by the letter of October 11, 2017, so by then, Mr. Mema had direction from Ms. Samra to stop using the P-card for personal purchases. Indeed, there is also no dispute that at this time his P-card was suspended, and Ms. Slater destroyed his P-card at his request.

Ms. Mercer testified that following her October 4, 2017 email, Mr. Mema reassured her that he understood that she was just doing her job in raising the issue with Ms. Samra, and she would not lose her job because of it. In his testimony, Mr. Mema explained that to him the fact that staff were following up on personal purchase repayments showed the system worked.

As mentioned above, the October 4, 2017 email had also left Ms. Samra concerned about the manner in which staff had raised their concerns, and their handling of confidential information. Ms. Samra testified that around this time, there were many leaks of confidential information from the City so she was concerned about how private information was being shared within the City and by City staff, including by Ms. Mercer, as well as with staff going around her to raise the issue with the auditors directly.

Ms. Samra sought advice from the City’s legal counsel on how to address the manner in which Ms. Mercer and DD had raised their concerns. By email dated October 4, 2017, Ms. Samra replied to Ms. Mercer and DD as authors of the email (copying Ms. Slater, Mr. Van Horne and Mr. Mema), noting that they had previously raised their concerns about Mr. Mema’s P-card use “in an appropriate and lawful manner”, and that she took seriously “the manner in which allegations are made, the allegations you have made including the need to adhere to

lawful and respectful processes to avoid perceived threats or intimidation.” She wrote that she wished to meet with them.

Shortly thereafter, Ms. Samra emailed Mr. Van Horne saying that Ms. Mercer and DD initially declined her meeting request. However, Ms. Samra met with Ms. Mercer and DD around October 10, 2017, to discuss her concerns. Mr. Van Horne attended with Ms. Samra. They met with Ms. Mercer and DD separately. Among other things, Ms. Samra expressed concern about staff communicating with the auditors about the P-card issue without going through her first, saying that as CAO she should have been made aware that it was going to happen.

Following the meetings, Ms. Samra issued letters to DD and Ms. Mercer. She wrote, among other things, that their allegations had become a topic of conversation within the City workplace and within the larger community. On this point, she wrote,

it is my expectation that you will:

refrain from discussing your supervisor’s situation, or any confidential employment matter, with staff and the general community;
Respect your duties of fidelity and confidentiality towards the organization and
Take steps to repair your relationship with your supervisor, so that the City’s award-winning Finance department does not become an uncomfortable work environment for anyone.

Further, I found your conduct during our meeting to be very confrontational, and you did not even consider my comments to you before rejecting them. I would expect you to show considerably more reflection on your conduct in the future, should a similar situation present itself.

Mr. Van Horne testified that while he recognized that issues with leaks from the City was a big concern at the time, he was worried about Ms. Samra’s approach because of the optics of reprimanding staff in the circumstances. He testified that DD really pushed back

against Ms. Samra, emphasizing the importance of the CFO, as top financial person, setting an example for City staff.

Ms. Mercer testified that she was “gutted” by the letter. She was surprised to be disciplined when it appeared the only consequence Mr. Mema faced was losing his P-card.

DD did not testify. The evidence before me was that shortly after Ms. Samra sent this letter, DD put in her letter of retirement, went on sick leave and did not return to work before retiring. As DD’s leave followed so closely in time with Ms. Samra’s letter, the evidence before me was that many finance staff at the City, Ms. Slater included, believed that DD had been “pushed out” by Ms. Samra because she raised concerns about Mr. Mema’s P-card use, not because of the manner in which the concerns had been raised

D. The City engages auditors to review P-card practices

Ms. Adie-MacKay of KPMG was the City’s regular auditor. In that capacity, she would speak with finance staff from time to time over the course of the year when they would reach out for advice. She testified that in October 2017, Ms. Mercer contacted her to raise the issue of Mr. Mema’s P-card, notifying her at that time that Mr. Mema had accumulated a significant balance, had made a repayment plan, and that later in the year new charges were accumulating. Ms. Mercer had told Ms. Adie-MacKay around this time that Ms. Samra had disciplined her for raising the issue, though did not share Ms. Samra’s actual letter.

Ms. Adie-MacKay testified that she was concerned to hear from Ms. Mercer that she had been disciplined for raising concerns about finance practices, and decided to reach out to Councillor Bestwick, the Chair of the Council’s Finance Committee, to get more information. Councillor Bestwick, however, was unaware of the situation, and readily agreed, on her recommendation, to an audit of P-card use amongst City staff.

Councillor Bestwick then phoned Ms. Samra, instructing her to handle the situation. In his evidence, Councillor Bestwick said that he wanted a forensic investigation of the use of all P-cards for the last seven years

with the idea that they would “go back and do it right and do it once.”

On October 12, 2017, Ms. Samra emailed Ms. Mercer asking her to confirm what she had shared with the auditor. Ms. Mercer wrote back that she had shared the same information that she had included in her October 4, 2017 email about Mr. Mema’s P-card use. Ms. Samra replied expressing her appreciation for the prompt and helpful response, noting that she had sought legal advice on the issue and would be contacting the auditor shortly.

Ms. Adie-MacKay and Ms. Samra then spoke, with Mr. Van Horne also in attendance. In that call, Ms. Adie-MacKay asked about the disciplining of finance staff. As mentioned, Ms. Adie-MacKay had not seen a copy of the letter Ms. Samra had issued but had only heard Ms. Mercer’s account. Ms. Samra explained her concerns about the manner in which the issue was brought forward not the issue itself, noting they had “done it right” when they raised their concerns about the P-card issue the first time in February. Ms. Samra explained that she had spoken with Mr. Mema in February, was off for several months, and now had issued a letter of discipline to Mr. Mema while cutting up his card, which City legal counsel advised was appropriate.

Mr. Van Horne’s notes of the conversation also detailed Ms. Adie-MacKay talking of the importance of looking into Mr. Mema’s use of his P-card given the alleged situation with the Municipality of Sechelt. Ms. Samra told Ms. Adie-MacKay that she believed many City staff were using their P-cards for personal purchases. This led Ms. Adie-MacKay to think it may be a pervasive problem at the City. Ms. Samra shared her concerns with Ms. Adie-MacKay about preserving confidentiality given the City environment, and Ms. Adie-MacKay suggested a forensic audit. The audit would be mandated by a terms of reference set between the City lawyer and the auditor. Ms. Samra wanted a 10-year review of all personal transactions on P- cards amongst staff at the City to understand the situation. She testified,

I needed to do something that would withstand the scrutiny of the public, of Council and the law. And I could think of no better way than having the city lawyer in charge, and the auditors doing it without me. I had no

oversight whatsoever. I cannot compel City lawyers [...] to yield to my will. They function and are professionals and do their job. And I have no oversight or ability to direct auditors from a national/international firm that are members of professional organizations.

On October 17, 2017, Ms. Adie-MacKay provided Ms. Samra with the names of auditors that the City’s corporate legal counsel could contact directly to start a P-card audit [P-card auditors]. Both the regular auditors and the P-card auditors were from the same firm, KPMG. On October 30, 2017, the City’s corporate legal counsel wrote to the P-card auditors regarding a “Forensic Audit to Investigate Compliance with City of Nanaimo Credit Card Policy”, advising that she wished to engage them on behalf of the City:

to conduct a confidential forensic audit to investigate compliance with the City of Nanaimo’s credit card policy, including confirmation of the number and prevalence of reimbursement for non-business use of City credit cards, and to provide recommendations to the City, if appropriate, in relation to how to manage instances where the card holder decides that the charge is not a business use and what steps are needed to ensure prompt reimbursement including timing or escalating consequences.

The City’s corporate legal counsel proposed that the auditors would report to and communicate with the City through its corporate counsel, and the work would be kept confidential, going back 10 years for all cardholders.

The City then formally engaged the P-card auditors, pursuant to an engagement letter dated November 8, 2017, signed by the City’s corporate counsel and the P-card auditors. The engagement letter referred to the City’s concerns about City staff charging personal expenses to their P-cards and failing to repay in a timely manner, contrary to City policy.

The engagement letter confirmed that the City’s corporate counsel had engaged the auditors to assist in reviewing P-card charges marked as personal over the last 10 years by City staff, reporting on the prevalence of such charges, the processes followed and terms of repayment, and to provide recommendations on how to address any issues identified by the audit. The engagement letter also invited the auditors to comment on any relevant City policies and procedures and suggested improvements.

Around this time, Ms. Samra announced at a senior management meeting that there was going to be a review of the P-card led by the City’s auditors.

Also around this time, on November 6, 2017, Mr. Van Horne emailed Ms. Mercer and another staff member, asking them for information about the sharing of Mr. Mema’s personal information on the P-card matter. Ms. Mercer explained the system for processing P-card statements in a November 9, 2017 email. She explained that it involved around seven different people with tasks including gathering receipts, ensuring completeness, and compiling detailed reporting information for counsel and senior management. As a result, many people within the Finance Department knew about Mr. Mema’s personal use of his P-card.

In keeping with the ongoing issue of information leaks from the City, a November 12, 2017 article in a local newspaper included details of Mr. Mema’s P-card spending, including specific charges he had accrued, and information about reimbursement of Ms. Samra’s legal bills “related to the controversy over the legality of her hiring in late-2015”. It is reasonable to infer that someone from within the City’s finance department was sharing information. In my view, it legitimizes Ms. Samra’s concerns about confidentiality, including during the P-card audit.

At the same time the auditors were being engaged, Mr. Mema took action to fill the vacant Deputy position, created by DD’s departure. As hiring can take months, he asked Ms. Mercer if she would fill the role in the interim. She declined so Mr. Mema approached the Manager of Business and Asset Planning [WF]. WF also declined.

Mr. Mema then went to Mr. Van Horne to ask for help with an interim hire while the City recruited for the permanent Deputy Director. Mr. Mema explained to Mr. Van Horne that he did not have the capacity to take on anymore and needed someone in the Deputy role to assist him as CFO. Mr. Mema also began to consider people in his network. Eventually, he approached a former colleague, Mr. Mloyi, who was available beginning in January. Mr. Mloyi is a Black man. Mr. Mema and Mr. Mloyi met in April 2011 at work and worked together until 2013 in Alberta. Mr. Mema emailed Ms. Samra on November 14, 2017, seeking permission to

hire an interim Deputy Director of Financial Services from December 1 to March 1, while the recruitment process for the permanent position was underway. With reference to Mr. Mloyi, he wrote, “[t]his is my protégé so they understand my model and will help clean up our capital budget realignment at least from a reporting side.”

In his evidence, Mr. Mema explained that Mr. Mloyi was someone who was well- trained, knew his systems, and needed no training. Mr. Mema testified the jurisdiction where they had previously worked together had a substantially larger budget than the City and was 5- 10 years ahead in its processes, so Mr. Mema was comfortable with Mr. Mloyi walking into the role of Deputy. Ms. Samra ultimately approved the temporary hire. Ms. Samra testified, and I accept, that she had no role in this recruitment, and her formal approval was required only because it represented an organizational change.

Mr. Van Horne testified that the City’s hiring policy was not followed in the hiring of Mr. Mloyi. In cross-examination however, he acknowledged that there is a direct appointment policy that allows for the process by which Mr. Mloyi was hired.

E. TheP-cardAuditBegins

Mr. Benade is employed by KPMG and led the P-card auditor team that conducted the P-card audit. The P-card auditors were engaged by and reported to the City’s corporate counsel as mentioned above.

As part of the P-card audit process, Mr. Benade and his team interviewed Mr. Mema, Mr. Van Horne, another City employee who had frequently used their P-card for personal purchases, Ms. Samra, and Ms. Mercer. They also asked to speak with Ms. Slater but the City – through Ms. Samra – had concerns about widening the circle of involvement given concerns about leaks and confidentiality, and she was not interviewed.

Early in the P-card audit process, the City’s corporate counsel raised concerns with the P-card auditors about information leaks from the City. In an email dated, December 4, 2017, counsel wrote to the P-card auditors raising concerns about privacy associated with leaks.

Counsel also raised the concern that the leaks may have involved one of the staff members they sought to interview. Counsel asked the P-card auditors if the interviews with staff could be limited to Ms. Mercer and could be done in writing. They also advised that “the City does not record the annual amounts of personal charges per year [...].”

Mr. Benade replied that the purpose of talking to staff was to understand how P-card charges were dealt with in practice, not to speak about a specific cardholder. He said they could begin with Ms. Mercer but may have to re-evaluate, and in any event, would be mindful of confidentiality.

In closing submissions, the City argued that Ms. Samra actively interfered with the P- card audit in an effort to shield Mr. Mema and herself from what it says were their coordinated actions to allow each other to benefit personally from their use of City funds. However, while Mr. Benade acknowledged in his evidence that Ms. Samra would occasionally push back against interviewing certain people over the course of the audit, he asserted that she did not influence the final work product. He did not raise concerns about Ms. Samra’s involvement with the City’s corporate counsel. He noted that if he had been prevented from seeing documents or speaking to necessary people, the P-card auditors would have had to include a scope restriction in their final report, but they did not have to with the P-card audit. He said that the final audit report was sound and supported Ms. Adie-MacKay’s annual audit findings.

Mr. Mema recalled meeting with the P-card auditor twice. At the first meeting, he and Mr. Benade discussed the P-card signature process, going through each of his statements showing which charges were business and which were personal. The P-card auditors asked him about the vehicle allowance, which he explained was the commuting allowance coded as a vehicle allowance in the City’s system. They then asked about his August 2017 bonus. Mr. Benade described Mr. Mema as “testy” and as not answering some of the questions about his pay. Mr. Mema acknowledged he became upset as this seemed beyond the scope of the P-card audit, which he did not understand as including his remuneration.

Mr. Benade noted that the City senior managers he interviewed understood P-cards were not for personal use in principle but acknowledged a practice for repayment when used for personal purchases. Mr. Benade identified a general exception where there was a business expense with a personal component. He also noted that sometimes a P-card would be used for a personal purchase by accident. Mr. Mema was the exception in the prevailing understanding of the P-card. Mr. Benade testified that he had trouble understanding Mr. Mema’s view that personal purchases with the P-card were permitted. Mr. Benade could not think of an example from his experience where staff was allowed to use a corporate credit card at will, because conceptually, this turned the employer into the bank.

On December 8, 2017, Ms. Samra emailed Councillor Bestwick asking if he would sign off on a City press release quoting him as saying that he was “glad to hear” Ms. Samra was “taking steps to address [his] concerns and those of the public” about “spending by City Staff on City business”. Councillor Bestwick replied:

[u]ntil I see with my own eyes the auditors information and all the data related to how the cards have been used, etc – I have no comment. Too many cards issued. Too loose on controls. Policy or procedure weak. Oversight for decades non-existent. I need to see the expenses in question.

Must corrective measures take place to how staff who have credit cards for City business (not P-cards) use the cards? Yes. Period.

Obviously the cards are NOT assigned for personal expenditures.

[...]

Ms. Samra replied that the press release was “focused on regulation of expenses”, and that in her view, it would be “unwise” to disclose that the P-card audit was underway at that time. She responded to Councillor Bestwick:

[...] KPMG is looking at the prevalence of reimbursements for personal use. "Personal use" happens for legitimate reasons all the time and will be set out as exceptions in any new policy. It is not possible to have zero- errors and existing policies permit it in specific circumstances. My review of the 5 year reimbursement document indicates Mayors, Councillors and

City Staff have all reimbursed the City for personal use on their p-cards. That needs to be fixed and will be reported on once we have KPMG's Report and recommendations.

KPMG will opine on the use of p-cards in terms of efficiencies, so Council can decide about a reduction in an informed manner.

My advice is that limits on spending are what is lacking and clear restrictions on what constitutes "City business".

The quote below and the press release reflect this advice. You are not being asked to vouch for City Staff that they have done anything ... the quote has you saying you agree it needs to be sorted out.

It would be helpful for you to agree to the quote but if not, I understand. The City issued a press release the same day. The press release begins:

Chief Administrative Officer, Tracy Samra, has directed City Staff to update the suite of Employee Expense Policies to provide more detailed guidelines on eligible expenses and reporting requirements. Ms. Samra also asked Mayor & Council to endorse her recommendation to set annual limits for City Staff on attendance at conference, training, and City business hospitality.

[...]

Allegations that City Staff have overspent or charged taxpayers for non-

eligible expenses are unfounded. The City has appropriate internal controls in place to review and approve claims.

The quote Ms. Samra had asked Councillor Bestwick to adopt was included in the press release adopted by a different Councillor. In her evidence, Ms. Samra explained, and I accept, that it was standard practice to approach City Councillors in respect of press releases and events.

In the background at this time were ongoing leaks from the City including about the P- card issue. Ms. Samra was concerned and expressed that concern to both Ms. Adie-MacKay and Mr. Van Horne.

Other City staff from the Finance Department did not express concern about the leaks of information in their evidence. I did, however, hear evidence that City staff were concerned that Ms. Samra was concealing or otherwise minimizing the P-card issue for City Council and the public through her press releases. In that vein, Mr. Van Horne described various press releases around this time as “nothing to see here” press releases. Despite having little to no involvement in the P-card audit, Ms. Slater said she saw the press release and believed they were inaccurate. Councillor Bestwick testified that around this time, it seemed to him that some members of Council seemed convinced that P-card abuse was happening, that they knew more than other Councillors did, saying things like “wait until you see what’s coming from finance.”

Ms. Mercer testified that around this time, Ms. Samra requested that she gather information on the last 5 years of employees’ reimbursement of the City for P-card use. Ms. Mercer explained that she prepared spreadsheets for Ms. Samra, with a caveat that she had not looked at all of the reimbursements, so they may not all have related to P-cards. She later heard that Ms. Samra had shared the spreadsheets with City Councillors. She testified that when she learned that Ms. Samra was using the spreadsheet “as a weapon”, she went back and did a deeper breakdown as she did not believe that the use of P-cards for personal purchases was commonplace.

