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top cases R. v. Hislop hit lawyers' pocket books hardest BY ROBERT TODD A year of novel arguments T his year was full of high-profile cases presenting novel legal arguments and unprec- edented procedures by courts, but the one that likely hit lawyers' pocket books hardest was R. v. Hislop. The class action lawsuit allowed same-sex couples to collect Canada Pension Plan survi- vor funds, but the Ontario Superior Court in February ruled provisions of the CPP prevent lawyers from collecting fees from the case estimated at over $15 million. The 2004 case was originally brought by gay activist George Hislop, and is considered the first class action in the world to claim gay and lesbian rights had been violated. There are believed to be about 1,500 claimants involved. Under a retainer agreement by lawyers involved in the case, the class action lawyers' fees were to be covered by a payout of half of prejudgment arrears owed to the survivors. The lawyers were awarded for their hard work with a multiplier of 4.8 added to their fees. But Superior Court Justice Ellen Macdonald in February backed the attorney general's argument that s. 65 of the CPP cancels out the payment. The judge denied the class action lawyers' argument that s. 32(3) of the Ontario Class Proceedings Act should prevail over the section of the CPP. Siskinds LLP lawyer Dimitri Lascaris said the ruling should give pause to those who think practising in class actions is an easy road to riches. "As class counsel, before you assume this responsibility of prosecuting one of these cases, Dimitri Lascaris says Hislop should give pause to those who think practising in class actions is an easy road to riches. • Honda Canada Inc. v. Keays You could hear employers across the coun- try breath a collective sigh of relief this year when the Supreme Court issued its deci- sion in Keays, in which an unprecedented wrongful-dismissal award was overturned. The June 27 decision by the top court erased a $100,000 punitive-damages award and nine-month reasonable notice extension for bad faith that Honda Canada employee Kevin Keays received after being fired in the midst of a battle with chronic fatigue syn- drome. The Ontario Court of Appeal had previously reduced the amount from the trial judge's $500,000 award. "A proper reading of the record shows that Honda's conduct in dismissing Keays • Pan-Canadian Investors Com- mittee for Third-Party Structured Asset-Backed Commercial Paper v. Metcalfe & Mansfield Alternative Investments II Corp. 8 December 2008 you're going to have to leave no stone unturned in assuring yourself that there isn't some obscure provision of law that could create an impediment to a reasonable fee," he said. Lascaris suggested the ruling could deter lawyers from pursuing "new and novel" class action claims. was in no way an egregious display of bad faith justifying an award of damages for conduct in dismissal," wrote Justice Michel Bastarache for the 7-2 majority. Keays was an employee at the Honda plant in Alliston, Ont., for 11 years. After working on an assembly line before moving into a data entry position, he was diagnosed in 1997 with chronic fatigue syndrome. When he refused in 2000 to meet with a doctor selected by Honda, the company fired him. The Supreme Court disagreed with the trial judge's finding that the firing was an attempt by the employer to punish Keays for getting a lawyer to deal with the matter. The case made important alterations to The ABCP restructuring certainly was one of the most highly publicized cases of the year, and it continues to get ink now that the economic downturn has stalled its finalization. the allocation of damages as established in the pivotal 1997 employment case Wallace v. United Grain Growers Ltd. Goodmans LLP lawyer Rebecca Burrows, whose practice focuses on man- agement-side employment matters, said the decision meant a lot to employers. "Most of my clients obviously take some comfort in the decision," said Bur- rows, noting the SCC instructed courts to refrain from "double compensation" in dealing with these types of cases. "An employee needs to prove that they've suffered actual damages because of an employers' breach of an obligation to act in good faith" before a notice period is extended, said Burrows. The Ontario Court of Appeal backed Superior Court Justice Colin Campbell's June decision in Pan-Canadian Investors Committee for Third-Party Structured Asset-Backed Commercial Paper v. Metcalfe