Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 4, 2019 7 www.lawtimesnews.com COMMENT BY HOWARD WINKLER For Law Times THE end to abusive non- disparagement clauses in em- ployment law releases is on the horizon thanks in part to Uber's attempt to enforce the over- reaching arbitration provision in its agreement with its drivers. Non-disparagement provi- sions strike at the important constitutional value of freedom of expression, which should not be lightly interfered with, simi- lar to overly broad restrictions on earning a livelihood (non- competition provisions) or overly broad restrictions on access to the courts (arbitration provisions). Many practitioners wrongly believe that the decision of the Divisional Court in Jan Wong v. The Globe and Mail et al., 2014 ONSC 6372 established the en- forceability of confidentiality and non-disparagement provisions. It did not. The decision rested on the finding of a breach of a spe- cific obligation not to disclose the terms of a settlement, which the court found Wong did by pub- lishing the fact that she received what she described as a "pile of money" and "a big fat check." Wong's disclosure of her treat- ment by The Globe and Mail played no part in the decision. While most employment law and commercial litigation prac- titioners will not have been sur- prised by the recent Court of Ap- peal decision in Heller v. Uber Technologies Inc., 2019 ONCA 1, there is a little kernel of obiter in the decision, which, in this writer's view, will be the nail in the coffin of non-disparagement provisions contained in employ- ment law releases that seek to re- strain truthful speech on matters of public interest, such as occur- rences or complaints of sexual or other abuse or harassment in the workplace. In the Uber decision, in con- sidering the unconscionabil- ity of the arbitration provision in the agreement between the company and drivers, the Court of Appeal for Ontario referred to the existing four elements of the test for unconscionability in Ontario set out in Titus v. Wil- liam F. Cooke Enterprises Inc., 2007 ONCA 573. The four ele- ments are "a grossly unfair and improvident transaction," "a vic- tim's lack of independent legal advice or other suitable advice," "an overwhelming imbalance in bargaining power caused by the victim's ignorance of busi- ness, illiteracy, ignorance of the language of the bargain, blind- ness, deafness, illness, senility, or similar disability," and "the other party's knowingly taking advantage of this vulnerability." It's not an easy test to satisfy. However, the Court of Ap- peal in Uber then references the different and lower test applied by the British Columbia Court of Appeal in Morrison v. Coast Finance Ltd. (1965), 1965 Can- LII 493 (BC CA) as requiring only "inequality of bargaining power" and "unfairness." This lesser test was applied by Justice Rosalie Abella in her concurring reasons in Douez v. Facebook, Inc., 2017 SCC and appears to be the test applied by the dissenting judges in Douez. The court in Uber then con- cludes on this issue by extending what I consider to be an invita- tion to counsel in future cases. In this regard, Justice Ian Nord- heimer states, "I do not consider it necessary to resolve the ques- tion of whether the decision in Douez has changed the proper elements to be applied in deter- mining unconscionability in Ontario because, under either test, I find that the Arbitration Clause is unconscionable." The fact that there is inequal- ity of bargaining power in the employment law relationship has long been recognized, including by the Supreme Court of Canada in Elsley v. J.G. Collins. I see this imbalance of power in every employment law case I have ever mediated. The employee who has been terminated, who is without income pending a settlement with the employer, who is often represented by counsel in a con- tingency arrangement, is almost powerless to resist the last-minute inclusion in a full and final release of a broad-ranging confidentiali- ty and non-disparagement provi- sion once the best offer has been obtained from the employer. In today's #MeToo world and with the growing rejection of workplace harassment, it is not a far stretch to conclude that any non-disparagement clause that extends to limit freedom of expression on matters related to sexual and other abuse or ha- rassment in the workplace will be found to be contrary to public policy and unfair. The Univer- sity of Michigan recognized this reality in waiving the confiden- tiality clause in its settlements with young gymnasts so that they could speak openly about the abuse they suffered at the hands of Larry Nassar, a doctor at the university. This has be- come not only a legal issue but a potential public relations night- mare for employers. Courts, too, have already shifted to recognize this issue. In Watson v. Salvation Army, 2018 ONSC 1066, the Superior Court of Justice found that an employ- ment release extending to all claims "arising out of the employ- ment relationship or the termina- tion of that employment" and "in any way related to or connected with my employment of the end- ing of my employment" did not prevent a subsequent civil claim for sexual harassment since, as the court somewhat tenuously found, "While many of the al- leged events occurred at the place of employment and, perhaps, because of the employment, sex- ual harassment, intimidation and other improper conduct are not connected to employment. They are clearly separate matters." Employers would be wise to anticipate the end of abusive non- disparagement clauses. There is a risk, like with overly broad non- competition clauses, that a court will not only refuse to enforce the provision in circumstances of harassment but will also throw the entire provision out. In order to attempt to mitigate this im- pact, employers should consider amending their releases to re- quire only reasonable confiden- tiality and non-disparagement obligations, to extend its terms to not only the employment re- lationship but