Court Certifies Class Action Against eHealth by Employees

The Court recently released its decision on a certification motion of a class action, Perrenoud v. eHealth Ontario.  Employees are suing eHealth because of its decision last year to suspend performance bonuses and merit-based pay raises.  It's a case of the clash between politics and contract law.

In May 2011, the Toronto Star broke a story that eHealth was still giving bonuses and pay raises despite a broader government salary freeze.  eHealth promptly announced that it was killing the bonuses and pay raises.

This can be difficult, particularly when you've already told the employees exactly how much they're going to be getting, as eHealth had in this case.  So a couple of eHealth's employees hired a lawyer and filed a class action, making four allegations:

1. eHealth breached their contracts by cancelling the bonuses payable in 2011;
2. eHealth breached their contracts by cancelling the bonuses payable in 2012;
3. eHealth breached their contracts by cancelling the merit-based pay raises in 2011; and
4. The Province was liable for inducing breach of contract.

The claim against the Province failed, because the judge found that the Minister of Health telling eHealth to reconsider its position doesn't rise to the level needed for that particular tort, but the other three claims are arguable, so the judge certified the class action.

It's interesting to watch class actions in the employment context.  This isn't the first, but they are rare, and inspire a certain caution for prudent employers establishing or changing policies, particularly regarding remuneration.

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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.

Rob Ford Ordered Removed From Office

Big news in T.O. today:  Argos won!

But, more interesting from the perspective of a law blogger, Justice Hackland released his decision on Rob Ford's Conflict of Interest Case.  Full text here.

For those who have only been paying passing attention to this, let me clarify a few things:  This is not related to the defamation action for which he's been in the news lately.  Back in 2010, due to improper fundraising for his football charity, Rob Ford was ordered to personally reimburse donors in the amount of $3,150.  He didn't do so.  When the matter came before Council again in February 2012, he made a passionate argument about why he shouldn't have to repay the amount, and proceeded to vote on a motion to rescind the order.

Just one problem:  That kind of looks like a vote in his own personal interest, contravening the Municipal Conflict of Interest Act.

I commented on this case in September in an entry entitled "Will Ford Escape?" (pun intended).  I conceded in that entry that removal from office seemed like an overly harsh penalty, but considered Ford's actual defences to be fairly tenuous, based on the coverage I'd seen.  And the trouble is that removal from office, except in narrow circumstances, is a mandatory penalty.  Unless the judge concluded that Ford didn't violate the MCIA, or concluded that the violation was a result of inadvertence or an error in judgment, he had no choice but to order removal from office.

Let's go through the prongs of Ford's defence, as before:

(1)  The MCIA doesn't apply

I dealt with this summarily in my previous entry, because from the news coverage on the point I didn't fully appreciate the argument being made:  Justice Hackland explained the argument as being that the MCIA doesn't apply to Council's deliberations based on a member's alleged violations of the Code of Conduct.

The most persuasive pitch made along those lines is that it would be draconian to prohibit a member from participating in a debate on whether or not he breached the rules; principles of natural justice would require an opportunity to speak in one's own defence.

However, Justice Hackland applied a plain reading of the the MCIA and concluded that there was no basis for interpreting it to exclude Code of Conduct matters.  No constitutional argument was made to justify it being read down, either, and - in any event - even if Ford could justify speaking in his own defence on the matter, those natural justice concerns would not extend to voting in his own interest.

(2)  Council Couldn't Enforce the Order to Reimburse the Donors

In my previous entry, I suggested that this was arguable, but that, even if technically correct, Council would have other powers to exercise.

Justice Hackland didn't get that far.  He found that Council had the power to order reimbursement, and to enforce the order if necessary, so the whole argument failed.

Because of the inevitability of an appeal of the case, I would have liked to have seen him consider some of the alternative positions - I assume that Mr. Ruby made alternative arguments - but his interpretation is soundly based in the existing jurisprudence.

(3)  The Sum Was Too Small

As I noted in my previous entry, this argument is built on an exception in the MCIA for an interest "which is so remote or insignificant in its nature that it cannot reasonably be regarded as likely to influence the member".

True though it may be that $3,150 isn't a great deal of money, especially to someone like Rob Ford, I argued that it couldn't fit within that exception, in light of the fact that the vote itself was specifically on whether or not Ford should be required to pay.  The notion that Ford wouldn't be influenced by his own personal interest in the outcome of the vote was frankly absurd.

Justice Hackland reached a similar conclusion, based largely on Ford's own remarks prior to the vote:  "...[Ford] has taken himself outside of the potential application of the exemption by asserting in his remarks to City Council that personal repayment of $3,150.00 is precisely the issue that he objects to...."

