Law Times

October 22, 2018

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Page 2 OctOber 22, 2018 • Law times "Presumably, it will be han- dled the same way that smok- ing is in those areas," Persaud says. "But cannabis is unique in the sense that its odour could be stronger." LT "Where I am currently seeing a lot of human rights complaints are, for one, the accommodation of medical marijuana," says Nee- na Gupta, a partner at Gowling WLG in Waterloo, Ont., whose practice deals predominantly with labour, employment and hu- man rights issues. "[T]hat growth has been steadily increasing in 2010 when case law made it clear that not treating medical cannabis like any other drug was, in fact, a vio- lation of human rights." The OHRC says smoking or vaping is banned in enclosed workplaces, a rule that applies both to tobacco and medical or recreational cannabis, and that employers can accommodate employees by allowing breaks in outside spaces. The OHRC cited tribunals and court decisions that said workers in safety-sensitive jobs might be barred from impair- ment by employers. The OHRC also notes that while an em- ployer generally doesn't have the right to know the "nature" of someone's disability or treat- ment, a doctor's note verifying cannabis use might be neces- sary. Gupta says she saw at least one employer work to accommodate medical marijuana with changes such as adding air filters, result- ing in a notable improvement in the worker's performance. "The second area is an in- crease in people disclosing that they have a substance use disor- der," she says. "When I first started [in] this area of practice, I would say al- most 95 per cent of disclosing a substance use disorder would be disclosing alcohol consump- tion. Because drug consump- tion— including recreational amounts of cannabis — was il- legal, people were very uncom- fortable disclosing cannabis use because you would then be disclosing that you are, in fact, breaking the Criminal Code of the country." Sean Bawden, a partner in the employment group at Kelly Santini LLP in Ottawa, says em- ployers are hurrying to revamp their smoking, drug and alco- hol policies in light of the new rules around cannabis. Employ- ers that don't reach out to legal counsel may run into problems, he says, if the policies are too "blunt" or "ham-fisted." "The problem is that can- nabis is two things: It is a recre- ational drug, similar to alcohol, but it's also a prescription for medication," Bawden says. "So, the problem with a blan- ket ban on cannabis is that some people have a prescription to consume cannabis as a medica- tion for a disability, and the Hu- man Rights Code says employ- ers cannot discriminate on the basis of a disability." He says he believes more complaints will emerge, mainly because "employers are going to be a little bit more anxious to enforce those zero-tolerance policies." Natasha Persaud, a partner at Formative LLP in Toronto says in the past, she's dealt with issues surrounding equal treatment sought by a medical marijuana user smoking outside venues such as casinos, for example. Those issues might not be as relevant going forward, she says, but there may be other issues to deal with. poration in Canadian history," according to Sotos LLP. The dispute dates back to the "heights of the financial crisis," when "dangerously close to the edge of insolvency," General Motors Canada nixed around 200 dealers, McEwen wrote in a 2015 decision, Trillium Motor World Ltd. V. General Mo- tors of Canada Ltd. Cassels Brock was retained to represent Canadian dealers in a GM re- structuring bankruptcy, where General Motors Canada was a wholly owned subsidiary of General Motors Corporation. In 2015, McEwen said that Cassels Brock breached con- tractual and fiduciary duties and was negligent by accepting the GM dealers' retainer despite having already agreed to act for the federal government through Industry Canada. "Cassels knew about this con- f lict from the outset; yet, rather than declining to act for the GMCL dealers and referring the dealers to an unconf licted law firm, or even telling the dealers about the retainer with the Fed- eral Government, Cassels con- tinued to act for both the Federal Government and the dealer," McEwen wrote in 2015. "As a result of these breaches, the Class Members, who were offered compensation which represented a fraction of the value of their dealerships, lost the opportunity to negotiate with GMCL for increased wind- down payments." Trillium Motor World, which was a Scarborough, Ont. Pon- tiac, GMC and Buick dealer, was a representative plaintiff on be- half of class members that signed wind-down agreements, Mc- Ewen wrote in his 2015 decision. In 2015, after a 41-day trial, McEwen awarded class mem- bers aggregate damages of $45 million, which Cassels Brock's general counsel said the firm would appeal. In 2016, McEwen further clarified his decision, in- cluding specifying the damages be awarded to the members of the class that retained Cassels Brock in 2009. Last year, the Court of Appeal decided the damages should be less than $45 million, allowing an appeal on the trial judge's quantification of damages, Jus- tice Eleanore Cronk wrote in the 2017 decision, with justices Katherine van Rensburg and Gladys Pardu concurring. After reducing the starting point of the damages, the Court of Appeal returned the dam- ages issue to the trial judge. The Court of Appeal decision said that the trial judge should ac- count for a group deemed "Par- ticipation Form Dealers." "[Justice McEwen] answered the question on an arithmetical basis," Statham says. "Both the plaintiff and Cassels had a range of other submissions on ways of tackling that question that were not just straight-line arithmetic. . . . taking into ac- count who some of the 141 deal- ers were and whether they had bargaining power and so forth. So, both sides, in coming up with alternative calculations, were positing something other than straight-line arithmetic." Margaret Waddell, found- ing partner of Waddell Phillips Barristers PC in Toronto, says the issue of aggregate damages is unique in the the class-action world, as the court has more f lexibility than in traditional litigation. "It may not be an exact num- ber. It's permissible in the class- action world to use statistical evidence to come up with a round number estimate of what the classes' total damages were or a best estimate, based on the evidence available, of the general scope of the losses that the class had suffered," she says. "Then the trial judge can — once they've come up with the gross number — set out a plan for how the class will receive those damages." Waddell, who was not in- volved in the case, says that since many cases are settled rather than going to trial, this case is some- what unusual by spelling out the administration costs: the expens- es of getting the money out to the class members. She says Mc- Ewen's decision is consistent with what usually happens when a case goes to trial in that it indicates that the party that must pay adminis- tration costs is the party that en- gaged in the wrongful conduct. The case "is a good example of a case where the trial judge came up with the best estimate of what the loss was based on the information that was available," she says. "It just shows the power and f lexibility of the Class Proceed- ings Act to accommodate that kind of situation and get some justice for people that have been wronged," says Waddell. While one hurdle has been cleared, there are still many as- pects of the case that are before the court or may be appealed, Vermette and Statham say. "We're still in the trenches," Vermette says. Statham adds: "We are happy that we are get- ting closer to the end." LT NEWS Case a 'cautionary tale' Continued from page 1 Continued from page 1 'Competing interests' may emerge in claims © 2018 Thomson Reuters Canada Limited 00250QO-A93154-CM CORPORATE / COMMERCIAL Secured lending insight starts here New Edition The 2018-2019 Annotated Ontario Personal Property Security Act Richard H. McLaren, Professor of Law, H.B.A. (Western University), LL.B. 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