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top cases $500K awarded to fired airport employee among big cases in 2010 BY MICHAEL McKIERNAN A n exciting year in Canadian courts saw the bench weigh in on issues as wide-ranging as prostitution and the Charter rights of suspected terrorists. The Supreme Court of Canada shattered the illusion many suspects may have garnered from TV shows that they are entitled to counsel during interrogation and left lawyers facing the prospect of fighting a trial for free when the upheaval of withdrawal affects the administra- tion of justice. In the Superior Court, one judge struck down key provisions of the country's prostitution laws, while a Federal Court colleague challenged the executive's prerogative over foreign policy with his ruling on Omar Khadr. Finally, an arbitrator showed you don't have to be a judge to make waves with your decisions in legal circles. } Greater Toronto Airports Authority v. Public Service Alliance Canada Local 0004 Arbitrator Owen Shime's $500,000 arbitration award against the Greater Toronto Airports Authority sent shock- waves through the labour relations community when it was released in February. The company followed a 47-year-old employee on leave after she injured her knee at work, despite an unblemished disciplinary record and a note from her surgeon authoriz- ing her absence. In a scathing ruling, Shime condemned the GTAA for relying on video evidence to fire her without seeking medi- cal opinions to back up its suspicions. He found the company caused mental distress to the employee by violating the collective agreement and that it failed to administer it in good faith. "Good faith, in my view, does not cease once the bar- gaining ends and a collective agreement is signed," he wrote. "I find that [the GTAA's] conduct throughout was both unreasonable and in bad faith." It wasn't just the sheer size of the award and the con- duct of GTAA that shocked lawyers. The breadth of Shime's findings had some fearing a wave of mental distress claims. For example, Dave McKechnie of McMillan LLP told Law Times Shime's finding that a collective agreement gives employees mental security lowers the threshold for a find- ing of mental distress. "I expect what we will see are claims being made that the employer stripped away my mental security, which caused me mental suffering and that entitles me to damages for mental distress," McKechnie said. 8 December 2010 } R. v. Cunningham A Supreme Court of Canada ruling that allows judges to stop lawyers from walking away from a trial because the client fails to pay drew a mixed reaction from the bar when it was released in March. In R. v. Cunningham, the court laid out rules for the withdrawal of counsel, saying when the reason is ethical, it must be allowed. Financial motivations, however, are not enough on their own to allow withdrawal. "Refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the admin- istration of justice," wrote Justice Marshall Rothstein on behalf of a unanimous court. Greg DelBigio, who represented the Canadian Bar Asso- ciation in the case, told Law Times the prospect of fighting a trial for free could negatively affect access to justice. "There is a risk that this will cause lawyers to be much more cautious about becoming counsel of record and at its worst could result in more unrepresented people before the courts," he said. But Scott Hutchison, who represented the Criminal Lawyers' Association as an intervener, said the new rules will make it easier for lawyers in Ontario to get off cases because courts here had a much lower threshold for refus- ing withdrawal. "Before now, if you were going to cause an adjourn- ment, you couldn't get off the record. An adjournment is something the system now could tolerate, as long as it won't cause serious harm to the administration of justice," Hutchison told Law Times. } Bedford v. Canada Ontario Superior Court Justice Susan Himel made head- lines around the world for her landmark decision in September that struck down prostitution-related provisions of the Criminal Code. Although prostitution is not illegal in Canada, most aspects of it are criminalized. Himel found the laws against operating a bawdy house, communicating for the purposes of prostitution, and living off the avails of the trade breached the Charter of Rights and Freedoms by forcing women to endanger themselves when engaging in sex work. "These laws, individually and together, force prostitutes to choose between their liberty interest and their right to security of the person," Himel wrote in the 131-page ruling.