(4)  Inadvertence or an Error in Judgment

This isn't a full defence, but it mitigates the penalty, relieving against the mandatory removal from office.  As I pointed out, "the Courts have recognized that pretty much every offence - even the most serious crime - can be said to involve an error in judgment, but the meaning of the phrase per the MCIA is somewhat narrower."

What the Courts look for is evidence that the contravention was incurred "honestly and in good faith", including "some diligence on the respondent's part; that is, some effort to understand and appreciate his obligations.  Outright ignorance of the law will not suffice, nor will wilful blindness as to one's obligations."

This really is where Ford had the opportunity to make a difference on the stand.  If he had come on the stand and claimed to have been aware of his obligations, but to have simply failed to appreciate their implications at the time, and apologized for his conduct and promised that it wouldn't happen again, he would have given the judge an "out".

However, he didn't do that.  Instead, Justice Hackland found that the error arose from "a stubborn sense of entitlement (concerning his football foundation) and a dismissive and confrontational approach to the Integrity Commissioner and the Code of Conduct."

So What Happens Now?

First off, Toronto isn't officially sans-Mayor.  The order has been suspended for 14 days.  And we can be reasonably confident that Ford's lawyer will file a notice of appeal to the Divisional Court, and seek a stay pending appeal, meaning that the order won't become effective until after the Divisional Court has its say, which is certain to be months away.  So Ford will continue to hold his office for the time being, though he will arguably be a bit of a Lame Duck in the mean time.  Love him or hate him, Lame Duck status isn't good on any level.

As a small blessing, the Court of Appeal has taken the highly questionable approach in cases like these of treating the Divisional Court's decision as being final, with no right of appeal.  As a consequence, it is unlikely that the matter will be bogged down too much with subsequent appeals.  That isn't to say that I don't expect such appeals to be filed - if, as I expect, the Court of Appeal declines to hear the case, I expect that whomever is unsuccessful at the Divisional Court to seek Leave to Appeal to the Supreme Court of Canada (which may well result in the Supreme Court telling the Court of Appeal to hear the merits of the case, which would be subject to another Supreme Court appeal)...

...but if Ford is unsuccessful at the Divisional Court, as is probable on the face of Justice Hackland's thorough and well-reasoned decision, I would be surprised if he achieves stays during the course of the subsequent procedural wrangling.  So I think that, as far as the City is concerned, the Divisional Court's finding will be practically the final say.

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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.

No Punitive Damages for "cruel" Treatment of Employees

The Court recently released its reasons in Evans v. Complex, involving the dismissal of an 8.5 year employee with a critical IT role.  While the case was muddied by a claim for bad faith damages, most of the case was a simple question of how long the notice period should be, and the scale of damages within the notice period.

The plaintiff's base salary was $50,400 per year, but she also received modest bonuses, health care benefits, and consistently worked significant overtime.  The trial judge annualized her compensation package as being worth $70,680.32 per year, and she was awarded pay in lieu of 9 months' notice on that basis.

The bad faith claim was rooted in a mistake rather similar to the email "oops" moment I described recently in another case:  She called the manager of operations to get authorization to work overtime, and he had another manager in the office, whom he told about the plaintiff's request, and added (audibly to the plaintiff, through presumably not intentionally so), "don't spend too much time on this, Wendy's getting canned tomorrow anyways."

Even worse, when she confronted them about that comment, they misled her, telling her that it was not true.  She worked another 9 hours overtime, under the impression that her job was still secure, and then, indeed, got "canned" the next day.

The trial judge described the comment as "unprofessional, callous and careless", and referred to the employer's treatment of her overall as "at minimum unfair and cruel".

However, the trial judge found that moral damages couldn't be awarded because there was no evidence of compensable injury, and the employer's misconduct didn't rise to the level of misconduct described in the Gismondi and Pate cases, so no bad faith damages could be awarded at all.

My Thoughts

I would be interested to know if punitive damages specifically were pleaded.

The trial judge's analysis is completely consistent with the bulk of the case law following Honda v. Keays, if we're just talking about aggravated damages.  In which case the reference to the Court of Appeal's decision in Pate is out of place, because the Court expressly disclaimed any endorsement of the trial judge's award of Wallace-type bad faith damages, which is what Honda essentially did away with.  Either way, the reference to Gismondi makes no sense, because Gismondi was talking about Wallace-type damages.  Following Honda, cases like Gismondi mean relatively little.

