A Canadian employee fired after going on long-term disability won a default judgment of $240,000 when the State Department failed to show up. It blames internal miscommunications.
The Ontario Superior Court has overturned a default judgment of $240,000 awarded to Sandra MacDonald, an Ottawa employee of the U.S. Embassy who was fired when she was on long-term disability.
The judge hearing the appeal accepted the U.S. government’s submission that when the case was initially before the court in July 2012 it was not defended because the U.S. State Department was unaware of the proceedings due to internal miscommunication.
This was in spite of documentation filed on appeal confirming that the claim and the subsequent judgment were delivered to the U.S. State Department in Washington by the Canadian Embassy. The story also appeared on the front page of the Ottawa Citizen.
McDonald, then 58, had worked for 29 years in positions of increasing responsibility as a “locally engaged” member of the U.S. Embassy’s Financial Management Centre prior to her dismissal.
In June 2009 she had minor bunion surgery and expected to be off work for a few weeks. Instead, she developed a burning sensation in her left foot and was diagnosed with a condition called Complex Regional Pain syndrome, or CRPS.
She exhausted her banked sick leave and, beginning in November 2009, she received long-term disability payments from Great West Life. Her LTD was payable to age 65 if she couldn’t do any kind of work.
However, in February 2010 the embassy arbitrarily introduced a new policy that an employee’s position would be held open for only 12 months after the commencement of LTD benefits, subject to a medical review and consultation with the insurance company.
In December 2010, McDonald’s doctor wrote in a letter to the embassy that she had been disabled since her surgery in 2009 and was not fit to resume any form of employment. She was fired later that month, effective Jan. 31, 2011.
She sued her former employer in the Ontario Superior Court, alleging she had been discriminated against based on a disability under human rights legislation and that she was entitled to damages for wrongful dismissal. The U.S. Embassy never responded to her claim and did not file a defence.
At a July 2012 summary judgment hearing, Justice Heidi Polowin awarded McDonald 32 months of pay for wrongful dismissal, plus collateral amounts totalling about $240,000.
On appeal, Justice T.D. Ray heard submissions from the U.S. government that the proceedings should be reopened because documentation was lost, email attachments could not be read, and relevant materials were inadvertently sent to the wrong division of the U.S. State Department.
In a March 2014 decision, the judge said that the circumstances of the default were quite extraordinary and defied belief, particularly in view of the fact that the United States “has been reported as the most litigious [country] on Earth.”
Nevertheless, he allowed the appeal, noting that the U.S. government may have an arguable case on the merits. For example, the award of 30 months’ pay may have been excessive or the employment contract may have been effectively terminated when McDonald was unable to return to work for an indefinite period.
However, recognizing the financial and emotional impact of multiple hearings on McDonald, Ray ordered the U.S. government to pay her court costs for both the original hearing and the appeal. A new hearing was also made conditional on the U.S. government paying the full $240,000 initially awarded into a court trust within 60 days.
MacDonald is represented by Bijon Roy, a lawyer with the Ottawa firm of Champ & Associates. Roy declined an interview with the Star, as the matter is again before the courts.
However, he previously told the Ottawa Citizen his client was “very disappointed” with the judge’s decision. “First of all, it’s no way to treat a long-serving employee suffering from a disability. Secondly, I think it’s quite frankly disrespectful to Canada’s court system.”