Ms. Mercer testified that after one Council meeting, Ms. Samra called her to attend a meeting with herself, Mr. Mema and Mr. Van Horne. Ms. Mercer testified that at that meeting, Ms. Samra claimed that Ms. Mercer had been unprofessional and inappropriate at Council meetings, and that while she would get help for Ms. Mercer and her colleagues to deal with their anger issues about DD’s departure, ultimately, they would have to “get over it”. Ms. Samra testified she had observed Ms. Mercer and her colleagues passing notes and rolling their eyes during Council meetings. Ms. Mercer was upset that she was again being disciplined for something she had not done. Afterwards, she went to Mr. Mema’s office and apologized if she had been disrespectful. She said Mr. Mema responded by saying that Ms. Samra had been having lots of issues with leaks and was worried about staff going behind her back. Mr. Mema

said that they were Ms. Samra’s issues and Ms. Mercer had not been disrespectful, she and her colleagues were just trying to do their jobs.

In the meantime, Mr. Benade’s notes from his December 14, 2017 meeting with Ms. Mercer noted, among other things, that there were no guidelines for dealing with outstanding personal expenses on P-cards, as people generally paid up.

F. 2018:Matters Escalate

The beginning of 2018 saw three events running more or less concurrently: (1) Mr. Mloyi joined the City as temporary deputy director of finance while DD’s vacant role was filled; (2) the P-card audit by the P-card auditors; and (3) Mr. Mema’s handling of legal invoices submitted by Ms. Samra for City reimbursement. I have grouped each of these together below for clarity. I find it is necessary to set out the background to each of them, as each ultimately relates to or informed the Misconduct Report that Ms. Slater filed with the City about Mr. Mema.

1. Mr. Mloyi joins the City and the Deputy role is filled

On January 2, 2018, Mr. Mloyi joined the City as interim Deputy Director on a 2-month appointment. Based on the evidence before me, I understand that Mr. Mloyi would be the second Black City employee. In his evidence, Mr. Mloyi confirmed that it had always been his understanding that the post was temporary with no expectation of continued employment at the City.

Mr. Mloyi testified that he was struck on his arrival to learn that a rumour was circulating in the Finance Department that he was brought in by Mr. Mema without a competitive process because they were “best friends”. He explained that his management style is collaborative, so in the face of a lukewarm reception, he called a meeting with everyone to find out what people’s “pain points” were. Mr. Mloyi recalled that the first half of the meeting was very heated, with some people believing that Mr. Mema had brought him in to hide

wrongdoing. He says that he was shocked to hear staff describing Mr. Mema and Ms. Samra as people not to be trusted and that he had been brought in to “cover up” their wrongs.

Mr. Mloyi said that at the meeting staff raised Mr. Mema’s use of his P-card, saying that because of the amount and his position, it was more problematic than for others. He says they mentioned another person who was known for personal P-card use, noting he had a sick wife at the time that he had accumulated P-card balance. It does not appear that anyone mentioned Mr. Mema’s personal circumstances to Mr. Mloyi.

That same day (January 19), Ms. Slater emailed a number of people in accounting, copying Ms. Mercer but not Mr. Mema, with the “coles notes” of a discussion she had with Mr. Mloyi. She wrote that Mr. Mloyi had noted a lot of discontent around Mr. Mema and that Mr. Mloyi was having trouble getting cooperation from staff to implement changes he wanted to make in the organization. She wrote that she explained to Mr. Mloyi that Mr. Mema had lost the respect of staff, that this would impact Mr. Mloyi, and that while staff was experiencing “change fatigue”, it was good that staff were being consulted by Mr. Mloyi on what they would like to have changed. She explained Mr. Mloyi’s plan for efficiencies, and further to Mr. Mloyi’s request, asked that staff “each come up with a list of things that you think would like to see (as soon as possible), and how it would improve efficiencies that would be great. l will amalgamate the lists and then send them to [Mr. Mloyi]”. Afterwards, everyone could meet with Mr. Mloyi to discuss the ideas.

On January 20, 2018, Ms. Slater sent the information Mr. Mloyi requested, attaching a spreadsheet with issues and suggested solutions, including various comments about the use of P-cards including areas where better policy and practice was needed. Mr. Mloyi thanked her and the team, concluding with, “I am encouraged by the start and I promise you and your team my full commitment in working towards a healthy, respectful and happy work place. To this goal I'll call upon all of us to contribute positively.”

Mr. Coronica, a Senior Financial Analyst with the City at the time, remembered meeting Mr. Mloyi in early January and finding him gentle and likeable. Mr. Coronica is a White man. Mr.

Coronica was a bit cautious, however, as he understood that he was Mr. Mema’s friend, though he did not know what capacity they had previously worked together. Ms. Slater testified that Mr. Mloyi mentioned that he had worked with Mr. Mema previously and was at the City for a few months to assist him.

The evidence before me was that, nonetheless, frustration grew among staff with Mr. Mloyi’s approach to his role as Deputy. It was clear from Ms. Slater, Ms. Mercer and Mr. Coronica’s evidence that they did not like that Mr. Mloyi was more “hands off” in his approach compared to DD, and in their view, did not carry as much of the weight in managing the volume of work in the Department. They felt that his approach was increasing staff workloads in some areas, while not alleviating them in other areas that needed more urgent attention. Mr. Coronica testified that he and his colleagues were concerned with Mr. Mloyi because he did not seem to be taking on the work DD had done, and because he wanted to proceed with changing the systems before he had fully understood them.

Mr. Coronica said that at one point, Mr. Mloyi asked him if he had ever seen any racism toward Mr. Mema. Mr. Coronica said that he was aware that Mr. Mema had filed a human rights complaint against Sechelt, where he had also accrued personal corporate purchasing card expenses, so Mr. Mloyi’s question made him feel “wary”

Mr. Coronica had learned about Mr. Mema’s use of his P-card for personal purchases from DD before she left. He believed that DD had lost her job with the City for reasons related to Mr. Mema’s actions and her reporting of them.

In the meantime, the City recruited for the permanent Deputy Director of Finance to replace DD. Applications were reviewed by Mr. Mema and Mr. Van Horne. They ultimately narrowed the pool down to five candidates for interviews including Ms. Ngomesia. Ms. Ngomesia is a Black woman. Mr. Mema and Ms. Ngomesia had worked together years prior in Alberta. The City sent Ms. Ngomesia for an assessment with an industrial psychologist, which was a standard component at the end stages of its interview process. She ultimately scored very well and the City moved on to reference checks.

By January 22, 2018, human resources staff emailed Mr. Mema noting that three reference checks had been done for Ms. Ngomesia. The email noted the references had not identified any significant performance issues and had regarded her skills and performance as generally very high. The email noted that while the job description required three years in a management supervisory position, it did not appear that Ms. Ngomesia satisfied that requirement. It also commented on the fact that a supervisor position at her former office that she had held on an interim basis had since been filled twice. The human resources staff member wrote, “I’m not sure if she applied for the position, but I found it interesting that she wasn’t awarded it. It is concerning if she had applied and wasn’t given the opportunity permanently [...].” In her evidence, Ms. Ngomesia testified that she had not applied for that role on a permanent basis. Her CV identifies two years of experience in a supervisory role. Mr. Mema replied directing that the City offer Ms. Ngomesia the position.

On January 24, 2018, the City wrote to Ms. Ngomesia confirming her appointment to the position of Deputy Director, Financial Services – a position that would report to the CFO, Mr. Mema. The term was to begin May 1, 2018.

On January 25, 2018, Mr. Mloyi wrote to the auditors introducing himself and asking that he be the main point of contact between the auditors and the City, with exceptions for correspondence originating from or directed to the CFO and CAO. I understand this as relating to the regular annual audit, not the P-card audit, in which Mr. Mloyi had no involvement. In his evidence, Mr. Mloyi explained that ultimately, responsibility for all things financial would fall to him as Deputy such that it was important for him to understand what was going on and for communication be centralized. Ms. Slater found this “insulting” as she had always been the audit contact and felt like it was preventing her from talking to the auditors. She never asked Mr. Mloyi about the email or the change, however.

Mr. Mloyi explained that he had not discussed his email to the auditors with Mr. Mema or Ms. Samra. In his view, as Deputy, he needed to have a handle on everything happening, and a simple email process made sense given he would know what was going on this way and have accountability for it.

Mr. Mema testified to two things that happened around this time. First, he said that he had a meeting with Mr. Van Horne and the President of the union representing City staff [Union President] where the Union President said, “finance was fine until you people came.” Mr. Mema testified that as a Black person, when someone says, “you people”, “I know what [they] mean”. Mr. Van Horne said he had never heard the Union President make racist comments but had heard him use the phrase “you people”, typically in reference to managers.

Second, Mr. Mema also recalled that when Mr. Mloyi first joined the City, Ms. Samra had mentioned that Mr. Van Horne’s staff had been making comments about Mr. Mema hiring a friend and that a Black person should not hire another Black person. The P-card audit is completed

On January 2, 2018, Ms. Samra emailed the City’s corporate counsel saying that they needed a draft report by the end of the week, noting that it had been 3 months since the auditors were engaged. Ms. Samra wrote, “I can’t delay any longer – you’ve heard Council”. It seems Council was eager to resolve the P-card issue. On January 5, 2018, Ms. Samra emailed Ms. Adie-MacKay at KPMG directly saying:

I briefed Council on forensic audit through legal end of December.

Today we got an FOI asking for all communications from COO, CFO, Deputy Director and CAO with KPMG. Laura Mercer, within minutes, sent email with information to Council – absolutely unacceptable and very suspicious.

I advised you this matter is highly political I believe both Laura and [DD] have breached their duties to the corporation.

We are seeing a politically engineered leak and attack most likely assisted by disgruntled staff.

I require the Report on Monday.

Ms. Adie-MacKay forwarded the message to her forensic colleagues working on the audit (the P-card auditors) asking what was or was not possible. They responded:

If it is our report there is no way we can deliver by Monday. 39

We discussed timing [...] on Thursday and indicated we were waiting for staff to return so that we could clarify some inconsistencies. Key people only return on Monday.

Seems like Tracey does not have control over some of her people. Really unfortunate but not surprising given the history of the place.

[...]

On January 9, 2018, Ms. Slater emailed information to the P-card auditors noting that she had located the reimbursement details for a $209.69 theme park charge on another City employee’s P-card. She also wrote:

As a side note — I wanted to mention that I was one of the individuals that was listed on the initial 'whistleblower' e-mail that initiated this process, along with [DD] and Laura Mercer. [DD] is now 'retired' and Laura is off for an undetermined amount of time. I haven't been asked to provide any information as part of the audit process, which I found to be a little surprising. If there is anything that I can assist with, please let me know.

I understand Ms. Slater’s reference to “the initial ‘whistleblower’ email” as the October 2017 email Ms. Mercer and DD had sent to Ms. Samra. An internal email from one of the auditors to Mr. Benade around this time raised a question about whether the City had a whistleblower policy that protected “a legitimate Whistleblower from retaliation”. It raised some concerns about whether the auditors were missing something and whether to interview Ms. Slater. However, I note again that Mr. Benade stood by the integrity of the P-card audit.

The P-card auditors ultimately asked the City on January 10 to speak with Ms. Slater “to clarify outstanding issues”. However, the City, through its corporate counsel, declined the request and asked that the report be finalized as soon as possible. The evidence before me was that the P-card auditors considered whether this would give rise to what they called a “scope limitation”, which would indicate that not all aspects of the audit they were engaged to perform could be completed. Ms. Samra later emailed Mr. Benade, however, saying that she would get their list of questions they had for Ms. Slater to Ms. Mercer, noting that Ms. Slater

was “being investigated for privacy breaches.” It is not entirely clear to me what was ongoing in terms of such an investigation of privacy breaches at the time.

Ms. Samra emailed with the City’s corporate counsel about how best to get the questions to Ms. Mercer instead, and it was decided that the questions would go through Mr. Van Horne or Ms. Samra in an email copied to the P-card auditors and corporate counsel, to be less stressful for Ms. Mercer and help maintain privilege. Among the questions the P-card auditors identified were why a P-card charge incurred by another staff who used their P-card for personal purchases at a theme park was not paid back until more than a year later. The response from Finance to that point was that because of staff turnover in the department since the reconciliation, they did not know, and the auditors queried whether Ms. Mercer had more information.

The City had asked the P-card auditors to consider personal expenses and their repayment for the past 10 years using P-cards. Ultimately, they focused on the 7-year period from January 2010 and October 2017, because of insufficient records from years prior.

The P-card auditors produced four versions of their audit report – three drafts and then the final report - as follows:

1. Preliminary Draft dated January 15, 2018;
2. Preliminary Draft dated January 17, 2018;
3. Preliminary Draft dated January 24, 2018; and 4. Report dated February 21, 2018.

I note the various drafts because of confusion surrounding whether City Council saw a copy of the P-card audit report, and because of the City’s arguments that Ms. Samra interfered with what was reported in the P-card audit and what was shared with Council. I will address each of these in turn.

On what was before Council, City Council met on January 22, 2018. The agenda included a verbal presentation from the City’s corporate counsel on the P-card audit. This meeting was held before the P-card audit report was finalized.

The City argues that, “it is highly unlikely that a written report was provided to Council in its entirety or at all.” The City sets out a theory seeking to undermine the likelihood that Councillor Kipp’s recollection of having seen a draft is correct. However, I am satisfied on a balance of probabilities that the Council had a copy of a draft of the Report before it during this discussion. Councillor Kipp gave evidence that a copy was handed out, as did Ms. Samra. Councillors Kipp and Bestwick gave evidence of their understanding of its contents.

At that January 22 Council meeting, Councillor Kipp took handwritten notes on his agenda of the presentation. Among other things, his notes included, “no concern but KPMG rpt not finished”. Councillor Bestwick testified that his take-away from the draft report that he saw at this time was that there was no fraud or crime, only poor judgment. He also took away from the draft report that there were too many P-cards issued, the P-card Agreement was not specific enough about when or whether it could be used in certain circumstances and had no conditions or interest or timeline for repayment. As he put it, the P-card policy seemed to be, if you do use it for personal purchases, pay it back sometime. Councillor Bestwick testified that it was important to him that the policy and practice change to protect the City and to ensure that people knew the rules.

Council then unanimously adopted a resolution directing the CAO to amend the P-card Agreement and related policy as follows:

1. Clearly define permitted business uses and excluded business uses;

2. Clearly define prohibited uses and exceptions for incidental uses related to business expenses;

3. Add a section on disciplinary measures for non-compliance; 4. Establish a formal collection process;

5. In consultation with senior management, reduce and consolidate the total number of City cards issued to serve procurement needs of each department;

6. Issue a Request For Proposals for City travel services; and,

7. Roll out training on new policies including a revised Travel Policy; [...]
[P-card Resolution]

Both Councillors Kipp and Bestwick gave evidence that they essentially viewed the P- card Resolution as resolving the issue of staff use of P-cards.

Ultimately, the P-card auditors found in their final Report dated February 21, 2018 that while the P-card Agreement was clear that P-cards were only to be used for business expenses, in practice the City had a process for dealing with personal expenses incurred. Cardholders would identify personal purchases, code them as such, and then the City would follow up orally or by email with the cardholder where repayment was not made by the next month’s statement. There was no finding of fraud or criminal activity.

The Report concluded that, “In effect, the City has chosen not to enforce its own policy.”

This conclusion appears to have been reached by the P-card auditors after some discussion between them and the City. On January 16, 2018, after reviewing an early draft of the report, the City’s corporate counsel emailed Mr. Benade to express disagreement with its then characterization of the P-card agreement and policy regarding personal expenses. Corporate counsel wrote:

From a legal perspective, we disagree with the conclusion that every personal expenditure on the corporate credit card is a violation of the City’s policy or the cardholder agreement. The policy clearly contemplates that a personal expense may be incurred and provides a process for repayment. Therefore the policy itself contemplates that a contravention may occur, without being specific regarding circumstances.

The P-card auditors replied, thanking corporate counsel for the input and “good advice/suggestions”.

Mr. Benade testified that there was obviously some initial disagreement between the auditors and City corporate counsel regarding the clarity of the P-card Agreement. In his evidence, he shared his view that it is an untenable situation if you have policies that people can choose whether to comply as it becomes impossible for staff to know how to behave.

2. The Samra Legal Invoices

In the meantime, while the P-card audit was underway, Ms. Slater emailed Mr. Mema noting she had received nine invoices totaling $13,904.92 from a law firm submitted by Ms. Samra for repayment. This was one of several batches of such legal invoices submitted by Ms. Samra for reimbursement [collectively, the Samra Legal Invoices]. Ms. Slater noted that the Samra Legal Invoices were all addressed to Ms. Samra personally. Mr. Mema replied, directing Ms. Slater to “[p]lease review work done for allocations.” Ms. Slater replied, “Will do, I think some of these are ok in [...] (General), but some should likely go to her cost center [...]”.

On January 19, 2018, Mr. Mema emailed Ms. Slater forwarding “guidance on legal fees included on Ms. Samra’s list”. The guidance consisted of emails forwarded to Mr. Mema by Ms. Samra containing legal advice she had obtained, confirming that legal costs in the range of $18,000 were not personal expenses but rather were “plainly expenditures for the benefit of the organization that employs you as CAO”. Mr. Mema asked that Ms. Slater run it by a colleague saying, “we can determine how to deal with this in the interim.”

In his evidence, Mr. Mema explained that he had initially pushed back in his discussion with Ms. Samra about the Samra Legal Invoices, but after their discussion, he was ultimately satisfied that they related to City business. Mr. Mema said that invoices would sometimes come to the City for payment in the personal names of staff. In this case, he said that some of the invoices related to Council resolutions authorizing legal advice, so he did not see anything unusual.