However, Pate dealt in large part with punitive damages - a scenario where the employer's conduct was "egregious" and "reprehensible".  Punitive damages were awarded in that case, and the Court of Appeal concluded that the trial judge erred by restricting himself unduly to a $25,000 award of punitive damages.  Ultimately, Mr. Pate's punitive damage award was increased to $550,000.

There's no question that the facts in Pate were more severe than the facts in Evans v. Complex.  However, with a $550,000 punitive damage award, Pate is obviously not the low watermark for employer conduct worthy of punishment.  Reasonable people might disagree as to whether or not Complex's conduct out to be penalized with punitive damages, and the bulk of the case law would probably incline me towards "not", but given the adjectives the trial judge did use to describe their conduct - "unprofessional", "callous", "careless", "unfair", and "cruel" - it's hard to justify not awarding punitive damages; otherwise, the message the Court sends is that it feels no compulsion to denounce employers treating their employees cruelly.

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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.

Are Political Beliefs Protected by the Human Rights Code?

In the case of Al-Dandachi v. SNC-Lavalin Inc., the employer moved to strike out an employee's claim that his rights under the Human Rights Code were violated, raising a very interesting question.

Al-Dandachi is a Muslim and a Syrian Canadian, and he is apparently a pacifist.  He believes very strongly in peace, to the point that he opposes the current armed conflict in Syria, and he said as much in a radio interview.  He does not support Assad's rule, but nonetheless his opposition to the armed conflict has been interpreted as support for Assad.

The employer fired him shortly after the radio interview, and Al-Dandachi believes that it is a consequence of his statements during the radio interview.  Al-Dandachi claims not only that this constitutes wrongful dismissal, but also a violation of the Human Rights Code.  His argument is that his pacifism, and his strongly-held beliefs regarding the current conflict in Syria stem from his religion and from his cultural identity.

The Defendant (while not admitting that the termination was a result of political beliefs) takes the position that political beliefs are not protected by the Code, relying on a 1999 Court of Appeal case, Jazairi, where a York University Econ professor, who was a Muslim Arab from Iraq, was held back in promotions allegedly because of his expressed views on the Israeli/Palestinian conflict.  The question was whether or not political views are captured by the Code definition of "creed".  The Court concluded that it was not, and that in that case Mr. Jazairi's political beliefs were not captured by "creed", but that there may be another case in which a system of political beliefs is captured by "creed."

In the Al-Dandachi case, the Court declined to strike out the claim for a human rights remedy, because of that last disclaimer by the Court of Appeal.  Jazairi stands for the proposition that creed does not always capture political belief, but not at all for the proposition that creed cannot capture political belief.  So a trial on that issue is necessary.

My Thoughts

I think it's easy to imagine a scenario where political belief, or a response to a political belief, is sufficiently connected to a Code ground; the employer's argument on this point almost had to fail.

Religion and politics are tricky things.  Whether or not Mr. Al-Dandachi will ultimately succeed is an open question.  How strong must a connection be to violate the Code?  Is it sufficient to show that your political beliefs arise from a good faith interpretation of your holy scriptures?  If an employer dismissed a devout Catholic employee because of his or her attitudes toward abortion or homosexuality, it seems to me that there's a strong argument to be made that this is discriminatory on the basis of creed.

Let's simplify it a bit by looking at political belief as a hiring criterion:  Suppose I say that, in order to work for me, you must be pro-choice and in favour of gay marriage rights.  Will that have the effect of limiting potential job applicants on the basis of religious grounds?  Absolutely.  I might as well put "practising Catholics need not apply" in the ad.  (Now, one can imagine employers for whom these criteria would be reasonably necessary...let's assume for the moment that we're not dealing with such an employer.)

But, if that protects only the religious beliefs connected to the Code grounds, that seems to create an odd skew.  For a person who is not particularly religious to express a strongly-held view in favour of gay marriage would not often get the Code's protection, but the converse expression, being tied up in religious doctrines, is protected speech?

What do you think?  Should strictly political views be excluded from the Code, regardless of connections to religious beliefs?  Should they be protected only when a connection can be made between the political belief and a Code ground of the person holding the belief - so members of the LGBT community are protected when fighting for rights, and members of conservative religious groups are protected when resisting them, but nobody else is protected from employment consequences of advocating for one side or the other?  What kind of connection would be necessary?

Or should we have a broader Code protection on the basis of thought, belief, opinion, and expression, to effectively integrate s.2(b) of the Charter of Rights and Freedoms into employment and service contexts?

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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.

HRTO Relaxes Test for Reconsideration

The recent reconsideration in Garrie v. Janus Joan was a big deal, not only for the subject matter of the case, but also because it represented a relatively rare event in the Tribunal - reversing its own decision.

