Does the OPFFA need to disclose their legal expenses, and how they intend to cover the costs?
Question: Does the OPFFA have a duty to disclose the cost of the legal fees incurred for their legal action against Paul Atkinson and Colin Grieve? Do WE, THE MEMBERS, just sit back and wait to be slammed with thousands of dollars worth of special assessments months or years later to cover those fees. How we members protect ourselves from something like this?
Answer: WE, THE MEMBERS, should never sit back and wait to be slammed with assessments. The board has a duty to be transparent and to provide us members with certain information, and us members have a corresponding duty to regularly request all that the law entitles us to have.
So far, the OPFFA have not released a dollar figure on the costs of this legal battle, for some reason they’ve been very tight lipped about it. However, according to obtained OPFFA balance sheets from two of the last four years, it’s well in excess of $500,000.00 and perhaps over $1,000,000.00. Where is this money coming from? Mr. Agarwal, the OPFFA lawyer, does not work Pro Bono, nor on contingency, so how exactly is he being paid. Has the membership considered where this money is coming from, and at what sacrifice? The answer is, the OPFFA is robbing Peter to pay Paul. The OPFFA is literally robbing money from its Occupational Disease fund to pay Mr. Agarwal. They are perpetrating the very same crime that they are accusing Mr.Atkinson and Mr.Grieve of doing.
There are strict rules outlining how the occupational disease fund can be used. At the 2004 convention the founding document of the Occupational Disease fund was created, known as Executive Board Recommendation “D”. At that time the fund was referred to as the RCCF (Retirees Cancer Claim Fund). This founding document states “The RCCF may be utilized, when feasible, to assist with research, education, lobbying, and the pursuit of other occupational disease claims as determined by the executive board under advisement of the WSIB committee “. Nowhere does it state that the fund can be used to pay for a lawsuit, much less, a prolonged and frivolous lawsuit which is leading nowhere. Even the newly amended OPFFA “Agreement to Represent”, which is the contract between the OPFFA and Worker/ Retiree/Surviving Spouse/ or Estate, states that the donations to the RCCF are to address the OPFFA’s costs in providing retirees and surviving spouses with WSIB/WSIAT representation. This is a legal binding contract, which clearly states, amongst other things, how the donations to the OD fund will be used. Again, it does not state that it can be used for litigation costs. As of today, the balance in the OD fund is zero dollars. The OPFFA has stolen the entirety of these donations. But the OD fund is not only comprised of donations from grateful families, it is also funded by donations from us, OPFFA members, known as “Per Capita”. Every one of us members, roughly 11,000 firefighters, contributes just over $12 per month to the OD fund.
At the beginning of fiscal year 2015 the OD fund had a balance of $130,689.52. Through 2015-2016, donations brought in approximately $76,000.00, and the Per Capita brought in approximately $131,000.00. OD expenses totalled approximately $292,000.00, of that, legal fees accounted for $215,701.03. The fund ran a deficit that fiscal year and dropped from $130,689.52 down to $45,998.24.
This was the beginning of the demise of the OD fund. If any member can locate the OPFFA balance sheets for 2016/2017 (and the 2018/2019 which should be prepared soon) please post it here on this site. For some reason, the OPFFA Executive will not give us balance sheets when we request them, even though it’s the legal right of every one of us to obtain these financial records.
We know from the 2017/2018 balance sheet the fiscal year started with a zero balance in the fund, which means year 2016/2017 ran a deficit. In 2017/2018, donations were approximately $148,000.00 and the Per Capita was approximately $92,000.00. OD expenses totalled approximately $311,000.00, of that, legal fees accounted for $230,192.67. The year ended with another deficit of $71,622.32. As of May 31, 2018, the OD fund had a balance of $0.
So, in the two fiscal years, 2015/2016 and 2017/2018, the OPFFA spent between $400,000.00 – $500,000.00 on this lawsuit. However, it’s uncertain what they spent in 2016/2017, and 2018/2019. But if it’s like the other years it would imply the OPFFA have robbed the OD fund of close to a million dollars, or even more. These are dollars donated from Widows and Surviving families, and contributions taken from our paycheques. I don’t think the widows intended for their donations to be wasted like this. Most of them would be horrified knowing that their donations were being spent to finance a lawsuit against the very men that saved them from financial ruin. And we members should all be enraged that our contributions are not being used to Lobby the WSIB to cover more types of cancers.
