The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50193
lAw Times • April 18, 2011 Time to apply nanny-state habit to smoke alarms unrelated at fi rst glance, in real- ity they're two sides of the same coin. Th e second item was an an- nouncement that Ontario's seat- belt laws are 35 years old. Imag- ine that. I remember driving my mom's 1969 Cutlass in an era when buckling up was optional and I confess to whining about "those stupid laws" back in 1976. Has it really been 35 years? Of course, it's a sensible law T and one we would be all the poorer for without. Th ey tell me a driver not wearing a seatbelt is 40 times more likely to die in a crash than someone properly re- strained. Th e Ontario Provincial Police and the Ministry of Transporta- tion also say that in 2010, 89 people died in collisions partly because of not wearing seatbelts or at least not wearing them properly. Th is year alone, seven people have died in collisions where seatbelt use was casual. Still, that's better than last year at this time when we had 13 dead and 913 others injured under similar circumstances. Th is, incidentally, is why the OPP will be cracking down on seatbelt scoffl aws this week. We put airbags in vehicles and mandate their use because it makes sense. Just as we cod- ify speed limits, we also enforce standards in buildings because we want those structures to be safe for occupants and passersby alike so that in the event of an earthquake or fi re, the damage suff ered is minimal and doesn't cause a domino eff ect nearby. Forgive the tour, but here's where I'm going with this. Last month, there was a fi re at a se- niors' residence in Timmins, Ont., that resulted in a death and several others going to hospital for treatment. Th e tragedy here is that it may have been a needless death. As the National Fire Protection As- sociation notes, the tragedy may not have happened if the home had had automatic sprinklers. Th e fact is that there has never been a recorded fi re fatality in multi-unit structures protected by automatic sprinklers. Th is is an incredibly frustrat- ing statistic for Tim Beckett, president of the Ontario Asso- ciation of Fire Chiefs, whose or- ganization has been leading the charge to get legislation enacted that would make it mandatory for all seniors' homes to have au- tomatic sprinklers. Hamilton East-Stoney Creek MPP Paul Miller introduced bill 92 last year. It went to committee where it remains. Frankly, I think the chance of this lame-duck government passing legislation dwindles daily as its fi xation on the Oct. 6 election grows. Beck- ett is optimistic nevertheless. "Th ey are in a consultative process looking at this in terms of wo things crossed my screen recently, and al- though they might seem Inside Queen's Park By Ian Harvey all vulnerable residents in Ontar- io," he says, noting that the defi - nition of which structures would require automatic sprinklers has been expanded to include virtu- ally any multi-unit building that cares for the infi rm, people with mental challenges or seniors. Th e Ministry of Community Safety and Correctional Services has the task of consulting the public, but there's no timeline set. "Th ey say they are committed, and we have to believe that," says Beckett. He notes that part of the task involves educating owners and politicians alike about the ben- efi ts despite the cost. "We recognize there is a cost involved," he says. "But one of the myths is that it is prohibi- tively expensive, and that's just not true." Nor is it true that sprinklers cause millions of dollars in water damage and are prone to being inadvertently triggered. "Yes, it does happen, usually when someone knocks a sprin- kler head off with a tow motor or something like that," he says. "But I have a sprinkler head in my offi ce here, and if it were to go off , it would just go off here. Th e offi ce next door, the rest of the building would not be af- fected." And here's the irony. Sprin- klers, which in the not-too-distant future could end up as mandatory items in residential homes as well, are important today because of advances in design, materials, and the Ontario Building Code. "Th e danger of fi re today is not the structure," says Beckett. "It's what's in the rooms. We tend to have more synthetics, electron- ics with plastics, and once they go up, they really catch fi re. With 20 minutes, you can be fully in- volved. Th ey also throw off more toxic fumes and smoke, which is where the biggest danger is." Sprinklers stop that process, and while there will still be smoke and steam, they give residents time to get to safety. Th is government has often been accused of running a nanny state by rushing to enact legisla- tion without much research or logic simply because it saw a po- litical opportunity. One would hope that before it breathes its last gasp in power, it will leave an honest legacy in the form of sensible legislation that will save lives. Ian Harvey has been a journalist for 34 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. COMMENT Beggs puts new spin on duty to mitigate under Evans BY MONTY VERLINT For Law Times confi rming the employee's duty to mitigate damages by continuing in employment if requested by the employer. Many employ- ment lawyers, especially those acting for the company, attempt to rely on this decision to reject employees' claims for severance pack- ages when they reject comparable alternate employment with the employer. While this may be true, it's not as easy as it sounds, as the B.C. Court of Ap- peal confi rmed in its recent decision in Beggs v. Westport Foods Ltd. Th e employee in T the case, Jantsje Beggs, had worked at a gro- cery store in various positions for about 10 years. After a fi re destroyed Beggs' home, she advised her employer she wouldn't be coming into work the following day and didn't know when she'd be