And now there is another example in which the same thing happened:  In April, adjudicator David Shannon released his decision in Britton v. General Motors of Canada, ordering GMC to pay Britton $10,000 based on a failure to accommodate the applicant's epileptic seizures:  He regularly had seizures of 15-20 minutes, and had had several seizures at work.  According to David Shannon, "[i]f someone pulled him during the seizure he would pull the other way, but if asked to sit down, he would comply".  Normally, when he had a seizure, he would be attended to by on-site nursing staff, he would lie down for a time, then he would resume his duties once he recovered.

On the occasion in issue, however, it was near the end of his shift, and so he told the nurse that he wanted to go home to recover there, as he had a carpool arranged.  The nurse, however, wanted to call an ambulance, which he thought was unnecessary.  He began to walk to the exit, and the nurse called security.  When he got to the exit - and this was on a security video entered into evidence - he tried to leave peaceably through the turnstile, but was restrained from doing so - a security guard took him in a bear hug from behind, one of the paramedics already on-site "taunted the applicant by lifting his leg and threatening to kick in a karate style motion while the applicant was restrained", then the police arrived, threw the applicant to the ground, handcuffed him, and took him away.  In the mean time, as it was a shift change, there were "several dozen people" passing by.

The police took him to the hospital, where he was examined and cleared, then the paramedics and police apologized and the police got him home safely.

The entire experience caused the applicant significant pain and humiliation, and David Shannon awarded $10,000 in damages.

The Reconsideration Decision

The Tribunal recently released a reconsideration decision.

In the vast majority of cases, reconsideration decisions are heard by the same Tribunal member who decided the matter originally.  However, in this case, David Shannon has since left the Tribunal to accept a position as CEO of the Nova Scotia Human Rights Commission.  So this was decided by Vice-Chair Leslie Reaume.

The basis of the reconsideration request was essentially this:  When Mr. Britton was being restrained, there were several people involved, not all of whom were employed by GMC (i.e. paramedics and police).  The paramedic's 'taunting' and the police officer having thrown him to the ground are not obviously actions for which GMC is responsible.  Without finding some basis to conclude that GMC was responsible for their conduct, or some express statement in his reasons that he was only considering the conduct of GMC's employees, it appears from Mr. Shannon's reasons that he attributed liability to GMC based on their conduct as well.

The Vice-Chair agreed, and allowed the reconsideration request, remitting the matter for a new hearing before a new member.

My Thoughts on this Case

I think the reconsideration decision is questionable, quite frankly.

Mr. Shannon concluded that GMC had discriminated and/or failed in its duty to accommodate.  I'm not entirely sure if the reconsideration is attacking that conclusion, but my read of Mr. Shannon's reasons lead me to think that it's probably a fairly solid conclusion:  GMC's nursing and security staff significantly broke from the established practice of dealing with Mr. Britton long before the paramedic's taunt or the police threw him to the ground.  GMC's security staff physically restrained him first despite the fact that, according to Mr. Shannon's description of the video, he had given them no apparent reason to do so.  That makes it a battery, and when it's directly attributable to Mr. Britton's epilepsy, that makes it a Code violation.  Pretty academic.

On any standard of appellate review, and particularly on the HRTO's traditionally insurmountable standard for reconsideration, that finding would be resistant to being reversed.

If the reconsideration decision is concerned about damages only, that's more complicated, but ultimately should fall a similar way:  The employer argument would run that Mr. Britton's damages arose not as a result of GMC's mistreatment, but as a result of the mistreatment by the police and paramedics.

The trouble is that causation isn't that simple.  The Tribunal has the power to remedy any loss "arising out of" the infringement of rights.  The chain of causation here is pretty straightforward - if the employer hadn't responded inappropriately in the first place, none of the other mistreatment would have followed.

Perhaps the karate kick was an independent wrong, for which the paramedic might be separately responsible, but that didn't cause any of Mr. Britton's physical injuries, and when he was otherwise being restrained and thrown to the ground, is a relatively minor point.

Consider this question:  If he brought an action or application against the police, would they be liable?  The answer is "probably not".  They arrived on site, saw him struggling with a security guard who was physically restraining him, and acted in a manner which seemed reasonable under those circumstances.  Their actions were reasonably taken because of the circumstances created by GMC's staff.

In other words, I think Vice-Chair Reaume is taking too narrow a view on causation.

Perhaps more importantly, the reconsideration decision appears to have been granted on the basis of Rule 26.5(c) of the Tribunal's Rules, in that "the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of public importance".  This was the basis of the reconsideration in Garrie, too.

