The realities of Sport: The only win is the fair win

"The one thing I will say is that history in our sport will tell you that every time we see something, and I will put quotation marks around this, ‘unbelievable’, history shows us that it turns out later on there was doping involved" - John Leonard, Executive Director of the World Swimming Coaches Association

Over the years, "doping" - the use of performance-enhancing drugs or other treatments - has become recognized as a wide-spread problem in many sports.  Certain professional sports leagues are rife with it, and it has become a shadow which hangs over international sports competitions.  It used to be assumed that the best performances were the consequence of natural talent, dedication, hard work, and endless training.  Now, there's a tendency to jump to the conclusion that someone must have cheated.

The controversy surrounding Chinese gold medallist Ye Shiwen is an excellent example of this.  Smashing world records and Olympic records, she swam the 400 metre individual medley on Saturday in a time that beat her performance at the Worlds last year by 7 seconds.

7 seconds is a huge improvement.  To put it in perspective, the second place through eighth place finishers ranged from 2.83 to 7.19 seconds behind her.  A lot of media sources are speculating that she might be doping.  It's being remarked everywhere that her last 50 metres were completed faster than the last 50 metres of American gold medalist Ryan Lochte in the men's individual medley.  It has been remarked that, whenever something 'unbelievable' happens in international athletic competition, it's usually later revealed to be the result of doping.

Of course, she's also 16.  Is it that surprising to see marked changes in performance at that age?  And Ryan Lochte himself admitted that he may have pushed a little too hard at the beginning, suggesting that he was running out of gas at the finish, so yes, perhaps it makes sense that her final sprint was faster.  And there's nothing inherently suspicious about breaking world records.  We keep building our athletes stronger and faster - world records get broken all the time.

I prefer to give people the benefit of the doubt.  It has always seemed to me that real sportsmanship means being gracious in defeat, and people who argue that the winner must have cheated...well, it seems petty and small-minded.

That being said, I've had to eat those words before.  Ten years ago, at Salt Lake City, I remember watching an interview with Canadian skier Rebecca Scott, who finished third in her event.  She was a distant third, and in a tight race for third, and she was very proud of her accomplishment...but in her interview she clearly implied that she was the winner among those who played fair, that she was proud to have accomplished what she did without doping, and that the first- and second-place finishers had used performance-enhancing drugs.  Sounded like sour grapes to me.  Lo and behold, her bronze medal was eventually upgraded to gold, as the IOC concluded that the first- and second-place finishers had used performance-enhancing drugs, and stripped them of their medals.

Most athletes love sport, and yes, people are people, but in general one would think that most athletes would appreciate that, if you've cheated, your win is hollow.  If everyone cheats, the winner is just the most effective cheater.  If only you cheat, it means you haven't really defeated anyone at anything.  Cheating derogates the competition, and demeans the sport itself.

Nonetheless, professional athletes have bills to pay - often a lot of bills - and there is a great deal of pressure to succeed.  Doing your best isn't enough; you have to win.  Because a win means sponsorships, government funding, national pride.  A loss means that the accolades and the money go elsewhere, and when you've spent years and years training for a sport, your other options may be limited.

In Canada, nobody goes into sport for the money.  Not that Canadians never cheat, but it's relatively rare, because the stakes aren't all that high.  I know many athletes, even Olympic athletes, who never expected to get rich, or even to make back all their training and competing expenses.  The Olympians I know competed in sports in which Canada has never medalled, and they never really expected to change that.  They went out to play their best, because it was what they loved to do.  And most of them *always* knew and accepted that they would need to go to do something else when they grew up - i.e. hit the venerable old age of 30 and developed more joint problems than their grandparents.  A handful go into coaching, but many retired Canadian athletes become professionals in some other field - lawyers, doctors, bankers, etc.  In other words, in Canada, for most people, sport comes second.  If you can compete on the world stage, great, but you also need to go to school, get an education, become well-rounded.  In March I had a conversation with one of our athletes currently in London who explained that she plans to return to school full time in the fall to finish her degree.  (Incidentally, at the time she and her partner were in the middle of Olympic qualifiers, competing for a single Olympic berth in a tight race against another Canadian pair and an American pair.  However, to protect her government funding she had to break from international competition to play a domestic tournament, while her rivals continued to play international competitions.)

That doesn't mean that there's no pressure.  Nobody likes to lose, especially if that means they may not be able to continue doing what they love.  So a competitive athlete getting Federal funding might be playing a 'make or break' match for their funding in the national championship - if you lose, you'll lose your funding, and have to stop training and get a job.  Of course that's pressure.  But there are alternatives.

That is different from some other countries, including China, where they have a huge population - so large that they have significant depth to draw on - and are less concerned with health, safety, education, and well-roundedness.  If you're training to compete on a Chinese national team, you train to the point of breaking, because that's the only way onto the team.  If you aren't the best, you get cut.  If you become injured, there's someone who can replace you.  And then, because your education has been subordinated to your training, your options are limited.  Failure is simply not an option.

Of course, that has many of the same public policy concerns as doping - we don't want athletes to compromise their health for the sake of victory.  Sport is about promoting health, activity, and camaraderie - not about promoting self-injuring cutthroat competition.  But that's not the entire point here.

The point is that, when there's so much pressure to succeed, it is not surprising that many would turn to performance-enhancing drugs for that extra edge.  This remains so even with the risk of getting caught, because, no matter how seriously we take the problem and come down hard on those who are caught (long-term suspensions from competition, stripping of rewards, not to mention the stigma and international embarrassment), science is always developing to the point that people can be relied upon to try to build a better mouse.

While there are those who believe that China may be quietly helping its athletes to dope, I have real doubts about that.  It was a major scandal in the 90's when it was revealed that China's remarkable gains were the result of doping, and China is concerned enough with its international reputation that I would be quite surprised if they were taking anything other than a serious hardline approach to doping nowadays.  Still, the pressure remains for the individual athletes.

I want to believe that Ye Shiwen is clean and that her performance is nothing other than the stunning display of athletic achievement that the Olympics is meant to showcase.  I truly hope that, when we have the benefit of hindsight, her doubters and naysayers will have to eat their words from today.  I hope that she continues in her already-impressive career and, four years from now in Brazil, makes Saturday's performance look slow.

But the IOC's protestations that it is "very sad" that people would assume that cheating is going on...well, they're half right.  The true shame of it is that people have good reasons to expect to find cheating.  That people cannot necessarily be faulted for thinking so.  That John Leonard can seriously and honestly make the statement quoted above.

Can Your Employer Unfire You?

There is a new and very interesting case out of the Ontario Superior Court of Justice, Chevalier v. Active Tire & Auto Centre Inc..

