Fired N.B. forestry college instructor seeking thousands more in compensation

A forestry college instructor who was found to be entitled to more than $50,000 for the way his employer fired him is seeking another $230,000 in damages.

Rod Cumberland is appealing a May 2023 decision by New Brunswick Court of King's Bench Chief Justice Tracey DeWare, who ruled he was only entitled to payment equalling seven months' notice for his firing from the Maritime College of Forest Technology.

On Tuesday, Paul Champ, Cumberland's Ottawa-based lawyer, argued before three New Brunswick Court of Appeal judges that his client should have also received compensation for aggravating and punitive damages.

"With the greatest respect to the chief justice and trial judge, this is a very troubling precedent for employment law," Champ said in his opening arguments. "A very troubling precedent."

"Here you have an employer who was explicitly planning an exit strategy for an employee for seven months, compiling allegations, scanning his emails, dredging the waters as it were. Further, [the college] made zero warnings for that seven months."

Lawyer Paul Champ says Cumberland is entitled to aggravating and punitive damages for the way the college withheld its plan to fire him for months before ultimately giving him notice. (Aidan Cox/CBC)

Cumberland was fired with cause from his role as instructor at the Fredericton college in June 2019, after being hired there in 2012.

He previously spent 22 years as a wildlife biologist for the provincial government, with the last 15 spent as the province's deer biologist.

Following his termination, Cumberland filed a wrongful dismissal suit against the college, claiming he was fired for his outspoken stance against the controversial herbicide known as glyphosate, which is used in New Brunswick's forestry industry.

Following his eight-day trial, DeWare determined Cumberland was not fired for his views on glyphosate, but rather for being a "disruptive and destructive force" at the college.

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"Mr. Cumberland was terminated from his position with the college as a result of his attitude and behaviours which rendered his continued employment impossible," DeWare wrote.

Case's focus has shifted

Speaking after the hearing, Champ said the focus of the case has shifted away from the earlier allegation that Cumberland was fired for his views on glyphosate.

However, he said glyphosate remains an element in the case, because part of the reasons given for his termination had to do with comments Cumberland made about the herbicide at a public seminar in January 2019.

Champ said those comments made by Cumberland, and other alleged acts of misconduct, were put down in a list by college executive director Tim Marshall between January 2019 and his firing later that year in June.

However, Marshall never approached Cumberland about those issues until he informed him in June that he was being terminated with cause, Champ said.

"When [Marshall] called Mr. Cumberland in to terminate him, [the list of reasons for termination] was all new information," Champ said.

"And as it turned out, the executive director was so lazy that many of these allegations were completely untrue, which he admitted in the case, and all of those circumstances we say amounts to bad faith conduct."

Champ said he's asking the Appeal Court to grant $200,000 for aggravating and punitive damages, and an additional $30,000 for another five months' termination notice.

No basis for further damages, says college lawyer

Arguing on behalf of the college Tuesday, lawyer Clarence Bennett said he accepted DeWare's finding that the college was "sloppy" in how it went about firing Cumberland.

However, he said he doesn't think there's any evidence of bad-faith conduct that would justify aggravating damages for him.

College lawyer Clarence Bennett, left, argued the college's conduct doesn't meet the necessary bar for Cumberland to be entitled to aggravating or punitive damages. He's seen in this file photo with college executive director Tim Marshall. (Jacques Poitras/CBC)

"When [Champ] tries to say it was more than sloppy, I'm going to suggest to the court that when the chief justice says the employer was sloppy, what she means is 'You're lucky. If they had done this properly, you wouldn't get anything, but the employer screwed up by not giving you an advanced warning,'" Bennett said.

"That's what [DeWare] means. She doesn't mean they did something dishonest, or in bad faith. They made a mistake and there are consequences for that."

Bennett also argued Cumberland is not entitled to punitive damages, as there's no evidence the college's conduct caused him to suffer "mental distress."

Following arguments from both parties, Court of Appeal Judge Bradley Green thanked them for the "really high-calibre" submissions.

He said the court was reserving its decision and would release a written decision "in due course."