On January 23, 2018, Ms. Slater emailed Mr. Mema and Mr. Mloyi saying that she had followed up on whether the Samra Legal Invoices should be considered personal or not for the purpose of the City’s financial report, and was advised that it was a grey area whereby they would not be considered personal if they were incurred as part of her role as employee. She said the decision generally depends on past practice and transparency. She wrote:

Our past practice for all Mayors and Councillors and Staff is that if we have reimbursed them for Legal Bills that have been issued in their name, it has always been listed in their SOFI expenses. (This wouldn't be such a big deal if the invoices weren't issued in her name). This year there are a number of Councillors and the Mayor that have legal expenses reported on their SOFI reports, where we have reimbursed them for legal bills issued in their name. Are we planning on removing everyone's legal expenses as they have been incurred in fulfilling their duties as Mayor & Council? Or just the CAO's?

On January 25, 2018, Mr. Mema emailed Ms. Slater saying that he had reviewed legislation on inclusions and exclusions and determined that the Samra Legal Invoices were for City operations, which was different from the previous year’s Council authorized allocation to her for legal expenses related to a personal/employment issue. He wrote, “I may have missed in my review what might be services provided to her for her benefit which if any I would seek for a reimbursement. So a second eye may not hurt going over the invoices one more time.”

G. Late January to Late February: Suspicions Flare

A number of events occurred from late January to late February 2018. I set them out as they are relevant to understanding the context and lead up to the suspension and termination of Mr. Mema’s employment.

On January 27, 2018 a local newspaper article referenced a “designation debacle”, saying, “City officials and Councillors are being tight-lipped about what steps have been taken to remedy chief financial officer Victor Mema's improper use of an accounting designation in BC.” The author noted that Mr. Mema was not registered as a CPA in BC.

On January 30, 2018, Ms. Samra emailed a draft news release for the Manager of Legislative Services to issue, after working with Mr. Van Horne and Mr. Mema to draft it. It said:

The City of Nanaimo has completed a review of its business expense policy suite and recommendations from the City's auditors, KPMG. For more than a decade, the City has, in practice, permitted elected officials and staff to incur both business expenses and personal expenses on City issued purchase cards and credit cards. While there has been no defalcation, fraud or misappropriation of City funds, the outdated policies need to be updated to reflect changes to the City's procurement system and to provide clearer guidelines to City staff on eligible business expenses, permitted incidental expenses and prohibited uses. We have also taken this opportunity to set annual limits on travel expenses, attendance at municipal conferences & professional development, and hospitality budgets.

Changes include:

• new guidelines on eligible business expenses, incidental expenses, and prohibited uses
• adoption of a formal reimbursement system for incidental expenses
• reduction in the total number of purchase cards

• annual limits on attendance at municipal conferences & professional development events
• annual limits on hospitality expenses
• new guidelines on travel expenses including per diem rates and incidentals

• introduction of travel card separate from purchase cards • issuance of a request for proposal for travel services

Over the next month, senior management will make recommendations on any further refinements of the business expense policy suite and determination of number of cards required at the departmental level. Our objective is to provide clear instructions to staff on how and when they may expend public funds to carry out City business.

The next day, January 31, 2018, the Mayor emailed Ms. Samra copying Mr. Mema, advising that the RCMP had phoned him to advise that they were investigating “a number of matters” at the City, and that the RCMP had requested all P-card statements for Ms. Samra and Mr. Mema. Ms. Samra responded that in place of having staff turn over such documents, he should bring the matter before Council on the upcoming February 5 meeting. She noted in

response to the Mayor that, “legal counsel has advised Mayor & Council that our auditors have not made any findings of criminal activities. I can only surmise that this is another politically motivated attack on me and the CFO that has, by the evidence produced thus far, been supported by members of Council.”

Ms. Samra then emailed the P-card auditors asking if they had reported her to the RCMP. An internal message from one of the auditors to Ms. Adie-MacKay at that time asserted that no one on the team had done so, that the draft P-card audit report did not deal with her expense reports or credit-card statements, and that, “our report makes absolutely no finding that anyone, Tracy or Victor or anyone broke the rules as administered by the City. I expect the possible complainants are many given the politics of the City, but it is clearly not us for all of the reasons above.”

Mr. Mema testified that he then met with Ms. Samra and they talked about who would have made such a report to RCMP. Mr. Mema said he kept telling Ms. Samra there was no point in opposing the RCMP request and that they should simply comply with it. Mr. Mema testified that he worked until around 6:30 or 7 o’clock that evening. Much later that night, a Councillor phoned him to ask him to phone Ms. Samra’s husband, as Ms. Samra had just been arrested at home. The next day, Ms. Samra phoned Mr. Mema saying she had been released but with conditions, for having allegedly made threats. Her conditions prohibited her from being able to return to work. Mr. Mema became Acting CAO at this time, and Ms. Samra went on leave.

The City issued the press release on February 3, 2018, in substantially the same form as the January 30, 2018 draft referenced above. In his evidence, Mr. Van Horne said this press release appeared consistent with the action points motioned by Council in the P-card Resolution. He was aware of work being done at the time to revise the P-card Agreement and policy.

Ms. Slater testified that after reading the City’s February 3, 2018 press release, she believed that the P-card audit – which she had not seen – was either not thorough or its findings had been “buried”. She testified that while she expected the P-card audit to address

her concerns, the press release indicated that no wrongdoing had been found and that from that she understood that there would not be any repercussions for Mr. Mema or Ms. Samra.

At some point, the RCMP contacted Councillor Bestwick, asking him to meet to discuss the P-card matter, given he was Chair of the Finance Committee. Councillor Bestwick testified that he went and spoke with RCMP at the detachment.

Councillor Yoachim testified that around this time, he began to receive messages from the Union President expressing his views about Mr. Mema. He testified that the Union President texted him in early February saying things like the Council should fire Mr. Mema, that Mr. Mema was a criminal, that staff are concerned and not happy with “those kinds of people” being hired. He explained that he has always been sensitive to language and was concerned with the subtle undertones of references to “those kinds”. Councillor Yoachim said that after receiving these texts, he went to the next City Council meeting (held on February 5) upset. He said he interrupted the in-camera meeting to read the texts aloud at the meeting. He said people were treating Mr. Mema like a criminal. Councillor Yoachim said that after he read the text, it was business as usual. In his testimony, Councillor Yoachim expressed concerns over the lack of interest in changing institutionalized racism at the City, and described a lack of “minorities”, which I take to refer to visibly racialized people, employed by the City.

Mr. Mema also attended the Council meeting on February 5. He testified that to him, the texts described by Councillor Yoachim harkened back to the Union President’s earlier comment to him and Mr. Van Horne about the Finance Department being fine before “you people” came. To Mr. Mema, the Union President’s reference to him as a “criminal” was racially loaded.

Minutes from the meeting do not reflect Councillor Yoachim’s interruption, but they did defer consideration of the P-card issues to a later date. Incidentally, the Manager of Legislative Services, who kept the minutes, was the Union President’s spouse.

Later that day, after the meeting, the Union President texted Councillor Bestwick saying:

[...] I just heard fro[m] HR that no action was taken tonight. Why? How is this okay?

If you want to know the story, give me a call because I am going to go public with the whole fucking thing Bill. None of this is okay anymore. If Tracy shows up anywhere near the City ever again the members will wildcat and I will support it. This is enough for me. I’ve had. Threatening to burn houses to the ground, including mine and threatening to kill people and then ordering staff members to help her determine who the murderer is beyond the pale for me and in done [sic]

Councillor Bestwick testified that he was concerned to receive the Union President’s text that evening about the meeting, as the meeting had been held in-camera. In his view, it spoke to the ongoing issue with confidential information leaking out of the City. Councillor Bestwick acknowledged that at that time he had no knowledge of the background of Finance staff’s efforts to seek repayment from Mr. Mema, that he had used the card for “purely personal expenses”, or that he had continued to do so after the CAO raised concerns about it with him. At this point he “had heard something about” Mr. Mema’s having indicated to KPMG his belief that he could use his P-card for anything.

An email from Ms. Adie-MacKay to Mr. Benade and another auditor colleague at KPMG from this time in February 2018 said,

Spoke to someone in the accounting department at Nanaimo this week – everyone is in the dark. Tracy was ‘arrested’ at City Hall for uttering threats. She is now on leave and must stay a certain distance away from some people. I wonder if it was triggered by the RCMP request for info. There are a limited number of people that can step into an ‘acting’ City Manager role. Victor covered Tracy’s previous leave and is doing so again. Victor has brought someone with whom he has worked before to the deputy finance manager role. Nanaimo issued a press release that they were revamping their expense policies. It’s a bit misleading but mentions KPMG and that there has been no illegal acts or fraud (see attached).

None of this has been verified, so who really knows.

The audit committee chair was away this week. I plan to call him next week to get a more knowledgeable update. I will let him know that our forensic report is still in draft and to ask his permission for me to have access and to determine how it can be finalized.

On February 6, 2018, Mr. Benade emailed City corporate counsel seeking comments on the last draft report and looking for an update, “given the media speculation around [Ms. Samra’s] continued role at the City”.

On February 20, 2018, a member of the P-card audit team emailed Ms. Adie-MacKay saying that City Council sought a copy of the P-card Audit Report by the next day, that the RCMP had requested a copy, and the City wanted to provide a copy of the report to Mr. Mema’s lawyers.

Ms. Slater testified that by this time, she was struggling with several issues relating to her work in the Finance Department including her view that Mr. Mema’s P-card use had not been properly handled, her perception that DD had been “pushed out early”, and her understanding that Ms. Mercer feared for her own job.

Ms. Slater testified that she also struggled in her work with Mr. Mloyi and believed he was a close friend of Mr. Mema. She disliked Mr. Mloyi’s requirement that staff do daily bank reconciliations and other demands he put on staff when they were already very busy with the annual statutory reporting. She said that the same people who had worked with and respected DD had strained relationships with Mr. Mloyi as a result. She acknowledged that he asked staff about the tension in the Department and that he seemed unaware of the P-card issue. She said that staff were nonetheless concerned about Mr. Mloyi’s relationship with Mr. Mema because, in their view, of Mr. Mema’s lack of integrity, and lack of respect for processes. They were also concerns about his hiring a close friend or colleague in Mr. Mloyi – which staff clearly based on their own conjecture. She said that she was concerned when, in mid-February, Mr. Mema requested that Mr. Mloyi be granted access to the City’s banking system.

Ms. Slater also testified that she was troubled by the fact that the P-card audit was being referred to by Ms. Samra as a “forensic audit”, when from her perspective the P-card audit process was not consistent with what she expected from a forensic audit. Notably, Ms. Slater had not seen the P-card audit report or drafts of it. However, in her view, it was not clear whether the Council was “aware of the true underlying facts”. These underlying facts included

the various compensation that had been paid to Mr. Mema (such as the bonus and the vehicle allowance) and Ms. Samra’s legal bills that were paid by the City without, in her view, proper review.

Ms. Slater testified that this was the most stressful period of her life, where she was working late and on weekends, straining her relationship with her family as she was crying when she returned home. She was nervous and felt strained. She testified that the CAO being arrested for uttering threats was a huge stressor. It just “didn’t feel like a normal workplace”, she said.

Ms. Slater testified that with Ms. Samra away on leave, she saw an opportunity to bring her concerns forward within the City, triggered by Mr. Mema asking her to issue a retainer cheque from the City to a lawyer on Mr. Mema’s behalf.

H. The Serious Misconduct Report

Ms. Slater then prepared the Misconduct Report against Mr. Mema.

On February 23, 2018, Ms. Slater emailed Mr. Van Horne attaching the Misconduct Report, which she advised she wanted “to file with Human Resources”.

The City’s policy for reporting serious misconduct defines “serious misconduct” as follows:

Deliberate or negligent behaviour by an employee that violates the City's Standards of Conduct or other such activities that have or may cause serious risk to the health and safety of others or damage the reputation of the Corporation. Examples of serious misconduct include but are not limited to:

- unauthorized or inappropriate use of City funds, assets or corporate information. Wilful or gross mismanagement of City resources.

- kick backs, bribes or other forms of influence peddling.

- altering, falsifying or destroying City records intentionally for unethical or illegal purposes. attempting to deceive, manipulate, mislead, coerce or fraudulently influence internal or external accountants or auditors.

- a violation of the Criminal Code, Human Rights Code, or other such legislation that could or has resulted in serious financial and/or personal harm to the City or its employees.

- serious violation of the City's Standards of Conduct for Management and Union Employees.

In the Misconduct Report, Ms. Slater alleged that:

Mr. Mema began using his P-card for personal purchases in March 2016;
Since then, in total, he made 70 personal transactions totaling $14,148.97;
He was aware that the cardholder agreement prohibits personal use of the P- card;
Mr. Mema’s personal use of the P-card meets the definition of “serious misconduct” because it constitutes “unauthorized and inappropriate use of the City’s assets”,
In September 2017, DD and Ms. Mercer reported Mr. Mema’s use of the P-card to the City’s regular auditors, under s. 172 of the Community Charter;
Repeated attempts were made to have the funds repaid;
Mr. Mema issued a cheque to the City that was ultimately returned NSF;
On February 17, 2017, “the City of Nanaimo began a $500 biweekly payroll garnishment to begin to repay the amount owing”;
Around the same time, the City of Nanaimo began to pay Mr. Mema $600 per month as a “vehicle allowance”. Ms. Slater alleged that the CFO position

requires very little travel for business, and that she did not have any details on how this was authorized;

All of Mr. Mema’s P-card statements were approved by Ms. Samra;
Ms. Samra disciplined Ms. Mercer and DD when they brought Mr. Mema’s personal P-card purchases to her attention;
Ms. Slater was concerned that Mr. Mema and Ms. Samra were using their “management override capabilities” to authorize payments and expenditures for each other. Ms. Slater noted the $16,922.50 payment to Ms. Samra on for the Samra Legal Invoices and another amount for the 2017 bonus payment to Mr. Mema; and
Mr. Mema requested that Mr. Mloyi be granted access to the banking system.

Ms. Slater wrote in the Misconduct Report, “[o]n November 22, 2016, payroll processed a separate payment for $16,922.50 [...]. I have not viewed the authorizations for this payment, but I believe it would be prudent to ensure that appropriate authorizations were obtained.” The invoices put into evidence, however, were dated December 2017, and the related email exchange between Ms. Slater and Mr. Mema about them are dated January 2018.

Mr. Van Horne testified that he had never received a serious misconduct report before, so he consulted the City’s manual and saw he had to take it to the whole senior management team. He felt uncomfortable with this given Mr. Mema was senior management, so he decided to take the matter directly to Council. On the same day he received it, he took the Misconduct Report to the Manager of Legislative Services, so it could be referred to City Council. Mr. Van Horne testified that he believed the Manager of Legislative Services was the appropriate person to refer the matter to, because she was the highest ranking corporate officer at the City, and her status as such was statutory so could not be revoked, and she would be safe from potential retaliation. The Manager of Legislative Services in turn placed the Misconduct Report on an agenda for an in-camera meeting of Council.

Two days prior, on February 21, 2018, the P-card auditors delivered the final report [Final Audit Report] to the City’s corporate legal counsel.

The Final Audit Report noted that as at October 31, 2017, about 190 P-cards were issued. It said, among other things, that while the P-card Agreement and policies do not allow for personal expenses on the P-card, the City had elected a practice of allowing personal expenses in certain circumstances, with a practice for ensuring repayment. It went on,

Generally, our findings show that Cardholders incurred personal expenses on their [P-card]s mostly for one of two reasons:

a) paying for a business expense which contain a personal component (for example the cost for a spouse to attend a conference); or

b) using the card in apparent error.

Our findings also show that staff generally reimbursed the City for personal expenses within a reasonable amount of time.

We identified two exceptions to the general rule in our review:

a) Person A, who used the corporate card extensively to pay for Personal Expenses, and sometimes did not repay the City for extended periods of time.

b) Person B, who used the card for a number of personal purchases and delayed repaying the City while continuing to incur Personal Expenses over an extended period of time. When we spoke to the individual we were advised that they believed they could use the card for personal purchases as long as they were declared as personal, which they were, and they intended to repay the City. We understand that all the Personal Expenses have now been repaid to the City in full.

The Final Audit Report showed that the number of staff using P-cards for personal expenses peaked in 2010, 2013 and 2015, with an average of about 17 cardholders in each of those years.

Person A, another senior staff who was still employed in a management role in the City and frequently used his P-card for personal purchases [Other Outlier], incurred the highest

number of personal purchases from 2010-2015, while Person B – Mr. Mema – incurred the most for 2016 and the first 10 months of 2017.

The Final Audit Report determined that the Other Outlier accrued $2,716 of personal purchases on their P-card (excluding taxes) in 2010 with an average of 153 days outstanding without payment. The Other Outlier continued use of the P-card for personal purchases through to 2016. The Final Audit Report indicated that the Other Outlier had sometimes signed their P-card statements months after the statement date, did not always have receipts, and had never been contacted by accounting to ask for payment of the personal expense. At some point, someone made a spreadsheet of all of the Other Outlier’s outstanding amounts, but there was no apparent follow-up on the issue of this person’s use. It did not appear the Other Outlier was ever reprimanded for their personal use. As an aside, I note that Ms. Slater, for example, acknowledged seeing a charge for a theme park on the Other Outlier’s P-card, but did not seem to have been concerned as no action appears to have been taken and she did not inquire further.

The Final Audit Report then turned to Person B (Mr. Mema), who incurred personal purchases of $7,776 in 2016 and $6,824 in 2017 (including taxes). It did not break down average days to repayment but noted that after initially repaying promptly in 2016, Mr. Mema had accrued a balance of $4,300 by September 2017 without prompt repayment. The accounting department sent requests for repayment in September, November and December 2016. The Final Audit Report noted that Mr. Mema incurred a further $4,700 in charges in December 2016-January 2017, and that on February 9, 2017, he emailed payroll instructing them to deduct $500 monthly from his paycheque for repayment. The Final Audit Report recounted that in the meantime, Mr. Mema continued accruing charges until October 2017 when his P-card was cancelled. The Final Audit Report noted all amounts had been repaid by Person B to the City in full.