returning. When the employer didn't hear from her again during the week following the fi re, it attempted to contact her by phone on two occasions but was unsuccessful. Th e em- ployer didn't attempt to contact her again, nor did Beggs try to do so either. Having not heard from Beggs, the employer, as- suming she had abandoned her job, issued a record of employment indicating she had quit. Beggs, however, interpreted the document as a dismissal and retained counsel who sent a letter to the employer advising that she hadn't quit but was absent from work for health rea- sons such as insomnia, depression, and anxi- ety. Her lawyer also took the position that the employer had terminated her and demanded compensation because of the alleged "bad faith manner of termination." In a letter dated Aug. 17, 2009, the em- ployer's counsel denied the accusations and maintained the position that the employee had quit even after discovering that she couldn't return to work for health reasons. But the lawyer later recanted in a further let- ter dated Aug. 28, 2009, and indicated Beggs was welcome to return to work. Beggs im- mediately initiated the court action and later rejected the off er to return to work. Beggs admitted at trial that, prior to re- taining counsel, she didn't advise anyone at the company that she was unable to return to work for health reasons. Nonetheless, the court found there to be a dismissal. It fur- ther held that Beggs had no obligation to return to work given that the written off er on Aug. 28 wasn't clear and unequivocal. In the court's view, the employer had acted in bad faith and its two attempts to contact the employee were "minimal and inadequate." Th e Court of Appeal agreed that the company had dismissed the employee but said the trial judge should have provided a proper analysis in support of the conclusion. Specifi cally, the trial judge had to identify the "clear and unequivocal" act by the em- ployer that, viewed objectively, amounted to a clear dismissal. It found that the letter dat- ed Aug. 17 by the employer's counsel that maintained the position that Beggs had quit in the face of medical evidence that she was unable to work constituted the "unequivo- cal act of dismissal." According to the Court of Appeal, the parties or their lawyers should have spoken to each other directly about the reason for not returning to work rather than engage in a confrontational exchange of correspondence. www.lawtimesnews.com he Supreme Court of Canada deci- sion in Evans v. Teamsters Local Union No. 31 has been widely regarded as On the issue of mitigation, the ap- Speaker's Corner peal court cited the emphasis in Evans on a "multi-factored and contextual analysis" with the critical element being that the em- ployee "not be obliged to mitigate by work- ing in an atmosphere of hostility, embarrass- ment or humiliation." It called for the use of an objective standard to evaluate whether a "reasonable person in the employee's po- sition would have accepted the employer's off er" taking into account non-tangible el- ements such as work atmosphere, stigma, and loss of dignity as well as the nature and conditions of employment. Based on Evans, the Court of Appeal found no error in the trial judge's fi nding that the employer's of- fer of re-employment was equivocal in its terms. Specifi cally, the off er failed to state the terms of her re-employment, including the nature of her duties, the person who would be her supervisor, and her remunera- tion. In other words, the employer's off er was "guarded and ambivalent," a problem compounded by the unhelpful exchange of self-serving correspondence between coun- sel. Th e court held that a reasonable person wouldn't have been expected to accept the off er in these circumstances. On the issue of compensatory damages, the Court of Appeal reversed the trial judge's fi nding and found there to be no evidence that the employer had intentionally issued an incorrect record of employment and no proof of bad faith. I believe this decision provides important guidance for counsel advising employers in this area of the law. First, it's a good idea to think twice be- fore taking hardened positions on the issue of whether an employee has quit or aban- doned employment. Th is could come back to haunt the employer. In Beggs, the Court of Appeal encouraged a co-operative dia- logue between the parties to determine the precise reason for the employee's absence from work. Unfortunately, the Aug. 17 let- ter by the employer's counsel proved fatal for the company's case. On the other hand, there may be circum- stances in which the court will fi nd the em- ployee to have abandoned employment. As a result, it's important to carefully analyze each case in that regard. In Beggs, the court found that contacting the employee by phone on two occasions wasn't suffi cient in circum- stances where a fi re had destroyed her home, especially considering her health issues. Second, if company counsel wants to rely on Evans and take the position that the employee has failed to mitigate the damages by rejecting the option of alternate employ- ment, it would be helpful if the off er was genuine, made in good faith, and not tak- en for strategic purposes only. Employers should include the precise position, description, compensation summary, and reporting structure to enable the employee to make an informed decision on whether to return to work. Th e court can then con- duct an appropriate analysis about whether the employee should have accepted the of- fer of alternate employment given all of the circumstances. Anything less may amount to an equivocal off er, as held in Beggs, with the result that the court won't fi nd the em- ployee to have failed to mitigate under the Evans analysis. job Monty Verlint practises labour and employ- ment law at Kuretzky Vassos Henderson LLP in Toronto. PAGE 7