As you may recall, Evans v. Teamsters involved a case of an employer terminating an employee, then offering him a fixed term contract to work through the notice period he demanded.  The Supreme Court concluded that his refusal to accept the job constituted a failure to mitigate, so his action failed.  This has had a lot of impact on constructive dismissal cases (i.e. 'Yes, you were constructively dismissed, but you should have stayed in the job anyways'), where there would not be an atmosphere of "hostility, embarassment, or humiliation".

Chevalier is along similar lines.  A manager had been in the job for 33 years, and, after Active Tire took over the workplace in 2007, it made several changes with which he was dissatisfied.  He experienced what he felt was harassment, was transferred to a new location (from Niagara Falls to St. Catharines), was required to work for a period of time in Toronto, and was required to do what he felt was demeaning work.

He was 'laid off' in the face of business difficulties (there were two managers on site, and it was decided that the location could only support one), and he immediately commenced legal action (two weeks after being dismissed).  Active Tire obtained legal advice, was advised that they were not entitled to lay him off (presumably there was no contractual right to do so), and they immediately apologized and offered him his job back.  He declined.

The employer denied having harassed him, and ultimately the judge accepted this, finding that Mr. Chevalier's recollection of events was "magnified and distorted" by his bitterness toward the company.  Active Tire's conduct was, according to the judge, directed toward making him "a more effective contributor as an employee".

The judge considered it relevant, but "not determinative" that Mr. Chevalier had already commenced legal action when recalled to work.

All things considered, the judge ruled, a "reasonable" person would have accepted the job and returned to work.  Accordingly, Mr. Chevalier's action was dismissed.

My Thoughts

The case law backs up the judge's analysis here, but I still question whether or not the result is in the right place here.

I'm not sure that the legal community in general fully appreciates how significant a step litigation is to the general public.  Suing somebody is a big deal.  Being sued is a big deal.  Very few people regard litigation as being simply business, from which they can detach any personal feelings.  Most people think of most commercial transactions as being in good faith, and few people will sign a contract if they expect to have to litigate it.

So I would argue that the fact that litigation has begun should be significant indeed.  (However, it is surprising that the litigation began so quickly in this case.  When I'm representing an employee and the employer has overstepped with something like a suspension or temporary layoff, I would normally start with a demand, putting them on notice of my client's position, and give them an opportunity to get their own legal advice on the point.  Sometimes, depending on the needs of the client, I throw a really slow pitch at first to encourage a recall.  Two weeks...well, it's really fast, and suggests to me that there may have been a "Gotcha!" aspect to the claim, trying to get the litigation moving before the employer could realize its mistake.)

There's also another dimension here.  On the findings of the trial judge, the employer's conduct prior to the termination was mostly within its rights, including disciplinary actions.  However, the layoff was not, and the fact that it followed other discipline - even justified discipline - may not be irrelevant to whether or not the layoff poisons the work environment.  If I discipline you, and then lay you off, the causal relationship is implied.  There may well be other legitimate business considerations at play, but at least the choice of who goes is probably being influenced by disciplinary history.  It sends a message.

This is especially so for a manager, being one of two managers.  It would undermine his authority with the staff, when the employer has clearly sent the message - to him and others - that they don't want him there anymore.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Stranger than Fiction: The Lori Douglas Inquiry

This is about as sordid as it gets in the Canadian legal environment.  I'm tempted to craft a clever and edgy title for this entry, but for some reason I feel compelled to treat it with a sort of grave respect.

For similar reasons, I'm not going to go into the details on facts.  Google "Lori Douglas inquiry" and you'll find plenty of news stories happy to go into all the graphic details.  All you'll get from me is this:

The Facts

This is a case of a woman in a position of great power and respect who has had very private personal images leaked into the public sphere.  In light of this, can she continue to exercise the responsibilities associated with her position?

Lori Douglas is a Manitoba judge who was appointed to the bench in 2005.  Prior to that, she was a lawyer, and practiced law together with her then-husband, Jack King.  One of King's clients, Chapman, has alleged that King and Douglas sexually harassed him - King directed Chapman to a website where he had posted several graphic sexual photographs of Douglas, and tried to entice him to have sex with Douglas.

The Canadian Judicial Council is now investigating whether or not she can continue to serve as a judge.

Allegations

There are four allegations of misconduct:

(1)  She was allegedly a party to the sexual harassment of Chapman;
(2)  In the judicial application process, there is a question "Is there anything in your past or present which could reflect negatively on yourself or the judiciary, and which should be disclosed?", to which Douglas answered "No" on December 17, 2004.
(3)  The photos themselves continue to be available on the internet, and "could be seen as inherently contrary to the image and concept of integrity of the judiciary, such that the confidence of individuals appearing before the judge, or of the public in its justice system, could be undermined."
(4)  There is also an allegation that Douglas misled independent counsel regarding a modification to a journal entry describing an encounter with Chapman.

Preliminary Reporting


The inquiry is ongoing, but the evidence thus far, as it has been reported in various news sources, suggests that the sexual harassment was King's idea, and that Douglas knew nothing or next-to-nothing about it.  The implication thus far appears to be that Douglas posed for the photos for King - which, despite their irregular content, is hard to criticize in the context of a spousal relationship - and that King posted the photos online without Douglas' knowledge or permission.

If she participated in the sexual harassment, all bets are off.  If she was complicit in the online publication of these photos, I also wouldn't feel too sorry for her.  But I'll proceed with my analysis on the assumption that King was, in fact, a rogue, as Douglas' defence is alleging.

My Thoughts


First, let's discard allegations 2 and 4.  Not to say that they wouldn't be serious, but they're allegations of covering up alleged wrongdoing.  If there was no wrongdoing, then a cover-up is both less likely and less serious.  Further, on allegation 2, there's a reasonable argument to be made that the question is overbroad in the first place, and that expecting somebody to disclose something that is inherently personal because of the prospect that it might become an issue in the future would require more specific questions.

On allegation 1, if Douglas' defence is right on the facts, that Douglas was not a party to the sexual harassment, then obviously she can't be held to account for that.

Allegation 3, however, is more troubling.

A third party posts compromising explicit images of her online, and so she can no longer sit on the bench, occupying a position of respect, power, and authority.  This is the nature of the allegation.

There are multiple sides to this argument.

The photos undermine the respect the community must hold for a Judge


The Toronto Star's Heather Mallick has made this argument relatively well:  "Mental images in the courtroom will do her in".  People will no longer see an authoritative figure in the robes, but rather will see the subject of those photographs.  How do you come back from that?  Will it undermine the respect lawyers must have for the bench?  Probably not - most lawyers, at least, should be professional enough to see past this...so to speak.

However, it may undermine the respect that parties have for the bench.  A judge comes to a conclusion and, subject to appeals on errors of law, their conclusion is essentially binding.  People respect that in large part because they respect the people on the bench.  Without that respect, will it undermine the respect that parties to litigation have to the judicial process?  If I am a criminal accused, how will I feel having somebody of whom I have seen pornographic images passing judgment on me?