The Final Audit Report recommended clarification to the P-card Agreement. It recommended that the recording of personal expenses be changed, and that formal approval and collection processes be adopted.

I. The Suspension

By the end of February 2018, Mr. Mema was still Acting CAO while Ms. Samra remained on leave. As noted above, on February 23, 2018, Mr. Van Horne delivered the Misconduct Report to the Manager of Legislative Services.

In the meantime, Mr. Mloyi continued to find the working environment uncomfortable, sensing ongoing resentment within the Finance Department. He says that it became especially troublesome for him during a conversation with a colleague who said that she knew that a new management position in Treasury had been created for him and that he had applied for it. The evidence before me, however, was that Mr. Mema had developed a new management position in Treasury following an exchange with Ms. Mercer where Ms. Mercer expressed concern about capacity in the Department and Ms. Slater burning out. Ms. Mercer had supported the idea of creating a new management position in the circumstances.

Mr. Mloyi was uncomfortable with the insinuation that he was involved in an untoward competition and that his personal information was being leaked from the City’s human resources department. Mr. Mloyi emailed Mr. Mema on February 26, 2018 about his concerns. He wrote,

please see the foregoing. The background the stems from the meeting I had with [colleague] last Thursday in which she started the meeting by inquiring about the treasury manager position and insinuating that the position was created and written for me as it listed the qualifications that I have and left out the CPA which according to her would be a relevant requirement for the job. She argued that CTP was not a Canadian designation but American. She somehow associated the posting of that position and my contract being extended which I feel she thinks there is something untoward that you or I did. [...]

I want you to take this up and find out why she thinks I am being I may be [sic] involved in some nefarious activity about my employment with the City.

Mr. Mema forwarded Mr. Mloyi’s email to Mr. Van Horne.

Mr. Mema testified that at this time he was disappointed that Ms. Mercer allowed the chatter to carry on rather than standing up to defend him, by explaining the circumstances under which the Treasury position was created – namely with her having raised the issue and supporting the creation of the new role.

Mr. Mloyi said that it was only around this time that he asked Mr. Mema what was going on and Mr. Mema explained the background related to the P-card and that he had repaid the amounts owed.

At this point, the City’s review of the P-card manual and training materials was underway to revise the processes as the Council had directed in the P-card Resolution. To this end, Mr. Mema, as acting CAO, emailed colleagues including Mr. Mloyi and Mr. Van Horne on February 28, 2018, seeking feedback on a cardholder agreement used by the Province. By this point, Ms. Mercer had returned from sick leave.

Mr. Van Horne said that he did not speak with Ms. Slater about the contents of the Misconduct Report.

By March 1, 2018, the new P-card policy was finalized and Mr. Mema planned to develop its roll-out. However, things took a different turn that day.

An in-camera Council meeting was held, and the Manager of Legislative Services made a presentation to Council on the Misconduct Report. Following the presentation, Council unanimously voted to immediately suspend Mr. Mema.

I have very limited evidence before me as to what the presentation consisted of or the resulting discussion by Council. While the Misconduct Report was put before Council in its entirety, I do not have a record of what was said by the Manager of Legislative Services or Mr. Van Horne. The evidence does show that both Councillor Kipp and Councillor Bestwick left the meeting either during or immediately after the presentation.

Councillor Bestwick testified he had no idea the Manager’s Legislative Service’s presentation was coming as it was not on the agenda. He did not stay for the vote on Mr.

Mema’s suspension. He testified that he left the meeting because he could see it was going down a path he did not want to be a part of. From his point of view, the issues with the P-cards had been dealt with through the P-card Resolution. He was concerned that Mr. Mema was being targeted without reference to any other employees who had misused the P-cards. He testified that he chose not to be part of the human resources issue that was positioned by staff to attack one senior staff member while others were not being called out for misuse of the P- cards. The “politics were so nasty”, he mused.

Councillor Kipp also left the meeting, saying that he felt the Misconduct Report was a hunt for Mr. Mema. In his evidence, he expressed a view that not everyone in the City gets treated the same, and while there was a lot going on at that time in the City, they had dealt with the P-card issue when Council directed the policy changes in January. He thought the story the Manager of Legislative Services was telling seemed ridiculous, noting that Mr. Mema had helped the City achieve some of the financial controls they had been wanting for decades.

Councillor Yoachim testified that he thought it was especially bizarre that the Manager of Legislative Services was making this presentation, after the texts he had received from her husband, the Union President. He thought to himself, “here we go”. He said that he regretted to this day participating in the vote on Mr. Mema’s suspension.

Whatever was said or discussed at this Council meeting, the remaining Council members unanimously voted to immediately suspend Mr. Mema with pay pending, “the outcome of an investigation by KPMG or another firm to be determined by staff”, and to turn the Misconduct Report over to the RCMP.

Mr. Van Horne contacted Ms. Slater after the meeting to tell her that her Misconduct Report had been brought to Council and Mr. Mema was suspended. After that, Ms. Slater testified that no one spoke with her about the Misconduct Report again.

Mr. Mema testified that he was unaware of the Misconduct Report, that Council had met to discuss it, or that he had been suspended, until the afternoon of March 1 when he received a phone call from a radio reporter who asked for his comment about his suspension. It

is not disputed that the outcome of the in-camera meeting had leaked before Mr. Mema had even been notified. Later that day, the Mayor spoke to the media outside City Hall announcing Mr. Mema’s suspension and referred to him by name.

A March 1, 2018 letter from the Mayor to Mr. Mema said that the City was suspending his employment effective immediately, placing him on administrative leave with pay, “pending the outcome of an investigation under the City’s Reporting Serious Misconduct Policy.” The letter asked that he refrain from further contact with staff and members of Council during his suspension.

The City issued a press release on March 2, 2018, stating that it could not comment on specific employees because of privacy laws, but “the Mayor and Council have learned about an allegation of significant concern. We have requested a thorough investigation which will be undertaken immediately to help the City move toward effective resolution.” A newspaper article the same date identified Mr. Mema by name, noting that, “multiple sources confirmed that Mr. Mema was relieved of his duties pending an internal investigation into unspecified allegations after an in camera meeting on Thursday morning.”

Mr. Mema testified that at this time, the City had not told him what the Misconduct Report alleged. People were asking him what he had been accused of, and he said he did not know. The next thing he knew, he testified, he was invited to a hearing before Council under the Community Charter. He said he asked for the results of the City’s investigation so he would know what he was being accused of and what the result of the City’s investigation had been.

In the meantime, on March 4, 2018, a local newspaper ran a story titled, “Veteran accountant will take over suspended Mema’s duties.” The article explained that Ms. Mercer would be in charge of the Finance Department, noting that there was “initial confusion in the Department” while Mr. Mema was suspended. It said that Mr. Mema “had appointed Nick Mloyi as his deputy director of financial services”, noted they had worked together previously, and said that Mr. Mloyi was not a CPA despite its being a requirement for the role. The article said that the City had been, “tight-lipped about Mr. Mema’s suspension. A statement from

mayor Bill McKay [...] said only that council had ‘learned about an allegation of significant concern and had immediately launched an investigation.’ ” It noted that the issues appeared to be related to P-card issues highlighted by the P-card audit, and also noted the seemingly related issues Mr. Mema had at the previous municipality where he had worked.

J. The Internal Fall-Out

Mr. Mema’s suspension left some disarray at the City. On March 5, 2018, Mr. Van Horne met with Ms. Mercer, WF and another staff member from the Finance Department, who reported that work on statutory reporting was significantly behind including budget and audit preparation.

Mr. Van Horne testified that he, the Manager of Legislative Services, Ms. Mercer, and another director (who incidentally was the Other Outlier) decided at that point to oversee the operation of the Finance Department as a group, while Mr. Mema was suspended. Within this framework, they somehow brought DD back from leave to help get the budget prepared, given her familiarity with what needed to be done.

Mr. Van Horne said that he had told the staff in Finance that they would have to sort out who would do what and what the deadlines would be, and to work with Mr. Mloyi. His understanding was that there was concern about what Mr. Mloyi would do without Mr. Mema’s direction. He understood that there was concern that Mr. Mloyi would take time away from pressing tasks, given he was unwilling or unable to do needed tasks like data entry, and had been diverting staff to things that could wait at the expense of things that could not.

No one from the City advised Mr. Mloyi – who was travelling at the time– about Mr. Mema’s suspension, the March 5 meeting of the Finance Department with Mr. Van Horne, or the decision to bring back DD. Mr. Van Horne testified that in hindsight, he could have been more straightforward with Mr. Mloyi in communicating about DD’s return.

Mr. Mloyi learned of the suspension by text from Mr. Mema. He said that as he was the second in line of authority after the CFO, and the CFO had just been suspended, he expected to

hear from Mr. Van Horne immediately, but did not. Rather, he heard nothing until the following Monday when he went to Mr. Van Horne’s office to check in. Mr. Van Horne told him to go meet the team and see how things were going. Mr. Mloyi said that WF told him about a meeting that had been held on Friday with Mr. Van Horne in the wake of the suspension. WF advised Mr. Mloyi, “by the way, we no longer report to you”.

Mr. Mloyi was shocked. He emailed Mr. Van Horne saying, among other things:

[m]uch to my surprise and disappointment as I continue to have meetings with other managers per your suggestion I hear you have already met with [them] and for whatever reason I was excluded from that meeting. I am trying to find a positive way of understanding this but can’t find any. I kindly ask that once a decision has been made about my role with the city be communicated to me other than to be made to suffer role ambiguity and exclusion which by the way is a worst form of harassment and bullying.

Mr. Van Horne responded saying that he had met with the Finance Department managers and shared with them the same message he had shared with Mr. Mloyi: that they would have to meet and sort through who would do what now that they are short-handed and had a lot of time sensitive work to do. He wrote, among other things, “I can understand you feeling upset in all the circumstances but please understand there was nothing nefarious. They are in the same situation as you, looking for some guidance. Laura [Mercer] has some statutory responsibilities as the Deputy Finance Officer, and I will often be meeting with her directly in that capacity.” He shared his hope that the role ambiguity would be fleeting and soon rectified.

Mr. Mloyi testified that he found Mr. Van Horne’s response dismissive and condescending, and he felt “thrown under the bus”. Then he met DD, who appeared in the office without introduction. He explained in cross examination that DD’s return signaled to him he was no longer wanted – what use in bringing back the former Deputy Director without telling him, introducing him, or clarifying who would be responsible for what, he observed. Mr. Van Horne then told him to stop working on any of the projects that he had been doing with Mr. Mema, and instead focus on the budget.

Mr. Mloyi went to see Ms. Mercer, who told him that she and her group knew what they would be doing but he would now have to see what he could do to help. He testified he felt he was being “shown the door” as he was being excluded from everything even though he was still the Deputy Director of Finance. On March 6, for example, his invite to the regular Tuesday meeting that he had attended every Tuesday was removed from his calendar. All his managers started declining his meeting requests. Mr. Mloyi said it was very difficult for him during this period and as time went on, as he had nothing to do and no interactions with finance staff, aside from one colleague who came to talk with him.

Ms. Mercer testified that with DD’s December 2017 retirement and Mr. Mema’s March 2018 suspension, she was the only remaining statutory officer in the Finance Department and as such, she was responsible for all reporting and meeting of statutory requirements. Mr. Mloyi had not been made a statutory officer when he was hired as acting Deputy Director of Finance and her immediate supervisor. She explained at length the various reports that had to be produced at this time and the exercise of preparing the budget. She explained that the exclusion of Mr. Mloyi arose largely as a function of the pressure of deadlines and her position as the only Officer at that time.

Ms. Mercer explained that she told Mr. Mloyi that everyone was busy with pressing deadlines, and that she and the other managers assigned him the municipal report. When asked if she was effectively made Mr. Mloyi’s boss now, Mr. Mercer answered that it was complex because he was her boss but she was a financial officer, so she was responsible for meeting the City’s financial obligations, but she reported to Mr. Mloyi.

Ms. Mercer acknowledged in her evidence that around this time, Mr. Mloyi shared with her his concern that people would not speak with him. She also said that at some point, Mr. Mloyi suggested to her that he was being treated differently because he is Black. She testified that he had a reputation of being arrogant so his comment “didn’t go over well” with her.

Ms. Mercer, who as I mentioned earlier is White, testified that she did not think that Mr. Mloyi’s race was why the Finance staff were not warm to him. She said that he came across as

Mr. Mema’s friend, so people were guarded with him because they had concerns about Mr. Mema. She said that Mr. Mloyi said to her directly that he felt ostracized because he is Black – that people did not talk to him. Ms. Mercer did not ask Mr. Mloyi anything about what he meant or what he was experiencing. Rather, Ms. Mercer’s evidence was that she just told him that she would not do that and did not believe any of the staff would. In other words, rather than exploring what Mr. Mloyi raised with her, Ms. Mercer responded by telling him she did not agree with him. She testified it was “concerning that he was the only one mentioning race when that was not the case”.

Ms. Mercer said that she reported this conversation with Mr. Mloyi to Mr. Van Horne because she was worried that this narrative was not healthy for the organization. She felt concerned that Mr. Mloyi did not understand the staff’s concerns about Mr. Mema. When asked at the hearing if Ms. Mercer was concerned that Mr. Mloyi had these concerns, Ms. Mercer answered that he is entitled to believe what he believes, and it was concerning that he had said it to people. From her perspective it was a human resources issue. She noted that after this, she observed that Mr. Mloyi could not do what was needed day to day, and would take on a new task but not complete it because he was “too distraught”. She said, she did not understand the benefit of keeping him on.

In the meantime, the Union President had emailed Ms. Slater on March 6 about an upcoming news article, asking her how many years of collective experience was held by the staff in Finance, and how many people had a CPA, including in management. “Any help on what I should say as a comment would be appreciated”, he wrote. Ms. Slater circulated the email to her colleagues to try to respond to the Union President.

A news article then came out on March 8, 2018, that included details of Mr. Mema’s personal expenses that he had charged to the P-card. The article claimed, among other things, that staff had raised the issue of Mr. Mema’s P-card use and were ignored, and that “[c]omplaints to the city’s auditors KPMG also went nowhere”. It stated that DD had been “pushed” into early retirement, “after she blew the whistle on Mr. Mema’s troubling transactions”. It said that “[a]mid tensions between him and department staff, Mr. Mema

brought in a former colleague from Alberta, Nick Mloyi, to “temporarily” fill [DD’s] post, elevating him above long-time managers.” It also said that he hired a second staff member from where he previously worked, who had yet to start work (a reference to Ms. Ngomesia).

Ms. Ngomesia testified that she learned of some of the news articles about Mr. Mema and phoned Mr. Van Horne to see what was happening. She explained that she did not want to come to a negative work environment. She said that Mr. Van Horne told her that basically everything was fine. However, just a few days later, on March 9, 2018, the City wrote to Ms. Ngomesia withdrawing its offer of employment. It said:

While we cannot provide detail regarding the reasons for the withdrawal, you have advised us that you are aware, through numerous news articles, of the current organizational situation at the City. More specifically, the City's CAO and CFO are both on an indeterminate leave. The position to which you were to be appointed would have reported directly to the CFO.

As a result of the current uncertain structure and the unavailability of the CFO, the City is not in a position to provide the necessary direction, support and oversight of the position at this time. We do not consider it fair to you, to appoint you to a position and be unable to provide guidance and direction. We regret any disappointment or inconvenience which this decision may cause.

Ms. Ngomesia emailed Mr. Van Horne noting that she felt blindsided given she had just spoken with him on Monday and confirmed with him on Wednesday that nothing had changed in respect of the City’s offer of employment. She had already accepted the offer at this time and was preparing to move her and her family to BC to take up the new role. She testified that she could not understand what would have changed in the three days between her discussion with Mr. Van Horne and the letter, noting that Mr. Van Horne knew there was no CAO or CFO when they spoke, and any doubts should have been raised with her then. Ms. Ngomesia observed that she had the sense that had she had white skin, the City would be ushering her in saying “please take us in this new direction we want to go”. She thought it very strange that there would be so much process only for the City to suddenly realize, with three days’ notice, that they would be unable to “provide” her with “guidance” in the role.

Ms. Mercer testified that Mr. Van Horne had asked her around this time to look at Ms. Ngomesia’s resume and the interview notes. She said she expressed concern about an apparent lack of management experience. In the meantime, she acknowledged she had no knowledge of Mr. Mloyi’s qualifications, what his job was or what he was working on, though she knew he supervised three managers and worked on policy.

In the meantime, Mr. Mloyi testified that not long after Mr. Mema’s suspension, Mr. Van Horne approached him and said that it looked like the situation was going to be hard for him, and maybe the City could pay him three weeks’ severance to simply depart early. Mr. Mloyi said no. Mr. Van Horne testified that Mr. Mloyi was growing concerned about reputational harm and seemed to feel a bit misled, given negative publicity with news articles referring to his having been hired by Mr. Mema. Mr. Van Horne perceived Mr. Mloyi as wanting out before his career was ruined. Mr. Van Horne said he was taking a lot of extra time with Mr. Mloyi but had lots of pressing things to attend to, so he needed to bring the employment relationship to an end. He recalled Mr. Mloyi around this time making a comment that the situation with Mr. Mema seemed racially motivated.

Ultimately Mr. Mloyi’s employment with the City ended on March 15, 2018. A letter of that date to Mr. Mloyi from the City, signed by Mr. Van Horne, says that Mr. Mloyi had approached Mr. Van Horne to ask whether the City would consider permitting him to resign and paying him to the end of his current term. The letter went on to state, “You have indicated that you prefer to leave and look for alternative employment, given the current uncertainty with the leadership of the finance department”. It set out the terms of Mr. Mloyi’s resignation, together with a release.

