Monday, May 25, 2015

Paralegal Donates to Deputy Judge's Fundraising Campaign; DJ Should Have Recused Himself

There's a recent case from the Divisional Court, Robinson v. Lepage, dealing with the concept of 'reasonable apprehension of bias'.

Ms. Lepage sued Mr. Robinson in breach of contract, and obtained an award of just under $4400, plus $1650 in costs.  The trial decision was made by Deputy Judge Lyon Gilbert.

The wrinkle arises in that Deputy Judge Gilbert had been fundraising for the CN Ride for CHEO - a charity bicycle ride in which he was participating.  Nine days before the trial, Ms. Lepage's paralegal made a donation to his fundraising campaign, leaving a comment applauding him for raising funds for such a great cause.

As the Divisional Court found:
When the Appellant learned of Deputy Judge Gilbert’s relationship with Phoenix Paralegal & Advocacy and the Respondent’s representative, Tami Cogan, after receiving the decision of the court, he could not but think that he did not receive a fair trial and that the judge was biased in favour of the Respondent (Plaintiff). Any informed person, viewing the matter realistically and practically would arrive at the same conclusion.
Accordingly, the Deputy Judge should have recused himself, and the Divisional Court ordered a new trial.

Commentary

Here's a question:  What if the donation hadn't been 9 days before the trial, but 90?  Or 900?  Is it a problem for a Deputy Judge to raise funds for a good cause (and there's no question that CHEO is a good cause) at all, such that he or she can never adjudicate a dispute argued by or on behalf of somebody who made a donation, ever again?

It's a fuzzy logic question, and pretty hypothetical, but I might argue that 9 days is as good as 900, in large part because it would be quite unusual for a paralegal to know which Deputy Judge she will be appearing before, 9 days in advance of the trial.  And while it wouldn't surprise me to find that the paralegal's donation was part of a 'butter up the Deputy Judges' approach to social networking, Ottawa has quite a few Deputy Judges.

Deputy Judges are lawyers who serve on a per diem basis.  They remain part of the local bar, and deal with other lawyers and paralegals as equal colleagues.  Deputy Judge Gilbert has served in this role for 30 years.

Full-time judges have to be very cognizant, at all times, of the optics of their interactions with other lawyers and the general public.  Still, judges are chosen from the ranks of lawyers, and there's often history.  That history doesn't necessarily create bias.

And for Deputy Judges, that history can be ongoing.  It's entirely plausible for a Deputy Judge to litigate against another lawyer in Superior Court one day, and then adjudicate one of that lawyer's other files the next.  It's a different kind of relationship that Deputy Judges have with local lawyers and paralegals.  It's not only plausible, but actually likely, that Deputy Judges will socialize with the lawyers (and, to a lesser extent, paralegals) who occasionally appear before him or her.  In the legal community, we're all supposed to be friends and colleagues, whichever side of the bench we're on, and that's especially true of Deputy Judges.

And considering that this wasn't a gift to the Deputy Judge, but a donation to his CHEO fundraising campaign, it's not a scenario where the Deputy Judge can be said to have received any benefit.  Likewise, it wasn't from the plaintiff, but rather from the plaintiff's paralegal - a colleague in the Ottawa legal community, supporting the Deputy Judge's efforts to raise funds for a good cause.

Is It Inappropriate For Deputy Judges to Engage in Fundraising At All?

In the Divisional Court's decision, there appears to be a suggestion - without a finding - that it was a violation of judicial ethics for the Deputy Judge to engage in fundraising at all.  There's a citation of the CJC's Ethical Principles for Judges, highlighting that:
Judges should not solicit funds (except from judicial colleagues or for appropriate judicial purposes) or lend the prestige of judicial office to such solicitations.
Which makes sense.  And it also makes sense that, while the CJC's rules don't strictly apply to Deputy Judges, we would have similar expectations.

But it also seems to me that this particular rule might have to be modified when discussing Deputy Judges.  Note that it's actually okay for Federally-appointed judges to solicit funds "from judicial colleagues".  That, doubtless, wouldn't include Deputy Judges in the first place.  But when you start applying the rule to Deputy Judges themselves, ask "Who are their judicial colleagues?"  Other Deputy Judges?  Well, that would still be troubling, because most Deputy Judges are partners in firms of lawyers who might appear before other Deputy Judges.  And if Deputy Judge A donates to Deputy Judge B's campaign, a week before an employee of A's firm litigates a matter in front of B...well, that's basically indistinguishable from this fact pattern.

Here's the distinction:  Deputy Judges aren't walking around with the "prestige of judicial office" in their day-to-day lives.  It's a part time gig.  Ask them what they do, and they'll say, "I'm a lawyer."  On Deputy Judge Gilbert's fundraising page, he identified himself as a member of the Ottawa legal community.

In Superior Court, I'll deal with opposing counsel in essentially the same way, regardless of whether or not he's a Deputy Judge.  Outside of the Small Claims Court, I wouldn't call a Deputy Judge "Your Honour"; I'd call him "My Friend".  Yes, that's literally the appropriate courtroom etiquette for lawyers.  Would a lay litigant, seeing the Deputy Judge who ruled in favour of my client later call me his "friend", think that there's something hokey in the system?  Probably, but that's based on a misapprehension of the facts, and of the roles and relationships in play between members of the legal community, and does not give rise to a reasonable apprehension of bias.

*****

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.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

Thursday, May 14, 2015

Best Theratronics Loses Its Appeals

Over the last several months, I've discussed several wrongful dismissal cases involving Best Theratronics, including the Court of Appeal's decision in Arnone v. Best Theratronics earlier this year.

Two more appellate decisions have recently been released, in Vist v. Best Theratronics and Beatty v. Best Theratronics.

Vist

This was a decision I discussed last June, dealing with interesting questions surrounding the treatment of non-continuous service periods for the purpose of determining the length of the reasonable notice period.

In my discussion, I expressed some reticence about the ultimate decision:  On these facts, it seemed to me that it was a Boolean question of "Was there an agreement to recognize the employee's previous years of service?"  If yes, they get recognized.  If not, then probably not.  And this was an ambiguous question which could have gone either way.  But instead Justice Blishen took a compromise approach, purporting to not regard the years of service cumulatively, while nonetheless giving "some credit" for them.  Even then, it's not clear what credit she gave, because she only awarded 6 months, which I regarded as being "within or near" the reasonable range under the circumstances.