While stating that the allocation of liability based on third party conduct (again, which I'm not sure is actually going on) is inconsistent with Tribunal jurisprudence, no case law is cited on the point, and there's no discussion whatsoever as to public importance, except to say that "the legitimacy of the Tribunal is related to its ability and willingness to undue [sic] an unfair result or process, or correct a wrong.  In this case, reconsideration will correct an unfair result, where the respondent finds itself responsible for the actions of third parties where there has been no determination that the relationship among them falls within section 46.3(1)."

In other words, Vice-Chair Reaume is saying "I think the Member made a mistake, so we'll reconsider it."  That marks a very stark departure from the prior jurisprudence on reconsideration, in which reconsideration requests were almost never granted.

My Thoughts on Reconsideration Generally

It's no coincidence that a reconsideration is granted here where it's a different adjudicator hearing the reconsideration request.  If Mr. Shannon heard the request, I seriously doubt he would have allowed the request - in some ways, the reconsideration decision reads as a "sufficiency of reasons" issue.

If the standard of review Vice-Chair Reaume applied to the case is even close to correct, then it is entirely inappropriate for adjudicators to sit in reconsideration over their own prior decisions.  It may be time for the Tribunal to revisit that practice, in any event:  If it truly is a matter of 'public importance' that the Tribunal be willing to correct its own mistakes, then it is reasonable that a reconsideration request should be made before a fresh set of eyes, so to speak.

In the judicial context, reconsideration is not usually sought, except for the most basic of errors - cases where, for example, one party's filings don't actually make it before the judge due to an administrative error, or where the judge makes an arithmetical error in calculating damages.  For more significant errors, the expected course of action is to appeal.  It looked like the Tribunal was taking a similar approach, correcting only the most basic of administrative and factual errors, and otherwise refusing to reconsider a case without being told to do so by a judge.  One can agree or disagree with that practice, but if the Tribunal is starting to seriously evaluate the factual and legal matters in issue in the reconsideration context, as in Garrie and Britton, then it should do so consistently.

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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.

BOWL Blog's New Twitter Account

Welcome to 2012 - I'll be tweeting BOWL Blog updates - follow by clicking the gadget on the right.

Email Caution in the Workplace: Oops

Email has a lot of great advantages - it's a relatively informal mode of communication for which a permanent record can usually be kept.  Entire conversations that used to happen by telephone or in person now occur via email, and there can be no confusion about who said what.

As a lawyer, I am a huge fan of that aspect.

In reality, though, it's a double-edged sword.  It is far too easy for people to hammer off an angry email and hit send, and then regret it later.  Or there are more technical errors, sending it to the wrong person, accidentally hitting "Reply All", etc.  Most people do that from time to time.  Lawyers have to be particularly cautious.  But it happens.

The recent Divisional Court decision in Fernandes v. Marketforce Communications Inc., dealt with just such an "Oops" moment.  There was an email conversation going around in which the company's managers took issue with Fernandes' continued employment, and courted the idea of dismissing her.  The company's director of operations then sent an email, including the past email chain, to the company's lawyers asking for a conference call.

And copied it to Ms. Fernandes.

Oops.

She immediately tried to 'recall' the email, but that didn't work.  So she immediately sent another email to Fernandes saying that the email had been inadvertently sent but was privileged and confidential, and asking Fernandes to delete it without reading or copying it.

Not so easy to put a cat back into a bag.  Fernandes had read it, she did copy it, and following her vacation advised the employer that she was taking the email as terminating her employment.

The Issue:  Is the Email Privileged?

The employer took the position that the email was subject to solicitor-client privilege, that the disclosure was inadvertent and did not waive privilege, and therefore the email could not be entered into evidence in a trial.

There's a logic to the employer's position.  The email was privileged, and privilege isn't waived by clearly inadvertent disclosure, particularly given the director of operations' immediate attempts to contain the mistake.  However, where preservation of privilege would be 'unfair', the Court can admit the privileged documents anyways.

That's where this case turns:  If you receive and read an email with an internal discussion in management about planning to fire you, it's easy to imagine how such an email would put a chill on the continuation of the employment relationship.  (It would, of course, depend on circumstances.  Dealing with a scenario where the employee had been put on a performance improvement plan, and had been cautioned that her performance still wasn't meeting expectations, then an accidental insight into a "do we fire her" conversation is not only unsurprising but to be expected.  However, in most situations, where the an employee knows that management has already formed an intention to end the employment relationship...the employment relationship is, essentially, already over.)

