Please refer to: Stephen J.

Moreau
Direct Line: 416-964-5541
Email: smoreau@cavalluzzo.com
Assistant: Christina Fracassi
Assistant's Email: cfracassi@cavalluzzo.com
File No. 182146

December 10, 2018

BY EMAIL: REGIONAL.CHAIR@NIAGARAREGION.CA
RUSH OR URGENT
Jim Bradley - Regional Chair
Niagara Regional Council
1815 Sir Isaac Brock Way
P.O. Box 1042
Thorold, ON L2V 4T7

Dear Mr. Bradley:

Re: Mark Brickell situation

We have been retained as legal counsel by Mark Brickell, the current or former Chief
Administrative Officer of the Niagara Peninsula Conservation Authority ["NPCA"]. We
do not know who to address this letter to at the NPCA and have therefore elected to
copy Misty Ferrusi, a senior human resources official, so that this letter may be drawn to
the attention of whoever styles themselves as holding authority over the NPCA's affairs.

As you no doubt are aware, Mr. Brickell was appointed to the CAO role of the NPCA in
mid-2017 by the NPCA's previous Board of Directors. We understand from a review of
newspaper articles and from discussions with our client that the ensuing period of time
with our client as CAO was marked by some degree of controversy and publicity.
Notably, a lot of negative feeling was generated toward the previous Board of Directors.

In late October, as you are also undoubtedly aware, municipal elections took place in
Ontario and the resulting changes in those persons elected to serve in various
municipalities in Southwest Ontario were such that it was reasonable to assume that
those who serve on the NPCA's Board would likely be replaced by others appointed by
the Regions of Niagara, Hamilton, and Haldimand.

It was within this context that our client reports that, on Sunday November 25, 2018, he
was sent an email inviting him to an offsite meeting of the NPCA's Board, to be held on
November 28. Our client tells us that notice of the meeting was not posted online as
was normally the case. Mr. Brickell advises us that he attended the meeting but was

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advised that he could not enter the room where Board discussions were taking place.
He was told to wait and that he would be advised when his presence was needed. We
understand from our discussions with our client that, following an approximately 90
minute period when the Board presumably met, our client was invited to meet privately
with the NPCA's Board's Chair and Vice-Chair, along with Ms Ferrusi. Mr. Brickell
reports that he was advised by the Chair that he was being placed on administrative
leave (with pay) and that he was being asked to take twenty-four (24) hours to think
about his situation. The Vice-Chair, as we understand it, put the point more bluntly,
telling our client that he had to either resign or face a termination of employment for
alleged cause. Our client was provided with a copy of a letter that indicated that an
administrative leave was to commence: however, no grounds for the leave were
outlined.

We may not be at liberty to divulge what happened in the one week period following this
encounter, as some of what occurred next involved discussions surrounding our client's
potential departure. We can certainly state that at no point did the NPCA's Board resile
from its initial comments to the effect that our client faced a for cause termination if
some other arrangement could not be made. Suffice it to say that Mr. Brickell did not
ever resign his employment. He made his position and views clearly known himself and
through the assistance of the undersigned.

On December 6, 2018, we understand that the Niagara Regional Council met and that
one of its first items of business was to appoint new persons to sit on the NPCA Board
and to replace those persons who had hitherto been members of that Board. By all
accounts, shortly thereafter, the undersigned received an email from a lawyer (at
precisely 5:53 pm) informing the undersigned that Mr. Brickell's employment was
terminated for cause and that some sort of letter confirming same would be sent in
future. No such letter has been sent to Mr. Brickell or the undersigned: we have
certainly received no such letter, and nor has Mr. Brickell.

In the circumstances, there appears to be no doubt that persons associated with the
NPCA's previous Board of Directors directed the termination of our client's employment
at some point in time after they had ceased being members of the NPCA Board and
after others had been duly appointed to take their place.

On reviewing the Conservation Authorities Act of Ontario, we observe that, in the

ordinary course, when a former Board is replaced at the end of their mandate, the old
Board continues to wield power and authority until the new Board meets for the first
time: see s. 14(4.1)-(4.2) of that statute. Thus, had the old Board been replaced at the
end of their mandate, it may be the case that, at 5:53 pm on December 6, they could
still terminate our client's authority, as the new Board would not have taken over by then
given that a meeting of the new Board would not have, by 5:53pm, taken place. Our
client advises us that the NPCA's previous Board (or at least the majority of its
members, those appointed by Niagara Regional Council) was replaced at some point
shortly before the end of their term. According to s. 14(4.3) of the same Act, when this

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takes place, ss. 14.(4.1)-(4.2) play no role: s. 14(4.3) operates notwithstanding sub-ss.
(4.1) and (4.2). This is no doubt the case because, when elected officials on the
Regional Council choose to replace a Board member mid-term, they intend that Board
member to take over the governance of the NPCA immediately. It would defeat the
purpose of this immediate replacement power - one no doubt used when there is
dissatisfaction with an existing Board - if the offending Board still wielded some
authority.

Based on this review of the Act, the old Board's actions at 5:53 pm were made without
lawful authority. The old Board could not exercise a power of termination because they
had no authority over the NPCA. We observe that the Act otherwise indicates that the
employment of persons by the NPCA is something that is given to the NPCA by statute.
Once a statutory power of governance was taken away, it followed that a statutory
power's exercise through termination of the CAO could not be so exercised.

We have told our client that he may need to consider taking legal steps to quash the
NPCA's or its Board's decision or purported decision terminating his employment. We
are however mindful of the fact that those who appointed the NPCA's new Board may
not be fully apprised of the facts and, on learning of same, may be in a better position to
remedy the problem without having to compel our client to take legal action. Our client's
request is a simple one: he requests reinstatement without delay and that any
compensation taken away from him after December 7, 2018 be restored retroactively.
Given that the NPCA and/or its former Board have taken steps to announce an interim
CAO appointee, it may behoove Regional Council to move with all available speed to
remedy the problem.

The undersigned is available to discuss the contents of this letter.

Yours very truly,

CAVALLUZZO LLP

Stephen J. Moreau
SM/cf

cc.
Misty Ferrusi, Niagara Peninsula Conservation Authority (via EMAIL)
Mark Brickell (via EMAIL)

{Letter to Niagara Regional Counsil (Draft) (C2420564-2xA0E3A).1}