Douglas is victim, not a wrongdoer, and should not be punished for being victimized


An analogy has been made to punishing a rape victim.  Mallick rightly objects to that comparison.  It's not on that level; the comparison demeans the physical assault suffered by rape victims.

But the point isn't wrong.  From the sounds of the case thus far, it seems that Douglas has done nothing wrong.  Posing for unusual sexual photos taken by her husband...well, it may not be a smart thing to do, but it isn't misconduct.  Nothing illegal, and really nothing that even offends any objectively reasonable social norms.  The husband posts them online...not illegal, socially inappropriate, but really not her fault, and very much a violation of her own privacy.  She permitted her husband to take compromising photographs, and now they're posted on the internet for the whole world to see.  That's simply offensive.

That being said, this argument in and of itself doesn't get me to the point of thinking that it should save her job.  Being a judge does require a solid reputation, among other things, and even though one may be innocent of the acts which tarnish one's reputation, that simply doesn't get around the problem.  The judiciary must be, and must be seen to be, above reproach.

Still, there's another issue here...

I'll ask the question:  Would we be so concerned if it were a man?


Irregular sexual conduct, and even sexual misconduct, involving men in positions of power and authority is common.  It doesn't undermine their authority.  The semen stain on Lewinsky's dress is a classic example of this.  Clinton cheated on his wife and had a sexual relationship with an intern - and even lied about it afterward - and not only kept his job, but is still regarded as having been a very effective and well-respected president.  A good husband, father, person?  Maybe not so much.  But a good president, absolutely.  Most people are able to make the distinction.

On the socially conservative right wing, family values are regarded as more important for public figures, and so sexual misconduct is often a bigger scandal.  Even then, though, it isn't fatal.  Consider "Vikileaks", in which details of Vic Toews' messy divorce were leaked on Twitter, including his affair with his babysitter, and the most controversial aspect of it was that they were Tweeted by a Liberal Parliamentary staffer (dirty politics) from a Parliamentary computer (which is, technically, a misuse of government property, albeit in the same way you're misusing your employer's property by checking your hotmail from your work computer).

The point is this:  With men, society has no significant difficulty separating their personal/sexual lives from their public/professional images.

A sex scandal involving a woman in power, however, raises questions as to whether or not she can continue to garner the respect required of her position.  So Douglas is at risk of being fired.

Firing a judge is something that has never happened in Canada.  The process is that the Canadian Judicial Congress recommends to Parliament that the judge be removed, then Parliament can vote on it.  Only twice in Canadian history has the CJC recommended a judge's removal, and both times the judge resigned in the face of that recommendation.  Once was the relatively recent case of Justice Paul Cosgrove (2009), after his complete bungling of a murder trial, finding 150 constitutional violations by the Crown (all of which were overturned on appeal), along with inappropriate and vocal criticisms of the police and Crown counsel and misuse of his contempt powers, threatening (without foundation) to hold witnesses in contempt, including the victim's son.  The other case was that of Jean Bienvenue (1996), following a series of highly inappropriate statements and actions in the course of a murder trial, including an inappropriate analogy to Auschwitz (calling the accused worse) and an allusion to gender stereotypes regarding criminality:  "But it has also been said, and this too I believe, that when [women] decide to degrade themselves, they sink to depths to which even the vilest man could not sink."  Combine that with an inappropriate comment to a reporter about her miniskirt, a comment to a juror that tissues are a women's best friend, and a private conversation with jurors, among other things, and his impartiality was enough in question for the CJC to recommend his removal.


In other words, those seeking to remove Douglas from the bench are seeking an extraordinary remedy, something done only in the most egregious cases of misconduct by a judge, and it is argued that conduct which is not (or may not be) in the least bit blameworthy demands the remedy.  And it is something that I can say with reasonable confidence would not be so argued but for her gender.

My final word is this:  Professional women have personal lives, too, and they are entitled to them.  To truly promote equality, we need to encourage the same kind of public disconnection from the personal scandals of women in power that we have established for men.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

You're fired! No, I quit!

Every so often, you run into a case where an employee was planning to leave anyways, but was fired first.  Or where an employer gives notice of termination, and the employee resigns before the notice runs out.

What happens in such a case?  Can an employee still sue for reasonable notice if he quits - or was planning to quit - before being fired?

Often, in such a scenario, the employee's rights will be limited.  Let's start with the first scenario, where an employee was planning to leave, but was fired first.

Scenario #1

Conceptually, in a usual wrongful dismissal action, an employee is entitled to be compensated on the basis of what would have happened but for the employer's failure to give notice.  In other words, the judge looks into his crystal ball and sees what would have happened moving forward, and if the employee was going to quit soon, the judge will see that, and the damages will be limited.  Of course, a judge doesn't really have a crystal ball - just the evidence before the Court - and while an employee's intention to quit is going to be relevant to damages, it isn't going to change the fact that it was ultimately the employer who breached the contract.

In reality, what is going to be much more important is why the employee was planning to quit.  Let's say the relationship has been going south for a while and the environment has just deteriorated to the point that I can't be there anymore.  The fact that I was going to quit may be less relevant, because I'd still be able to frame such a resignation, perhaps, as a constructive dismissal.

On the other hand, if the reason I was going to quit is that I had landed a new job, then I have a bigger problem:  Mitigation earnings.  So it's early August, I line up a job to start at the beginning of September, and I'm planning to give my employer three weeks' notice, but I get fired first.  I'll probably be entitled to those three weeks (subject to contractual/common law doctrines), but even if I sue for pay through the whole reasonable notice period, the employer's full answer will be that I had a new job starting in September, and my earnings from the new job will be backed out of the old employer's obligations to compensate me.

Scenario #2

What happens if the employer gives me some actual notice, and I quit partway through?  Suppose for example that I've been with my employer for ten years, and I get 8 weeks' notice, and then put in my own notice of resignation.

Once again, the question is why I resigned.  Is it simply because I can't be there anymore knowing that I'm so unappreciated that I'm being fired?  The fact alone of having been given notice won't be enough.  Coupled, however, with other adverse treatment, it might be argued to constitute a constructive dismissal, which means that I could still seek pay in lieu of notice despite having resigned.

Or maybe I found a new job quickly?  Unusual, but it does happen, and again, there's the mitigation problem, as above.  I can't sue my employer for money I made elsewhere.

The Exceptions

It's law, right?  There are always exceptions.  And exceptions to the exceptions.  So on.

The duty to mitigate isn't universal.  In particular, statutory minimums are not subject to the duty to mitigate.  For the sake of the example, suppose I have ten years of service with an employer who meets the criteria for being required to pay statutory severance.  If they fire me, the stat minimum is 8 weeks' notice or pay in lieu thereof and an additional 10 weeks' severance pay.

So if I'm fired without notice, then it doesn't matter if I was planning to quit the next day without notice, or if I get a job immediately afterwards; I am automatically entitled to the full 18 weeks' pay.

