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April 25, 2016

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Waterloo firm must repay almost $900,000 to feds BY MICHAEL MCKIERNAN For Law Times A class action support firm based in Waterloo, Ont. must repay the federal government al- most $900,000 after a B.C. judge found it ran up unnecessary and unreasonable costs while inves- tigating a law firm accused of misconduct in the residential schools class action process. Brian Radnoff, a litigation partner in the Toronto office of Lerners LLP, says it is "very unusual" to see a decision that challenges fees already paid to a court-appointed monitor like Crawford Class Action Ser- vices, which was tapped back in 2007 to administer the Indian Residential Schools Settlement Agreement class action approved by judges in nine provinces and territories across Canada. "There isn't a lot of law on the issue, because courts are gener- ally loath to overly scrutinize the accounts of court-appointed of- ficials," Radnoff says. "There is usually a significant amount of deference given when it comes to the fees requested for court ap- proval, but I think it's fair to say there were some pretty extraor- dinary circumstances here." In 2013, Crawford was asked as part of its duties to inves- tigate the conduct of Stephen Bronstein, a Vancouver lawyer with more than 1,400 residential school survivor clients, following allegations about the behaviour of a form-filler employed by his firm to recruit clients. After a two-year investiga- tion, B.C. Justice Brenda Brown concluded conduct "fell below the standard" expected of law- yers in the class action's Inde- pendent Assessment Process, but she denied Crawford's request to have him barred from the IAP, and allowed him to continue representing his remaining 150 clients because he had shown his practice had improved. "However, this is no exonera- tion of Bronstein: the evidence convinces me that were it not for the intervention of the Monitor and this court, Bronstein would not have reached these accept- able standards," Brown wrote in the May 2015 decision, before ordering the lawyer to pay Craw- ford's "reasonable costs." In October last year, Brown ordered Bronstein to pay $1.25 million towards the total $3.3-million cost of Crawford's investigation. In doing so, she discounted expenses accumu- lated in the legal process before Bronstein consented to the in- vestigation, as well as $874,000 in expenses charged by Crawford that she found unreasonable and unnecessary. "I do not criticize the Moni- tor for its handling of the in- vestigation. The investigation Employers who use fixed-term contracts should take note Court of Appeal awards more than $200,000 to worker BY DAVID DIAS Law Times C ompanies with fixed-term employees may want to rethink any planned layoffs after the Ontario Court of Appeal ruled earlier this month that one such employee, terminated without cause, was entitled to full payment for the duration of his contract — an eye-popping windfall in excess of $200,000. In Howard v. Benson Group, the court ruled that the employer failed to draft a properly worded early-termination provision. Absent such a provi- sion, 59-year-old John Howard was entitled to damages worth the full value of wages and benefits over the remaining 37 months of his contract. The court, moreover, made new law when it concluded that Howard — having already bargained for certainty by means of a contract — had no obligation to mitigate damages by looking for another source of income or applying it against the severance. The decision, written by Justice Bradley Miller, states: "In the absence of an enforceable contractual provision stipulating a fixed term of notice, or any other provision to the contrary, a fixed term employment contract obligates an employer to pay an employee to the end of the term, and that obligation will not be subject to mitigation." Ryan Wozniak, one of the lawyers who represented Howard, says the ruling is a prime example of the high standard to which the courts hold employers who use fixed-term contracts with early-termination provisions. In Howard's case, while an early-termination clause was in place, it was extremely vague, alluding only to severance "in accordance with the Em- ployment Standards Act of Ontario." That wasn't clear enough for either the appeal court or the lower court. Superior Court Justice Donald MacKenzie, for his part, ruled the provi- sion fatally ambiguous and unenforceable. "The reason the courts have found that employers should be held to this high standard is that, generally, they have the upper hand when it comes CHARTER TROUBLE Drug conviction overturned P5 ANTI-CORRUPTION COMPLIANCE Former AG Peter MacKay weighs in P7 FOCUS ON Running Your Practice P8 See Ruling, page 2 See Fixed-term, page 2 PM #40762529 $5.00 • Vol. 27, No.14 April 25, 2016 L AW TIMES & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Follow LAW TIMES on www.twitter.com/lawtimes Ryan Wozniak and Kevin Sherkin acted for a worker at an automotive service centre in Bowmanville, Ont. Wozniak says the ruling shows the high standard the courts have for employers who use fixed-term employees with early-termination provisions. Photo: Chere A DAILY BLOG OF CANADIAN LEGAL NEWS LEGALFEEDS.CA FEEDS LEGAL POWERED BY Untitled-6 1 2016-04-20 4:42 PM

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