The Divisional Court's discussion is very interesting.  The employer appealed on three grounds:


  1. that the treatment of the previous years of service was wrong, and Vist shouldn't have gotten any credit for them;
  2. that Vist failed to mitigate his damages by looking for lower-level employment instead of employment at the same senior level he had previously occupied;
  3. that the plaintiff should have been denied costs, because his award was ultimately within the Small Claims Court jurisdiction, after considering mitigation earnings - $24,924.29, which is $75.71 short of the maximum claim in Small Claims Court.  (The judge awarded 'partial indemnity' costs in the amount of $23,000.)


On the first issue, the Court accepted that the ambiguity of the contract permitted an interpretation to give 'some credit' to the employee for the additional years of service, but highlights that in any event it's clear that the judge did not give full credit - because if she had, the notice period would have been 2 to 3 times what it was.  Assuming a 2.5 year employee under the circumstances, the Divisional Court regarded the reasonable notice period as being in a range from 3-6 months, and therefore the judge's award was within the range.

On the second issue, the Court was critical of the employer for even pursuing it:  Vist successfully mitigated, at a lower level, fairly quickly, and the employer received the benefit of that.  Had he been seeking a higher-level position, it presumably would have taken him significantly longer to find it, generating a greater cost to the employer.

And on the third issue, the trial judge did err slightly:  She concluded that the award actually exceeded the Small Claims Court jurisdiction, including interest, thus improperly denying herself the discretion to deny costs.  However, under all the circumstances, given that she nonetheless awarded costs on a scale that rivalled the judgment itself, the Divisional Court felt that it was "pretty clear" which way her discretion would have gone, so it was pointless to remit the matter back to her.

Beatty

My original commentary on the Beatty case focused on the application of the new summary judgment rules to a fairly common employment law scenario:  Where there's a simple wrongful dismissal claim with a side claim for bad faith damages, it may be easy to resolve questions like liability for reasonable notice on summary judgment, yet more complicated in some cases to address entitlements to moral damages.  In Beatty, Justice Hackland determined that he could determine some of the issues, but referred the moral damage issues to a summary trial.

Best Theratronics appealed on two issues:  Firstly, it claimed that Justice Hackland erred in his assessment of the reasonable notice period; secondly, it argued that Justice Hackland erred in finding that the plaintiff had taken reasonable steps in mitigation.

These arguments both have two facets:  On the one hand, they're saying "Justice Hackland made the wrong decision; he should have ruled this way instead"; on the other hand, they're arguing "Justice Hackland lacked the evidentiary basis to find the way he did, and should have at least ordered a trial on the issue."

The Court of Appeal rejected all the employer's arguments.

Notice Period

The employer argued that Justice Hackland had erred by applying the "rule of thumb" approach of one month per year of service, awarding 16 months for 16 years of service.  The Court of Appeal expressly rejected such a "rule of thumb" approach in 1999.

There is a slightly concerning passage in Justice Hackland's decision to this end:
 The plaintiff’s submission is that he is entitled to 16 months’ notice, being a fairly standard one month per year of employment calculation based on a consideration and balancing of all of the recognized factors set out in Bardal v. Globe and Mail (1960), 24 D.L.R. (2d) 140.
Still, the Court of Appeal rejected the notion that 'one month per year of service' is how Justice Hackland came to this answer.  He referred to the appropriate principles, and to comparable case law, in assessing this figure.  He referred to the employer's submission - that 12 weeks was sufficient - as "remarkable", having "no real rationale".  (My read of Justice Hackland's language is that the "fairly standard" language contrasted the plaintiff's submission - which appeared to be in the ballpark - to the defendant's submission...which didn't.)

Mitigation

The employer argued that the defendant had failed to mitigate, because his efforts at a job hunt were inadequate.  The employer put forward a number of positions that were available, but for which the plaintiff had not applied; Justice Hackland found that these jobs were not such that the plaintiff would have been required to apply (because they were not comparable to the job he had before), and therefore the employer had not satisfied its onus of proving a failure to mitigate.  The Court of Appeal agreed with the assessment.

Availability of Summary Judgment

This is kind of the most important, but simplest, aspect of the decision:
This is a case where it was manifestly fair and just for the motion judge to determine the issues he did in a summary manner. The motion judge had a full evidentiary record. The parties filed affidavits, and the respondent was cross-examined. There were no real credibility or even factual issues relevant to the period of reasonable notice and mitigation.
It is increasingly appearing that motions for summary judgment will be very common in wrongful dismissal matters, moving forward.

*****

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.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

Tuesday, May 5, 2015

Ontario Court of Appeal Upholds Danbury Ruling

Over a year ago, I posted about the decision in King v. 1416088 Ontario Ltd., dealing with the 'common employer' doctrine.

To briefly summarize, the case dealt with an unusual fact pattern in which Mr. King had worked for Danbury for many years, then the old business shut down, and the old owner's relative started a new business started up carrying on the Danbury name (which rights the new corporation had acquired many years prior).  However, part of Mr. King's duties prior to his dismissal involved making the accounting transition to the new company.

This week, the Court of Appeal released its reasons, upholding the trial decision.  It's a short endorsement, finding that the trial judge's decision was warranted.

It's a cautionary tale for employers, that it may be difficult or even impossible to transition a company in such a ways as to relieve the new company of employment-related liabilities of the old one.  There are better ways of addressing such transitional issues - talk to an employment lawyer before any large-scale restructures.

*****

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.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.

Monday, March 30, 2015

Indiana: Protecting its people from the tyranny of equality since 2015

Every so often, I discuss about topics outside of Canadian labour and employment law, either because I find a topic interesting, or because I find it important.

This is the latter.

Indiana Governor Mike Pence signed a bill into law which is ostensibly to 'protect religious freedom'.  In essence the bill protects from 'substantial interference' by the state in a person's exercise of their religious belief, and allows people to defend against legal actions on the basis that their conduct was an exercise of religious freedom.

What Does the Law Do?

There are some interesting distinctions to be drawn at the outset:  There's some question as to exactly how far this law extends.  On its face, it only appears to deal with 'government action', in a quasi-constitutional way.  In other words, the government can't force you to do something inconsistent with your religious beliefs, or to abstain from doing something mandated by your religious beliefs, unless a certain test is met to justify the constraint.