Likewise, if I'm given my 8 weeks' actual notice, and I quit during that notice period, then I will still be entitled to my 10 weeks' severance pay, provided that I gave the employer at least two weeks' notice of resignation.

Having a new job, I may not have any additional entitlements at common law, but the stat minimums can be helpful, especially for long-service employees.  It can be a nice little windfall.

Similarly, following the recent Ontario Court of Appeal decision in Bowes v. Goss Power Products Ltd., people with employment contracts entitling them to a fixed period of notice or pay in lieu thereof will be treated the same way.  If I'm contractually entitled to six months' notice or pay in lieu, and I get fired, then - again - it doesn't matter if I already have a job lined up to start the next day and had a not-too-polite resignation letter in hand when going into the termination meeting, if they beat me to the punch and fire me, I get to chase the whole six months.

Naturally, that analysis doesn't apply to "just cause" terminations - it's never a good idea to just go and get yourself fired intentionally.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Ancillary Damages and the Sword of Damocles

I recently referred in passing the concept of ancillary damages, from Justice Echlin's decision in Brito v. Canac Kitchens, which I discussed here and here.

The essential facts are these:  Mr. Olguin (the plaintiff in Brito) was dismissed, and offered a modest package, which was less than his common law entitlements.  He didn't agree to the package, and his benefits and remuneration were cut off after his statutory minimums were satisfied.  He obtained new employment relatively quickly, but without benefits.  So when he began to undergo cancer treatments during what would have been the reasonable notice period, he incurred significant losses.

The issues included the length of the notice period, but by the point of trial, even the employer wasn't seriously arguing for a notice period which would have allowed them to terminate Mr. Olguin's benefits before he was diagnosed.  So the main issue was the scale of damages for their termination of his disability benefits; they argued unsuccessfully that he should have mitigated his loss by purchasing replacement benefits.  Instead, they were hit with the full amount his disability insurance would have had to pay out.  Pretty major.

But another head of damages awarded by Justice Echlin was "ancillary" damages, for cutting off his benefits and wages after only the statutory minimum notice period.  Looking at the description of his reasons for awarding them, they appeared to me to be in the nature of punitive damages, which traditionally have a very high bar in wrongful dismissal suits, including a separate actionable wrong and exceptionally bad conduct on the employer's part.  I couldn't see how this case would meet the traditional test for punitive damages.  But that doesn't mean it can't succeed - the law is always changing.

The Court of Appeal agreed that they looked like punitive damages, and found that, because punitive damages weren't pleaded by the plaintiff, the award couldn't stand.  Highly unsatisfactory.  Canac's approach to this matter is not an uncommon one:  Put an initial offer to the employee which satisfies his statutory entitlements and offers to continue wages and benefits past the stat minimums in exchange for a release.  Few employers are willing to continue wages or benefits - and especially LTD benefits - past the stat minimum notice period without a signed release.  That's the deal they're trying to make.  "Let's agree on how much we owe you before we pay you anything."  And in a case where the employee finds new employment, an employer would normally take money off the table.  Canac's actions, which Justice Echlin found to be so high-handed and oppressive as to justify additional damages, were essentially common practice.  So employers need a little something more from the Court of Appeal than "it wasn't pleaded".  A singular decision in exceptional circumstances, even from Justice Echlin, is unlikely to change the industry practice.

This was Justice Echlin's last reported decision, to my knowledge, before he passed, and it was a big one.  His analysis on LTD benefits are likely to become fairly well-entrenched in the law.  The ancillary damages leave a big question mark, however.

Right now, it's an outlier.  But outlier decisions which run against the grain of established law, when made by esteemed judges in the field, often plant seeds which can result in legal change down the road.  It's hard to completely ignore Justice Echlin, though two decisions (Asselin v. Gazarek and Day v. JCB Excavators Ltd.) that I know of have distinguished the case, calling it a "fact-specific" decision.

So, for now, the existing practice continues to involve the provision of only the stat minimums without a signed release, but I can't help but think that Justice Echlin has left us with a dark threat, that employers could land in trouble doing so, at least in the wrong circumstances.  We don't know if or when the sword of Damocles will fall, but employers have reason to be somewhat nervous about this.

(Incidentally, Justice Echlin himself evoked the image of the sword of Damocles in his decision in Carscallen, in a constructive dismissal context.)

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer. 

Bill 168: The floodgates are open; where's the flood?

Still no final decision on Bill 168 harassment and reprisal.  Only one more interim decision, too.

So while this is essentially just another interim update, there are more observations to be made.

On July 10, Vice-Chair Anderson released an interim decision in Culp v. Blue Line Transportation Ltd.  The applicant in that case is claiming that, because she complained to the boss' son about being passed over for a promotion,  she was 'bullied' (through subsequent meetings and "unacceptable" treatment) into saying that she should look for another job, following which she was terminated because of her expressed job dissatisfaction.  (NB:  It does not appear to have been a 'just cause' termination.  That would ordinarily be well within an employer's rights, and not a bad employment practice at that:  My employee isn't happy with the job she's in, so I'll give her the statutory and contractual/common law notice of termination to which she is entitled and send her on her way.  I don't want to employ somebody who doesn't want to be here.)

Vice-Chair Anderson observes that there are, at a glance, three potentially-fatal problems with the application:

(1)  It isn't clear that she experienced 'harassment' within the meaning of the Act.  The "unacceptable" treatment she claims appears to have been performance-related.  (Remember my original post on this subject back on November 18?  I pointed out that the face-value definition of harassment was extremely broad, but that there would certainly be room for adjudicative interpretation, and that employer activities such as reasonable discipline would certainly not be interpreted as falling within the definition of harassment.)

(2)  To engage the anti-reprisal provisions in the Act, you need an exercise of rights, a prohibited action by the employer, and a causal nexus between the two.  In the harassment context, it has to mean "I stood on my rights against harassment, and suffered unfair treatment because I stood up for my rights."  Even if her "unacceptable" treatment constituted harassment, it isn't clear that you can get to the anti-reprisal provision on these facts.  It just doesn't seem to fit the framework, even if you assume that harassment does trigger the anti-reprisal provisions of the Act.  You'd need to read the factual allegations in a very peculiar and specific way, which don't exactly seem to mesh with the allegations.  (i.e. Being passed over for the promotion was part of a campaign of harassment by my supervisor; I complained to the boss' son about the continued harassment; I was fired as a consequence of the complaint.  That might fit.  But it looks more like My supervisor treated me unfairly; I was passed over for the promotion, which was unfair; I complained about being passed over for the promotion; and they continued to treat me unfairly, which led to me saying something that they disliked enough to get rid of me.  Much messier.)

(3)  The question remains undecided as to whether or not employer reprisals because of a complaint of harassment contravene the Act.  This is the same hedging language we've seen in all the other cases - "far from clear" that it's the case; quoting a lengthy statement from Investia; qualifying that the comments were obiter and the matter hasn't been fully decided.