And it gets worse, not only are the OPFFA misusing and bankrupting the OD fund, but what happens if the OPFFA loses this lawsuit after slandering and defaming Atkinson and Grieve? Obviously, Atkinson and Grieve will countersue. When this happens how will the OPFFA pay to defend themselves, and how will the OPFFA pay the award to Atkinson and Grieve? Perhaps you haven’t thought about this scenario but let me tell you the OPFFA has.
As of 1999, not for profit (non charitable corporations) are permitted to indemnify officers as well as directors for all costs incurred for legal proceedings related to the performance of their duties. They are also able to purchase liability insurance if they meet the requirements of the Corporations Act. Indemnity is defined by Black’s Law Dictionary as “a duty to make good any loss, damage, or liability incurred by another. How does this relate to the OPFFA and us members? Back in 2016, March 17th to be exact, at the OPFFA convention, the delegates voted to indemnify the current and past Executive, as well as those authorized to perform work on behalf of the OPFFA. The OPFFA mistakenly commenced this lawsuit without purchasing liability insurance, so the only thing left to protect themselves is indemnification. What exactly does that mean? It means that we, the membership, will be assessed for all the OPFFA’s costs. We, 11,000 members, will bare the entire cost of the countersuit. This will be millions of dollars divided amongst you 11,000 members. Do a quick calculation, start with six million dollars and work up from there. Does that seem too high to you? Keep in mind that Atkinson’s and Grieve’s corporations have been irreparably damaged. These two men were awarded The Queen’s Diamond Jubilee for their 20 years of advocating for WSIB benefits for occupational disease, not only for firefighters, but all workers across Canada. How much was that worth when they marketed their corporations? Six million is nothing, so be prepared to open your wallets. All because of a personal vendetta started by Carmen Santoro and carried on by Rob Hyndman.
The OPFFA is already collecting money from our paycheques to go towards this indemnification, approximately $1 per month. And believe it or not, the OPFFA Executive had the audacity to try and pass “Recommendation B “at the 20th Annual convention. “Recommendation B” was eventually voted down. Rob Hyndman and the Executive wanted a special assessment of $50 per member for the fiscal year 2017/2018 to help pay for current legal costs. The fact that Hyndman’s assessment recommendation was voted down shows that the delegates are not interested in funding this lawsuit. However, the indemnification recommendation was voted through back in 2016, so one way or another the membership will be covering the cost. In fact, in court documents Hyndman states “Representative action would promote access to justice by spreading the cost of the proceedings across the OPFFA membership rather than placing it upon the shoulders of individual plaintiffs (Santoro, Hyndman, and the rest of the Executive Board) “. Court documents also show that Rob Hyndman strongly disagreed with the suggestion of a law clerk that the OPFFA had insufficient assets to pay the costs of the defendants. From that we can see that Hyndman was cautioned that the OPFFA did not have the necessary funds to continue this legal battle. But that didn’t phase Hyndman at all, he couldn’t care less about bankrupting the OD Fund to pay for his civil suit, and he knew us members would be paying the counter suit bill due to the indemnification policy.
We members need to know that at this stage in the lawsuit we are completely carrying the costs. There are no more donations coming into the OD fund. The OPFFA can no longer steal from the fund, it’s empty. All the cancer claims have been adjudicated. The Lung cancer claims are finished. In 2018 there was only one penile claim awarded to a deceased firefighter who was not an OPFFA member, therefore there was no income to the OD. The only cancers left are those pertaining to female firefighters and it’ll be many years before the OPFFA can make an income off those cancers. And that is exactly how the OPFFA regards these claims, they see it as income. So, if the OD Fund has a zero balance and all the cancer claims have dried up, where then is the income to fight this lawsuit coming from. The answer is clear only from us members.