Windsor files statement of defence in fired engineer’s $1.6M lawsuit

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The City of Windsor claims its former top engineer displayed “unsatisfactory competence” during his time at city hall in its response to a $1.55-million wrongful dismissal lawsuit.

In a statement of defence filed Tuesday and obtained by the Windsor Star, the city alleges Chris Nepszy, who was fired in November after nearly two years on the job, “repeatedly failed to meet expectations” associated with his position.

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The city also denies all allegations made against it in a statement of claim filed by Nepszy’s Toronto-based lawyer in March — allegations the city’s court document calls “sensationalized and spurious” and “deliberately inflammatory.”

The Star was unable on Wednesday to reach Nepszy’s lawyer, Howard Levitt, ahead of its mid-day print deadline.

As first reported by the Star, Nepszy’s statement of claim filed with Ontario Superior Court in Toronto alleged a “top-down culture of corruption” at city hall and cited orders from superiors to “keep the mayor happy at all costs.”

The statement of claim alleges Nepszy suffered “considerable mental distress” during his time at city hall, and claims he was pressured into the “misuse” of public funds.

Windsor Mayor Drew Dilkens terminated Nepszy and city solicitor Shelby Askin Hager in November in his first significant use of strong mayor legislation — changes to the Municipal Act enacted by Doug Ford’s Progressive Conservative government that gave some heads of council additional powers and duties.

According to the mayoral decision, Askin Hager’s dismissal resulted from an organizational restructuring, and Nepszy’s did not.

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All claims in the court documents are allegations and have not been proven in court.

The city’s statement of defence denies Nepszy’s “baseless allegations” of corruption, and of “‘illegal’, ‘immoral’, and ‘unethical’ conduct.”

The statement of defence claims that, during his tenure as commissioner of infrastructure services: “It was evident (Nepszy) did not have the requisite experience or skills necessary to fulfil his job duties.” He “demonstrated a general lack of engineering ability, including a lack of knowledge relating to road projects, sewer projects, and other essential projects under his purview,” the city claims.

The city alleges Nepszy “demonstrated an inability to effectively communicate with city leadership, city council, and other stakeholders, including a poor and/or an overall lack of responsiveness to emails, phone calls, and inquiries” — issues the city claims were brought to Nepszy’s attention by then-CAO Onorio Colucci, who offered Nepszy guidance during monthly one-on-one meetings.

The city alleges Nepszy “frequently complained about the volume and variety of projects under his purview and often appeared to be unprepared at meetings, including public meetings of city council, and even in instances where the subject matter was well known to him in advance.”

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The city alleges that Nepszy caused the city “embarrassment in its relationship with the provincial government” in an incident two months before his termination.

In September 2023, Nepszy is alleged to have told Dilkens, CAO Joe Mancina, and some staff that the city was out of sewer capacity in a proposed development area “and could not approve another development in that area for fear of causing basement flooding.” Nepszy allegedly indicated that “any solution to the issue would take years to implement and upwards of $38M to complete, and the city had no budget allocation for this.”

The news was “devastating, shocking, and completely unexpected,” the city claims. As a result, according to the defence statement, Dilkens raised the issue with senior provincial government officials in Toronto later that month.

Days after Dilkens’s meeting in Toronto, Nepszy allegedly called another meeting with the mayor and staff at city hall and, “in a complete reversal of his previous assessment, Nepszy declared that everything was okay with the area in question, and that all development could proceed without any additional funds or solutions.”

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The city alleges that Nepszy “showed no regard for the gravity of his mistake, the embarrassment he caused the city in its relationship with the provincial government, nor his complete lack of understanding of his responsibilities for the city’s sewage planning.”

The city denies that Nepszy’s termination resulted from reprisal and instead claims it was “based on the culmination of his continued and growing performance concerns and overall inability to adequately carry out his responsibilities.”

Nepszy’s lawsuit alleges he resisted participating in five “improprieties”:

• covering up costs associated with the Legacy Beacon streetcar project;

• including an unapproved street in an annual road rehabilitation program;

• not proceeding with approved infrastructure projects in one neighbourhood to “spite” the mayor’s political opponent;

• delaying reports for the mayor’s political advantage, something Nepszy claims he faced backlash for during public meetings; and:

• waiving parking fees for city councillors.

Nepszy’s lawsuit alleges he was “regularly subjected to aggressive behaviour and was threatened with consequences if he would not comply.”

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In response, the city claims in its own court filing that Nepszy’s “allegations of improprieties and ‘top-down corruption’ are baseless, without merit, and are in no way relevant to his claim for damages arising from his alleged wrongful dismissal by the city.”

The statement of defence denies the city made “any attempt to coerce (Nepszy) to participate in illegal conduct,” and denies that Nepszy was “subjected to aggressive or threatening behaviour.”