The Vice-Chair invited submissions from the applicant to explain why the application shouldn't be dismissed.

So...More of the same?

Yes, it's essentially the same as all of the other decisions on this issue.  'This complaint looks like nonsense, and we're not sure that we have jurisdiction to hear it even if it isn't nonsense.'  Indeed, most of the complaints that we're seeing decided do look pretty tenuous.  People complaining about harassment after being disciplined, continuing with disciplinable conduct and getting fired, then complaining of reprisal.  People complaining of general unfair treatment.  Most of it looks like chaff.

But what's stunning is how little chaff there is.  This is the first decision considering the question since March.  So either there are a whole pile of harassment reprisal applications getting jammed in the OLRB's gears somewhere, or there are really, really few such applications.  Or potentially some unreported decisions...but the OLRB usually reports all significant decisions, and a whole stack of their insignificant ones.  They report several hundred decisions per month - often more than double what the HRTO reports, and the HRTO reports all of its decisions.  The point is that we simply aren't seeing the flood of "I've been treated unfairly" applications that the OLRB was afraid of.

Part of the rationale underlying Investia is that they don't want to reach for a broad interpretation of their powers dealing with harassment because "such an interpretation would likely significantly increase the Board's caseload".

Of course, what they're worried about isn't large numbers of people making concise legal arguments with the assistance of counsel, leading solid evidence to support a contention that they've experienced reprisal for a harassment complaint.  What they're worried about is large numbers of people who are dissatisfied with how they've been treated looking at the OLRB as being a body to appeal harassment policy decisions, with no articulable or provable reason to believe that they've experienced actual reprisal.  Chaff.  And while one could theorize that the decisions in Investia and Ludlow have dissuaded some people from making applications, the huge numbers of chaff cases they were afraid of can't be expected to go away so quickly based on a small amount of case law.

Essentially, the Investia logic is "If we have to consider the merits of whether or not these cases are worth being heard, it will create an unacceptable disruption in our process."  However, in Investia the Board proceeded to consider the merits, and the Board has proceeded to do the same in almost every case since, and I think that what we're finding is this:  It isn't that big of a deal.  The OLRB's nightmares of having to face thousands of "I've been treated unfairly" applications were unjustified fears.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer. 

Full & Final Release Found to be Unconscionable

Occasionally, I have seen employers offering no more than the statutory minimum payment and asking for a full and final release.  For example, let's say you have an employee with between 4 and 5 years of service being dismissed for business reasons, under such circumstances that she is entitled to receive her termination pay, under the ESA, no later than, for example, August 1st.  Some employers will say "We are prepared to offer you four weeks' pay in lieu of notice provided that you sign and return a full and final release to us by July 31st".

There are a few problems with this.  In particular, even if one assumes that the pay in lieu includes everything to which the employee is statutorily entitled, it's still not going to be enforced if signed, because there's a lack of consideration.  The employee doesn't actually get anything by signing the release.  On the flip side of the same coin, the employee gets nothing by signing.

I never advise my employee clients to sign the release in such circumstances.  (See footnote.)  Rather, I find that the appropriate avenue is for me to send an immediate letter calling the employer on the bad faith offer, telling them that we're not signing the release, we still expect payment of the stat minimums by the required date, and a further proposal to satisfy my client's additional entitlements will be forthcoming.  It's the more honest, forthright, and good faith response, and a judge will prefer to see that than a fight about whether or not the release is enforceable.

But what happens when an employee gets a release offering the statutory minimum payment...plus $1?  The employer will rightly tell the employee that the offer "exceeds" his entitlements under the Employment Standards Act.  The employee might therefore sign it, completely oblivious to the fact that his entitlements aren't limited to ESA claims.

This was essentially the case in Rubin v. Home Depot, decided in May by Justice Lederer.  Mr. Rubin was dismissed at a time when his statutory entitlements to notice and severance amounted to approximately 27.75 weeks' pay.  In his termination meeting, he was presented with a termination letter offering him 28 weeks, which Home Depot noted would "exceed our obligations under the Employment Standards Act."  True.

The letter contemplated that he could take up to a week to sign.  Still, he signed it in the termination meeting.

Sidebar:  In my law school employment law class, I recall the instructor being asked about a scenario very much like this one:  "What happens if the employee wants to sign the release right away?".  There are times when I disagreed (and still disagree) with some of the instructor's conclusions, but this one was nailed:  "Don't let them."  Frankly, it isn't one-sided.  If we were talking about an offer that was a semi-reasonable approximation of the notice period, then it might be a tougher case.  But in the Rubin case, the employer made a mistake by allowing Rubin to sign right away.

There doesn't appear to have been a real allegation of pressure, but it appears that Rubin's position was that he was shocked by the termination and not thinking clearly (this is a very normal experience upon termination), and was under the impression that he didn't have another option other than Home Depot's package.

Rubin says that he 'immediately' realized he had made a mistake by signing, and contacted his accountant and family lawyer, and was subsequently referred to an employment lawyer, who sent a demand 8 days after the termination.

Home Depot argued that there was no pressure, that Rubin made inquiries about RRSP rollovers, and that even in conversations with Home Depot personnel in subsequent days he expressed no concerns about the release.

Rubin argued that the release was "unconscionable".

Unconscionability: The Titus test

There are four elements necessary to set aside a contract as "unconscionable".  All four criteria are essential.

1. A grossly unfair and improvident transaction;
2. Victim's lack of independent legal advice or other suitable advice;
3. Overwhelming imbalance in bargaining power caused by victim's ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or other disability; and
4. Other party's knowingly taking advantage of this vulnerability.

This is not an easy test to satisfy.

On the facts

(1)  Grossly unfair and improvident transaction

Rubin's counsel made arguments to the effect that Rubin was in a worse position for having signed the release than he would have been without.  Justice Lederer felt that the arguments were unnecessarily complicated (and on the judge's summary of the argument, I agree):  It boils down very simply.  Mr. Rubin was a 63-year-old employee with nearly 20 years of service, and the notice period of six months is "far removed from what the community would accept".

(2)  Victim's lack of ILA

The letter gave Rubin the option of taking a week to consider his options.  But Home Depot's evidence on the point was scarce.  It doesn't sound like this was drawn to Rubin's attention in the termination meeting.  It doesn't sound like they encouraged Rubin to get independent legal advice, or to take some time to think about his options.  Rather, the letter gave the impression that he had no other options, and moreover suggested that he had to sign in order to get any of the promised money, despite the fact that almost all of it was statutorily required.

(3)  Overwhelming imbalance in bargaining power

This is always the tough one, usually requiring something which prevents the person from knowing or understanding what it is he's signing.  In the ordinary course, a lack of appreciation of the scale of the effects won't be enough.

