Court orders city government to lift ‘nasty and wrong’ ban on contractor

Total provision award of $511,000 handed out to city contractor

Court orders city government to lift ‘nasty and wrong’ ban on contractor

The Winnipeg government must lift the bans it imposed on a city contractor dating back to 2017 as the decision to disallow him to do work with the government was based on “nasty and wrong assumptions,” a judge ruled.

In the case of Daniel Polishuk and The City of Winnipeg, the worker sought to make the employer pay $381,000 for past loss, plus a management fee, and future loss to age 75 of $433,000, plus a management fee, or about $40,000 per year going forward from the end of trial (exclusive of adjustments for discount rate and other factors).

These amounts result from Polishuk’s inability to do work for the government because of the bans imposed on him even though he had been a contracted machine operator for the city for about 18 years prior to the bans.

The counsel representing Polishuk also asked for aggravated and punitive damages, especially considering the falsehoods spread in the underlying stories related to the bans.

Meanwhile, the city government said damages should not go past the end of the trial. It said Polischuk fully mitigated his loss by sometime in 2022 and that should continue. Past losses were pegged at $281,000.

However, the judge decided that the total provisional award would be $511,000.

“Given this relatively moderate quantum, and current investment opportunities that may approach stock or bond market returns after fees, I decline to grant investment management fees,” wrote Manitoba Court of King's Bench Justice Chris Martin in the decision.

Abe Wiebe, of the Public Works Department, was the city’s contract administrator for the Schultz Transfer contracts. He issued the ban on Polischuk following allegations from workers.

“I do not accept Mr. Wiebe intended to cause Mr. Polischuk economic harm per se. Despite finding Mr. Wiebe was not justified in the bans, subjectively, he acted in what he considered to be the best interests of the City. He did not act with malice or even ill-will towards Mr. Polischuk,” said Martin.

Previously, a store manager in Quebec won a wrongful dismissal case he filed after being let go following parental leave.

Lift bans on contractor, judge tells Winnipeg

The Winnipeg government must also lift the bans imposed on Polischuk, “particularly as most of the City employees involved have moved on,” said Martin.

“It is the only right way to make amends. Doing so would enable an opportunity for Mr. Polischuk to take on city work. I trust the City’s counsel will ensure appropriate City personnel are made aware of my assessment of this situation.”

The saga of Mr. Polischuk’s removal from city work started on the last day of March and into April 2017.

On March 31, 2017, Tim Evinger, supervisor of water repair crews, instructed a foreman to directly address Polischuk for being out of his backhoe while not wearing proper safety equipment. Evinger then wrote a formal incident report. He noted that Polischuk made a rude comment to the foreman, which Polischuk denied, although he contended he was wearing proper safety equipment.

That same day, an issue arose about Polischuk’s willingness to help another crew, as well as the crew to which he was assigned. Though it became a concern for Evinger, by the end of the workday he realized the true situation.

“On the evidence, this incident was a petty misunderstanding between personnel at the site; Mr. Polischuk did not misconduct himself in any way. Nonetheless, I find Mr. Evinger harbored blame with Mr. Polischuk for some of the incident,” reported Martin.

One female worker also claimed she was offended by Polischuk’s comments, and Polischuk denied making such comments.

Polischuk was also accused of “attempted theft” by trying to get a load of mud without prior authorization. 

“I accept Mr. Polischuk’s evidence unequivocally; he was not trying to steal anything but rather was proactively requesting mud that would be needed to backfill the excavated hole on the project he had been working on. The fact he was not asked to get mud by a Wastewater employee is a red herring. It was reasonable for him to expect that ultimately, he would be asked to get mud. Moreover, clean mud had no value, and he had no other use for it,” wrote Martin.

“Mr. Polischuk did not lie to the backhoe operator and was not trespassing. Mr. Evinger jumped to nasty and wrong assumptions.”

Martin concluded that Polischuk “was not dealt with fairly and his bans were neither well-grounded nor just”.

“Considering the facts I have found, the City should act honourably and voluntarily lift both bans, particularly as most of the City employees involved have moved on. It is the only right way to make amends. Doing so would enable an opportunity for Mr. Polischuk to take-on City work. I trust the City’s counsel will ensure appropriate City personnel are made aware of my assessment of this situation.”

In 2023, a hotel manager was awarded $15,000 in moral damages plus other compensation for a termination he said was done in bad faith and that put his family in a vulnerable position, causing stress.

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