At the hearing, Mr. Mloyi explained that he took issue with the way this letter was drafted. He explained that it implied he had initiated his departure, which he felt was misleading. When he signed it, he added a hand-written note that said, among other things, “the main reason for my resignation is that I found myself with no work to do and spending days in the office just sitting because all the work I was doing but pulled away from me and that I got replaced without being told why.”

There is some dispute in the evidence between Mr. Mloyi and Mr. Van Horne as to the degree to which Mr. Mloyi himself wished to leave the City and the amount of notice he received. I do not find it necessary to resolve these disputes as it is not material to the issues I must decide in the complaint, and it does not impact my assessment of either witness’s credibility. It is, however, apparent to me that Mr. Mloyi’s departure arose from the City’s excluding him from discussions, removing him from projects, alienating him from colleagues and ongoing work, and the manner in which the City brought DD back to work in the Finance Department. Mr. Mloyi explained that this experience had a significant impact on his life. It was difficult for him to find a new job at that time, particularly given leaks to the media connecting him to Mr. Mema in a negative way.

K. The termination of Mr. Mema’s employment

There is no dispute that on May 11, 2018, the City Council terminated Mr. Mema’s employment by unanimous resolution.

What is in dispute is what the City did to investigate the allegations made against Mr. Mema in the Misconduct Report before terminating his employment, and what Council considered in reaching its decision to terminate.

Mr. Mema emphasizes that that the Council’s March 1, 2018 resolution suspended his employment pending “the outcome of an investigation by KPMG or another firm to be determined by staff”. Mr. Mema argues, however, that no investigation took place. The City argues that the City did investigate the allegations in the Misconduct Report and points to the P-card audit. It says the P-card audit was an investigation.

In my view, the question of whether what the City did could be characterized as “an investigation” is immaterial to the core question at issue. The core question at issue is what the Council had before it that informed its decision to terminate Mr. Mema’s employment, and whether one or more of his protected characteristics was a factor in that decision.

In this section, I review the evidence and outline my findings of fact about that question, which is central to my ultimate determination of whether the termination of Mr. Mema’s employment violated the Code.

The evidence before me shows that following Council’s suspension of Mr. Mema on March 1, 2018, Council members raised questions about the P-card audit. The City’s corporate counsel emailed Mr. Van Horne on March 14, 2018 with answers to questions that had been raised by individual Council members about the P-card audit, asking him to forward the email to Council as a whole, which presumably happened. In that email, corporate counsel wrote, among other things:

The city requested that our firm engage KPMG to conduct the investigation/audit of the use of the [P-cards] for several reasons. First, senior managers of the City were responsible for reviewing and/or authorizing charges by employees to the corporate credit card, and such managers believed they might be in a perceived conflict of interest if they also were responsible for directly managing or arranging the KPMG review. Second, senior managers themselves would have utilized the City’s corporate credit card and their own expenditures might be under review. Third, since employees’ personal information was to be disclosed to KPMG in the interest of assisting their investigation, there was a concern that premature or inadvertent disclosure of such personal employee information could expose the City to liability, either as a result of a breach of the Freedom of Information and Protection of Privacy Act [...] or in a claim of defamation. [...]

KPMG conducted their investigation entirely independently of our firm. We have had no access to, nor any information regarding any of KPMG’s working documents, interview notes, or other work-in-progress materials. Our firm’s role was limited to reviewing the first draft of the report, in response to which we provided suggestions and comments from the perspective of minimizing potential City liability exposure. We similarly reviewed the 2nd draft, and provided a limited number of further suggestions. KPMG at no time has been under our direction, or has in any manner been required to make any additions, deletions or revisions to their report based on our comments or suggestions in consideration of potential legal issues. Throughout the process, KPMG has operated independently, as we have, in accordance with our respective professional obligations.

The City has in its possession the 2nd draft report and the final report. The City has now requested a copy of the 1st draft report. We have discussed this request with KPMG, and they have consented to disclosure to the City, on the basis that the report is a work-in-progress and is not to be construed as a conclusive report, nor is it to be further disclosed. [...]

Further, at an in-camera Council meeting on March 19, 2018, Ms. Adie-MacKay, Mr. Benade, and one of their colleagues gave a “verbal update” to Council regarding the P-card audit. Details of the presentation or discussion are not apparent in the minutes. There was very little evidence before me about what that presentation consisted of. It is not apparent to me nor was it argued by the City that it consisted of additional information related to Mr. Mema’s use of his P-card or other allegations from the Misconduct Report.

Sections 152 of the Community Charter allows an officer’s employment to be terminated after providing the officer with an opportunity to be heard. The City put Mr. Mema on notice by letter dated April 23, 2018 [Notice Letter] that the Council was considering whether to terminate his employment, with or without cause, and invited him to a hearing under s. 152 to be held on May 4.

The Notice Letter specified that the matters the Council would consider in relation to the question of whether to terminate his employment were:

1. Your practice of intentionally charging personal expenses to the City's purchasing card which is intended for City related expenses and not personal expenses. You signed the Purchasing Cardholder Agreement specifically prohibiting the use of the card for personal purposes. Despite the fact you knew you were not permitted to use the card for your personal expenses you used the card for approximately 70 personal transactions totalling $14,148.97. I attach a copy of the Purchasing Cardholder Agreement as Schedule "A". I attach a copy of a summary of your personal charges on the card as Schedule "B".

The unauthorized and inappropriate use of the purchasing card is serious misconduct under the City's policies.

I attach as Schedule "C", copies of expense reports which you submitted for approval; and

2. Your authorization of the payment of invoices for legal fees to Boughton Law for personal legal advice provided to the CAO in 2017.

As set out earlier, you will have an opportunity to be heard by Council. Please inform me as soon as possible of your intention to attend and, in any event, no later than noon on Wednesday, May 2, 2018 of your intentions to attend the Council meeting. If you do not appear, Council will proceed to make the decision.

The Notice Letter did not attach a copy of the Misconduct Report nor did it attach the 2017 Samra Legal Invoices or related documents.

After receiving the Notice Letter, Mr. Mema retained counsel. His counsel wrote to the City on May 4, 2018, asking for confirmation of the purpose of the upcoming hearing and for documents relating to it. In the letter, counsel also expressed concern regarding the continuous leaking of personal information about the upcoming termination hearing to the public. Counsel wrote:

By continuing to feed the media detailed information about the suspension, the allegations, and possible termination of Mr. Mema's employment, it is fueling a flurry of speculation in an apparent campaign aimed at discrediting and attacking our client's reputation in a very public way. Not only is this behaviour causing our client a great deal of mental and physical distress on both him and his family, it is also serving to undermine any possibility of salvaging what may be left of the employment relationship should Council decide not to dismiss Mr. Mema.

We implore your client to cease providing confidential personnel information relating to Mr. Mema to the media and to refrain from commenting on the matter until such time as due process has been followed and a decision of Council has been made.

The hearing was adjourned to May 11, 2018.

On May 10, 2018, Mr. Mema’s then-counsel again wrote to the City reiterating their concerns over confidentiality and privacy, seeking a number of documents related to the hearing, and again seeking clarification of the purpose of the hearing. Among other things, counsel queried whether the Council had in fact investigated the allegations against Mr. Mema, as it appeared they had not. Counsel wrote:

While the Mayor's letter of April 23, 2018 refers to a hearing pursuant to s. 152 of the Community Charter, based on our correspondence and the little information we have to date, we view the upcoming Council meeting more as an investigation rather than a hearing.

Normally, when a Council wishes to terminate a municipal officer a draft resolution and all relevant information Council will consider as part of its decision is provided to the officer prior to the hearing so as to inform the officer of the case they have to meet. Such information has not been provided to us in this instance.

[...]

In the circumstances and without more information, it is our view that the meeting of Council on May 11, 2018 to give Mr. Mema an opportunity to be heard cannot proceed. May we please hear from you today

Mr. Mema’s counsel confirmed later that day that Mr. Mema would attend the Council meeting and reiterated his view of that the City had failed to provide the information necessary in order to prepare a response to the concerns, and therefore the City had not met its obligations regarding notice or procedural fairness under s. 152.

Council met in camera on May 11, 2018, with Mr. Mema and his counsel present. Minutes from the meeting show that Mr. Van Horne read a statement regarding the issues set out in the Notice Letter, including the allegations regarding Mr. Mema’s use of the P-card and authorization of the Samra Legal Invoices in 2017. The minutes show Mr. Mema’s then-counsel made submissions that included the following:

Procedural fairness was not followed as the City did not provide Mr. Mema with sufficient information in advance of the hearing; in particular, it did not provide him with draft resolutions or documents, or the new information had been presented by Mr. Van Horne at the meeting;
While Mr. Mema’s suspension was “pending an investigation”, no specific reason for the investigation had been given;

Mr. Mema had been given no opportunity to respond to the Misconduct Report, nor advised of the outcome of any investigation that may have been undertaken;
The City continued to leak confidential information about Mr. Mema to discredit him;
Counsel reviewed Mr. Mema’s use of the P-card and actions taken to address it;
Counsel also reviewed Mr. Mema’s understanding of Ms. Samra’s legal invoices in relation to Council’s spending approvals;
Counsel spoke of Mr. Mema’s personal life including ill health of family members, noting in closing that he had used P-cards for personal expenses to help get through a difficult period; and
Mr. Mema was not the only City employee who used his P-card for personal expenses, and the City had repeatedly failed to enforce the P-card Agreement.

Counsel’s submissions were followed by questions and answers.

Mr. Van Horne answered questions noting, among other things, that the City’s view was that the format of the hearing process and disclosure to Mr. Mema in advance of the hearing were appropriate. The minutes also show that Mr. Van Horne stated that he did not know of other employees making purely personal purchases, though one individual had been brought to his attention, but he did not know the exact nature of these transactions including whether they were purely personal in nature. This is notable. Among other things, it begs the question of why the Other Outlier’s personal charges were not subject to further review as were Mr. Mema’s.

Mr. Mema answered questions through his then-counsel, advising that he had seen others using the P-cards for purely personal purchases, but determined that there was no need to address it because he identified the situation as low risk. The minutes also show Mr. Mema’s

counsel noting that Mr. Mema’s wife had been going through a period of illness, and that Mr. Mema “was doing what he could to support his family and meet expectations of his job.” Of a trip to Cancun, he noted that they had paid for the trip themselves.

In his testimony before the Tribunal, Mr. Mema testified that it was not until the hearing that he learned for the first time that there were some 21 allegations against him in the Misconduct Report. He noted that in the itemization of his P-card use in the Schedule “B” to the Notice Letter, the City presented every charge as an unallowable personal charge. On this point, I note that there was some evidence of an understanding that only certain types of personal purchases were allowed: where the P-card was used in error, or where the P-card was used in respect of a partial-business expense. Examples of the latter include where City staff are travelling and a spouse attends. The P-card would be used for the whole of a dinner, for example, with the staff member expected to reimburse for the spouse’s portion. There was no evidence before me of any written policy explaining of this distinction, process for verifying whether a personal purchase fell into one of these categories, or record of staff who used their P-card for personal purchases outside these uses being called to account. In any event, insofar as there may have been such an understanding, there was no evidence that this was communicated to staff including Mr. Mema, or that this was applied to both Mr. Mema and the Other Outlier, for example.

In his evidence, Mr. Mema also noted that it appeared that the City was quick to excuse or forgive errors for others – such as the Other Outlier’s theme park charge– while compiling 100% of his charges in his case and treating them all the same. He observed that even if everyone else was only putting 1 or 2 personal charges on their P-cards, given there were around 200 issued, that would add up to a lot of personal charges. He was incredulous that the policy in practice was to just trust people to identify what was personal and asked how anyone could know what was what in looking at the statements of so many cards.

Indeed, Ms. Slater acknowledged in her evidence that she did not distinguish in the Misconduct Report between different kinds of personal charges or the amounts that were outstanding at that time, even though she would have been aware of it. Similarly, the reports

appended to the Notice Letter did not differentiate between different types of personal charges. The minutes do not show that Mr. Mema was asked to review the charges and identify if any were in error or fell into these other categories. In other words, when considering whether to terminate Mr. Mema’s employment, Council had before it a complete list of all Mr. Mema’s charges with no differentiation between those which may have been deemed allowable.

In his evidence at the hearing, Mr. Mema noted that when a white person’s P-card use was discussed – I presume he meant by City staff – the City would make efforts to delineate between allowed business and personal expenses, but they did not take that care for him. In this regard, he noted in particular, a May business trip he took with his wife, and expenses where he specifically indicated the expense was a “spouse charge”. As I mentioned above, he clarified that a single P-card purchase during a trip to Mexico had been made in error, but no one approached him on the assumption it was an error. While the City was quick to excuse such errors for others, it compiled 100% of his P-card charges and treated them all as the same, namely, prohibited purely personal uses. Mr. Mema asserted that the City had simply lumped all of his expenses together in the Notice Letter “for impact”, to make it look much worse.

Mr. Van Horne’s notes of his presentation show that he outlined Mr. Mema’s use of his P-card, and his authorization of the Samra Legal Invoices for amounts that exceeded those authorized by Council without advising Council. The notes concluded with:

While Mr. Mema has made positive contributions to the City and won awards from external agencies and accolades from Council in the process, in what l have described to you he has failed to comply with his obligations to the City by:

• Violating procedures that were under his span of control, and contrary to his duties to the City;
• Deriving a long-term personal benefit from the use of the City’s PCard, in what amounted to recurring interest-free loans;

• Failing to alert Council that expenditures were exceeding the limits authorized by Council and continuing to approve the expenditures.

Following the presentation, the City terminated Mr. Mema’s employment for cause that same day, May 11, 2018, by unanimous resolution of Council.

When asked why he voted in favour, Councillor Bestwick said that after arguing with his colleagues against termination for cause, it became clear to him that his colleagues would not see the other side. In his point of view, there was no way out for Mr. Mema. He believed Mr. Mema was being singled out and treated differently from others, noting that when Mr. Mema made personal expenditures, he made it clear that they were personal, he paid it back, and he was not alone in using the card in this way. He noted that he did not know if there was any manager in the City who did not use the P card for personal expenses. He said, “the only one being crucified” was Mr. Mema.

Councillor Kipp gave similar testimony. He explained that he voted in support of termination not because he believed it was valid but because he wanted to be able to bring it back if new information came out, and the way to do that was to vote on the prevailing side. “It’s politics at that point”, he said.

Councillor Kipp testified that it appeared that the City was treating Mr. Mema’s P-card issues differently. Councillor Kipp testified:

[...]

I’ve seen emails – not to me but shared from the Union President about people that are being hired. I’ve watched the interactions [...] one sticks out for me, maybe two stick out for me and that’s why I’m here today because I want to see that people are treated fairly, that the rules are applied fairly and firmly across the board, and that someone is accountable. So for me, yeah, our City has racism problems. Our City has prejudice problems and if we don’t admit that we’re going to stagnate worse than we already are, and that’s an educated view. [...] are we Canadian polite racists? I would say yes. But this is different. Victor has been treated differently than others and that’s my view. [...]

In cross-examination, Councillor Kipp confirmed his view that it appeared to him that Mr. Mema had been singled out and treated differently by the City:

it seems that there’s a lot of information on Mr. Mema’s spending so they [the P-card auditors] obviously and [Other Outlier’s] they obviously dug into something, so why didn’t they dig into former CAOs, why didn’t they dig into former CFOs? Why didn’t they dig into [other person and his wife] who was the financial person at the department he works in and they’re using their credit card what, by mistake? Or have they been going under number 4 – there’s an unwritten policy there’s guidelines, oh well, you can do it, because just stay a couple extra days, you deserve it, it’s a $500 per night hotel just pay for it and in a couple of months just pay us back. That’s how this thing is run, it’s run like that forever, that’s why we were complaining, that’s why me as a Councillor was saying ‘change this’ and do we want to get after everybody on this list no, let’s move forward. We were going through [many things] and this was just a peanut little thing that staff was continuing to do. There’s bigger fish to fry. [...]

A letter of May 14, 2018 from the City to Mr. Mema, signed by Mr. Van Horne, confirmed that the City had terminated Mr. Mema’s employment for cause following Council’s unanimous motion. The letter said:

The position of Chief Financial Officer ("CFO"), as the title states, is the leadership position with respect to financial matters for the City. The incumbent assumes significant responsibility and accountability for the financial structure, operations and ethical dealings for the City. The incumbent is expected not only to exemplify but to set standards for honesty, transparency and legal and ethical management of the public's funds.

Your explanations in response to the concerns set out in the letter of April 23, 2018, were less than satisfactory. For example, when questioned about charging purely personal expenses to the City's P-card, your response, through your counsel, was that others were not complying with the P-card Agreement procedures. When asked why, as CFO, you did not challenge those alleged inappropriate practices, your response was that you did not consider it of great risk to the City. These are not responses expected of the CFO.

You had an independent obligation, regardless of what you perceived to be inappropriate practices, to act entirely ethically, professionally and in the City's best interest. You must have been aware that any violations of the City's PCard procedures were inconsistent with best professional practices. If it is true that the practices were not aligned with those practices, you had a responsibility to intervene and not to participate in inappropriate practices. You not only failed to intervene in the practices

of others, you also then engaged in practices which were not in the best financial interests of the City, and gave yourself essentially interest free loans to pay for car repairs, personal purchases and vacations.

As the CFO, you had responsibility to report to Council expenditures inconsistent with motions passed by Council. You approved expenditures for the CAO, significantly in excess of what you knew to have been approved by Council. You also failed to inform Council that the CAO was exceeding the authorized expenses for seeking personal legal advice.

As a result of your failure to discharge your responsibilities as CFO in a manner designed to protect the City's financial interests and engaging in significant misconduct triggered by personal interest and contrary to the best interests of the City, you are terminated for cause effective today.

[...]

On May 18, 2018, an article ran in a local newspaper reporting on the contents of the Final Audit Report, which by then had been leaked.