So, where the contract was effectively brought to an end by an inadvertent disclosure of a privileged document, it would be a travesty to prevent the disclosed document from being admitted into proceedings flowing from the breach of contract.

Of course, the Court isn't yet asking the question of whether or not the plaintiff is right that the document effectively ended her employment, nor does it include the language of the email in the decision.  However, the finding that privilege does not prevent the employee from relying on the email...well, that's likely to force a settlement of the case fairly quickly.

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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: Judicial "Plagiarism"

There's been an interesting story I've been following in the media, the most recent of which is today in the National Post:  Case Headed to Supreme Court After Judge Plagiarizes Ruling in Multi-Million Dollar Compensation Trial.

The B.C. case involves a medical malpractice action.  At the end of a 30-day trial, counsel made written closing submissions...and Justice Groves reproduced very large portions of the plaintiff's closing submissions in his own decision, without identifying them as such. It was a 105-page decision, consisting of 368 paragraphs, of which the Court of Appeal said 321 paragraphs were copied "almost word-for-word" from the plaintiff's submissions "(with inconsequential changes, such as replacing phrases like 'it is submitted' with phrases like 'I have concluded')."

The majority of the Court of Appeal concluded that an informed observer "could not be persuaded that the trial judge independently and impartially examined all of the evidence and arrived at his own conclusions", and ordered a new trial.  It is now going to the SCC, as the headline above suggests.

Let's start off by being clear on one thing:  "Plagiarism" is the wrong word on all sorts of different levels.  Legal submissions are not in the nature of intellectual property, and I'll bet that the plaintiff's lawyer was thrilled that the trial judge so thoroughly accepted his submissions.  A courtroom is not the Globe & Mail, and a judicial decision is not an op-ed column.  For propositions of law in particular, original content is not the norm, and attribution is frequently foregone for matters of trite law.

The journalists looking at this story are understandably appalled by the lack of attribution - in their world, that's a cardinal sin.  In legal reasons, though...less so.

No, the problem here is simple:  When the judge did a massive cut-and-paste job, it raises the question as to whether or not he seriously thought about each of the myriad factual and legal questions in doing so.  This was a shortcut, so the question is how much of a shortcut he took.

The importance of attribution, in judicial reasons, isn't to give credit where it's due; it's to give the appropriate context to the text itself.  A judge doesn't need to come up with his own distinct analysis, of course.  It is enough - and this is quite common in judicial writing - for the judge to say "The plaintiff argues x, and the defendant argues y [setting out the arguments in some detail], and I find the plaintiff's submission to be more persuasive."  Showing an appreciation for the competing positions is enough.

But it isn't unusual for segments of argument to be integrated verbatim into a decision.  It usually illustrates that the judge found those particular arguments to be persuasive.  That's fine.  I've had my submissions integrated verbatim into judicial or quasi-judicial decisions before.  It's a huge compliment to my advocacy skills, not only that I persuaded them, but that they couldn't top my choice of words for explaining the argument.

Ultimately, I think the controversy here is understandable:  The scale of the reproduction should be frowned upon, absolutely, but I don't take the view that this alone is enough to reverse the decision and order a new trial, and my reason is this:  If it's really a problem, there are other ways of getting at it.

Where a judge makes findings of fact, this is entitled to deference.  That means that, if a judge isn't bothering to assess credibility or independently consider what facts he believes, that's a huge problem, because those are hard to get in at on appeal.  However, if he doesn't adequately consider the defendant's evidence, and accepts the plaintiff's evidence without mentioning the competing version of facts, and without giving some reason for choosing one over the other, that's probably going to be a reviewable error.  In other words, unless the plaintiff's submissions fairly summarized the defence evidence and gave cogent reasons why such evidence shouldn't be believed, adopting the plaintiff's submissions, without more, will give grounds for appeal.  If the plaintiff's submissions did fairly sum up the defence position and give reasons why it shouldn't be accepted...then it still isn't ideal, but it gives the framework for a fulsome judicial ruling on the matter.  Which is, in many ways, the purpose of legal argument.

On the other hand, for findings of law, the standard of review is correctness.  It may be troubling to think that the judge isn't independently thinking about these questions, but if he got one of them wrong, that can be corrected by the Court of Appeal without requiring a new trial.

Ultimately, when the judge accepted the whole of the plaintiff's submissions, he sent the message that he agreed with the plaintiff on each and every point.  He was entitled to do that - no question - and the fact that the text itself was authored by one party's counsel doesn't disentitle him to use what he thinks is persuasive from it.  Rather, the question to ask remains whether or not the reasons provide adequate basis for appellate review, and whether or not he erred in any way subject to appellate intervention.