beyond and, while not intuitive, specifically allocate, where appropriate in the circum- stances, some of the termination payment to claims for sexual or other harassment, without any admission of the existence or li- ability for such claims. LT Howard Winkler is Toronto lawyer and mediator who has practised the law of defamation and employment- related law for more than 30 years on behalf of media, plaintiffs and defendants. BY MAT THEW GOURL AY I dentifying and correcting likely mis- carriages of justice is the most impor- tant function of criminal appeal courts. Developing legal doctrine and elabo- rating the scope of Charter rights may be more scintillating work for appellate judges, but nothing is more crucial — and more central to the courts' mandate — than providing a bulwark against wrong- ful convictions. In cases where a panel of the Court of Appeal can't agree on the propriety of a conviction, Parliament gave the Supreme Court of Canada the last word. These are known as appeals "as of right." They go up to Ottawa automatical- ly, without necessarily raising a legal issue of national importance. Unfortunately, these appeals increasingly appear to be treated as the black sheep of the court's docket. A case in point is the court's recent decision in R. v. Demedeiros, 2019 SCC 11. You probably missed it, as the court's judgment was a single sentence delivered orally from the bench. The underlying case was a prosecution for sexual assault and unlawful confinement arising out of a booze-and-cocaine-fuelled evening that ended with the complainant jumping off her second-f loor balcony and accusing Nelson Silva Demedeiros of having as- saulted her. For the majority of the Alberta Court of Appeal, there was nothing much to see here. The trial judge found the complain- ant to be credible, despite the significant gaps in her recollection attrib- utable to drug and alcohol use. The frailties in her evidence were for the trial judge to con- sider and not for the appeal court to second-guess. In contrast, the dissent- ing opinion of Justice Ronald Berger (who has, regrettably, recently retired) carefully dis- sected the evidence and the trial judge's reasons to deter- mine whether the former could reasonably support the result reached in the latter. Late in his reasons, Berger candidly ac- knowledged that he had "wrestled" with his decision in light of recent Supreme Court jurisprudence counselling hands- off appellate review. But he arrived at the following rhetorical question. "What must I do when my legal conscience in- formed by the lens of judicial experience persuades me that a conviction that rests on an assessment of credibility and/or reliability is unsafe and commands appel- late intervention?" To be clear, I don't know what the cor- rect result was in this case. It may be that the majority of the Court of Appeal was right to uphold the conviction. But I do know that when an appeal judge consid- ers a conviction to be fundamentally un- safe, they have a duty to intervene. The stakes are too high for the niceties of "def- erence" to carry the day. How did the Supreme Court answer Berger's specific criticisms of the trial judgment? We have no idea and never will. All the Supreme Court indicated was that it was dismissing the appeal, "substan- tially for the reasons of the ma- jority of the Court of Appeal." Two problems arise from this. The first is the inclusion of the hedge "substantially." If the Supreme Court disagrees with some part of a judgment it intends to uphold, it should tell us what part. Otherwise, the judgment below stands as some kind of authoritative precedent — except that we don't know exactly for what. With the court deciding only about 60 cases a year (in contrast to more than 100 per year in the 1990s), it cannot rea- sonably claim a lack of capacity to handle the extra work this would entail. Second, and more seriously, the Court of Appeal majority judgment rubber- stamped by the Supreme Court did not itself really engage with the substance of Berger's criticisms. Like most appellate courts nowadays, the Court of Appeal majority was content to defer to the trial judge who (as the legal lore would have it) has a superior ability to distinguish truth from falsehood based on having seen and heard the witnesses in person. There is lit- tle empirical support for this proposition — in fact, the impressions engendered by signals such as body language and tone of voice can be more deceptive than reveal- ing — but the appellate courts cling to this dogma tenaciously. Meanwhile, when it comes to unreasonable verdict review under s. 686(1)(a)(i) of the Criminal Code, who knows how many potential wrongful convictions receive the lightest appellate once-over. There appears to be little appe- tite nowadays for what Berger refers to as a "robust, meaningful appellate review for unreasonable verdict resting on questions of credibility and reliability." I think that, in future years, our sys- tem's complacency (in the guise of "defer- ence") toward shoddy credibility findings at the trial level will be seen as a black mark on par with our former uncritical reli- ance on shaky eyewitness identifications and junk forensic science. Eventually, the courts will catch up with psychological research in recognizing the frailties and distortions of memory that can make the testimony of even the most seemingly honest witness dangerous to rely upon. I realize that a justice system staffed by hu- mans will never be perfectly accurate. But one way of minimizing error is the kind of robust appellate review undertaken by Berger in Demedeiros and now routinely denigrated by the Supreme Court. All appellate courts can and should do better. And the Supreme Court should lead by example. LT Matthew Gourlay handles criminal and regu- latory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's avail- able at mgourlay@hhllp.ca. Speaker's Corner Uber's unintended gift to Ontario employees SCC should lead by example A Criminal Mind Matthew Gourlay

• Cover