In this case, however, Justice Lederer embarked on an analysis of the natural imbalance of power between employers and employees, which is now well-established in employment law.  This isn't universal, for the purpose of the unconscionability test.  Where the employee is a high-level employee with professional training, that can offset the power imbalance.  But not so for Mr. Rubin.

Ordinarily, I would object in principle to suggesting that the relative unsophistication of the average employee is akin to illiteracy or language deficiencies.  But this case isn't entirely decided on that.  Mr. Rubin's evidence was that "When Mr. Fraser told me I was losing my job I felt like I had just been hit by a truck.  My mind started spinning and my heart began to race."

Which is normal.  Anyone who deals with dismissed employees regularly has heard this over and over again. When you fire somebody, there's a tendency for there to be a shock reaction.  Even where the employee saw it coming, even where the employee wanted to leave, it's not so different.  I've seen circumstances where the employee had a notice of resignation ready to go and had quietly removed most of his effects when the employer beat him to the punch - in that case, it's even good for the employee, yet the shock reaction is still the same.  People handle it differently, but almost everyone experiences it to some extent.

And that shock reaction, combined with an overall imbalance of bargaining power, is apparently enough to meet the third element of the test.

(4)  Other party's knowingly taking advantage of the disability

This is a trickier analysis in this context.  Ultimately, the judge decides it by looking at the termination letter itself.  It is ambiguous in respect to his benefits, and more importantly does not really appear to give him a choice.  It appears to say, on the whole, "Here's the deal, take it or you get nothing."  The judge notes that the letter said only that the offer was more than his statutory requirements, without explaining how much more, and without alluding to the fact that there may be further entitlements beyond the statutory minimum, and concludes that the letter "was arranged in that expectation that it would direct, if not compel, Eric Rubin to sign the release".

Accordingly, the release was set aside, and Mr. Rubin was awarded pay in lieu of 12 months.

Implications

First and foremost, employees, if you're reading this in contemplation of whether or not to sign a release, consult a lawyer.  Do not count on being able to rely on this doctrine.

Secondly, if you're reading this because you have signed a release without legal advice, still consult a lawyer.  Because there may be arguments to be made for setting aside a release, and you'll need a lawyer to look at your specific circumstances to get an opinion on the matter.

This is an important precedent, but not entirely broad:  A non-managerial non-professional employee, at the point of termination, will likely satisfy the third element of the Titus test.  That's a big deal.  But there's more to the test.  But for the fact that the consideration for the release was only very slightly above the statutory minimum, or the fact that the consideration was portrayed as being generous, or the fact that the offer had internal ambiguities, or the fact that no independent legal advice was suggested, the result could have been different.  Had the managers in the termination meeting strongly encouraged Mr. Rubin to take home the offer to think about it, the result likely would have been different.  Had Mr. Rubin taken home the offer for a couple of days and then returned it signed, the result almost certainly would have been different.

On FMC's Labour and Employment Law Blog, lawyer Kristin Taylor argues the following:

The Court’s willingness to intervene, not because the termination letter was misleading, but because it determined the agreement was grossly unfair, is of concern. It creates unpredictability if employers are not able to rely on compromise agreements reached with their employees because the employee may simply be able to renege without consequences.

Respectfully, I strongly disagree with this argument.  The Titus test is a multi-faceted test, requiring the Court to assess not only whether or not the deal is grossly unfair, but also whether the circumstances of the signing of the deal are such that a party is being taken advantage of.  It is incumbent upon the Court to assess whether or not a deal is "grossly unfair", and what the employee's entitlements would have been but for the deal are certainly fair game.  (I have argued that an employment contract signed at the point of hire limiting the employee to the statutory minimums only will never be unconscionable, because of the role of the ESA.  However, this is different, because of the pre-existence of common law entitlements at the point of termination.  We're talking about an employee who is entitled to - on the Court's rather conservative finding - an extra six months' pay, and he's signing it away for a day and a half's wages.)

More importantly, this decision is easy for an employer to control for.

Just by virtue of firmly telling the employee not to sign the release the same day, I would expect employers to be reasonably well-insulated from the consequences of this decision.  Of course, there are other aspects to a good termination letter as well, to further protect the release from being set aside.

I never ask someone to sign a release without directing the person to get independent legal advice first.  It's a proviso in most boilerplate releases that the releasor has had an opportunity to get such advice or has freely declined to do so, and so they should be encouraged to do so (outside of the text of the release, which always has dense language), and they should always have a meaningful opportunity to do so.

Personally, I'm a fan of the bifurcated termination offer:  Give a termination letter which explains the ESA minimums and says "You will get this, regardless."  At the same time, give a without prejudice offer saying, "If you sign this release, you'll get this too.  If not, you'll only get what's outlined in the termination letter."  Whether in one letter or two, ideally you should break it down for the employee, to make it clear that you're not threatening to withhold the stat minimums if they don't sign the release.  That threat, whether implied or express, will appear to be bad faith.

I've seen other bloggers suggesting that a severance offer should be "superior to the ESA in a meaningful way".  I'd like to parse this a little bit, because the word "meaningful" might be misleading.  In my view, provided that you've told them in no uncertain terms that they should get ILA, and that they should take the offer home and return it a different day, you've effectively immunized yourself against unconscionability, even where you're offering only token consideration, because it would become very difficult to establish the fourth element of the test, even if the deal is grossly improvident.  But I also think there's a grey area for 'grossly improvident', too.  Take Mr. Rubin, for example.  Statutorily entitled to 27.75 weeks, common law entitlement to 52 weeks.  Would a deal for 51.5 weeks have been 'grossly improvident'?  No, of course not.  What about 30 weeks?  Maybe.  What about 40 weeks?  I doubt it.  Token consideration is one thing, but if you're offering 3 months over the statutory minimum, then that isn't an insignificant amount of money.  It is not inconceivable that a person might reasonably apply a "bird in hand" analysis to it and take the deal even knowing that it doesn't fully address his entitlements.  So I'm not sure what Stringer LLP meant by "meaningful", but I think they're right if they mean it as being solely 'something more than nominal'.

That being said, consider Justice Echlin's decision in Brito v. Canac Kitchens - my commentaries here and here - in which Justice Echlin awarded "ancillary damages" because an employer offered significantly less than any good faith estimation of his reasonable notice period.  This was reversed on appeal on the basis that such damages weren't pleaded.  So it's a revolutionary concept, highly inconsistent with established case law, yet brought in by a well-respected judge in the field (who is now deceased), and if it is widely followed or endorsed by a higher court it will upturn many standard practices in employment law.  Ancillary damages are something of a sword of damocles hanging over the employment law field, to use an analogy which Justice Echlin himself enjoyed.

