The City of Barrie’s statement of defence denies allegations in a lawsuit filed by former councillor Mike McCann and his marketing company — for $5.5 million — relating to the city’s role in the release of confidential information about the former councillor.
The city’s statement of defence was filed May 21, 2024, in the Ontario Superior Court of Justice.
"The city states that if McCann has suffered the damages and losses alleged in the statement of claim, which is denied, such damages and losses did not arise as a result of any negligence, breach of duty, want of care, or intentional tort (wrongful act) on the part of the city, or on the part of anyone for whom the city is responsible in law," reads the statement of defence.
The city declined further comment Monday on its statement of defence when contacted by BarrieToday.
McCann also declined comment Monday on the city’s statement of defence.
In March, McCann and his marketing company filed a statement of claim, suing the city and an unidentified ‘John Doe,’ who was either a council member or a city employee, for $5.5 million each for their role in the release of confidential information about the former Ward 10 councillor.
Filed in the Ontario Superior Court of Justice on March 28, it says "confidentiality is a matter of mere lip service" at the City of Barrie.
Among the statement’s claims are negligence toward McCann by the city, John Doe inflicting mental suffering against McCann, and misconduct while in public office, again by John Doe.
None of McCann’s claims have been tested or proven in court.
"The city denies that it is vicariously liable or otherwise legally responsible for the acts or omissions of John Doe and states that it is not liable for the plaintiffs’ claims, if proven, of intentional infliction of emotional suffering, misfeasance in public office, and infusion upon seclusion, which are denied," the city’s statement of defence reads.
"In particular, the city states that an elected member of a municipal council is not an agent or employee of the municipality in any legal sense and, as such, the relationship as between the city and a council member does not give rise to vicarious liability."
While the city has filed its statement of defence, there was no such document filed as of Monday on behalf of John Doe.
The city’s statement of defence relates, in part, to allegations against then-councillor McCann from Dec. 19, 2019, that involved a city employee, reads the statement.
The city hired a third-party firm specializing in workplace investigations, with a mandate "to make findings, on a balance of probabilities, regarding whether the allegations were likely to have occurred and, if they were, whether they occurred in the workplace."
In early August 2020, the city received a confidential workplace investigations summary report from the third-party firm.
"The summary report included findings that, on a balance of probabilities, the respondent, McCann, acted towards the complainant in a manner that was inappropriate and demeaning, was likely intimidating, humiliating and offensive, negatively impacted the complainant’s dignity, included unwelcome sexual advances, leering and equally suggestive comments, offered a benefit in exchange for an insinuated intimate or sexual favour, and included unwanted sexual contact," said the city’s statement of defence.
The summary report also determined the circumstances surrounding the alleged incidents would not be considered a workplace.
This resulted in a confidential city council staff report, available to councillors for their Oct. 20, 2020, meeting, although no vote was taken at the meeting.
"Based on the pleadings contained in the statement of claim, it appears that McCann did not return his copy of the staff report," the city’s statement of defence reads.
The statement says the city is not responsible for damages suffered by McCann or his company.
"The city states that, to the extent McCann has suffered harm to his reputation and political prospects, and any other losses or damages alleged, which are denied, these are the result of McCann’s own actions arising from his interactions with the complainant, and the forseable consequences therefrom," the statement of defence reads.
This legal action came from a leak of the confidential workplace investigative summary report and a confidential staff report, prepared for Barrie city council, concerning allegations by city employee Amanda Kelly that McCann made inappropriate comments and inappropriate physical contact with her at a Barrie pub, the statement of claim says.
Kelly was 32 at the time and a senior business innovation and entrepreneurship officer with the city.
The city hired a third party to investigate the matter, conducted according to Barrie’s workplace human rights policy, the statement of claim says, which requires the investigation be done confidentially.
McCann declined to participate in the investigation because he had concerns about the fairness of the process, the statement of claim says, and that Barrie’s workplace human rights policy did not apply to the allegations because they did not occur within a workplace, but a pub.
The investigation was done anyway, and it produced a confidential investigation report provided to city council.
The report made "prejudicial findings that McCann engaged in the conduct alleged by (Kelly) and that, for the fact that the alleged conduct did not occur in a workplace, McCann’s supposed conduct would have breached applicable policies," the statement of claim says.
The confidential staff report was submitted to council, with the confidential investigation report attached.
Council met in closed session on Zoom to discuss both reports on Oct. 20, 2020, the statement of claim says. The meeting’s minutes were also confidential.
McCann’s statement of claim also says Kelly made a complaint about McCann to Barrie police, but police declined to lay charges.
Kelly filed a $200,000 lawsuit against McCann on Jan. 17, 2022, alleging battery, sexual battery, assault and sexual assault, along with the intentional and/or negligent infliction of mental suffering, her statement of claim reads.
McCann has denied the allegations and Kelly’s lawsuit remains unresolved.
But the confidential reports were leaked to the media, and for that, McCann’s statement of claim fingers the unidentified John Doe, and that if "the leak of the confidential material resulted from an act or omission other than an intentional leak by Doe … that Barrie’s inadequate policies and procedures to protect confidential information from leaks nevertheless caused the leak of the confidential material."
McCann’s statement of claim says he complained to Barrie CAO Michael Prowse about the leak, requesting an investigation, but was rebuffed.
"Barrie effectively condoned and authorized the leak by refusing to conduct any report investigation into the matter," the statement of claim says.
The leak irreparably damaged McCann’s reputation and political prospects, the statement of claim says.
McCann, Ward 10 councillor from 2014 to 2022, ran unsuccessfully for Barrie mayor in 2022.
The Rotary Club of Barrie asked McCann not to attend its events and said it would not renew his membership, the statement of claim says, cutting off his access to business owners and community leaders.
McCann’s damaged reputation also hurt his company, Sunflow, which saw its workforce reduced from 40 to fewer than 10.
"McCann has suffered on a more personal level from all this," the statement of claim says. “Doe’s leak of the confidential material and its aftermath have caused him (McCann) distress, anxiety and depression, as well as related physical detriment.
"McCann’s personal and family relationships have also suffered, particularly as individuals have confronted members of his family …"
McCann’s statement of claim also mentions Coun. Clare Riepma, who sat on council with McCann in 2018 to 2022, but is not named in the lawsuit. Riepma disclosed confidential documents to a member of the public, says a 2024 report released by integrity commissioner Suzanne Craig. But Riepma’s actions were unintentional, the code of conduct complaint came too late, and he wasn’t penalized.
The Ward 1 councillor apologized to those affected by this breach of information and took full responsibility for inadvertently sharing confidential information.
"The statement of claim contains no allegations that the material allegedly disclosed by Riepma was discussed in the media report three weeks earlier, or in any media report, and there are no allegations that the plaintiffs (McCann and his company) suffered any harm, damages or losses as a result of such alleged disclosure," said the city’s statement of defence. "Furthermore, as a council member (and not a city employee) the city is not liable for the acts or omissions of Riepma."
Craig’s report says the complaint alleges the dissemination of confidential information to a resident who possessed confidential general committee minutes dated Oct. 20, 2020, watermarked with Riepma’s name, which were collected by city clerk Wendy Cooke during the resident’s meeting with Mayor Alex Nuttall on June 20, 2023.
General committee minutes from Oct. 20, 2020, deal with confidential personal information and solicitor-client privilege, a workplace investigation.
McCann’s statement of claim names himself, McCann Marketing Inc., Sunflow Solar, Sunflower Roofing and Sunflow Windows and Doors.
The city’s statement of defence asks that McCann’s statement of claim be dismissed, with costs payable to the city.
