Former N.B. legal aid exec loses wrongful dismissal case

The one-time executive director of the New Brunswick Legal Aid Services Commission has failed in a wrongful dismissal case against his former employers.

David Potter alleged he was constructively dismissed when he departed his $180,000-a-year job in 2010, four years into a seven-year contract.

But in an Oct. 25 decision, Court of Queen’s Bench Justice William Grant found that Potter was not constructively dismissed but had effectively resigned from his position when he launched his legal action against the commission in March 2010.

The government lawyer had been interim director of legal aid in the province since 1993. After a revolt by private bar lawyers in 2004, the government decided to operate legal aid using staff lawyers to defend cases, cutting off its relationship with the province’s law society and establishing the commission. It then turned to Potter to become the commission’s first executive director shortly after the body’s creation in December 2005.

According to the decision, Potter was the subject of at least three complaints from staff between 2007 and 2009.

“These complaints, while mostly unsubstantiated, consumed a great deal of time for the Board of the Commission. They also took a toll on Mr. Potter,” wrote Grant.

In October 2009, Potter’s doctor told him to take some time off for medical reasons. Over the next few months, Potter and the commission board entered discussions about buying out his contract. In January 2010, the board asked him not to return to work, but informed him that his salary would continue to be paid. In March 2010, Potter launched his action, claiming that the removal from duties amounted to a repudiation of his contract.

But in Grant’s view, “the Commission did not do or say anything that would lead an objective observer to conclude that they had removed those duties from him permanently.

“I find that when Mr. Potter began this legal action he was the one who took the unilateral step that made the continuation of the employment relationship untenable and that by starting this action he resigned his position,” Grant wrote.

Grant said Potter could not use a letter sent by the board to the province’s minister of justice as evidence of its intent to dismiss him, since he was unaware of the letter until after launching his action.

In the letter, sent in January 2010, the board recommended Potter’s termination for cause, although that was not a claim they made at trial:

“The Board considers that cause for his dismissal exists based upon the following issues, namely:

1.   Mismanagement of public funds;
2.   Mismanagement of staff/staff relations;
3.   Undermining/failing to respect the Board’s authority;
4.   Abuse of authority;
5.   Failing to ensure that the case management system and other  assigned duties were performed in a timely manner,” the letter reads.

Grant did rule in Potter’s favour, however, on his entitlement to retirement allowances worth $170,000, as well as vacation pay of $15,000 owed when he left the commission.

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