The city denies that CAO Colucci indicated Nepszy was “seen as ‘too close’” to former CAO Jason Reynar, whose employment was terminated by council in March of 2022 — another allegation from the lawsuit. The city also denies Colucci advised Nepszy “to focus on ‘appeasing the mayor and the mayor’s supporters,’ as alleged.”

The city “specifically denies that Mr. Colucci stated ‘keep the mayor happy at all costs and you won’t be a target’ as alleged,” the document said.

The city denies that councillors requested “favours” from Nepszy relating to “inappropriately voiding or waiving parking tickets.” It said the city has “discretion” to overturn or waive tickets if it’s “determined appropriate,” and denies that the city “and/or its agents used this discretion in a manner that was untoward or otherwise inappropriate.”

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The city denies that Nepszy was “coerced into breaching professional or ethical obligations to carry out favours for perceived mayoral supporter,” as alleged in the lawsuit. The statement of defence states Erskine Street — a road Ward 5 Coun. Ed Sleiman advocated to have repaired — was considered “now deficient” and its repair was ultimately approved by council.

“The city denies (Nepszy’s) insinuation that he was ‘forced to include Erskine Street on the proposed (road) repair list,’” the document said.

The city’s approved budget for road rehabilitation contains language that “specifically allows for the reallocation of approved budget funds to road repair and rehabilitation that may not be on that particular year’s list of approved projects,” the city’s court document said.

Regarding the allegation that Nepszy was pressured to breach approved council plans — namely an infrastructure project on Barrymore Lane in Coun. Fabio Costante’s Ward 2 — to “spite the mayor’s political opponent,” the city denies that, too.

The city’s court document claims Dilkens discussed the $4.4-million west-end sewer project with Nepszy “and inquired into the various available options that could be considered given the significant magnitude of the budget allocation.” That happened after Nepszy failed to respond to an email from the mayor on the topic, the city claims.

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“Nepszy made negative comments about Councilor (sic) Costante and expressed a desire to find an alternative sewer project instead of the Barrymore Lane project,” the city claims.

“At no time was (Nepszy) instructed by the mayor to not proceed with the Barrymore Lane project,” the city claims. Dilkens was “at no time … upset” by Nepszy’s ultimate statement that the project could not be removed from the pre-approved budget.

The city alleges that Nepszy “had a negative working relationship with Councilor Costante by this time” due to Nepszy’s “lack of responsiveness to (Costante’s) inquiries” about issues related to his ward and committees he chaired. The relationship “breakdown” was also allegedly due to Nepszy’s “obvious embarrassment following negative public backlash towards (Nepszy’s) decision to fully close Sandwich Street, located in (Costante’s) ward, for several months as part of the construction of the Gordie Howe Bridge,” something Costante advocated heavily against.

The city denies allegations that it “hid, or attempted to hide, the nature of costs” for the Legacy Beacon streetcar project, nor did it instruct staff “to remove internal costs.” It also denies it was “ever expressed or implied” that Nepszy “would not be seen as a ‘team player’ if he chose not to sign the reports” relating to the project.

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When costs associated with the streetcar project rose and council approved more funding, then-CAO Colucci allegedly offered to sign reports, “as he was involved in drafting the reports’ language and had significant historical knowledge of the project.” The city alleges Nepszy “insisted that he himself wanted to sign the subject reports.”

The city denies that Colucci apologized to Nepszy for “mishandling the situation,” as alleged in the lawsuit. The city claims Colucci’s apology related to a misunderstanding about who would be present at a meeting with Dilkens to discuss the project.

The city claims no reports were “manipulated or delayed for political advantage.” It denies that Dilkens forced Nepszy to delay the completion of reports or projects for political gain, including projects on Wyandotte Street Eat and Jarvis Avenue noted in the lawsuit.

In its court document, the city claims that “any reprimand (Nepszy) received in standing committee meetings and/or council meetings were the result of his own apparent unpreparedness and lack of knowledge regarding the projects under his purview.

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“Any alleged reputational damage (Nepszy) incurred was his own doing for failing to perform his employment duties in a prepared and competent manner.”

Before his employment with the city, Nepszy worked for the Town of Essex for about 14 years, most recently as the town’s chief administrative officer.

Although Nepszy’s statement of claim alleges he was “heavily” recruited by a consultant the city hired to find a new commissioner of infrastructure and “pressured” to leave his job with the town, the city denies this. The city claims Nepszy followed the “same application process as numerous other applicants” after being identified by the consultant as a potential qualified candidate.

“Having previously operated in a smaller municipal environment, specifically the Town of Essex, it became clear that (Nepszy) lacked the skillset to make the transition to a larger, more complex organization,” the city alleges.

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The city denies that Nepszy has suffered any damages for which the city is liable. It also denies that Dilkens suggested Nepszy was incompetent in a media interview after his termination.

“At no time did the city act in a way that was high-handed, callous, or meant to embarrass (Nepszy) during his employment or in the manner of his dismissal,” the city’s document said.

tcampbell@postmedia.com

twitter.com/wstarcampbell

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