Seems pretty innocent, no?

And the governor has argued that it "does not apply to disputes between individuals, unless government action is involved."  Sounds nice, but it glosses over the fact that such disputes invariably involve government action.

I'm not an Indiana lawyer, and there are certain gaps in my knowledge as to the state of anti-discrimination laws in Indiana.  In general, however, Canada and the United States have some pretty fundamental similarities:  I'm entitled to exclude whomever I want from my private property, unless there's a law telling me I can't.  I can refuse service to, for example, anyone who parts their hair on the left.  There's no law to stop me from doing that.

In Ontario, we have the Human Rights Code.  I can't refuse to serve people because of their religion, sexual orientation, race, gender, disabilities, among others.  In Indiana, I don't believe that such a broad law exists.  They have the EEOC, which has similar impacts in employment contexts specifically, but doesn't affect provision of goods and services.  My understanding is that there are some county-specific anti-discrimination ordinances, of varying scope.

Where such an ordinance doesn't exist, it would appear that it may already be legal to refuse service on the basis of sexual orientation.  Where such an ordinance exists, the ordinance would absolutely be subject to the religious freedom law, forcing the question of "Does making me serve homosexuals violate my religious freedom?"  And, if so, is that obligation justified by a compelling interest of the state?  It's not clear whether or not these ordinances will hold up under the new law (or to what extent), but there's little question that the goal of this statute was to undermine them in respect of gay marriage.

Religious Freedom to Refuse to Serve

In general, I find it laughably absurd that businesses claim that it offends their religious freedom to be required to serve others.  (Though it is not lost on me that I have a certain luxury to be able to laugh at it.)

It is fairly easy to conceive of hypothetical exceptions to this, particularly in gender contexts:  Suppose my religion prohibits me from seeing unrelated women in a state of undress, yet I'm a professional tattoo artist.

Such hypotheticals are generally pretty far-fetched, and very seldom occur.  (There was the one case in Toronto some time ago where a Muslim barber refused to cut a woman's hair on religious grounds.  That probably wouldn't amount to a legal defence for him, and whether or not it should, in the particular context, is an issue about which reasonable people can disagree.)  Regardless, those issues are not generally what we're talking about when looking at these 'religious freedom' laws.

To put it in perspective, Indiana banned same-sex marriage until less than six months ago, when the Supreme Court of the United States refused to hear an appeal from a decision finding the ban to be unconstitutional.  The timing is probably not a coincidence.

We are also not talking about, for instance, a Catholic Priest refusing to officiate a same-sex marriage within the Church.  Churches typically fall within well-established exemptions to anti-discrimination laws.  I don't think there are many who would seriously argue that the state should compel religious institutions to recognize gay marriage.

So we get into the grittier questions when we start talking about fundamentally secular businesses and institutions refusing service on religious grounds, where there are basically three classes of cases being discussed:  (1) provision of goods and services completely unrelated to weddings; (2) wedding industry services; and (3) solemnization by secular officials.

Provision of Goods and Services Unrelated to Gay Marriage

Before we wander into the arguably-muddier waters of services related to same-sex marriages, let's look at the general proposition of denying services to gays - for example, where a restaurant or movie theatre turns patrons away because of their sexual orientation.

If a restaurant put up a "gays not welcome here" sign on their door, my first instinct would be to mock it.  If a gay person walks in, how would restaurant staff know?  Do they administer a heterosexuality test at the door?  Would that be sanitary?

Besides, to the best of my knowledge, the religious folks objecting to gay marriage still insist that homosexuality is a transitory lifestyle choice, and not a fundamental aspect of a person's identity.  (Much easier to justify condemning someone for what he does, rather than what he is, I suppose.)  The sin isn't "being gay" (there's no such thing, according to homophobic religious dogma); the sin is to engage in homosexual carnality.  So one would think that, unless the gay person is engaging in homosexual carnality in the restaurant (which is probably a health code violation), the person's just another person.  Maybe a sinner, but...well, aren't we all?

After all, even a man who self-identifies as gay hasn't necessarily 'known' (to use the biblical term) another man.  So even if your problem is 'the sins your patrons engage in elsewhere', the question remains:  How do you know?

But okay, let's move to the practical reality of such an exclusion:  A scenario where a same-sex couple walks in, engaging in conduct that reasonably makes people think they're a couple - say, holding hands.  It isn't at all hard to imagine a response of "We don't want that kind of thing here; this is a family restaurant with good old-fashioned Christian values!"

There is no plausible argument, even within Christian dogma, that selling food to a gay person is inconsistent with your religious belief.  (There may be an argument rooted in Leviticus that being prohibited from executing gay men violates your religious beliefs, but I think and hope we can all agree that this argument would be pretty absurd in modern society.)

So let's look at what's really going on here.  People are uncomfortable with homosexuality.  I get that.  I'll admit that I'm a bit uncomfortable with it too, but frankly I think that discomfort is just a natural result of thinking too hard about what goes on in somebody else's bedroom.  So the restaurant owner wants to maintain a 'Christian' environment, where Christian families can eat without exposing their kids to gay couples.  (Because, let's face it, your average homophobe doesn't particularly get the nuanced distinction that gay couples aren't actually sinning in the act of sitting at a table together eating a meal.  Or in the act of, you know, existing.)

The only way you could frame this argument in any sort of cogent way is in the sense of "We don't serve sinners here".  As noted, however, we're all sinners, so such a policy, uniformly applied, would result in a pretty empty restaurant.  Even if you narrowed the scope to violations of biblical sexual purity (or, that is, being presumed to have offended biblical sexual purity laws), that still sweeps up most of society in this day and age.  Even in religious communities, 'waiting for marriage' is becoming an increasingly rare phenomenon.  (A couple years ago, a study came out finding that 1 in 200 American mothers claimed to be a virgin - and no, we're not talking about assisted reproduction technologies.  Of those supposed virgin mothers, 31% had taken a chastity pledge, usually for religious reasons.)

Even then, however, it would be really hard to ground such an argument, that you are not permitted to conduct business with certain classes of sinners, in any sort of scripture or mainstream religious teaching.

"It's Against My Religion to Put Two Grooms on the Wedding Cake"

This is downright silly, frankly.  Yet it happens.

