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May 17, 2010

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A. NEUMAN ASSOCIATES INC. Forensic Accounting & Damage Quantifi cation Specialists Turn Crisis into Opportunity (416) 223-5991 $3.55 • Vol. 21, No. 17 ainmaker_LT_June2_08.indd 1 5/28/08 10:43:29 AM Ruling sends shockwaves But GTAA seeks judicial review of arbitrator's decision BY MICHAEL McKIERNAN Law Times T he Greater Toronto Airports Author- ity's battle in a high-profi le bad-faith dismissal case remains ongoing as the non-profi t corporation applies for a judicial review of an arbitrator's decision awarding an employee $500,000 in damages. Th e size of the award by arbitrator Owen Shime has sent shockwaves through the la- bour relations community, but it was his fi nding that collective agreements off er em- ployees a "psychological benefi t" and "men- tal security" that worries Dave McKechnie, a partner and employment lawyer at Mc- Millan LLP. Th e award included $50,000 in damages for mental distress and a further $50,000 in punitive damages for the way the GTAA treated an employee it suspected of abusing sick leave. Th e decision, for which the GTAA has applied for judicial review in the Divisional Court, could open the door to a wave of claims for mental distress, according to McKechnie. "What is new and concerning to me is this concept that it should be in the reasonable contemplation of the employer that any time they hire anyone under a collective agreement, they've automatically given the individual mental security," McKechnie says. "It lowers the threshold to get to mental distress." He adds: "I expect what we will see are claims being made that the employer stripped away my mental security, which caused me mental suff ering, and that entitles me to damages for mental distress." generally that loss of employment under a collective agreement is a little diff erent than under the common law," she says. "Th ere is some value associated with that accrued seniority and protection they off er." Although more claims may result, Gal- lant points out they can only be successful when a breach of the collective agreement has occurred. "It could pave the way for more claims for damages for mental distress, but I wouldn't think arbitrators would be inclined to award them in a case where an employer had pro- ceeded with progressive discipline and had acted in a reasonable fashion." Shime found the GTAA had breached the 'It lowers the threshold to get to mental distress,' Dave McKechnie says of the arbitrator's ruling. But Donna Gallant, a partner at Fasken Martineau DuMoulin LLP, sees the mental- security fi nding as a reinforcement of previ- ous arbitration decisions. "Th ere's been recognition by arbitrators collective agreement because of an implied obligation to administer it in good faith. "Good faith, in my view, does not cease once the bargaining ends and a collective agreement is signed," he wrote. "I fi nd that [the GTAA's] conduct throughout was both unreasonable and in bad faith." For Gallant, the truly startling aspect to the decision lies in the facts of the case itself. "It's diffi cult in this day and age to envis- age a situation where an employer would terminate a 23-year employee with an un- blemished record in circumstances where they were off on a sick leave that was au- thorized by their surgeon for four weeks," she says. In 2003, the employee, 47-year-old C.B., injured her knee at work and was eventually referred for surgery in February 2004. Her surgeon provided a note saying she would See Punitive, page 5 Lawyer's child-porn trial hits roadblocks BY MICHAEL McKIERNAN Law Times immins, Ont., police of- fi cers faced an unprece- dented situation recently when they found themselves investigating a local lawyer sus- pected of possessing child por- nography. "We are quite aware there are T diff erent guidelines for searching a lawyer's offi ces, so we did con- sult with the Crown beforehand to make sure we were complying before we obtained and executed the search warrants," says Insp. Michael McGinn of the Tim- mins Police Service. As a result of concerns over solicitor-client privilege, the law- yer, 61-year-old Brad Sloan, has had his trial over a child-pornog- raphy possession charge delayed while an independent examiner completes a forensic search of computers seized by police in the case. Timmins police executed search warrants on Sloan's home and offi ce back in November, but the computers and hard drives seized in the searches remained stored and sealed while the Law Society of Upper Canada and the Ministry of the Attorney Gener- al hammered out a protocol for a forensic examination of them. Th e law society was worried clients' Sloan's solicitor-client privilege would be at risk if po- lice were allowed to conduct the search because of the num- ber of client fi les stored on his computer. It even objected to police holding the seized com- puters for fear of an accidental breach of privilege. Th e four-week examination has now begun, allowing for a planned resumption of the mat- ter next month. Th e search will take place under special circum- stances, however, to address the privilege concerns. On April 20, Superior Court Justice Patricia Hennessy appointed an associate partner at Deloitte and Touche LLP to act as an independent examiner in the case, separat- ing privileged fi les and isolating any potentially off ensive materi- als. He will search the comput- er for images according to the same practices used by the On- tario Provincial Police in similar matters and provide a report of his fi ndings to the court. Deloitte will hold the com- puters and hard drives securely in storage in Toronto, making them available only to the exam- iner. Joseph Di Luca, a criminal defence lawyer in Toronto, will act as an independent referee to assist the examiner in deciding what materials are privileged. Although police will be able monitor to the imaging and transfer of the computers, "at no time shall any member of the Timmins Police Service be permitted to view the contents of the seized devices," Hennessy wrote in her order. Th e law society had argued that leaving the computers in the See Out-of-town, page 5 Alternative Paths 6 Civil Injustice 9 Focus On Running Your Practice Quote of the week "We see frauds where lawyers are out-and-out duped even when they did everything right. They are doing the ID check, but someone can go online and for 20 or 30 bucks buy what appears to be a legitimate driver's licence that would fool anyone." — Dan Pinnington, PracticePRO, See Mortgage, page 12 Covering Ontario's Legal Scene ntitled-3 1 May 17, 2010 9/28/09 12:30:15 PM Inside This Issue 3 Click here to subscribe today to LAW TIMES Tel: 416.322.6111 Toll-free: 1.866.367.7648 Industry leader in legal software for real estate, corporate and estates for over a decade

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