Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ....... Michael McKiernan Copy Editor ......... Katia Caporiccio CaseLaw Editor ..... Adela Rodriguez Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. September 12, 2011 • Law timeS Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 905-841-6481 • Fax: 647-288-5418 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 905-841-6481 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@thomsonreuters.com or Tel: 905-841-6480 Ext. 2732 or Fax: 905-841-6786. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call Karen Lorimer at 647-288-8018 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 905-841-6480 Ext. 4052 kimberlee.pascoe@thomsonreuters.com, or Sandy Shutt at sandra.shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Tread very carefully on green energy reversal A s Ontarians get set to vote next month, we face the prospect of dramatic shifts in policy should one of the opposition parties form the government. One only has to look at British Col- umbia to see how costly sudden chan- ges can be. After voters there chose to scrap the harmonized sales tax in a ref- erendum last month, the province faces the prospect of having to repay the fed- eral government $1.6 billion as a pen- alty for reversing course in addition to countless other implications. In Toronto, Mayor Rob Ford is mov- ing forward on a plan to alter long-stand- ing proposals for waterfront renewal. The move comes after all three levels of government each poured $500 million in resources into existing efforts to develop the waterfront. In Ontario, Conservative Leader Tim Hudak is running on a platform that includes scrapping the feed-in tariff pro- gram providing up to 80 cents per kilo- watt hour for renewable energy projects. The program is too expensive and will drive up hydro bills, according to Hudak, who also wants to scrap the province's power deal with Samsung C&T Corp. Instead, he'd open up the renewable elec- tricity sector to competitive bidding. It's not surprising that B.C. voters didn't like the HST, and there are many people who legitimately wonder why Waterfront Toronto has yet to fully deliv- er on the grand visions set out for it long ago. At the same time, it's understandable why many Ontarians don't want to pay more for electricity, particularly given that the feed-in tariff program will pay renewable energy companies a large pre- mium for their power. In addition, there are problems with the program, includ- ing the fact that many producers are fa- cing delays in connecting to the grid. But can taxpayers keep paying for these policy reversals? As lawyers know, it can cost a lot to get out of a contract, so Hudak's plan to nix the Samsung deal is bound to be expensive. Certainly, it's legitimate for polit- icians to implement changes that some sectors of society might not like when they beat an incumbent. But respon- sible policy considers both the costs and benefits and attempts to minimize the waste of previously invested resources. While some people might say there were other ways of spurring renewable power besides the Green Energy Act and the feed-in tariff, it's important to consider the benefits they bring in terms of jobs in the renewable power sector for everything from solar panel manufacturing to wind turbine con- struction. Yes, people will subsidize certain businesses in order to stimulate those jobs, but there are benefits in the long term as Ontario develops a new industry that hopefully will be able to compete globally. Meanwhile, the costs and subsidies will decrease over time and we'll improve our environment. In this case, it's hard to see how Hudak can justify a dramatic policy change. Let's think carefully before we throw away public resources and sacrifice the benefits of years of policy development. — Glenn Kauth Echlin, a giant in the employ- ment law world, it's an appropri- ate time to discuss how the law treats cancer. W That cancer in most of its forms is considered to be a dis- ability and a trigger for the right of accommodation for purposes of human rights laws is beyond controversy. But outside of hu- man rights codes, how does the law protect cancer patients? The Superior Court decision in Altman v. Steve's Music provides all employers with a primer on how not to treat cancer patients. The plaintiff, Shelley Altman, began working for Steve's Music in 1978. She was diagnosed with lung cancer in 2007. With radiation and chemo- treatments, therapy Altman could only work reduced hours. In October 2008, without warn- ing, she received a lawyer's letter from a bailiff stating she'd be ter- minated unless she resumed her regular working hours. Two days later, Altman be- gan a medical leave for about six Justice Randy Echlin, cancer, and the law Social ith the recent death of Ontario Superior Court Justice Randy months. On April 1, 2009, she informed Steve's Music she'd be returning to work on April 8. But on April 6, she told her employer she would delay the return date by two weeks due to a fracture. The next day, a bailiff delivered a lawyer's letter terminating the employment. The case turned on the ap- plication of the doctrine of frus- tration. Frustration is one of those fascinating common law doctrines we study in law school that applies in situations where a contract becomes impossible to perform due to some catastrophic event that neither party is respon- sible for or has contemplated. In employment law, it turns largely on whether the disability is temporary or permanent. This determination stems from the knowledge of the parties at the date of the termination without regard to future events. At the date of the termination, Steve's Music had no information concerning Altman's ability to work other than that she'd be re- turning in late April. As it turned out, Altman was diagnosed with bone and brain metastases in the Justice By Alan Shanoff fall of 2009, but as of the date of termination, there was no medi- cal evidence she was permanently unable to return to work. The frustration argument was there- fore unsuccessful. In addition to a significant award for wrongful dismissal, the court added addi- tional compensatory damages for the failure to act in good faith and the manner in which the termi- nation occurred as well as puni- tive damages. The frustration doctrine re- ceived another blow in Naccarato v. Costco, another Superior Court matter. This case considered an employee who hadn't worked but had been on disability (albeit not on a cancer-related illness) for five years. The employer relied on the frustration doctrine to justify its dismissal after receiving a doctor's note stating, "I can't predict when Mr. Naccarato will be able to www.lawtimesnews.com return to his job" and that "fur- ther treatment" was possible. In rejecting the frustration ar- gument, the court focused on the lack of evidence to support a finding that Naccarto would be unable to return in the "rea- sonably foreseeable future" as well as the lack of disruption to the employer's business. Both the Altman and Naccara- to decisions leave open the ques- tion of whether the frustration doctrine can ever apply while an employee is in receipt of long- term disability insurance benefits. There may be a persuasive argu- ment that the frustration doc- trine should never apply where a disability policy is in place as the parties have expressly anticipated that the employee may become disabled and unable to work for indeterminate periods of time. If course, I can't end this dis- cussion of Echlin and how the law treats cancer patients with- out mentioning one of Echlin's decisions earlier this year: Brito v. Canac Kitchens. One of the plain- tiffs in the case was Luis Romero Olguin, who had been terminat- ed at the age of 55 after 24 years of service. Canac provided the minimum Employment Stan- dards Act payout of 32 weeks. Canac also provided Olguin with eight weeks of disability cov- erage but didn't offer it for the pe- riod of reasonable notice. Olguin obtained alternate employment in the month following the ter- mination but was diagnosed with cancer the following year. Echlin concluded that Canac ought to have provided 22 months of reasonable notice or compensation in lieu and that it should make Olguin whole for that period. Since Olguin became disabled during the reasonable notice period, making him whole required Canac to be responsible for damages for the absence of the disability coverage. It was a just result for Olguin and a powerful precedent for oth- er patients. Echlin's keen eye for justice, then, will be missed. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He cur- rently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail ad- dress is ashanoff@gmail.com.

• Cover
• Rights Probes
• Echlins Legacy
• Focus On Human Rights Law