The bottom line is that this decision, like many others in recent years, is employee-friendly, but nonetheless should not be greatly concerning to most employers.  It won't create a problem for a dismissal which is guided by a skilled employment lawyer.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

*****

I mentioned earlier that I don't advise my employee clients to sign releases, even when I don't think the release is enforceable.  I consider it to be a poor practice to sign documents on the assumption that it won't be enforced.  In essence, it is making a commitment that you have absolutely no intention of honouring.  There are three particular concerns with such a thing.  Firstly, judges will not be thrilled with that kind of bad faith.  Secondly, litigation is uncertain at the best of times, and quite often when a contractual provision is unenforceable it's as a measure of protection to less sophisticated parties.  Somebody who knows the law in the area will be less sympathetic to the Court, and the Court is more likely to find a way to enforce the contract.  Thirdly, it's simply a bad commercial practice.  Getting one-up on people may seem satisfying, but it can come back to bite you.

Costs of Proceeding for Politicians

A lot of election judicial decisions have been released recently.  Yesterday I blogged about the decision of the Court of Appeal in the fight between the Ontario Progressive Conservatives and the Working Families Coalition.

As well, the Court recently dismissed an application by several former Liberal leadership candidates (Hedy Fry, Martha Hall Findlay, and Joe Volpe) - again, on preliminary grounds - to extend the time for paying their campaign expenses.  That might just affect their chances of a successful leadership bid this time around.

But the far more interesting case is Wrzesnewskyj v. Attorney General (Canada).  The first decision in this case was big news, but the Court just released its costs decision.

Background:  Merits of the Application

There were many irregularities in the 2011 general election.  Many of them suggest fraud - for example, the so-called "robocall" scandal - but not all of them.  This case involved innocent voter registration errors in Etobicoke Centre, where many people were not properly identified before voting.  (The irregularity opens the door to grassroots frauds by individual voters, but no institutional fraud connected to the government or any political party existed.)  Boris Wrzesnewskyj, the Liberal candidate, was defeated by Conservative Ted Opitz by a total of 26 votes.

Justice Lederer heard Wrzesnewskyj's application under the Elections Canada Act and allowed it, finding that, even without any fraud, the irregularities were sufficient that they could have affected the election result. (Note:  This is not a finding that, but for the errors, Wrzesnewskyj would have won.  The finding is that, if one assumes that the irregular votes are voided, without knowing which candidate they were cast for, we cannot determine who the successful candidate would be.  So a new election is required.)

This case is going to be heard by the Supreme Court in a special summer sitting next Tuesday (July 10).

The New Decision:  Costs

Wrzesnewskyj asked for his legal costs as against Elections Canada.  Justice Lederer starts off by commenting on the quantum of costs sought, and notes that they are probably reasonable, but I'm not going to start there.

Ultimately, Justice Lederer denied a costs award, except for a return of the $1000 that Wrzesnewskyj was required to post as security for costs.  The decision, when compared to costs jurisprudence generally, is very strange.

Essentially, it turns on the innocent nature of the irregularities.  Ted Opitz had nothing to do with the irregularities, and is essentially a victim of the irregularities in the same way as Wrzesnewskyj was.  He ought not to be burdened with costs because of the innocent errors of Elections Canada.  The real fight became whether Elections Canada ought to have to pay costs, because the application was necessary to correct Elections Canada's mistakes.  The mistakes, however, were innocent and understandable - Justice Lederer notes that, over the course of 37 days, Elections Canada hired and trained 235,867 people and ran a national election.  "[E]rrors will be made.  This is not a question of blame, but in the nature of what these people were asked to do.  The system has checks.  An application to set aside an election is one of them.  In this case, the lessons to be learned are not who is at fault, but how to improve the system so the same mistakes are not made again."  Justice Lederer went on to find that this was a matter of "public interest and of general concern", and that it is part of the "collective responsibility of all Canadian citizens to bring such matters into the public sphere."  So no costs were payable.

Sounds fairly reasonable, right?

The trouble is this:  Costs are not, in general, based on fault.  Rather, they are in the nature of indemnification of a successful party.

Blameworthy behaviour is a factor in costs, but this is more relevant when we're talking about blameworthy behaviour in the course of legal proceedings.  The question, for costs, is who is successful and who is not successful, and the implication is that the party who was not successful should not have required the party who was successful to incur the legal fees associated with going to trial.  Thus, we have a general rule that 'costs follow the cause', that the party who is successful in an action, motion, or application should be compensated by an award of costs.

Here are Justice Lederer's comments on "success":

Paragraph 5:  "Borys Wrzesnewskyj bases his claim on the understanding that he was the successful party.  Without going further, this seems reasonable....The problem is that, if costs are to be awarded to a successful party, there ought to be an unsuccessful party who is expected to pay them."

Paragraph 6:  "Ted Opitz was not an unsuccessful party."

Paragraph 7:  "Elections Canada cannot be characterized as an unsuccessful party."

So nobody can be said to have been unsuccessful?  Nobody argued for a conclusion other than the one the Court reached?  Clearly that's not the case - If it were accurate to say that Ted Opitz was not unsuccessful, then why would he be appealing?

Costs are not, in the main, about who was right or wrong in the matters leading up to the litigation.  They are about who was successful in the litigation itself.  There's a lot of overlap, but the point is this:  Imagine a wrongful dismissal case - I fired you without notice and without just cause, and offered you 8 months of notice.  You turned down the offer and sued for 12.  I continued to offer 8 months of notice.  Following the trial, the Court awards you 6 months.  Who was successful?  Easy.  I was.  Yes, I breached your contract.  Yes, I owed you money.  These were never contested.  The question, on litigation, was how much I owed you, and I was clearly successful on that point.  Which means that, most likely, I will get a costs award.  Even though you were completely blameworthy - you carried out your duties effectively and diligently, and were dismissed for no other reason than that I decided to restructure, and I did so in a manner which actually breached your contract - the Court may award costs against you, and the point is this:  You should have taken the 8 months.

The decision on the merits, found here, indicates that Ted Opitz and Elections Canada were arguing against the Application.  Wrzesnewskyj brought an application, and Opitz opposed it.  Elections Canada, despite purporting to take no position on the merits of the application, nonetheless argued in favour of a certain interpretation of the statutory language which, if successful, would have resulted in the dismissal of the application.  The judge rejected these arguments.  Wrzesnewskyj  succeeded on all fronts, and those who opposed his application, or parts of his application, did so unsuccessfully.

Unopposed applications are usually pretty academic.  The Court still has to be satisfied that there's a basis for the order sought, but you generally would not need - as was required in this case - 8 days of hearing with six lawyers for an unopposed application.

A costs award on a strictly unopposed application will require principles of fault.  "The reason I needed to make this application is that the respondent has failed and refused to satisfy his legal obligations."  Even a respondent who doesn't participate, under those circumstances, may still be required to pay costs.

If Opitz and EC had said "We're not participating in this process, and we'll abide by whatever the Court makes of the applicant's materials", then there would be no basis for a costs award.  And the process would have been a lot cheaper all around.  Still costly, but on a much smaller scale.  That's the consequence of a blameless situation.