L. Impacts on Mr. Mema

Mr. Mema testified that in the weeks after the City suspended his employment, his professional worth went from hundreds to zero. He said in April 2018, he attended a conference where everybody avoided him. At the time of the hearing, he was defending himself against the complaint filed against him with CPA Alberta, though he notes that the CPA BC did not take up a similar complaint. He tried going through recruitment services, reached out within his network, and even tried bidding on projects, but has been consistently unable to find work. He was asked to resign his position from the executive committee of the Canadian Association of Government Finance Officers.

Mr. Mema said that he considers himself a strong, hard-working person, but that in the wake of his suspension and termination his health deteriorated. All he wanted was to be home sleeping. He had no interest in anything. Sometimes he could not pull himself together to look for jobs but eventually he sought therapy. He has been having issues with sleep and anxiety, as evidenced by medical notes.

Mr. Mema explained that he started job searching right away after the termination, sending out 20 – 25 job applications with no success. His family had to adjust to a different quality of life. In December 2018 he tried starting his own company, but explained that he struggled to get clients and ultimately brought in no money. Professionally he said, “I am damaged goods.” The City did not dispute Mr. Mema’s evidence on mitigation.

VII APPLICABLE LAW

In a human rights complaint, the burden to establish that discrimination has taken place rests with the complainant. It is not up to the respondent to prove that they did not discriminate: Heyman v. Saunders (No. 2), 2010 BCHRT 88, at para. 6. A complainant is required to prove a case of discrimination on a balance of probabilities. If the complainant is successful in establishing a case of discrimination, the burden shifts to the respondent to justify its conduct. If the complainant fails to prove a case of discrimination, then there is no breach of the Code: Rai v. Shark Club of Langley (No. 2), 2013 BCHRT 204, at para. 361.

In order to establish a case of discrimination, Mr. Mema must prove that he experienced an adverse impact regarding his employment and that his ancestry, place of origin, race or colour was a factor in that adverse impact: Moore v. British Columbia (Education), 2012 SCC 61, para. 33. There does not need to be an intention or motivation to discriminate: s. 2 of the Code. One’s protected characteristics need not be the sole or even the overriding factor in the adverse impact experienced; they need only be a factor: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [Bombardier] at para. 52.

In this case, there is no dispute that Mr. Mema has the protected characteristics under which he filed this complaint. He is Black and was born in Zimbabwe. There is also no dispute that he suffered an adverse impact when he was suspended and later terminated from his employment, following the filing of the Misconduct Report.

The issue I must decide is whether there is a connection between Mr. Mema’s protected characteristics and the City’s suspension and termination of his employment. This is a question of fact for the Tribunal to decide after a review of all of the evidence: Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 5. Aside from the perceptions of the witnesses including City Councillors and employees, there is no direct evidence that Mr. Mema’s protected characteristics were a factor in the City’s decisions. Rather, this is a connection that can only be made from drawing an inference.

Mr. Mema asks me to draw that inference in respect of the actions of City staff and Council. He argues that the Misconduct Report was connected to his protected characteristics because it was based on and informed by racial stereotypes. He says that because the City based its decisions to suspend and terminate primarily on the Misconduct Report, those decisions were also connected to his protected characteristics and were therefore discriminatory.

The City says there is no connection. The City argues that Mr. Mema experienced no differential treatment because of a protected characteristic and says it has a non-discriminatory explanation for the suspension and termination: employee misconduct.

The City argues that “the Tribunal cannot infer discrimination but must rely on concrete evidence creating the necessary nexus.” The City relies on Kennedy v British Columbia (Ministry of Energy and Mines), 2000 BCHRT 60 [Kennedy], where at para. 168 the Tribunal pointed to various kinds of evidence that could work to create the “scent of discrimination” where the alleged discrimination is based on a pattern of conduct. It also cites Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 [Law], a Charter case which it argues sets the applicable test as whether in the “point of view of the reasonable person, dispassionate and fully apprised of the circumstances” there is a connection between the protected ground and the adverse effect.

To the extent the City is arguing that discrimination can only be established by direct evidence, this approach is inconsistent with the prevailing jurisprudence, specifically in respect

of race-based discrimination. In fact, the jurisprudence is express in highlighting that such discrimination is often proven precisely from drawing inferences. The Tribunal made this point in Kennedy, developing it further in Radek v. Henderson Development (Canada), 2005 BCHRT 302 [Radek]. In Radek, the Tribunal acknowledged that discrimination will more often be proved by circumstantial evidence and inference; and that subtle unconscious beliefs, biases and prejudices usually inform racial stereotyping, which can be inferred from circumstantial evidence.

This Tribunal has more recently articulated the approach to be taken in the context of race discrimination in Campbell v. Vancouver Police Board (No. 4) 2019 BCHRT 275 [Campbell] and Francis. I adopt the Tribunal’s statements in Campbell at paras. 102 – 105, regarding the subtle, pernicious nature of racial discrimination, with most racial discrimination complaints turning on an inference. There, the Tribunal said that (at para. 103):

an inference of discrimination may arise “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Vestad v. Seashell Ventures Inc., 2001 BCHRT 38 at para. 44; Abbott at para. 31. In this case, the question is whether an inference of discrimination is more likely than the VPB’s explanation for the officers’ conduct. In making this assessment, it is not necessary that the officers’ conduct be consistent only with the allegation of discrimination and not any other rational explanation: Phipps at para. 17.

The Tribunal went on to explain (at para. 105):

the facts of this complaint – like many race-based complaints – can only be properly understood within their broader social context: Campbell at paras. 16-19. In large part, this is because: Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture and with an appropriate understanding of how racial discrimination takes place, may lead to an inference that racial discrimination was a factor in the treatment an individual received.

I similarly adopt this Tribunal’s approach in Francis at paras 284 – 289, as cited by Mr. Mema, where the Tribunal emphasized the importance of a contextual approach to race

discrimination, noting that several contextual factors informed the analysis of the inferences that could be drawn from the facts in that case. As the Tribunal explained at para. 284:

Establishing what constitutes a reasonably objective observer in the context of race discrimination cases is challenging. There are "no bright lines" in cases where discrimination must be proven by circumstantial evidence, and these cases are often "difficult" and "nuanced": Shaw v. Phipps, 2010 ONSC 3884 [ 71 C.H.R.R. D/168]; aff'd 2012 ONCA 155 [ 75 C.H.R.R. D/246]; cited with approval in Brar, infra, para. 716. A contextual examination of all relevant circumstances is often required to identify the "subtle scent of discrimination": Kennedy v. British Columbia (Energy and Mines) (No. 4), 2000 BCHRT 60 [ 39 C.H.R.R. D/42], para. 168. For example, one such contextual circumstance is any historical disadvantage experienced by the group: Mezghrani v. Canada Youth Orange Network Inc. (CYONI) (No. 2), 2006 BCHRT 60 [CHRR Doc. 06-066], para. 28.

The Tribunal went on to cite the following from the Ontario, Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination, which are relevant to a contextual analysis in cases of race discrimination:

- Racial discrimination can occur through stereotyping and overt prejudice or in more subconscious, subtle and subversive ways. (Guidelines p. 5; Brar para. 712)

- One of the most obvious ways in which people experience racial discrimination is through stereotyping. Stereotyping can be described as a process by which people use social categories such as race, colour, ethnic origin, place of origin, religion, etc. in acquiring, processing and recalling information about others. Stereotyping typically involves attributing the same characteristics to all members of a group, regardless of their individual differences. It is often based on misconceptions, incomplete information and/or false generalizations. Practical experience and psychology both confirm that anyone can stereotype, even those who are well meaning and not overtly biased. While it may be somewhat natural for humans to engage in racial stereotyping it is nevertheless unacceptable. (Guidelines, p. 18; Brar, para. 720)

- At the individual level, racism may be expressed in an overt manner but also through everyday behaviour that involves many small events in the interaction between people. This is often described as "everyday racism" and is often very subtle in nature. Despite being plain to the person experiencing it, everyday racism by itself may be so subtle as to be

difficult to address through human rights complaints. However, at other times, where it falls within a social area covered by the Code, there may be circumstances where everyday racism, as part of a broader context, may be sufficient to be considered racial discrimination... Either way, the cumulative effect of these everyday experiences is profound. (Guidelines, pp. 12–14; Brar, para. 713)

- Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture and with an appropriate understanding of how racial discrimination takes place, may lead to an inference that racial discrimination was a factor in the treatment an individual received. [...] It is not necessary for language or comments related to race to be present in the interactions between the parties to demonstrate that racial discrimination has occurred. However, where such comments are made, they can be further evidence that race has been a factor in an individual's treatment. Similarly, negative comments made about an individual advocating for human rights or equitable practices will tend to support an inference that race is a factor in an individual's or organization's interaction with that individual. (Guidelines, pp. 21, 23; Brar, para. 714)

- It is important to emphasize that racism in its more entrenched forms is often unconsciously applied and its operation is often unrecognized by even those practising it. In addition, as noted earlier in the Policy, while Canada has made much progress, racism remains a reality. It should not be treated as aberrant behaviour or a set of deviant attitudes on the part of a deviant individual — a so-called "rotten apple" within the system. Failing to recognize the complex, subtle and systemic nature of racism impedes effective action against it.(Guidelines,pp. 12–14;Brarpara. 713.)

In sum, as stated earlier in this decision, I have applied the recognition by courts and human rights Tribunals of pervasive stereotypes of Black men in my consideration of the issue before me. That issue is whether the evidence as a whole could support an inference that, on a balance of probabilities, Mr. Mema’s protected characteristics factored into the City’s suspension and termination of his employment.

VIII FINDINGS OF DISCRIMINATION

Mr. Mema argues that “his colour was a factor in the making of the Serious Misconduct Complaint, his suspension and the termination of his employment.” On the whole, he submits that I can infer from the evidence that this is more likely than the City’s explanations for its decisions regarding Mr. Mema’s employment.

The City argues that there was no differential treatment of Mr. Mema because “any CFO in a similar position and engaging in such serious misconduct would have been terminated from employment in February, 2017; and, if not then, in October, 2017.” Evidence of differential treatment is not necessary, and in any event, this argument relies on a hypothetical. The issue before me is not whether the City treated Mr. Mema as it would have any other hypothetical CFO in the same situation, but whether his protected characteristics were a factor in how the City did treat him.

The City then argues that there is no evidence that the February or October reporting of the P-card issues by finance staff, or Ms. Mercer’s flagging it to the auditors were “triggered by racist motives”. However, “motive” and intentions are not required to establish discrimination under the Code, as s. 2 of the Code makes plain. Further, it disregards the reality that racial stereotypes may operate subconsciously, as this Tribunal recognized in Campbell and Francis.

The primary focus of the City’s argument is that insofar as Mr. Mema relies on the Misconduct Report and lack of investigation to support his complaint, the City has a non- discriminatory explanation. That explanation in essence is that the City acted solely in response to Mr. Mema’s actual misconduct, uninformed by his protected characteristics.

Ultimately, for the reasons set out below, I am satisfied on a balance of probabilities that – however subconsciously – pernicious stereotypes of a Black man as less honest or trustworthy factored into the Misconduct Report, and as such there is a connection between the Misconduct Report and Mr. Mema’s protected characteristics. The City’s reliance on the discriminatory Misconduct Report tainted its decisions to suspend and terminate Mr. Mema’s

employment, rendering it discriminatory. I am thus satisfied on a balance of probabilities that the City breached the Code when it suspended then terminated Mr. Mema’s employment.

A. The Misconduct Report

I begin with the issue of whether the Misconduct Report, which catalyzed the suspension and termination, was informed by racial stereotypes.

In Campbell, the Tribunal accepted the Respondents’ witnesses’ “evidence about what they thought was motivating their actions and their sincere insistence that Ms. Campbell's Indigeneity had nothing to do with it” (at para. 101). Similarly in RR v. Vancouver Aboriginal Child and Family Services Society (No. 6), 2022 BCHRT 116 at para. 299, the Tribunal accepted that the social workers involved in that case “were doing their best under difficult circumstances.”

In this case, similarly, I accept that Ms. Slater sincerely believed she was acting in line with her training and ethical principles in respect of the expected behaviour of a CFO. I accept that Mr. Mema’s behaviour gave rise to reasonable concerns amongst his colleagues in the Finance Department. I accept that his use of the P-card for personal purchases, the length of time it took for him to repay, the NSF cheque, his nonchalant attitude toward the situation and failure to address it directly with staff who were obligated to remind him about the need for repayment would have raised concerns for anyone in these circumstances.

Mr. Mema’s views on his own P-card use – that he could use it to purchase anything provided he paid it back – are difficult to understand given his education and experience. While he acknowledged this was bad practice, he refused to acknowledge that his role as CFO placed a duty on him to amend bad practices or, at the very least, not himself follow them. He also refused to acknowledge that his use of the City P-card, which essentially provided him interest- free loans from the City, exposed the City to risk. In my view, it is obvious on its face that municipal taxpayers would not take kindly to civil servants treating the City’s accounts as an opportunity for interest-free personal credit, regardless of the explanation offered.

The question before me is not, however, whether Mr. Mema breached a duty or even whether he in fact engaged in misconduct. It is whether his protected characteristics factored into the conduct of the City.

Reviewing each of the allegations in the Misconduct Report and considering them as a whole, I am satisfied on a balance of probabilities that Mr. Mema’s protected characteristics were a factor in the Misconduct Report. Below, I go through those allegations in turn before reviewing the Misconduct Report as a whole.

1. The P-card use allegations

The first three allegations in the Misconduct Report involve Mr. Mema’s P-card: that he began using his P-card for personal purchases in March 2016; made a total of 70 personal transactions totaling $14,148.97; and was aware that the Cardholder Agreement prohibits personal use of the P-card. The Misconduct Report asserted that because Mr. Mema’s personal use of the P-card constituted “unauthorized and inappropriate use of the City’s assets”, it met the definition of “serious misconduct”.

The City argues that the Misconduct Report arose from Mr. Mema’s use of his P-card, without regard for his protected characteristics. But I am not satisfied, on a balance of probabilities, that it was the number and value of Mr. Mema’s P-card use alone that stirred up the suspicion and anger that Ms. Slater and Ms. Mercer expressed. In my view, particularly when viewed in the context of the rest of the Misconduct Report, there is a distinct underlying thread of racial bias woven through the Misconduct Report that I am satisfied was more likely than not informed by the pernicious stereotypes I have pointed to above of Black men as less honest or trustworthy.

The timing first raises this inference. Ms. Slater prepared the Misconduct Report months after Mr. Mema’s P-card had been cancelled; after the amounts had been repaid; after the City had carried out the P-card audit; after the City Council had directed changes to the P-card Agreement; and when Mr. Mema was at the roll-out stage for changes to the administration of P-card expenses. This was not enough, however, for Ms. Slater.

In fact, both Ms. Slater and Ms. Mercer testified that they wanted to see consequences for Mr. Mema, though they acknowledged they would not have been privy to any discipline he was subject to. Ms. Slater said that she did not think the P-card audit was accurate, though she had not seen the appointment letter for the P-card auditors and had not seen the Audit Report. She was upset that Mr. Mloyi tried to make himself the contact person for the auditors, though he was the acting Deputy Director of Finance. She was upset that the P-card auditors did not interview her despite the P-card processing as she put it, “basically being her whole job”. So, without knowing whether Mr. Mema had faced discipline, or what was in the P-card audit, or what had been put forward by or discussed amongst Council, Ms. Slater in essence decided that there must be more to the story.

This broader perception of risk and suspicion further support the inference. Ms. Mercer testified that in her view, there was still risk after the P-card audit because Mr. Mema had other avenues for personal gain. It is not clear what she thought those other avenues were, or why the P-card use triggered such suspicion. It is not clear why she believed that Mr. Mema’s use of the P-card lent itself to a greater propensity for misappropriation. Mr. Mema had taken no steps to conceal his use of the P-card for personal purchases. Rather, he was open about it and made efforts to repay the amounts. He was supportive of his staff when they followed up with him for repayment and when they escalated their concerns. Mr. Mema’s use of the P-card for extensive personal use amounts to poor judgment, certainly, but I am satisfied that it is more likely than not that the extrapolation of Mr. Mema’ P-card use to a broader risk of his engaging in some kind of financial malfeasance was informed at least in part by his protected characteristics.

2. The discipline of finance staff allegation

The Misconduct Report did not stop at Mr. Mema’s P-card spending. It went on to assert that in September 2017, Ms. Slater, DD, and Ms. Mercer reported Mr. Mema’s use of the P-card to the City’s auditors under s. 172 of the Community Charter and were subsequently disciplined for doing so. While it said that Ms. Samra disciplined them, by including it in the Misconduct Report against Mr. Mema, it imbues Mr. Mema with culpability for that discipline.

There was no factual basis for Ms. Slater to implicate Mr. Mema in the reprimand Ms. Samra meted out. The evidence is consistent that Mr. Mema himself was uninvolved in the reprimand decision.

Not only that, but the evidence before the Tribunal was that Mr. Mema was a defender of his staff, at times insulating them from Ms. Samra. Mr. Mema supported staff’s efforts to pursue repayment from him. The City’s own evidence was that Mr. Mema was even supportive of finance staff when they elevated their concerns to Ms. Samra and Mr. Van Horne.

The inclusion of Ms. Samra’s reprimand, with scant details, in the Misconduct Report against Mr. Mema suggested Mr. Mema’s involvement, implied a cover-up attempt, and cast his P-card use in a different light, imbuing it with something more nefarious. Once again, this harkens to the stereotype of Black men as dishonest, implicating Mr. Mema as being somehow at work behind the scenes of the actions of Ms. Samra in which he was not directly involved.

3. Mr. Mema’s P-card repayment allegations

The next three points in the Misconduct Report addressed the length of time Mr. Mema took to repay his outstanding P-card balance, the NSF cheque, and his repayment plan.

