Court dismisses Richards' appeal

By Heather Latter
Fort Frances Times

An appeal made by former sales barn manager Russel Richards was dismissed by the Ontario Court of Appeal last month, agreeing with the judge’s decision to dismiss his original claim at a Dec. 29, 2010 trial.
Richards had raised two grounds of appeal after losing a suit against the Rainy River Cattleman’s Association for damages for breach of a written contract for services.
“We’re relieved it is over and done with,” said current RRCA president Murray McDonald, noting the issue has been going on for nearly five years.
Richards, who served as the sales barn manager from 1997-2007, had a fixed-term contract that ran until 2010. But the RRCA terminated the contract by notice in writing on May 21, 2007.
Upon suing the RRCA for breach of contract, certain board members counter-claimed against Richards for slander.
The trial judge, Justice D.C. Shaw, dismissed Richards’ action on the basis of his conclusion that Richards’ conduct, most significantly the conduct surrounding his behaviour towards the RRCA’s president, amounted to a repudiation of the parties’ contract.
The trial judge allowed the counter-claim for slander and awarded modest damages to Ken McKinnon, the president and a director of the RRCA at the time, and fellow director Amos Brielmann.
Richards did not appeal this aspect of the trial judge’s decision.
He did, however, argue the trial judge failed to consider the misconduct in context and the proportionality of the sanction imposed.
“The trial judge properly identified the appellant’s misconduct, considered the
surrounding circumstances, and decided that his termination was warranted,” Judge of Appeal, S.E. Lang, noted in his analysis.
“I would not give effect to this ground of appeal.”
Richards’ second grounds for appeal was that the trial judge failed to consider the RRCA’s duty to warn.
“The appellant is correct that the trial judge did not separately address this issue,” Lang wrote.
“In my view, that is because the issue was not contentious,” he argued. “If the Association was entitled to dismiss the appellant for repudiation of the contract, the appellant was not entitled to warning.
“The contract was at an end.”
Lang indicated the trial judge knew there was a duty to warn in certain circumstances, but found Richards’ termination “was of a different class.”
“It was an outright refusal to work with the president of this small organization,” he remarked. “Working with the president was an essential part of the job.”
Lang said another essential part of the job was not to make unsupported allegations about the president and the secretary-treasurer stealing and manipulating the books.
The report noted in 2006-07, Richards was resistant to changes implemented by the board on the way cattle sales were handled.
These changes included holding cheques payable to the consignors of the cattle until after the buyers’ cheques had cleared the RRCA’s bank account, implementing the use of radio frequency identification tags, charging higher tagging fees, and keeping permanent log books recording the particulars of buyers and sellers.
There were several allegations made by the RRCA regarding Richards’ management work, but the trial judge concluded the specific incidents were insufficient to justify the appellant’s termination.
However, the trial judge did take notice of Richards’ behaviour, including his refusal to work with the president.
The trial judge observed that, on Feb. 1, 2007, the day that McKinnon resumed the chair as president, Richards delivered to the board a list of complaints, including his written statement that if McKinnon were the president, he would “NOT” deal with him.
Richards explained his inability to work with McKinnon on the basis that the president had tried to start a fight with him in 2006.
But McKinnon testified Richards was the one who tried to start a fight.
The trial judge concluded he preferred the evidence of McKinnon on this point, comparing the “loud, often rude, and excitable” Richards with the “quieter, calmer, more understated” McKinnon.
The trial judge also observed that the appellant’s conduct went “well beyond” one instance of defiance, behaving in a generally hostile and aggressive manner at the board meetings and repeatedly referring to the president and secretary-treasurer using extremely derogatory descriptors.
The trial judge concluded that Richards’ “conduct went well beyond any reasonable boundaries and amounted to repudiation of his contract.”
Lang, with agreement by Judges of Appeal G.J. Epstein and Alexandra Hoy, agreed with the decision by the trial judge and dismissed Richards’ appeal, awarding the RRCA $10,000.
“We’re ready to move onto more positive things,” said McDonald, noting the RRCA, up until the end of March, had accrued $128,000 in legal fees.
As of this year, Phillip Krahn is the new sales barn manager and McDonald said they will concentrate on improvements at the sales barn in Stratton.
“We just want to provide a good local sale for the area producers to bring their cattle, if they so choose,” he remarked, adding with the legal issues looming over them, it was difficult to wonder what the future held.
“With it behind us, we can concentrate on the future and better things,” he reasoned.