Whitehorse resident Andrew Schaer and the territorial government were in Yukon Supreme Court Thursday pursuing legal action against each other, with Justice Leigh Gower presiding.

Schaer is seeking a judicial review of his dismissal from a government job last year.

The government is looking to file a permanent injunction against him for secretly recording conversations between himself and his superiors, co-workers and clients. Both matters were dealt with at the same time.

Schaer was first hired as a senior business developer on May 10, 2017 by the
 Department of Economic Development.

His employment was terminated on Nov. 8, 2017, five days after he complained that he’d faced discrimination in the workplace.

The job was subject to a six-month probation. At the end of that period, it was extended to another six months, based on complaints against Schaer.

The government alleged that he was aggressive in his dealings with clients and co-workers, and talked over people during meetings.

Schaer said he was the victim of bullying, systemic abuse, harassment and intimidation based on his first language being French, his Baptist faith and First Nations family ancestry.

The alleged religious discrimination took place on June 27, 2017.

Schaer said his supervisor, Eddie Rideout, was going over reports with him, and Rideout had repeatedly taken the Lord’s name in vain.

Schaer, a practising Baptist, felt uncomfortable, and said it was intentional blasphemy to antagonize him.

Gower asked if Rideout knew Schaer had deep religious convictions. Schaer said Rideout should have, explaining that he would take his lunch at his desk every day and say a prayer before eating.

The alleged language discrimination occurred when he was speaking French on the phone and a co-worker allegedly told him to “take that French s--- someplace else.” This took place on Oct. 16, 2017.

Schaer reported that co-workers would say disparaging comments about First Nations, pointing to two instances.

In one, a co-worker said First Nations’ self-determination was “bull s---.”

The second was an implication that graduation rates for First Nations adolescents were so low that it would be better to mail diplomas to First Nations students than have them attend classes.

Schaer told the court he found this egregious because his father is Métis, while Schaer himself does not have status. He felt that none of this behaviour was becoming for a government workplace.

On being aggressive and talking over people, Schaer said Rideout has tried to revise history.

He pointed to a June 20, 2017 email where Rideout said Schaer was perceived to be aggressive during idea generation sessions. He felt that was ironic.

“You kind of want to be aggressive on idea generation,” Schaer said.

He also pointed to the November 2017 meeting where he found out his probation would be extended.

He said Rideout admitted that the complaints of aggression were inaccurate, and added that he has this conversation on tape.

When the probation was extended, Schaer received a letter from Steven Rose, the assistant deputy minister of corporate planning and economic policy, notifying him that they would have a meeting.

During that encounter, Schaer said, he was given no information on areas of his performance that were concerning.

He told the court he was not notified about what the government expected of him at the job and was not told how he could improve.

He added that these are all topics that need to be addressed as per the collective agreement before a probation can be extended.

“None of it was done,” he said.

As for the secret recordings, Schaer said he felt he needed to do this when he was told his job wouldn’t last long because he was a liability.

He said that comment bothered him, adding he had brought all the complaints forward about disparaging comments to Rose, once he was told his probation would be extended. He said Rose took the complaints but did not raise any further conversation.

Schaer explained that he didn’t want to rock the boat at that time. He was willing to work past this as long as the issues were dealt with, and felt the only actions taken were to protect Rose.

“They’re only concerned about protecting the (assistant deputy) minister from bad press,” Schaer said.

He is seeking a judicial review because he is arguing that he was fired for a disciplinary reason, the recordings, and the government tried to disguise the termination as a probational release.

He pointed to a Nov. 9, 2017 email chain where the human resources director said it was disciplinary. He added that no one at the government ever asked to hear the recordings so the discrimination could be addressed.

He felt this was a textbook example of the government acting in bad faith because it denied him a right for a grievance through the Yukon Employees’ Union or any other recourse.

Schaer continued that his recordings prove his claims, and he was happy to play them.

Gower said the recording should have been filed as evidence before the hearing. Had they been filed, he said, he could have listened to them.

Schaer said the information had already been sworn in and that already proved his case.

The recordings were played during the case management conference. He argued that he did his job making the proper officials aware of the information and he can’t help it if they don’t ask to hear the recordings.

Ian Fraser, the lawyer representing the government, said there is little diversion between the government’s position and Schaer’s.

Fraser argued that Schaer took the issue of his performance and the allegations of discrimination and mashed them into a big ball, when those are two separate issues.

“That is the difference of perspective in this case,” Fraser said.

He pointed to the affidavit of Justin Ferbey, Economic Development’s deputy minister. It showed that Schaer’s complaints were fully investigated and addressed to Ferbey’s satisfaction.

Moving to the recordings, Fraser said this negatively impacted morale in that workplace.

Schaer’s relationships with co-workers and clients suffered once they realized they were being secretly recorded. They felt Schaer could not be trusted, and the government feels he shared confidential information.

“That’s what happened here,” Fraser said.

Schaer’s probation was extended because the government felt it had not exhausted all options to resolve his performance.

The government felt the first six months were inconclusive in determining if Schaer was a good fit and thus wanted more time to make a decision, court was told.

That being said, the issues were severe enough to not make Schaer a permanent employee.

Officials knew there were issues and decided to put a plan in place to address Schaer’s aggressive behaviour and talking over people.

It was at this point that Schaer came forward with the secret recordings and said people like Rideout were conspiring against him.

Schaer repeatedly denied having any issues with his performance, even though he was offered a meeting to deal with concerns but refused.

Gower asked that since there was clear friction between Schaer and Rideout, why someone else was not appointed to conduct a performance review. Fraser said the government possibly would have, but Schaer refused to meet.

Fraser argued that Schaer tried to leverage his recordings to gain a permanent job.

He felt this demonstrated questionable conduct.

Rose told Schaer that they were in the middle of his probation extension, and that decision would not be reconsidered. Rose indicated he would not raise the issue of discrimination but said Schaer could if he chooses.

Gower asked if Rose had an obligation to raise the issue of discrimination. Fraser said he would have if a complaint was actually made arguing that all Schaer did was try to leverage for a job.

Fraser further argued that Schaer didn’t come forward right away when the disparaging comments were first made. He believes Schaer decided to record people secretly and wait until he could use the recordings to advance his own ambition.

“That secret recording was poison,” Fraser said.

This was compounded when the recordings were released publicly, with Yukon College being sent copies.

Fraser pointed out that an employment termination during probation is not the same thing as terminating a permanent employee.

Fairness is not an issue when it comes to a termination during probation. All the employer needs is a legitimate performance concern.

Gower asked how fairness could not be a factor, to which Fraser answered that the onus is on the employee to demonstrate that he or she is a good fit for the job.

Gower said that felt strange to him. Fraser said a probation’s purpose is to determine if an employer likes a new hire, and said an employer and employee can end up with different ideas on how a probation went.

He argued that does equate to bad faith if an employer fires the employee during probation.

Fraser felt the only way to properly address the issue of breaking confidentiality was to proceed with the injunction.

He asked Gower to strike the petition because Schaer’s termination was demonstrably a release on probation. Schaer was given a chance to respond, and said he felt Fraser’s argument of perspective was purely government spin.

He continued that first-party consent is legal for the recordings.

He pointed out that at no point did Fraser or anyone in the government provide a statute, a law or any rule to say the recordings were not legal.

Gower said he will reserve his decision to a later date.