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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.

Growing Inconsistency on Bill 168

Many of you know that I've been following the OLRB's jurisprudence on Bill 168, regarding whether or not a reprisal for a harassment complaint offends the anti-reprisal provisions in the Occupational Health and Safety Act.

The Board started out, in the Investia case, with a 'probably not'.  Vice-Chair McLean put forward an analysis suggesting that the Board should not hear such cases, but ultimately decided the case on other grounds.

Vice-Chair Serena, in the Ludlow case, accepted and applies the Investia analysis.  However, the Board has since had several other cases come before it, where the Board looked at Investia as still being up for discussion, and undecided, and every case has been decided on other grounds.

Vice-Chair Kelly, Vice-Chair Anderson, and Alternate Chair Gee have looked at several of these cases, and have consistently looked at the question as being "not yet decisively determined by the Board."  (That particular quotation is Alternate Chair Gee's from the Citi Cards Canada Inc. case.)  Vice-Chair Rowan dealt with a similar case where the employer didn't have a harassment policy, and distinguished that case from Investia.

However, there's a new and slightly alarming decision by Vice-Chair Wilson, in Nunes v. AGF Albrecht, stating that "The Board has determined that it does not have jurisdiction to inquire into a harassment complaint or an allegation that an employee has been dismissed for making a harassment complaint known to the employer.  See generally Investia...; Blue Line Transportation...."  The same text occurred in the same Vice-Chair's decision in Windmill Cabinets, also quite recently.

Whichever way the Board ultimately comes down on the question, it is very clear that neither Investia nor Blue Line Transportation is the final word on the topic.  The analysis in Investia is clearly obiter, clearly identified as such, and has been recognized as such by numerous decisions since then.  Blue Line Transportation is different, standing for the relatively uncontroversial proposition that, even if Investia is wrong and reprisals for harassment complaints are prohibited, that still doesn't give the Board jurisdiction to inquire into harassment complaints in the absence of reprisal.

While I might have seen Ludlow as being a final word (subject to judicial review, of course)...it wasn't, and hasn't been treated as such.  All things considered, I would respectfully argue that Vice-Chair Wilson is incorrect to treat the question as being settled.  (That contention is, of course, separate and distinct from the argument I have frequently explained that the Investia analysis ought not to be followed.)

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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.

Employer Jailed for Unpaid Wages

When employers - and Directors of corporate employers - start going to jail, you know things are getting interesting.

There are growing areas of Directors' liabilities, and while their liability for unpaid wages isn't new, this is the first time I'm aware of anyone ending up in jail for it.

A Ministry news release from yesterday morning reports that Steven Blondin, a director of six companies (in Toronto, York Region, Dufferin County, and Simcoe County) with complaints of unpaid wages of about $125,000 from 61 employees from 2007 to 2009, has been sentenced by the Ontario Court of Justice to 90 days in jail.  (He also faces fines of $280,000, plus victim surcharge.)

I hope to see Justice Bubrin's full decision published, because I think this could be a very important case, and the context is important.

In general, we don't throw people in jail for not being able to pay their debts - the notion of a debtor's prison is decidedly outdated.  In civil court, a judgment is more akin to a declaration of entitlement than an order to pay:  It remains up to the judgment creditor to take enforcement action against the judgment debtor's assets and income, and you'd never be found to be in contempt of Court for failing to satisfy a judgment.  On the other hand, if you were ordered to hand over specific assets - say, a particular Mercedes Benz - then you could be jailed for contempt if you refused to do so.

The ESA Framework

Under the Employment Standards Act, 2000, a corporate director is liable for up to six months' wages for employees of the corporation, and can be ordered to pay wages.  Failing to adhere to a Ministry order is an offence against the ESA, carrying a range of penalties.

There's "General Offence" language (s.132) saying that a breach of the Act or noncompliance with orders carries potential fines (for individuals, up to $50,000) and imprisonment of up to twelve months.  However, there's also more specific language (s.136) dealing with a director's non-payment of amounts owed because of the director's personal liability, which permits only fines (up to $50,000) and not imprisonment.  Under fairly straightforward principles of statutory interpretation, therefore, a director's failure to pay amounts for which he is personally liable ought not to make him liable to imprisonment.

The analysis doesn't end there, though.  There's a different provision, s.137, that permits a prosecution against directors or officers for authorizing, permitting, or acquiescing in breaches of the Act.  That can result in a term of imprisonment.

