Law Times

Page 6 March 18, 2013 • Law TiMes COMMENT u Editorial obitEr By Glenn Kauth Panel right to decline Chisvin's costs request I n written reasons released this month, a hearing panel of the Ontario Judicial Council rejected Ontario Court Justice Howard Chisvin's request to have the public pay his legal costs stemming from his disciplinary matter last year. Chisvin, of course, is the Newmarket, Ont., judge who dismissed 33 criminal charges in 2011 after a Crown prosecutor was late returning from a break. According to accounts of the proceedings on July 21, 2011, Chisvin gave the Crown one minute to come back to court. He admitted misconduct at a hearing in November 2012 and received a reprimand and a warning. More recently, he sought more than $43,000 in compensation for his legal costs in defending the misconduct case. Given Chisvin's remorse, his willingness to own up to his actions, and his explanations for what he did, there was a viable argument for giving him some assistance with the significant legal costs he faces. After all, the disciplinary matter related to the performance of his duties and it was clear from comments at the hearing and letters of support filed on his behalf that the legal community regards him highly. Nevertheless, the panel was right to reject the costs application. "As we noted in our reasons for disposition, Justice Chisvin is to be commended for facing up to the fact that his conduct fell below the required standard," the panel wrote. "However, it remains that he did fall below that standard and we did make a finding of misconduct. "Taking into account all the circumstances of this matter, it is our view that the public purse should not be required to bear the cost of his legal representation." While Chisvin faces significant costs, the public did as well given the need to go through the legal process once again to dispose of the criminal charges he dismissed. It may be more appropriate, then, for a judges' association to look into ways of assisting people like Chisvin who find themselves in trouble due to what the panel heard was an "aberration" rather than having the public pay. The issue comes as a similar case arose involving the actions of a justice of the peace. According to the Toronto Star, justice of the peace Alfred Johnston dismissed more than 60 charges — mostly involving the Highway Traffic Act — in December after a prosecutor was a couple of minutes late. It's unclear what may happen with that matter, but it's obvious that given that the disposition in Chisvin's case has failed to completely deter similar conduct, it would be inappropriate to be forgiving on the costs issue for the time being. — Glenn Kauth Fair society demands reform of Employment Standards Act I n the recent speech from the throne, the Ontario government spoke of a fair society. But the speech held out nothing of substance for Ontario's employees who labour under inadequate employment standards legislation. The problem isn't just that the Employment Standards Act is difficult to understand and navigate with its special rules and exemptions. The issue is also that it doesn't provide coherent minimum workplace standards while failing to ensure effective means of protecting employees. A recent Toronto Star editorial recommended a "top-to-bottom overhaul of Ontario's outdated employment standards." The editorial followed the release of the Law Commission of Ontario's interim report on vulnerable workers and precarious employment for public feedback. The interim report contains many valuable recommendations. For example, the government should extend the short limitation period of six months for pursuing a wage claim. At the same time, the government should increase the monetary limit of $10,000 to $25,000. Why should we force some claimants to pursue their matters in the Small Claims Court? Law Times guides, workers who breed Why is there no requirement for notice of terminaSocial and board horses on a farm, many others. Whatever tion for employees with less Justice and minimum standard may the than three months of service? be, it appears that special inWrongful dismissal in comterest groups have successmon law has no such minimum fully lobbied successive govrequirement. Why doesn't the ernments to implement and act provide for severance pay retain arbitrary exemptions. until an employee has achieved Personal emergency and five years of service? Why medical leave provisions benis the payment of severance efit only workers whose emdependent on the size of the Alan Shanoff ployers regularly employ 50 employer or the existence of a mass termination? By artificially keeping employees or more. While I understand notice and severance requirements low, the need to assist family businesses, why we force employees to resort to the courts is there no protection for employees of smaller companies? for an adequate remedy. Based on the low numbers of comBut it's the act's special rules and exemptions that truly baffle. Employees plaints by non-union employees, the comwho install or maintain swimming mission believes the act's enforcement pools have no entitlement to minimum mechanism "does not meet the needs of standards regarding hours of work and protecting workers while they are still emeating periods. The same is true for in- ployed." That's due in part to the requireformation technology professionals, ment that most employees making a claim certain employees in the entertainment must first approach their employer and production industry, landscape garden- provide the Ministry of Labour with the ers, and a host of other widely diverse company's response to the complaint. That categories of workers. The provisions for provision is sure to reduce the number of overtime pay exempt employees who complaints. The low numbers are also due transport or lay sod, fishing and hunting to large-scale ignorance of the act. Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Advertising Sales . . . . . . . . . . . . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . . . . . . . . . . . Sandy Shutt ©2013 Thomson Reuters Canada Ltd. 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Circulation inquiries, postal returns www.lawtimesnews.com The current provision requiring employers to display a poster in every workplace does little to ensure employees have actual knowledge of their rights and how to enforce them. The commission's suggestion to require employers to provide an Employment Standards Act handout in addition to written notice of the terms of employment would provide vital knowledge to employees. An overhaul of our employment standards legislation would recognize former Supreme Court chief justice Brian Dickson's remark about work as "one of the most fundamental aspects of a person's life." "A person's employment is an essential component of his or her sense of identity, self-worth, and well-being," wrote Dickson. A fair society, then, demands an overhaul of Ontario's Employment Standards Act to help redress the inherent imbalance of power between employers and employees. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. 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 Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com advertising Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt...... sandra.shutt@thomsonreuters.com

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