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Justice David Orsborn rules town didn't have enough evidence against Ellen Butler
The province's Supreme Court has rejected a civil claim by the Town of Brent's Cove against its former longtime clerk, who has been criminally charged with defrauding the community of more than $57,000.
Justice David Orsborn determined the town didn't have reliable enough evidence to prove Ellen Butler had stolen the money in question, and dismissed the lawsuit.
Butler, who was clerk for Brent's Cove, on the Baie Verte Peninsula, for more than 20 years, is still facing criminal charges of fraud and forgery in provincial court in Grand Falls-Windsor.
The Brent's Cove town council alleged Butler had stolen a total of $57,479, which was discovered in 2015 after residents complained their tax invoices were wrong. About 180 people live in Brent's Cove, and the court heard that 70 to 80 per cent of them had complained of not receiving credit for money they had already paid.
As town clerk, Butler's job responsibilities included collecting, recording and depositing payments of municipal taxes. The town's bookkeeping system was on paper, with receipts from numbered receipt books and the recording of payments in a ledger.
Butler was terminated and Scott Corbett became the new town manager in July 2015. Because of the complaints, the town asked him to examine its records.
Corbett told the court he had sorted the receipts and made an electronic ledger, then compared it to the handwritten ledger. He found four receipt books had not been credited to the residents' accounts, nor were the funds noted in those books deposited in the town's bank account.
The town then made an insurance claim — which was limited to $50,000 — and a forensic audit was commissioned.
Butler, who represented herself in court, didn't add much clarity to the situation with her testimony, Orsborn noted, since she directed much of it at her perceived issues with members of the town council. She told the court she mistakenly recorded some receipts in the wrong book, and ended up with duplicate receipts after she had attempted to correct the mistake.
"Well, as for stealing, I'm not going to say I didn't, but it had to do again with council," Butler told the judge directly at one point. "I mean, I was threatened with my job if I didn't do certain things."
Butler spoke of members of council being "out to get" her and attempting to force her to leave her job.
"I was threatened and stalked and in fear of my job if I didn't do what they wanted," she said at another point, on cross-examination.
"I'm not saying it's not missing, but it's not me that took it," she said in response to another question.
Orsborn noted a number of discrepancies in the town's calculations and other variances he said didn't make sense. He found at least 15 instances where a receipt included in the claim matched with a payment in the ledger. Corbett hadn't provided an explanation, he said.
There were other questions related to claims based on undated receipts, the judge said. All in all, it cast a shadow on the town's claim that none of the amounts in question had been recorded or received.
"While superficially impressive in its detail and format, I do not consider the claims schedule to represent reliable support for the town's claim," Orsborn said.
Orsborn said while Corbett had spoken of complaints from residents who had receipts to prove their payments, none of those residents gave evidence to the court. There had also been nothing to support the town's assertion that some residents had actually paid more than they owed for the time period in question.
"I would have expected that the question would have been anticipated and that evidence would have been produced of records of individual accounts receivable showing annual charges, periodic balances and payments or lack thereof," the judge said.
To put it shortly, unreliable records and reports cannot support a claim of theft in excess of $57,000, the judge said.
"Viewing all of the evidence as a whole, it is not sufficiently clear, convincing and cogent to satisfy me that, on a balance of probabilities, Ms. Butler stole money from the town," Orsborn said, calling the town's claim "aspirational" at best and dismissing the claim.
Butler has filed a counter-claim for damages resulting from her wrongful dismissal and harassment by certain town councillors. Orsborn ordered that claim to be transferred in Grand Falls-Windsor.