The inclusion of the NSF cheque in the Misconduct Report and pairing it with the length of time he took to repay worked to paint Mr. Mema as someone seeking to avoid repayment. The only impact of the NSF cheque was that it further delayed Mr. Mema’s repayment. On that delay, I note that the absence of clear timelines for the repayment of personal purchases on P- cards was amongst the policy changes that the Council had directed as a result of the P-card audit.

The inclusion of the NSF cheque in the Misconduct Report builds on its underlying narrative painting Mr. Mema as someone who should be viewed with suspicion and should not be trusted, even though the P-card issues had been, by this time, resolved by both the destruction of Mr. Mema’s P-card and the changes to the P-card policies following the P-card resolution.

It is similarly notable that the Misconduct Report characterized Mr. Mema’s repayment arrangement as the City “garnishing” his wages. A mutually agreeable repayment plan is a very different creature than garnishing. It would sound different if the Misconduct Report had said, “Mr. Mema implemented a repayment plan of $500 per month”, but it said, “the City of Nanaimo began a $500 biweekly payroll garnishment to repay the amount owing”. The former formulation could have had a mitigating effect suggesting that Mr. Mema had made efforts to repay, which, in fact, he had. But the way it was framed raises suspicion, implying a lack of voluntariness or even a resistance to repayment.

By this point in the Misconduct Report, a picture of Mr. Mema was in full view for its readers (albeit a misleading one): alone in his use of the P-card for personal purchases; trying to silence those who raised his personal purchases by supporting the discipline of those who complained; avoiding repayment by providing a bounced cheque; and only repaying involuntarily through a City-imposed garnishment.

4. The remuneration allegations

The Misconduct Report next pointed to the commuting allowance paid to Mr. Mema, framing it as a “vehicle allowance” – without explaining the reason for that coding – and noting that it was afforded to him around the same time that the repayment plan began. By connecting the commuting allowance to the P-card repayments, the Misconduct Report implied that Mr. Mema was conspiring to reimburse himself for those repayments.

Mr. Mema said that it was up to the accountants, namely Ms. Slater, to set this allowance up properly in the system after it had been approved. Ms. Slater acknowledged in her evidence that while such compensation changes should have been approved by Council, she did not know if they had Council approval or not when she submitted her Misconduct Report. In drafting and submitting the Misconduct Report, she spoke with no one to ask about the payments to Mr. Mema – not payroll, not Ms. Mercer, not Mr. Van Horne, and not Mr. Mema. Ms. Slater never asked anyone about it, she simply saw it as suspicious and raised it for the first time in the Misconduct Report.

In my view, it is not difficult to view Mr. Mema’s passivity in the face of these benefits as a performance issue given his role as CFO, responsible for ensuring the appropriate use of City funds, including (or perhaps especially) where he stood to benefit. However, woven into the Misconduct Report in the way it was, Ms. Slater’s framing of the commuting allowance payment – of which she knew almost nothing – suggests that Mr. Mema was the directing mind behind a broader self-enrichment scheme of which his P-card use was only a part. Indeed, this appears to be how she and other staff viewed it. To her, she said, it was “just another red flag”.

5. The management override allegation

The Misconduct Report moves on to assert that Mr. Mema and Ms. Samra were using their “management override capabilities” to authorize payments and expenditures for each other. She pointed to the payment of the Samra Legal Invoices, the 2017 bonus paid to Mr. Mema, and their approval of each other’s P-card statements. Put another way, the Misconduct Report suggested that Mr. Mema and Ms. Samra colluded to obtain benefits from the City to which they were not entitled. In her evidence, however, Ms. Slater acknowledged she knew very little about these things, or the circumstances surrounding them.

On the Samra Legal Invoices, the Misconduct Report did not recount the email exchange she and Mr. Mema had about their allocation. In her evidence, Ms. Slater acknowledged she did not ask Mr. Mema for clarification and may not have adequately expressed her position to Mr. Mema at the time that the invoices seemed personal in nature. Instead, she had proceeded to reimburse the Samra Legal Invoices all the while suspecting that they were personal legal expenses and therefore inappropriate, suspecting that Mr. Mema had not satisfied himself first that they should be paid (though not knowing what process he did or did not undertake), and raising those suspicions and concerns only in the Misconduct Report. For Ms. Slater to suggest review of the Samra Legal Invoices “to ensure correct authorizations” in a Misconduct Report serves to cast suspicion on Mr. Mema while setting out only a partial story.

On the bonus paid to Mr. Mema, Mr. Mema acknowledged he did not check the Bylaws to see if a bonus was allowed but understood it was permitted because Ms. Samra had received

one the previous year. Mr. Van Horne did not express concerns about the bonus in his written correspondence with Ms. Samra about it, and never discussed it with Mr. Mema.

On the approval of P-card statements, Ms. Samra and Mr. Mema acted as mutual approvers of one another’s P-card statements. While this may have been a poor control from an accounting perspective, it does not, in itself, establish collusion. It certainly does not support an inference of a “scheme to enrich themselves” as the City has argued, particularly given Mr. Mema’s openness about his personal purchases. He hid nothing. He did not interfere with the P-card audit or try to hide anything from staff or Council. I accept that he was not involved – aside from having requested a bonus – in orchestrating a self-enrichment scheme through the compensation Ms. Samra approved for him.

In his evidence, Mr. Mema seemed uncomfortable answering the question of whether he should have checked applicable policies or Bylaws related to his compensation as part of his role as CFO. He said that his role was not to check the Bylaws but to speak to his supervisor (the CAO) and that is what he did. He continued to reiterate that he spoke about the terms of his employment with his supervisor when pushed on the point. As with his views on the P-card, Mr. Mema demonstrated a very narrow view of the scope of his authority and responsibilities.

Again, this may well have been a performance question, but that is not how it was framed in the Misconduct Report. Rather, with little information but ample suspicion, the Misconduct Report wove the above into the narrative that Mr. Mema was inappropriately taking money from the City at every turn.

6. The request for bank access for Mr. Mloyi

Finally, the last element of the Misconduct Report points to Mr. Mema’s having requested that Mr. Mloyi be granted access to the City’s banking system.

Ms. Slater’s evidence about why she included this request in the Misconduct Report was troubling. Ms. Slater testified expressly that she was concerned about Mr. Mloyi accessing City bank accounts because it was a further opportunity for collusion and misappropriation of funds

– presumably by Mr. Mema. Ms. Mercer said that people in the department were suspicious of Mr. Mloyi because Mr. Mema had put Mr. Mloyi – who was understood to be a friend – between himself and the two staff who had raised questions about the P-card. She said that because they were friends, it looked like maybe Mr. Mloyi would have similar behaviours to Mr. Mema regarding the misuse of funds.

First, I see nothing inappropriate about Mr. Mema’s request. Mr. Mema noted that at the time he had asked for this access, DD had left and Ms. Mercer was on sick leave, so Mr. Mloyi needed the access as there was otherwise no one left in the City at the time with the ability to authorize release of payments. He noted that the underlying internal controls remained in place. In other words, as he said, there was nothing untoward about this request. It was a reasonable management decision. Indeed, there was no evidence led that would support an assertion that there was anything inappropriate about this request.

Second, I am troubled by the impression amongst City staff (and reflected in the Misconduct Report) that Mr. Mema installed Mr. Mloyi in the position in a manner that was suspect. Not only was this a pervasive belief that framed City staff’s views of Mr. Mloyi, but it emerges in the City’s argument as well, when it says that “employees’ concerns were compounded by the Complainant’s decision to hire friends and acquaintances who could potentially further shield the Complainant’s practices from scrutiny.”

There was no factual basis on which to suspect that Mr. Mloyi had any propensity to engage in or cover up nefarious behaviour by engaging “in similar behaviours”. Not only was there no evidence that Mr. Mloyi had any involvement with Mr. Mema’s P-card or the other areas of suspicion outlined in the Misconduct Report, but none of the issues raised were ongoing ones. The allegations were all retrospective.

In addition to this suspicion that Mr. Mloyi may somehow facilitate some future misdeed by Mr. Mema, Ms. Slater observed in her evidence that there was a general feeling that staff were frustrated with the way Mr. Mloyi portrayed himself, that he did not actually want to do work, just wanted to tell people to do work. She said that people were guarded with

Mr. Mloyi because he had been introduced by Mr. Mema, they had worked together before and were friends, and it was “like they were connected somehow”. Ms. Mercer also said that she was told Mr. Mloyi was Mr. Mema’s friend and was being brought on as his friend. At the same time, she acknowledged that she had no knowledge of his qualifications, his role or what he was working on beyond knowing he worked in policy and supervised three managers.

As with the inclusion of the banking request in the Misconduct Report, this argument imputes to Mr. Mloyi some propensity to facilitate or cover-up any prospective financial misdeeds by Mr. Mema, in collusion with Mr. Mema. This is troubling given the evidence, which includes, among other things, the following. Mr. Mema first offered the temporary Deputy Director position to Ms. Mercer, and she declined. Mr. Mema then offered the temporary position to another internal employee who also declined. It was only after two internal candidates declined that Mr. Mema, pending the permanent hiring, reached into his network, consulting with Human Resources along the way. This is a common business practice. Indeed – the City itself did it when it returned DD after Mr. Mema’s suspension. Mr. Mloyi was appointed on a temporary basis, meaning that if Mr. Mema were indeed looking to shield himself from scrutiny, he would have to fill the position permanently with yet another person willing to do that.

In my view, there is an inescapable whiff of race-based bias in the manner in which Ms. Slater viewed and characterized Mr. Mema’s having tapped his professional network. Including the banking request in the Misconduct Report uses an otherwise unremarkable point to implicate Mr. Mloyi in something nefarious with no reasonable basis to do so. The obvious implication was that Mr. Mema had not just previously misused his P-card, but was now setting up a scheme, installing another nefarious character to facilitate his yet-unknown prospective financial malfeasance.

This is another example of extrapolating Mr. Mema’s use of his P-card into a suspected propensity to engage in other more improper conduct – a worry that Ms. Slater testified to. Only here broadens and imputes to bystanders that same propensity. It suggests that Mr. Mloyi was somehow complicit or could become so. There was no evidence to support the suspicion

that Mr. Mloyi, who was hired to fill a temporary position that others within the department had first been offered and declined, was aware of Mr. Mema’s P-card issues when he was hired or – more critically – would somehow be willing to be complicit in some kind of misdealing on Mr. Mema’s behest. Nor was there evidence before me capable of suggesting that Mr. Mema sought to have Mr. Mloyi, or anyone else, enter into such misdealing with him. The only two things that could have supported such an inference, from the evidence before me, was that Mr. Mloyi knew Mr. Mema, and like Mr. Mema, Mr. Mloyi is a Black man with Zimbabwean heritage.

7. The Misconduct Report as a whole

I have outlined the problems with the individual points in the Misconduct Report. But the critical feature of the Misconduct Report is how the individual points work together to paint Mr. Mema’s use of his P-card as something much broader and much more sinister.

This brings to my mind certain evidence from City staff who testified at the hearing. For example, Mr. Coronica testified that he grew more wary of Mr. Mloyi when Mr. Mloyi questioned whether Mr. Mema’s race was playing into the situation at the City. Ms. Mercer noted in her evidence that Mr. Mloyi –the only Black person in the department aside from Mr. Mema – was the only one raising race. She testified that her response to Mr. Mloyi raising concerns about feeling that his own race may be playing a role in his colleagues’ ostracization of him was, essentially, to tell him that she did not believe him. This defensive unwillingness to listen to a racialized person expressing concerns, and the apparent operation of the myths and misconceptions that can arise when race discrimination is alleged (as acknowledged by this Tribunal in Francis, at para. 289) speaks to the environment in which the events captured in the Misconduct Report unfolded.

Ms. Slater said she envisioned the P-card audit – which she had not seen at the time – would, among other things, recommend actions like discipline or termination of Mr. Mema’s employment. She said that she wanted him to be disciplined and would not have been upset if he had been terminated with cause. When she was not interviewed for the P-card audit, she

was concerned Ms. Samra was controlling the process and it had not played out as independently as she had thought. However, she only assumed this. She had no actual information to base this on. At the same time, she acknowledged that Mr. Mema had marked his personal charges accordingly. She acknowledged that she did not know the terms of people’s employment contracts and not every budget variance is reported to Council, and that she did not contact payroll to understand the variance in Mr. Mema’s compensation. In short, she just found Mr. Mema’s remuneration being over-budget suspicious even though the P-card issue had been addressed in the P-card Resolution months ago at this point.

The City argues that Ms. Slater and Ms. Mercer “had been trained to identify potential risks upon reviewing the facts before them”, and that the Misconduct Report was based on “actual instances of financial practices which deviated from the norm and based on their understanding of their obligations as CPAs.” Yet, despite knowing that Mr. Mema’s P-card had been destroyed, both Ms. Slater and Ms. Mercer gave evidence of their concerns about Mr. Mema using other avenues for “personal gain” after the P-card issue concluded because he held the greatest financial power and authority within the City. Ms. Slater said in cross examination that Mr. Mema’s approval of the Samra Legal Invoices along with the large compensation amounts that had gone to him through payroll appeared to her that Mr. Mema “was just using other mechanisms” for personal gain, in addition to the P-card. Yet she did not know the circumstances behind his compensation increases, and it is entirely unclear how they imagined his profiting from approving the Samra Legal Invoices, which Ms. Slater acknowledged she did not speak with Mr. Mema about at the time she had concerns or subsequent.

This is a theme throughout the Misconduct Report: eyeing with suspicion various events about which only partial facts were known and assembling them in a way that created a narrative of suspicion and “risk”. The “risk” element is troubling. I am satisfied on a balance of probabilities that Ms. Slater’s extrapolation of Mr. Mema’s personal use of his P-card into a propensity to misappropriate funds was imbued with the stereotypes I have noted earlier in this decision. This is highlighted by City staff’s (Ms. Slater included) having transferred their

suspicion over to Mr. Mloyi, who like Mr. Mema is Black, and on the evidence before me, was the City’s only Black employee – at least in Finance – at the time.

I have discussed earlier in this section the pernicious stereotypes about Black men, including as being more prone to dishonesty (see also Turner v. Canada Border Services Agency, 2020 CHRT 1), violence or criminality (see also Knoll North America Corp. v. Adams, 2010 ONSC 3005 at para. 47, affirmed on judicial review). I have also acknowledged the subconscious ways in which such stereotypes can operate. Here, Ms. Slater took a number of things about which she knew relatively little and connected the dots between them through a lens of concern about Mr. Mema’s propensity for financial malfeasance, which had the effect of characterizing him as a criminal.

For all of the reasons set out above, I am satisfied that the Misconduct Report was informed by racial stereotype, and as such, am satisfied that it was connected to Mr. Mema’s protected personal characteristics.

I want to pause here to reiterate my comments above that I accept that Ms. Slater sincerely believed she was acting in line with her training and ethical principles in respect of the expected behaviour of a CFO. I have reviewed above the insidious ways that racial bias lives in many of our subconscious. It lives there not necessarily because we seek it or choose to give it space but because, as courts and tribunals have recognized time and again, it is planted there by the systems in which we all exist: Turner at para. 49, and Knoll at paras. 20 and 47. Further, I emphasize that this hearing is about the actions of the City, which I evaluate next in the context of the suspension and termination of Mr. Mema’s employment.

B. The City’s Response to the Misconduct Report: Suspension and Termination

The next issue I must decide is whether Mr. Mema’s protected characteristics factored into the City’s suspension and termination of his employment. Specifically, Mr. Mema has focused on his protected characteristics of colour in his closing submissions. I note, however, that given the intersectional ways in which various personal characteristics intertwine, I see no

need to parse out each of the protected characteristics under which Mr. Mema filed his complaint for the purpose of nexus, especially as this issue is not in dispute.

On the suspension, it is not disputed that the City had the Misconduct Report before it when it suspended Mr. Mema, and that its decision to do so was based on the allegations it set out. As Mr. Mema argues, “the Serious Misconduct Complaint as it was filed [...] made it impossible for Council not to suspend him [...]”. I agree. It is not apparent to me that the Council based its decision to suspend Mr. Mema on anything but the Misconduct Report. Therefore, on a balance of probabilities, I am satisfied that the suspension decision was based solely on the Misconduct Report and as a result was discriminatory: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 80. I turn next to the question of whether the termination of his employment was also discriminatory.

It is undisputed that Council made the decision to terminate Mr. Mema’s employment. The question is what informed that decision. For the following reasons, I am satisfied on a balance of probabilities that it is more likely than not that Mr. Mema’s protected characteristics factored into the decision to terminate his employment with the City.

First and foremost, I am satisfied that the Misconduct Report – which I have found was discriminatory – formed the primary basis for the termination decision. The City itself acknowledges the centrality of the Misconduct Report. In effect, the City adopted and acted on the characterization of Mr. Mema in the Misconduct Report, adopting the suspicions therein as its own. There was no evidence before me that the City would have terminated Mr. Mema had it not received the Misconduct Report. Having played such a central role in the termination decision, I find that the Misconduct Report tainted that decision, rendering it discriminatory.

In addition, I have little information about what did inform the basis of the Council’s termination decision beyond the Misconduct Report. No Councillors testified for the City at the hearing before me. All three City Councillors who testified on Mr. Mema’s behalf asserted that they understood the P-card matter as having been appropriately dealt with by the steps they

had taken in January with the P-card Resolution. As the City has said that it was not the whole of the Misconduct Report that was considered, but only its allegations about the P-card and Samra Legal Invoices, I have focused on this question in the context of those two allegations.

The City has not argued that Council relied on new information received after the Misconduct Report in making the termination decision. I have found above that Council more likely than not had at least a draft of the P-card audit report before it when it adopted the P- card Resolution. The evidence is also that Council received a verbal presentation from the P- card auditors, some additional information from City corporate counsel about the P-card audit, possibly the Final P-card Audit Report and prior drafts, and a presentation from Mr. Van Horne at the May 11 hearing before Council. What is not clear is what information from any of these things was new to the Council as between the P-card resolution, the Misconduct Report, and the termination decision. Even if that were readily identifiable, it is not clear to me what of that information informed the Council’s termination decision in respect of Mr. Mema’s P-card use.