So I'm curious about the framework being applied here.  s.137 has some fairly specific requirements, and is a little different from the other offence provisions - I'm not entirely convinced that its language properly captures an order to pay scenario, but if it does, then it would certainly require something beyond mere non-payment, probably requiring that the officer or director took some action to circumvent the order, such as moving the assets of the corporation out of reach.  If the corporate veil is in play, then to my mind s.132 is off the table, and s.136 doesn't permit imprisonment.

Of course, in a situation where an individual ends up on the hook for unpaid wages for 61 employees of six corporations over two years, one can achieve certain inferences regarding how much control he had over the corporations and their businesses, and where the revenues may have all gone at the end of the day.  It would be hard to leave that kind of trail without some sort of intentional 'rogue' behaviour, and that's the sort of behaviour that makes the Courts want to send a firm message of condemnation.

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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: Revoking Revocations

While my practice focus (and blogging focus) is on workplace law, I follow a much broader range of legal developments, because...well, you never know when they might be useful.  To be a good employment lawyer, I need to have a basic background in corporate law, in tax law, in constitutional law, and yes, even in family law and estate law.  Among others.

Here's an interesting little case dealing with an insurance beneficiary designation in a will:  Petch v. Kuivila.

Richard Petch bought an insurance policy.  In 2003, he made a revocable designation of his sister, Heather, as beneficiary under the policy.  Such a designation can be revoked by a subsequent written instrument - say, in a Will.

In 2004, Richard made a Will, making Heather the estate trustee together with his partner, Mary, and designating Mary and his son Dustin as beneficiaries of the insurance policy.

In 2008, he married Mary.  Two years later, he passed away.

Here's a legal reality in Ontario which really should be more widely known than it is, so let's put it in big bold print:

In Ontario, a Will is revoked by marriage.

That's putting it simply.  There's an exception for "wills made in contemplation of marriage".  So if I'm engaged to be married, and I make a Will that expressly refers to the engagement and that this will is made in contemplation of my approaching marriage to a particular person, that Will will probably survive.  In other words, if you're planning to get married, you and your spouse both need to go talk to a lawyer (or more than one lawyer) to have new Wills prepared.

(Contact me if you need Wills and/or Powers of Attorney.  For simple Wills, I am quite capable of assisting personally, and some of my Associates regularly provide more complex Will services, including multiple Wills to deal with non-probate assets.)

Richard's Will was not made in contemplation of marriage, so was revoked in 2008 when he married Mary.  He didn't make a new Will afterwards, so died "intestate" - without a Will.  The result isn't horrible, under the circumstances:  It means his estate gets divided in a particular fashion as between his spouse and - perhaps - his child.

But what about the proceeds of the life insurance policy?  Aye, there's the rub, for in that sleep of death what litigation may come when we have shuffled off this mortal coil must give us pause.

The designation in his Will had the effect of revoking his prior designation.  That's relatively straightforward.  The marriage subsequently revoked his Will.  That's also straightforward.  But when you revoke the Will, does that undo its revocation of the prior designation, leaving intact Heather's designation as beneficiary?  Or does the policy simply no longer have a designated beneficiary, meaning that its value would be paid into the estate (and divided up, again, among his wife and child)?

The Court came down on Mary's side, and rightly.  While a Will is considered to "speak from death" - i.e. it is deemed to be the testator's intention the moment before death - the beneficiary designation is treated as a separate declaration, becoming effective the moment the Will is signed.  (This interpretation has arisen from cases where somebody makes a Will, then subsequently changes the beneficiary designation in the insurance policy.  The Courts respect the subsequent designations.  However, its application here is fairly simple.)  This means that the new designation, even though revoked together with the rest of the Will, permanently and completely revoked the prior designation.  The prior designation cannot be restored by a revocation of the revocation like some sort of palimpsest.

Wills and Estates law is rife with bright-line rules and strict interpretations, particularly in Ontario.  In this case, it looks like the Court's interpretation renders the just result, the result that accords with what the testator would have intended.  However, there could be other scenarios where it could be less favourable.  There are major advantages to beneficiary designations, because they mean that the proceeds never form part of the Estate.  It's a contract with the insurance company to pay a third party, and therefore somebody with a claim against the Estate can't go after the insurance proceeds.  (There are narrow exceptions to this, of course.)

This is why it is extremely important to talk to a lawyer about your estate planning.  I've seen awful cases where self-drafted Wills were improperly executed, resulting in a markedly different distribution of the estate; where people tried to edit their own Wills, resulting in the need for expensive Court applications for judicial guidance; etc.  Estate planning is absolutely an area of law where a stitch in time saves nine.

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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.