The reason it happens isn't because anyone's religious beliefs actually have any bearing on what cakes they can make, with what decorations, or for what occasions.  A wedding cake is not a religious artefact.  No, this happens because of simple bigotry.  Full stop.  It's a rule of exclusion with no good faith religious rationale, rooted in the fundamentally political opposition to the legalization of same-sex marriage.

(The case I linked above noted that the bakery, with a policy of not serving baked goods in connection with same-sex marriages, nonetheless once prepared a wedding cake for the 'marriage' of two dogs.)

There's no religious significance to preparing a cake, and at the end of the day the fact that the cake will be used in connection with a same-sex marriage does not in any way affect the character of your duties in making it.  It is no different, in any way, from the more general category I examined above.

Imagine that a baker who happened to be Jewish refused to sell a birthday cake to a parent because the main course was going to be cheeseburgers.  It makes about as much sense as this, really.

Solemnization by Secular Officials

This seems to be the one that gets the most sympathy:  If I'm performing City Hall weddings, and a gay couple comes before me, and I believe that their marriage is an affront to my personal religion, then shouldn't I be able to refuse to do it?

Simply put, no.  Your non-compliance with my religious values is not a violation of my freedom of religion, no matter how distasteful I may find it.

Likewise, if part of a teacher's religious structure of beliefs includes that women shouldn't be educated, that doesn't justify the teacher refusing to teach girls.  If an election official didn't believe, as a matter of religion, that women should be entitled to vote, that wouldn't justify him turning female voters away.

Solemnization of a civil marriage is not a religious role.  People who do it aren't priests, and the marriage has no meaning 'in the eyes of God' (as my Catholic relatives might put it).  That's true regardless of whether the individuals involved would be eligible for a church marriage.  It's simply a secular legal state of being, and for the officials to project their own religious views onto the union is not only inappropriate, but actually offensive to the people getting married, who presumably don't share those views.

Try to imagine, for a moment, that you're a Christian-raised atheist who goes to the City Hall to get married, and the person solemnizing the wedding was a Muslim Canadian...and he started questioning you in such a way as to make sure that your marriage met the requirements of his faith, before he would solemnize your union.  (That's exactly the kind of scrutiny that many people have non-religious ceremonies to avoid.)

Furthermore, I have never heard this objection made in context of any other ground of religious ineligibility to marry.  And it isn't as if other bases of religious ineligibility are rare - a great many couples get married in secular ceremonies simply because the couple's church of choice won't officiate the marriage.

Phrases I've never heard include:
"As a Catholic, I can't officiate this ceremony because she was previously divorced."
"As a [x], I can't officiate this ceremony because only the bride is an [x], and we don't permit interfaith marriages."
So on.

The objection to marrying same-sex couples simply reeks of bad faith, and because the solemnization has no religious significance in the first place, just doesn't make sense.

Conclusion

The whole religious argument seems to be premised on the notion that legalizing gay marriage somehow impacts the religious institution of marriage.  It doesn't.  It can't.  Because religious laws do not turn on secular laws, and because the secular legal regime expressly eschews any connection to religious laws.

People feel that the ability of two men to get married is somehow offensive to their religious rights.  This is totally nonsensical.  It would be like Muslim and/or Jewish groups arguing that the pork industry is an affront to their religious freedom.  To which the rest of us would respond:  You have every right in the world to refrain from eating bacon and pork sausage.  But we don't share your views; we don't have to share your views; and we'll eat as much bacon as our coronary arteries will allow.

So, to those of you who somehow feel aggrieved by the granting of marriage equality rights to people who are not the same as you...get over it.

As I said before, the exact impact of the law isn't yet clear.  But its purpose is almost certainly connected to same-sex marriage.  It's clearly intended to do something: Governor Pence has argued that it addresses government 'overreach', but the reality is that there already is a constraint, built into the First Amendment, on government overreach into the free exercise of religion.

It's hard to imagine what 'overreach' Governor Pence is concerned about, unless it's the overreach entailed in requiring the people of Indiana to treat homosexuals with the respect and dignity to which every human being is entitled.

Indiana's legislature once famously attempted to redefine pi and to 'square the circle', because, you know, math is hard, so let's make it easier by legislative fiat.  This is worse.  I support the various calls to repeal Indiana's so-called religious freedom bill.

Friday, February 6, 2015

Canada's New Constitutional Right to Strike

The Supreme Court of Canada finally released its decisions in the major labour law cases of Mounted Police Association of Ontario v. Canada ("MPAO") and Saskatchewan Federation of Labour v. Saskatchewan ("SFOL").

And the terrain of union rights in Canada has now shifted remarkably, with far more substantial rights being interpreted into s.2(d) of the Charter, freedom of association, than ever before.

There's a long history here, and I've written about it before.

Background Reading

Fraser v. Ontario:  Is the Pendulum about to Swing Back? - May 2011 - An examination of the history of labour law and s.2(d) of the Charter, and a commentary on the Fraser case.

The Right to Strike - February 2012 - A primer on the SFOL case, following the initial decision in Saskatchewan.

Ontario Court of Appeal Strikes Down Mountie Union - June 2012 - A primer on the MPAO case, after the appellate decision in Ontario.

Mountie Union Case Update - February 2014 - A follow-up on MPAO.

Labour Law and the Charter - March 2014 - A general history of the application of s.2(d) to union activities.

A Brief History

Allow me to summarize the history as briefly as I can here.  In 1987, the Supreme Court of Canada released three decisions referred to generally as the "Labour Trilogy", which concluded that union activities were not protected by s.2(d) of the Charter.  Despite a strong dissent, the majority felt that freedom of association could not grant collective rights that were not already individual rights.

By analogy, the question was raised as to whether or not there is a constitutional right to collectively golf.  Certainly, government can restrict my right to golf as an individual, without attracting Charter scrutiny.  But if I get three of my friends together to golf, is our activity suddenly constitutionally protected?  The answer, naturally, is no.  Thus, in 1987, the SCC concluded that the Charter did not protect the right to join a union, to bargain collectively, or to strike.

Ontario's Rae government inadvertently prompted the slide away from that.  Agricultural workers in Ontario have traditionally been excepted from our labour relations regime.  The Rae government changed that, extending labour protections to agricultural workers.  They were just starting to get organized when the Harris government changed it back, removing their right to organize and decertifying the unions that had already been certified as bargaining agents for agricultural workers.  The unions challenged this, leading eventually to the SCC's 2001 decision in Dunmore.