What is clear, is that in determining that Mr. Mema’s P-card use constituted conduct justifying termination, the Council would have known that Mr. Mema was not the only personal user of his P-card. In addition to its being clear throughout the P-card audit draft and final reports, Mr. Van Horne made mention of it in his presentation at the May 11 hearing before Council. The decision not to examine the P-card use of the Other Outlier remains unexplained. While I appreciate that his P-card use was smaller in amounts incurred and that he did not hold the position of Chief Financial Officer, it remains unclear to me what the threshold was for when an amount or kind of usage became unacceptable. However, situated as it was within the broad framework of suspicion in the Misconduct Report, it is difficult to accept that it was the mere fact of Mr. Mema’s having used his P-card for personal purchases that triggered the termination decision in respect of this particular issue (only one of two the City submits it considered from the Misconduct Report). I find it particularly hard to accept given the City’s apparent lack of any follow-up or concern in respect of the Other Outlier and the amount of time that had passed between the P-card Resolution and the termination decision. I also find it

difficult to accept that the same information only warranted such discipline once framed in the Misconduct Report, around which much public chatter was swirling as I will address below.

Turning to the Samra Legal Invoices, while the City determined that Mr. Mema had approved reimbursement to Ms. Samra of personal legal fees and terminated Mr. Mema’s employment in part on this basis, it is not clear what on the whole informed this finding. The City’s evidence on this point hinged on two things: the fact those invoices were issued in her name to her home address and inferences drawn from a description of the services in the invoices themselves.

I do not need to determine whether those invoices were indeed for personal legal services and therefore improperly reimbursed by the City. Rather, the issue before me is what the City knew of the Samra Legal Invoices and Mr. Mema’s dealings with them at the time the termination decision was made.

The P-card audit did not involve a review of the Samra Legal Invoices. It does not appear that Council heard from Ms. Samra about whether the Samra Legal Invoices pertained to City or personal business. However, there is uncontested evidence before me about City Councillors and the Mayor having been reimbursed for legal bills issued in their name. I also recall the evidence above related to Mr. Mema’s instructing Ms. Slater to review for the appropriate allocations, the email from Ms. Samra’s lawyer confirming that the expenses related to her City work as CAO, and Mr. Mema’s comment related to a second set of eyes to review the invoices. It does not appear that any of this evidence made its way to or was considered by Council. It is not clear to me that the City undertook any investigation into Mr. Mema’s approval process for the Samra Legal Invoices or whether they were indeed inappropriately reimbursed. What it did have was the framing of the issue in the Misconduct Report. In the context of that, Council must have determined that the allegation that Mr. Mema had inappropriately approved City reimbursement of personal legal expenses for the CAO was true.

In addition to the above, I consider that the Misconduct Report did not come before the Council in a vacuum, nor did Council operate in a vacuum. The evidence is that the background

context in which Council received the Misconduct Report included the Union President’s text messages to Councillor Yoachim about Mr. Mema’s “criminal” conduct, which Councillor Yoachim read at the February 5 Council meeting, and Council’s referring the Serious Misconduct Report to RCMP at the time it suspended Mr. Mema. It is unclear what of the contents of the Misconduct Report the Council viewed as potentially constituting criminal conduct, particularly given it consisted solely of unsubstantiated internal allegations, aside from Mr. Mema’s use of his P-card which had been reviewed in the P-card audit. This readily brings to mind the pernicious stereotypes of Black men.

The surrounding circumstances included chatter about Mr. Mema’s ”installing” friends in the finance Department (who were also the only other Black employees in the Department) – a characterization reiterated in the City’s closing submissions – and staff’s incessant media leaks about Mr. Mema’s alleged misdeeds. On the latter point I note in particular the March 8, 2018 news article that included details of Mr. Mema’s personal P-card charges, claimed that staff’s raising concerns had been ignored, claimed that DD had been “pushed” into early retirement “after she blew the whistle on Mr. Mema’s troubling transactions”, and referenced his hiring of Mr. Mloyi and Ms. Ngomesia. The contents of this article mirror the allegations and web of suspicion set out in the Misconduct Report.

The surrounding circumstances saw three City Councillors, Councillors Bestwick, Kipp and Yoachim (none of whom are visibly racialized) expressing their discomfort with the City’s approach to Mr. Mema throughout this saga at least in part because of a sense that his race was involved.

The surrounding circumstances also included the Mayor naming Mr. Mema publicly, Mr. Mema learning of his suspension from the media before hearing from the City, and the City Council’s decision to turn the Misconduct Report over to the RCMP despite it consisting solely of internal allegations that had yet been investigated – aside from the P-card audit which had looked into Mr. Mema’s use of his P-card and reported on it.

It flows from all of the above that on a balance of probabilities, I am satisfied that the City’s decision to terminate Mr. Mema’s employment was based primarily on the Misconduct Report, which I have found discriminatory, and as a result, the termination of Mr. Mema’s employment was discriminatory.

In closing, I observe that it is discouraging that the response to Mr. Mloyi raising his feelings that his race was playing a role in his ostracization was met, essentially, with a further ostracizing response of disbelief. It is discouraging that the City has argued, in the context of a non-discriminatory explanation, that it knew Mr. Mema and Mr. Mloyi were Black when it hired them, and similarly with Ms. Ngomesia when it offered her employment. As Mr. Mema argued in his reply to this argument:

The submission [...] channels the fallacious belief that proximity to blackness immunizes white people from having attitudes that are rooted in racism or from doing racist things. Mr. Mema submits again that just because a Black person is hired does not mean that the terms and conditions of their employment cannot be affected because of their race, in part or in whole.

In my view, Councillor Kipp made a good point in his evidence. He said,

[...] you’re either a racist or you’re an anti-racist, so I look to the corporation not so much to determine how the systemic racism has affected my community [...] I know all of the BIPOC population in our community, in our City, when I reference that, it’s a minority, they’re in lower level jobs. It was impressive to get a First Nations woman into a leadership role, I was impressed to see Victor sitting at our table, and that the diversity even in some Councillors sometimes is important. I guess it’s an unconscious bias that’s in there deep within us [...]. When I say racism or anti-racism, show me the anti-racist policies of the City. Show me the effective BIPOC policies that we’re doing now to create equality – show me that.

IX REMEDIES

I have found Mr. Mema’s complaint to be justified. I declare that the City’s conduct was discrimination contrary to s. 13 of the Code. I order the City to cease the contravention and refrain from committing the same or a similar contravention: Code, s. 37(2)(a) and (b).

In addition, Mr. Mema seeks a number of other remedies. I consider each in turn. I note that aside from submitting that the complaint should be dismissed in its entirety and therefore no remedy should be awarded, the City made no submissions in respect of remedy.

A. Injury to dignity, feelings and self-respect

This Tribunal has the discretion to award a complainant an amount to compensate them for injury to their dignity, feelings, and self-respect: Code, s. 37(2)(d)(iii). The purpose of these awards is compensatory, not punitive. In exercising this discretion, the Tribunal generally considers three broad factors: the nature of the discrimination, the complainant’s vulnerability, and the effect on the complainant: Torres v. Royalty Kitchenware Ltd. (1982), 3 CHRR D/858 (Ont. Bd. Inq.); Gichuru v. Law Society of British Columbia (No. 2), 2011 BCHRT 185, upheld in 2014 BCCA 396 at para. 260.

Mr. Mema seeks an award of $75,000. The City made no arguments as to appropriate quantum in the event Mr. Mema was successful in establishing a breach of the Code.

I begin by considering the nature of the contraventions.

The loss of employment is significant. In Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137, the Tribunal described it as “ultimate employment- related consequence” (at para. 34). The Tribunal has recognized that loss of employment often warrants compensation at the high end of the range given the significance of employment to a person’s identity, self-worth, and dignity: K v. RMC Ready Mix Ltd. and another (No. 4), 2022 BCHRT 108; Ms. K v. Deep Creek Store and another, 2021 BCHRT 158 at para. 131; Benton v. Richmond Plastics, 2020 BCHRT 82 [Benton] at para. 67; The Sales Associate v. Aurora Biomed

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Inc. and others (No. 3), 2021 BCHRT 5. This weighs in favour of an award on the higher end of the spectrum.

Next, while Mr. Mema has not put forward vulnerabilities to consider in this analysis, he has put forward evidence of the impact the discrimination had on him. He submits, “all aspects of his life were affected.” The City’s suspension and termination of Mr. Mema’s employment left him unemployed and depressed. He became ostracized from his professional community. It impacted his standard of living and impacted his mental health.

In support of the $75,000 he seeks, Mr. Mema has cited three cases. He cites Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16 [Francis No. 5], the Tribunal awarded Mr. Francis $176,000 for injury to his dignity, feelings and self-respect as a combined remedy for discrimination under section 13 and retaliation under s. 43. That case involved a Black man who was subjected to repeated, overt, ongoing acts of discriminatory conduct in his workplace that included racial slurs, reprimands, and severe ongoing impacts on Mr. Francis. Mr. Francis experienced significant negative and physical and mental health-related impacts as well as social and financial costs. The Tribunal had before it extensive evidence about the impacts on Mr. Francis, including from his spouse, who testified that what happened to Mr. Francis had “destroyed him as a human”.

I am satisfied that, as Mr. Mema argues, the impact of the City’s actions on him was severe and continues. However, and as reflected in his request for a lower amount, I do not find the impacts of the discrimination here to be comparable to those experienced in Francis. I did not have such extensive evidence before me here as was available in that case. I did have evidence from Mr. Mema’s doctor outlining impacts on Mr. Mema’s mental health. His own evidence at the hearing, however, was relatively restrained, referencing his embarrassment in respect of his professional circles, and noting that his worth had dwindled to zero.

Mr. Mema has sought an award significantly less than the $176,000 ordered in Francis No. 5 at $75,000. The other cases he cites, however, awarded significantly less than what he seeks. In Campbell, the Tribunal awarded Ms. Campbell $20,000 as compensation for injury to

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her dignity, feelings and self-respect. I distinguish that case on the basis of the very different, specific facts of both the discriminatory incident and the impacts on Ms. Campbell. That case involved a unique single interaction, a stark power balance between a civilian and police, and specific impacts on Ms. Campbell. In Eva obo others v. Spruce Hill Resort and another, 2018 BCHRT 238, the Tribunal made awards in the range of $3,000 to $18,000 to seven complainants for their injury to dignity, feelings and self-respect. That case involved discrimination by the employer resort against seven employees on the basis of grounds of race, colour, ancestry and place of origin when he replaced them with new, less-skilled employees. The highest award in that case - $18,000 – was made in the context of findings of sexual harassment. I am mindful that the Tribunal's more recent cases involving discriminatory harassment and/or the termination of a person’s employment have attracted damage awards in the range of $15,000 to $40,000: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137, at para. 42.

The termination of employment is discriminatory conduct that is severe, as I have noted above. Mr. Mema experienced it in the context of public ostracization, with incessant leaks and swirling public chatter consistent with the Misconduct Report. He experienced the indignity of not even learning of his suspension directly from the City at first. Mr. Mema has experienced a notable decline in his mental health and feelings of self-worth and has lost not only his employment but his standing in his professional community. In the context of the cases cited, the evidence before me, and in the absence of submissions from the City, I am satisfied that an award of $50,000 is reasonable.

B. Wage loss

I have found that the suspension and termination of Mr. Mema’s employment breached s. 13 of the Code. Mr. Mema seeks the sum of $777,884.54 for wage loss. This figure is calculated based on Mr. Mema’s annual salary and benefits entitlements for 2018 – 2021 less other earnings in that period and prorated from the date of termination to the date of hearing. It does not include a claim for future wage loss.

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The City made no submissions in respect of wage loss, aside from asking that the complaint be dismissed in its entirety.

Section 37(2)(ii)(ii) of the Code gives the Tribunal discretion to compensate a person for all, or a part, of any wages or salary lost because of the contravention.

The purpose of such an award is to put the person in the position they would have been had the discrimination not occurred: Gichuru v. the Law Society of British Columbia (No. 9), 2011 BCHRT 185 [Gichuru] at para. 300, upheld in 2014 BCCA 396; Benton. To that end,
a wage loss award should “fully compensate” the complainant for income lost “solely as the result of the discrimination”: Ayangma v. Eastern School Board and another, 2008 PESCAD 10 at para. 70 [emphasis mine]; Benton, at para. 82.

The burden of establishing an entitlement to compensation is on the complainant: Gichuru at para. 301.

The starting point for assessing a complainant’s wage loss is to establish a causal connection between the discrimination and those losses: Gichuru at para. 301; Benton at para. 88. This is a question of fact. The onus is on the complainant to show a causal connection between the discriminatory act and the loss claimed: Gichuru at para. 302.

Once a causal connection is established, the amount of compensation is a matter of discretion, to be exercised on a principled basis, in light of the purposes of the Code, and the purposes of the award: Gichuru at para. 303.

The Tribunal has the authority to award some or all of any lost wages as a result of the contravention: s. 37(2)(d)(ii); Gichuru at paras. 298-299.

For the reasons that follow, I find that while Mr. Mema has satisfied me that he is entitled to compensation for wage loss, he has not satisfied me that awarding the full amount claimed is appropriate. Put another way, Mr. Mema has not satisfied me that all his lost wages fall at the feet of the City for its breach of the Code.

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The City terminated Mr. Mema’s employment, leaving him without employment income. I have found that the termination was discriminatory. As a result, there is a direct causal connection between the discrimination and a loss of wages. I am therefore satisfied that compensation for some lost wages resulting from the discrimination is appropriate.

Mr. Mema claims wages lost from the time of the termination of his employment to the date of the hearing, as he has been unable to find reemployment. He testified to and I accept his many efforts to mitigate his losses, including applying to a number of jobs and also opening his own consulting business. Among other examples, he was a finalist, one of last two standing, for a position with an organization that ultimately did not hire him, telling him that because the organization is donor funded, the bad publicity about him might have affected the organization. His business was operating at a loss due to difficulties finding clients, he says because of publicity surrounding his departure from the City.

I am satisfied that Mr. Mema made efforts to mitigate his wage loss, and the City has not argued otherwise.

However, on a balance of probabilities, I am not satisfied that Mr. Mema’s difficulties in finding reemployment arise solely from the discrimination or that that awarding compensation for all lost wages between the time of the termination and the hearing would be an appropriate exercise of my discretion under s. 37(2)(d)(ii).

I am satisfied that publicly available information about the matter with Sechelt contributed to his difficulties in finding reemployment. In my view, that situation would reasonably raise questions for a prospective employer about Mr. Mema’s judgment.

I note that Mr. Mema recalled in his evidence, one prospective employer asked him, “have you Googled yourself?”, presumably referring to the various media articles. I understand this to relate not only to the publicity surrounding his employment with the City, but also his employment with Sechelt. I have not considered the media coverage of the situation at the City. Regardless of the events at the City, the City’s witnesses testified that they came across publicly available material highlighting Mr. Mema’s having used his corporate credit card for

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personal purchases while employed by Sechelt. Further, the article referenced Sechelt’s having had to pursue him through the courts to seek repayment. It is reasonable to expect this information would have a chilling effect for prospective employers. The article was put into evidence. There is no dispute about that.

For the reasons set out above, I have reduced the wage loss award sought by a quarter, resulting in a final award of $583,413.40. In my view, this appropriately accounts for the fact that Mr. Mema’s loss of employment was discriminatory, while also accounting for the fact that not all of the wages lost by Mr. Mema fall at the feet of the City for its breach of the Code. It accounts for the fact that some of the information in the public domain related to his alleged conduct while at Sechelt more likely than not played a role in prospective employers’ reticence to hire him and his difficulties in finding reemployment.

C. Expenses

Section 37(2)(d)(ii) of the Code grants the Tribunal discretion to order compensation for expenses incurred by the discrimination. Mr. Mema seeks compensation for expenses he incurred to have legal counsel assist him with the May 11 hearing related to the Misconduct Report in the sum of $10,038.59, and for out-of-pocket expenses related to obtaining medical records for this proceeding.

The power to compensate a complainant for “expenses incurred by the contravention” does not include compensation for “legal expenses and services incurred in the course of litigation”: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para. 40; Francis v. Ministry of Justice (No. 4), 2020 BCHRT 160.

However, the legal expenses that Mr. Mema seeks to be compensated for relate to legal fees incurred in relation to a hearing process before the Council under the Community Charter related to the Misconduct Report. On a balance of probabilities, I am satisfied that Mr. Mema would not have incurred those expenses were it not for the Misconduct Report. I have found that the Misconduct Report was discriminatory, and I have found that the City based its

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suspension decision on the Misconduct Report. As a result, I am satisfied on the materials before me that it is appropriate to award reimbursement for those legal fees.

Finally, I accept that Mr. Mema incurred the expense of obtaining medical records for disclosure in this proceeding. The total amount is $111.45, and I award it.

X ORDER

I have found Mr. Mema’s complaint of discrimination justified. I order as follows:

1. Pursuant ss. 37(2)(a) and (b) of the Code, I declare that the City’s conduct was discrimination contrary to the Code, and I order it to cease the contravention and refrain from committing the same or a similar contravention.

2. Pursuant to s. 37(2)(d)(ii), I order the City to pay Mr. Mema $583,413.40 as compensation for wages or salary lost as a result of the contravention.

3. Pursuant to s. 37(2)(d)(iii), I order the City to pay Mr. Mema $50,000 as compensation for injury to her dignity, feelings, and self-respect.

4. Pursuant to s. 37(2)(d)(ii), I order the City to pay Mr. Mema $10,150.04 as compensation for expenses incurred as a result of the contravention.

5. I order the City to pay Mr. Mema post-judgement interest on the amounts awarded until paid in full, based on the rates set out in the Court Order Interest Act.

____________________________________ Emily Ohler, Tribunal Chair

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