But, even in a case with no blame, a party cannot take full advantage of the adversarial legal system to defend his own interests, force an 8 day hearing, then come back after being unsuccessful and say "It's not my fault that we had to come here."  That is almost exactly the point of the loser-pays system - it puts the greater financial burden on the person with the position that is unsuccessful, with the result that the possible financial burden becomes a significant incentive to settle for people who are concerned about uncertainty in the result of the case.

Perhaps more importantly, the Court's comments about it being a matter of public importance which there is a civic duty to bring into the public sphere, making it inappropriate for costs...are deeply undermined by the statutory requirement that an applicant post $1000 in security for costs.  (Consider this:  Had Opitz successfully resisted the application, and it was found that the irregularities did not justify voiding the election result, would Wrzesnewskyj have been similarly insulated from cost consequences?  Almost certainly not.  That kind of asymmetrical result is deeply unfair.)

Now we come to the quantum, which Justice Lederer accepted was probably much lower than the actual costs incurred:  Wrzesnewskyj was seeking an award of $90,000.  By extension, assume that he spent well over $100,000 on legal fees.  That's a lot of money to be expected to pay as a matter of one's civic duty.

To be completely fair, it appears that Wrzesnewskyj was not seeking an award of costs against Opitz, and in my view he would have been the more appropriate party to have to pay costs.  But EC, despite not arguing about the facts, made unsuccessful arguments of law, which in my humble opinion should have resulted in some exposure to costs.  And the fact does remain that they were mistakes which were ultimately attributable to EC itself, even if they are understandable under the circumstances.  If you make a good faith mistake, and somebody else has to pay to correct it, the good faith won't usually insulate you from cost consequences.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Working Families Coalition succeeds at Court of Appeal

In the last Ontario election, an organization called the "Working Families Coalition" launched a series of attack ads on Tim Hudak.  The Tories then took them to Court.  Sort of.

In essence, the argument is that the WFC is a 'front' for the Ontario Liberals, and was little more than an end-run around election financing laws.

But it's hard to imagine a process by which the Tories could directly attack that in Court.  They don't have standing to prosecute elections financing violations.  So the solution is to attack those who do have such standing, to try to compel them to exercise their authority.

The Tories made a complaint to the Chief Electoral Officer, who retained counsel and a forensic accountant to investigate the complaint, with the resulting conclusion that the evidence didn't warrant referring the matter to the Attorney General of Ontario for prosecution.  The Tories weren't happy, and sought judicial review at the Divisional Court.  ("Judicial review" means asking the Court to review a decision made pursuant to statutory authority - basically, when a government body or agent makes a decision that isn't strictly a matter of policy, the Courts can generally step in and determine whether or not the decision-making process is sufficiently fair and whether or not the ultimate decision was appropriate under the circumstances.)  In addition to reviewing the decision not to investigate, they sought judicial review of the CEO's decision to register WFC as a third party under the Election Finances Act.

The Tories were unsuccessful at the Divisional Court, and appealed to the Court of Appeal.  Again, they were unsuccessful, as the result of this decision released last week.

There's news coverage here and here.  Two somewhat different perspectives on it, from the Star and the Sun.  The Star's article has lengthier quotations, particularly from WFC's counsel Paul Cavalluzzo, and I'm going to zero in on this paraphrase:  "...Cavalluzzo said the decision is good news and once again proves the organization is not linked to the governing Liberals."

Actually, no.  It doesn't.  At all.

You see, the decision was made, both by the Divisional Court and Court of Appeal, on what we call "preliminary" grounds.  Jurisdictional issues, questions as to whether or not the Court can and should address the merits of the appeal.  The Chief Electoral Officer and WFC successfully argued, at both levels, that the decision not to refer the Tories' complaint to the AGO was not open to judicial review, and that the decision to register the WFC as a third party was moot.

Not Open to Judicial Review


I can see both sides of this argument.  The Court found that the statutory language empowering the CEO to investigate complaints did not create a duty to do so which could be enforced by way of judicial review.  Despite its potential political consequences, it didn't affect anybody's legal rights or interests.  It's akin to challenging a police officer for not laying a charge.

On the other hand, the Tories argued in favour of a 'purposive' interpretation of the EFA.  This isn't particularly fleshed out in the decision, but I would guess that the argument essentially goes that the public has a significant interest in compliance efforts under the EFA.  Giving the CEO unfettered discretion to prosecute complaints - or not - is incompatible with public law principles and in fact dangerous to the integrity of our democracy.

The Court is limited by the statutory language, and I understand the logic underlying its decision, but it's still hard to reconcile with the basic principle of public law that there is no such thing as complete discretion.

Mootness


The WFC was registered as a third party for the election campaign, the election campaign is over, and there's nothing to be done about it now.  It's moot.


This is a ground that always irks me, particularly in fights about elections.  It is not unusual to see a dispute arising from a prior election dismissed on the ground of mootness, the point being that the election is over and the results of the judicial process won't impact those results - there's no real remedy to be sought.

The Court has discretion to hear matters which are moot, but frequently declines to do so.

The trouble is that, in a country with elections every few years, it's never really true to say that a dispute arising from an election is entirely moot.  There's almost always a sense that the results of such a legal dispute will have to impact how the parties approach the next election.

Theoretically, you could engage such a process in respect of the next upcoming election to get a proactive result before the election.  But elections are swift things, and legal proceedings are generally not.  The wheels of justice turn slowly.  For example, consider Elizabeth May's challenge against the CBC during last year's election campaign, arguing that she should be entitled to participate in the debate.  This would have required an expedited process, and the Court declined her motion to expedite the process.

And the other option, proactively seeking your legal recourse in advance of the next election campaign, would in many contexts be premature.

In other words, let's suppose for a moment that the Tories are right that the WFC is a proxy for the Ontario Liberals - frankly, I don't honestly believe that, but accept it for the sake of argument.  If it were true, then it would likely also be true that the CEO shouldn't be registering it as a third party.

If they challenge the registration after the election campaign, it's moot.  If they challenge the registration before the election campaign - i.e. before they have sought registration for that election campaign - it's almost certainly going to be premature.  And if they challenge the registration during the election campaign, it almost certainly will not be heard prior to the election...following which it will be moot.

Conclusion


The complaints raised by the Tories are fundamentally quite serious.  I'm not saying that I believe them to necessarily be warranted, but they are serious enough that there should be a meaningful mechanism to address them in open court, so that their merits can be determined.

As it stands, we don't have a determination of the merits.  We have nothing other than a lawyer's opinion that the matter shouldn't be referred to the AGO, and the Tories' contention otherwise.  I don't put much stock in either.  And, unless the Supreme Court decides otherwise, we will not get such a determination on the merits.  That is unfortunate.  Because whether it condemns or vindicates, it seems to me that an answer is deserved, and the unavailability of a process by which to get an answer is a weakness in our democracy.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.