Dunmore

Dunmore was the first of five (to date) important decisions incrementally changing the Labour Trilogy doctrine.  The SCC recognized for the first time that freedom of association had to include the right to make collective representations to an employer.

But there's a further problem:  The constitution typically can't be used to compel positive government action.  My freedom of expression means that the government can't take active steps to silence me; it does not mean that anyone has to take steps to facilitate my speech.  Likewise, my freedom of association means that the government can't (subject to certain limits) prevent me from joining a union, but creating a statute that protects me from private sector reprisals for doing so?  That's the kind of positive action that the Charter can't typically require.

The SCC got around that in Dunmore because it was found as fact that the statutory exclusion generated a 'chilling effect' - that telling the private sector "Unions are generally protected, but not in the agricultural sector" sent the message that agricultural unions were illegitimate, tacitly encouraging agricultural employers to take steps against unionization.

The SCC didn't set out the full scope of s.2(d), leaving that for another day, but said that at minimum agricultural workers were entitled to a scheme that protected their right to join an association and to make collective representations to the employer.

B.C. Health Services

The next case in the saga was the 2007 decision in B.C. Health Services.  British Columbia enacted health service reforms without consultation with the unions, including overriding collective agreements by statute in various ways.  The unions challenged this, arguing that there is a constitutional right to collective bargaining - in other words, that B.C. couldn't just override collective agreements and implement new ones by legislative fiat.

The SCC concluded that s.2(d) extends to a constitutional right to good faith collective bargaining.

Because the B.C. government actually actively overrode collective agreements, the Supreme Court didn't have to do any Dunmore-style dancing about chilling effects to warrant subjecting the acts to Charter scrutiny.

And because they didn't have to dance in that fashion, the lines between the government as legislator versus the government as employer became a little blurry, and the decision arguably created a positive obligation on government to take active steps to protect the collective bargaining rights of private sector workers.

Fraser

After the decision in Dunmore, Ontario's government did the bare minimum suggested by the SCC, giving agricultural workers the right to join an association and make collective representations to the employer.  The unions challenged this, arguing that it still didn't give agricultural workers meaningful associational rights.  It was certainly well short of the robust protections granted to most workers under the traditional North American labour regimes (known as 'Wagner' style labour relations).

The Supreme Court, in one of their weirdest decisions I've seen in a long while, concluded in 2011 that the new statute did not contravene the Charter, because it implicitly contained an obligation for the employer to bargain in good faith.  The right to collectively bargain is a derivative right, only important insofar as it is necessary to facilitate workers meaningfully acting together toward their collective goals.

This drew a line on s.2(d) rights:  There was a right for employees to act collectively, and to be able to do so meaningfully, but no right to a particular mechanism or legislative structure for the collective bargaining - s.2(d) did not enshrine full Wagner-style labour relations protections.

MPAO and SFOL:  Background

Police aren't generally allowed to unionize.  Most police have associations that look a lot like unions, but the RCMP were under a different framework, with an association that was basically created by management itself.

So the Mounted Police Association of Ontario (among others) challenged the prohibition, arguing on the basis of Dunmore that RCMP officers were entitled to act collectively.  The Ontario Court of Appeal rejected the argument following Fraser, finding that the existing in-house system was adequate to give effect to their s.2(d) rights.

As well, Saskatchewan enacted a statute curtailing the right to strike of their civil servants, and the Saskatchewan Federation of Labour commenced a Charter challenge.


Last month, the SCC decided the MPAO case, allowing the appeal and concluding that Mounties do in fact have a right to join a union:  The existing in-house model lacked the 'choice' and 'independence' necessary for employees to meaningfully exercise their associational rights.

A compelling dissent by Justice Rothstein made a couple of potent criticisms of the majority decision:  Firstly, that 'choice' as defined by the majority is actually a component missing from domestic models in which workers have been very effective at exercising collective rights (such as, for example, Ontario's teachers).  He also highlights that Wagner-esque majoritarianism actually deprives significant workplace minorities of having any meaningful 'choice'.  Secondly, that 'independence' is a feature of the Wagner model, but not essential to the meaningful exercise of collective rights, as there are alternative models available which are just effective.

In a nutshell, Justice Rothstein argued that applying the test as set out in Fraser, that a labour relations regime would be constitutionally permissible so long as it didn't render it effectively impossible for workers to act collectively, would lead the court to dismiss the appeal, and that it was deeply inappropriate for the court to resile from a proposition of law established a mere 4 years ago.

(I wonder if he was being intentionally ironic.  In Fraser, Justice Rothstein argued that the 4-year-old precedent of B.C. Health Services was unworkable.  The majority decision in Fraser, authored by the same two judges as in MPAO, responded that Rothstein's criticism was "premature".)

The majority disagreed with Rothstein's interpretation of Fraser, but conceded that some passages in Fraser may have confused the issue.


Which brings us to the recent decision in SFOL, concluding that s.2(d) does indeed extend to a right to strike.

The question as addressed by the majority - authored by Justice Abella - is primarily framed as being whether or not the strike is truly a "necessary component of the process through which workers pursue collective workplace goals".  They answered in the affirmative, and from that everything else falls into place pretty logically.

The reason they answer in the affirmative appears to be more about deference to a broader international consensus rather than because of any actual examination of the importance of the strike to the contemporary Canadian workplace, or the consideration of alternative models.  Justice Abella highlighted the importance of the strike in the historical development of Wagner model labour relations regimes, and also its prominence in certain other countries.  Likewise, the ILO regards the right to strike as being an integral part of freedom of association (though it bears noting that the actual convention on the point to which Canada is signatory does not expressly refer to a right to strike).

The dissent by Justices Rothstein and Wagner makes a number of criticisms of the majority decision.  They argue that the breadth of the majority decision is irresponsible, with potential far-reaching consequences, that in fact there are reasonable alternatives to the right to strike that would preserve the meaningful pursuit of collective workplace goals, and that the majority's reliance on historical and international perspectives is misplaced.

