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Hospitality funds released in ongoing lawsuit

Nearly $70,000 of funds was released from court to the Penticton Hospitality Association.

Nearly $70,000 of funds was released from court to the Penticton Hospitality Association (PHA) as a lawsuit between the association and a former employee continues.

A judge garnished about $73,000 from the PHA earlier this year, holding the funds in trust pending the decision in a lawsuit filed by former director of operations for the association Tim Hodgkinson over unpaid wages and wrongful termination. Master Steven Wilson made the judgment on April 7 in Kelowna, according to court documents released online, where he determined that $69,120 of the $73,850.60 previously paid into the court by the PHA be returned.

The PHA successfully applied to have the pre-judgment garnishing order, issued on Nov. 27, 2015, rescinded.

Barb Haynes, president of the PHA, said the funds are to be returned roughly within three weeks time.

“We felt that it was unfairly garnished in the first place so we filed a rescind on it and we were awarded the reimbursement,” Haynes said.

The garnishment came from a lawsuit in which Hodgkinson alleges he is owed 18 months pay after he said he was wrongfully terminated on Sept. 21, 2015. Hodgkinson noted the initial garnishing order was extraordinary, as is referenced by Wilson in the judgment as well, however he said the return of the funds is the result of a technicality laid out in the complex judgment, not based on the strength of his case.

“It’s based on a technicality alone, it’s not really the strength of the case at all, it’s a technicality on how they calculate when they garnish funds. Funds that are garnished have to be designated as being calculable in a certain way. Whether it’s a dollar, one cent or $200,000,” Hodgkinson said.

Wilson notes in his judgment that the PHA “has not persuaded me that I should exercise my discretion to release the garnishment” pursuant to the Court Order Enforcement Act.

A remaining garnished amount of $4,320 stayed with the court, relating to an alleged 21 hours of work done by Hodgkinson in September which remains unpaid.

In the judgment, Wilson said the PHA is going to be arguing at trial that an administrative services agreement, signed by former president Rob Appleman, is not binding.

“(The PHA) says that the board of directors never approved the contract and two of the directors from the relevant time period have provided affidavits that they never saw the draft agreement; indeed one of them, Mr. Cucink, goes on to depose that he never would have agreed to it,” Wilson said in the judgement.

Hodgkinson alleges he negotiated the agreement with former president, Edward Brown - prior to his death in 2012, and that it was a frequent occurrence that the president of the PHA would bind the organization to contracts without board approval.

Haynes said the possibility of Tourism Penticton and the PHA merging is still underway, however she said it has no relation to the ongoing lawsuit.

“I think that we’ve got a lot of folks working hard on it and it’s a great opportunity for this community if we could actually be one group. I think we’re all hopeful,” Haynes said.

The judgment document notes a 14-day period where both parties can make further submissions, with the deadline of April 21.