Commentary

On MPAO, the majority is trying to have their cake and eat it too.  Rothstein is right about the wording of the test in Fraser:
The question here, as it was in those cases, is whether the legislative scheme (the AEPA) renders association in pursuit of workplace goals impossible, thereby substantially impairing the exercise of the s. 2(d) associational right.
There is a fairly easy solution to the disconnect between Fraser and MPAO:  With the cases of B.C. Health Services, MPAO, and SFOL, the issue surrounded the government as employer, whereas Fraser and Dunmore dealt with the government's role in regulating private sector labour relations.  If one concludes that s.2(d) extends to a right to good faith bargaining, that may well tie the government into good faith bargaining with their own employees.  (Whether or not there was a failure to do so in the case of MPAO is a separate issue, perhaps.)  If the government does something that substantially interferes with the pursuit of collective workplace goals, including by its own employees, that's likely to be unconstitutional.

To my mind, however, determining the extent of protections that the government must extend to private sector employees should be a different question.  The 'effectively impossible' language that trickled down from Dunmore alluded to the impact of the omission of agricultural workers.

In other words, if we were to read the case law as saying that the Charter imposes a positive duty on government where the failure to protect a right would make the exercise of that right effectively impossible, but prohibits the government from taking positive action which substantially interferes with collective bargaining rights, then we'd have almost reconciled the results in these cases.

Instead, the majority has hedged, trying to define basic characteristics of a constitutionally acceptable labour relations regime, and in doing so - I agree with Rothstein - has gone well beyond the scope of the truly essential characteristics, and furthermore that these efforts will have the inadvertent result of making perfectly functional labour relations regimes unconstitutional.

The Right to Strike

Some of Rothstein's criticisms in SFOL resonate with me.  I'm not sure I necessarily subscribe to his dire warnings of a slippery slope or catastrophic unforeseen consequences, but when I was reading through Justice Abella's reasons, I was already thinking that the reliance on the historical context is deeply misplaced.  The formative role of strikes in the early 20th century labour movement - sometimes illegal, often not protected, often in response to an employer's refusal to recognize a union - is very different from contemporary Canada, where most labour relations regimes require an employer to recognize a certified bargaining agent, and to bargain in good faith.

A contemporary strike results in significant protections to the workers that didn't exist in the timeframe Abella writes of.  In the 1930s, if all my workers walked out of my factory, I was at liberty to refuse to take them back, and to go hire a new workforce.  Nowadays, the hands of the employer are significantly fettered when dealing with labour disruptions, and if that framework is what the majority is saying is constitutionally protected, it very much tilts the balance of power.

The international context is useful, but not, in and of itself, a reason to adopt the same conclusions that other countries have.  Justice Abella, if your friends Germany and Israel jumped off a bridge, would you do it too?

There must be a mechanism for resolving a bargaining impasse.  That's fairly obvious.  And arbitration has its limits - it isn't necessarily ideal, because it doesn't necessarily reflect all the applicable market realities.  But not being 'ideal' doesn't mean that a requirement to arbitrate instead of strike would necessarily amount to substantial interference to the pursuit of collective workplace goals.  Indeed, some of the strongest unions are in the workforces traditionally barred from striking, like police and fire.  It actually seems quite absurd to suggest that the absence of the right to strike is a substantial interference, in light of the empirical evidence that police are not at all impeded in their pursuit of collective workplace goals.

To be clear, I'm not generally a fan of 'no strike' legislation.  I've opposed movements to designate garbage collection as an 'essential service' - I think it's disingenuous (not to mention inviting a judicial response like this).  I prefer to have unions and employers battle it with regard to their natural economic bargaining power, meaning that they should be able to apply economic pressure through the use of strikes and lockouts.

But I don't think that this is functionally necessary for the exercise of freedom of association, and moreover I don't think it is workable that the Charter now appears to compel the government to enact legislation as to regulate private sector labour relations in a particular way:  That is deeply inconsistent with the principles underlying the overwhelming majority of constitutional jurisprudence (including Dunmore and Fraser), and it unduly restricts our democratically elected representatives.

*****

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.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

Thursday, February 5, 2015

Arnone v. Best Theratronics: Ontario Court of Appeal Upholds Wrongful Dismissal Summary Judgment

A little over a year ago, the Supreme Court of Canada, in the Hryniak case, modified the test for summary judgment motions in Ontario.

Even before Hryniak, wrongful dismissal cases were often well-suited for summary judgment motions.  Since then, judges have repeatedly approved of the summary judgment mechanism for such cases.

Now, the Ontario Court of Appeal has weighed in, mostly upholding a summary judgment in the case of Arnone v. Best Theratronics:
Finally, while the appropriateness of bringing a summary judgment motion must be assessed in the particular circumstances of each case, a straight-forward claim for wrongful dismissal without cause, such as the present one, strikes me as the type of case usually amenable to a Rule 20 summary judgment motion.
The Facts

Mr. Arnone worked for Best for 31 years, and occupied a role with a managerial title.  He was dismissed on November 26, 2012, a mere 16.8 months away from the date he would have been entitled to a full unreduced defined benefit pension.  As well, Best's practice was to give retiring employees a retiring allowance of a week's pay per year of service, up to a maximum of 30 weeks.

Arnone sued, seeking 24 months' pay in lieu of notice, the full retiring allowance, and the lost value in his pension.


The employer argued that Arnone was merely a front-line supervisor, and not a manager, and that this issue required a trial.  For the purpose of the summary judgment motion, Arnone conceded the point, and agreed to have the notice period assessed on the basis of his duties being characterized as supervisory rather than managerial.

Accordingly, the motion judge granted the motion for summary judgment.  But in assessing damages, things got a little bit unusual.

The motion judge appeared to regard his role as determining one primary question:  Would the reasonable notice period extend 17 months or more, such that the employer should have 'bridged' the employee to retirement?  Clearly the notice period would be over 17 months...but what the judge did with that was strange.

Firstly, he concluded that the employer had no reasonable expectation that the employee would mitigate his losses, because he was so close to retirement anyways.  This is rather bizarre, and resulted in a windfall in this case as Mr. Arnone actually had made new employment earnings during the reasonable notice period.  Secondly, the judge concluded that Mr. Arnone had no entitlement to reasonable notice past the end of 16.8 months, because at that point he had recourse to a full unreduced pension.

So the judge awarded the equivalent of 16.8 months' pay in lieu of notice, plus $65,000 to offset the reduced value of the pension, plus 30 weeks' in respect of the "retiring allowance" he would have obtained upon retirement.  The judge further noted that, but for the 'bridging', he would have assessed the reasonable notice period at 22 months.


The employer appealed, and Arnone cross-appealed.

The employer argued that mitigation earnings should have been deducted from the judgment.  The plaintiff agreed that the failure to do so was an error in law, so the employer's appeal was allowed on that ground, with the judgment being varied accordingly.

However, Arnone - while agreeing that the 'bridging' approach was an error - argued that reducing the notice period from 22 months to 16.8 was inappropriate.  The Court of Appeal agreed, and increased the reasonable notice period to the full 22 months.

The employer continued to argue that the character of employment was an issue requiring a trial.  (This seems strange, given that it was conceded by the plaintiff.  It amounts to:  "Yes, the motion judge accepted that our version of the facts was accurate, but we still want to present them in a trial format anyways.")  The Court of Appeal agreed with the motion judge's treatment of the issue, distinguishing this case from the Thorne case relied upon by the employer.

As well, the employer challenged Arnone's entitlement to its customary retiring allowance, arguing that it's only available for 'retirement', not for restructuring dismissals.  However, without any policy making that distinction clear, the Court of Appeal regarded the retiring allowance as amounting to an implied term of the employment contract.

The employer also challenged the compensation for the lost value in Arnone's pension, but really, that's fairly straightforward law.  This is something for employers to pay attention to:  If the reasonable notice period crosses entitlement thresholds for defined benefit pensions, the costs of dismissal without notice can be severe.

Commentary

There aren't really many surprises in the appellate decision.  The bridging approach was clearly problematic, both in reducing the notice period and in disregarding mitigation earnings, so the Court of Appeal's reversal of that is not particularly surprising.

Furthermore, the contention that this was a case requiring a trial, on all the facts, appears to have been a very long stretch, in light of the Hryniak decision.  I might be more interested in knowing what the result would have been had character of employment not been conceded.  Because frankly, between Hryniak and the Court of Appeal's view in Di Tomaso that character of employment is of "declining relative importance", my view is that it's a rare case that character of employment is an issue requiring a trial.  The employer relied on Thorne, which was a pre-Hryniak case from the Superior Court, and the Court of Appeal noted:
Also, the jurisprudence on the Bardal factors not only stresses that no one factor should be given disproportionate weight, but more recently indicates that the character of employment is a factor of declining importance in the Bardal analysis.
The quotation at the top, about straight-forward wrongful dismissal claims usually being amenable to summary judgment, immediately follows this point, strongly suggesting to me that sending a wrongful dismissal action to trial over a dispute as to character of employment will usually not be appropriate.

The retiring allowance issue is a little more interesting, though, as it's something on top of reasonable notice.  It makes sense that he would still be entitled to it.  Suppose that he was given 22 months' actual notice:  Even if one assumed that it was necessary for an employee to 'retire', what would have stopped him from doing so on the last day of the notice period, thus earning an additional 30 weeks' pay?  So yes, if the employer had complied with its obligation to give notice, then he would have gotten 22 months' notice plus an additional 30 weeks' pay.


I can't help but wonder if that's why the motion judge decided to 'bridge' to retirement in the way that he did, because he felt that 22 months plus 30 weeks was in some way double-recovery, but if one regards him as retiring when he's eligible, then 16.8 months plus 30 weeks seems like a far more palatable conclusion.

*****

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.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

Monday, February 2, 2015

Majewski v. Complex Services Inc.: Plaintiff Wins Wrongful Dismissal Trial...Again

Two years ago, I wrote about a Divisional Court decision in the case of Majewski v. Complex Services Inc., involving a card dealer dismissed, allegedly for cause, who sued in wrongful dismissal.  He won at trial, with the Deputy Judge concluding that just cause was not established, but the Divisional Court found that the trial judge had made critical errors, and sent the matter back to the Small Claims Court for a new trial.

The trial took place over 5 days in December 2013, June 2014, and January 2015, and the decision was recently released.  The result:  The plaintiff won again.

The case was before Deputy Judge Marshall, a Niagara Falls lawyer.  I've had the pleasure of appearing before him in a settlement conference, and found him to be a relatively knowledgeable Deputy Judge in terms of employment law (though that may have something to do with the fact that, when I was before him, this trial was already ongoing).

The plaintiff's lawyer was Margaret Hoy, a prolific employee-side lawyer on the Niagara peninsula who has litigated no fewer than five matters against this particular employer (and whose other credits include the unusual case of Ludchen v. Stelcrete, which highlighted the need for thorough and timely investigations).  The defendant used Hicks Morley for the Divisional Court appeal, but for whatever reason - my guess is cost - decided to have in-house counsel, Paul Pingue, handle the re-trial.

The Facts

This is getting to be a long saga.

Majewski began working at the casino in the late 90s, and was dismissed in August 2005.  The culminating incident involved a confrontation with a co-worker, Maracle:  Majewski had a migraine, and wanted to put his name down on an "E/O list" - basically a sign-up sheet to be sent home early if workload allows.  Maracle had the sheet in hand, but was bringing it to another part of the building, and wouldn't let Majewski see it.  Majewski then called Maracle a "f***ing a**hole" (and/or a "f***ing prick").

Maracle complained to management, management investigated, Majewski admitted the comment, argued that he hadn't done anything really wrong, and they dismissed him for cause.

The defence primarily turned on a 'cumulative cause' argument, because of Majewski's disciplinary record.

In 2001, Majewski had a couple of incidents, first losing his temper in the break room, and later making an offensive comment to a casino patron that 'men don't wear pink shirts'.  After the 'pink shirt' incident, he received a warning that further incidents could lead to dismissal.

The next disciplinary notice was more than 2 years later, in November 2003:  Playing for the Casino Niagara hockey team, Majewski used abusive language toward the referee (another co-worker), and was ejected from the tournament.

Next up:  In October 2004, Majewski was upset with a patron who had been blowing cigar smoke in his face for 20-30 minutes.  He asked the individual to stop, and the person's response was "f*** you".  Majewski sought the assistance of his supervisor, who didn't help, and then brought in the Pit Manager to resolve the situation.  However, while the Pit Manager was discussing the matter with the patron, Majewski heatedly interjected numerous times, and was disciplined on the basis that he "has to let his supervisors handle these types of situations".  The disciplinary noticed threatened "progressive counselling" in the event of "further situations like these".  However, management seemed to be under the impression that Majewski was clearly warned that further confrontations would lead to termination.  After the Maracle incident, relatively minor though it was, they basically concluded that Majewski was irredeemable.

It sounds like Majewski has a bit of a temper.  But aside from these incidents, he had, by and large, positive reviews.  It also bears noting that the plaintiff led evidence that there's a culture of swearing among casino employees, particularly off the floor.

The Judge's Findings

Deputy Judge Marshall accepted the evidence that there was a culture of swearing, but noted the important difference between swearing, simpliciter, and swearing at someone.  He concluded that Majewski's conduct toward Maracle was disciplinable - perhaps even seriously disciplinable, in light of his history - but it didn't rise to the level of just cause, even considered together with his disciplinary history.

He accepted that the 'cigar smoke' and 'pink shirt' incidents were severe, because they involved inappropriate interactions with casino patrons.  The hockey incident was only marginally connected to the workplace (and tempers flaring in a sporting event is hardly unexpected...the decorum is a little different than that of a workplace).  The other two incidents (including the Maracle incident) were in the 'back', not in front of casino patrons, and accordingly were objectively less serious.

The Deputy Judge rejected the contention that there was any clear 'final warning' given, and found that the incidents did not amount to the employee doing something "fundamentally or directly inconsistent with the employee's obligations to his...employer".

He made two interesting remarks that I intend to touch on, however:  Firstly, he queried whether or not the "last chance" doctrine reflects the state of the law, and concluded that it doesn't:  One still needs to look at the objective seriousness of the Maracle incident in its full context.  (The wording suggests to me, though it's not entirely clear, that even had a 'last chance' warning been given, it wouldn't have been enough in the circumstances.)

Secondly, the Deputy Judge remarked that, had the Maracle incident and cigar smoke incident been reversed in time, it may have given the employer a stronger argument for cumulative cause.  (Not necessarily saying it would have succeeded, however.)

As I noted in my previous entry, quantum was no longer in issue:  It was all or nothing, $25,000 or $0.

Comments

It's a good decision, and it very closely parallels the findings of the original trial judge.
I very much agree with Deputy Judge Marshall's assessment of the law.  Giving an employee a clear warning that further misconduct will lead to termination...is an important step for generating just cause, but the analysis doesn't necessarily end there.  One must still examine the objective seriousness of the misconduct.

It's not that different from the issue with 'zero tolerance'-type policies.  Remember Plester v. PolyOne Canada Inc., where the employer had a series of "Cardinal Rules" for safety purposes?  Nonetheless, one still needs to look at the full context and determine whether or not dismissal is objectively warranted.

Likewise, I think that Deputy Judge Marshall is correct to suggest that a reversal of the disciplinary incidents could have made a difference.  Cumulative cause is not a cup that gets incrementally filled up - the 'straw that broke the camel's back' is a very difficult concept in employment law.

Indeed, I was a little surprised at first at how seriously the 'cigar smoke' incident was regarded.  Interjecting between a manager and a customer is a problem, certainly disciplinary, but it's something that I would expect to result in coaching at the first instance.  However, on a full read of the decision, it appears that the employer regards customer service as paramount - essentially, since all they're selling is service, it needs to be good.  So on the basis of this element of workplace culture, otherwise minor incidents involving patrons are treated very seriously.  That's fine.  But that inflation of seriousness won't translate at all for conflict between co-workers.

And looked at in that light, it's fairly straightforward:  Yes, Majewski had a bit of a history of losing his temper.  He'd had a couple of incidents on the floor, which were disciplined seriously.  But incidents 'in the back' aren't quite the same thing, and he couldn't be expected to see them as being the same thing...and before the Maracle incident, it had been over 4 years since his previous incident 'in the back'.

That's not to say that the Maracle incident could never amount to just cause.  But you would need clear warnings dealing with comparable misconduct.  By analogy, I'm entitled to insist that my employees show up on time.  Imagine the following scenario: an employee has frequently been over an hour late, and I engage in progressive discipline up to the point of threatening termination in the event of further lateness.  The employee is then punctual for a couple weeks, then one day shows up 10 minutes late in poor weather.  Am I justified in dismissing him for cause?  Probably not.  By contrast, change the scenario to one where the progressive discipline related to shorter periods of lateness - i.e. where he was routinely 10 minutes late.  In that scenario, it's a lot easier for an employer to make this pitch:  I'm entitled to expect my employees to be punctual, and progressive discipline wasn't working; despite my clear directions and warnings, the employee failed to take appropriate measures to get to work on time..  Minor misconduct is hard to turn into just cause, but persistence in minor misconduct despite discipline can amount to insubordination.

There's also an interesting commentary about the impact of the investigative meeting - the Deputy Judge put little weight on Majewski's conduct in that meeting, arguing with management about his conduct, which the employer regarded as insubordinate.  The Deputy Judge felt that having a frank discussion about the conduct is not disciplinable:  "I see no reason why parties cannot have a robust meeting on a heated topic, ultimately agreeing to disagree....A dealer needs to respect management, no[t] cower to it."  He got that right as well, in my respectful opinion, and it's an important distinction.  Refusing to accept responsibility for misconduct can be aggravating, perhaps increasing the seriousness of the conduct (as opposed to, say, apologizing), but will not in and of itself amount to insubordination.  If I sincerely think that an action was justified, then there's absolutely nothing wrong with me trying to make my case to the employer.  (Of course, there are limits to the way in which I make my case.)  At the end of the day, if neither one of us persuades the other, then management has the final word:  You may think that you were justified; fine, you can think whatever you want, but it's going in your file regardless, and we expect you to hold to a higher standard in the future.

The result is right.  The employer can't be faulted for wanting Majewski gone.  If he really couldn't control his temper, it was probably just a matter of time before another incident on the floor.  But just cause isn't really about prevention - it's about the seriousness of the misconduct in which the employee has engaged.  And the decision to get rid of an employee because of what he might (or even 'probably will') do in the future, while a reasonable business decision, has to come with notice or pay in lieu.

That said, this case raises certain concerns about proportionality and access to justice.  It has been almost 10 years since the dismissal.  The second trial, on its own, was five days.  For a Small Claims Court trial, that's insane.  The value of the legal time going into that trial on each side no doubt rivalled or exceeded the value of the claim.  That's without considering the costs of the Divisional Court appeal, or the first trial.  And since the Small Claims Court is limited in its ability to award costs, that makes litigating a 5-day trial rather uneconomical for both sides.

*****

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.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.