Law Times

Law Times • sepTember 9, 2013 Page 7 COMMENT Lawyer for victims among issues as MacKay touts bill of rights J ustice Minister Peter MacKay has been travelling the country this summer as he trumpets a victims bill of rights he's bringing in this fall. He talks mostly to people who see themselves as victims and want the government to do more for them. He's also talking to police, judges, academics, sociologists, and correctional officials. MacKay calls them stakeholders. He tells them he's listening and puts on a convincing show at town hall meetings. When it comes to victims, he never tells them to get over it or try to accept the judgment of the court. The victims bill of rights is a centrepiece for the Conservatives' new crime legislation going into the next election. Critics take another view. They say the effort is a bid to distract from the government's darker side on justice issues: mandatory minimums, delayed parole rights, and former minister Vic Toews' crusade to give police the right to search Internet files without warrants. Toews is gone but an altered version of the infamous bill could come back. Our criminal justice system includes the accused on one side and a victim on the other. A defence lawyer acts for the accused and a prosecutor often deals with the victim. During MacKay's grand summer tour, victims aren't in short supply. They tell McKay prosecutors don't adequately represent victims and defence lawyers do their L same effective voice through jobs too well. What they want is a replacing third lawyer to represent victims The Hill changes such as wait time murderers' 15-year in court. for parole with a 25-year "I'm not there yet," said timeline. MacKay doesn't exMacKay. The third lawyer, likeplain how this helps a victim ly paid for by the state, "could no matter how much it may cause further delays," said help fill jails. MacKay in interviews. MacKay wants to hold vioThere are enough delays in lent offenders accountable. But court already, he said. He cited the case of a man accused of Richard Cleroux is that not already happening? MacKay also vows to chamchild molestation whose case fell apart because it took the federal gov- pion the rights of victims. Not once does he ernment 12 years to extradite him from an say the government will also champion the right of an accused to a fair trial and fight for Asian country. Still, MacKay's schedule has been ex- the wrongfully convicted. Either those injustremely busy and all of it without a military tices simply don't occur or somebody else helicopter to transport him or any time off must be taking care of them. When the MacKay road show hit Winfor a fishing trip. He was in Edmonton on July 25; Yellowknife on July 31; Moncton, nipeg, a grieving mom, Carol de Delley, N.B., on Aug. 7; Toronto on Aug. 13; Oril- took part in the discussion. Her son, Tim lia, Ont., on Aug. 15; Saskatoon on Aug. 19; McLean, died on a Greyhound bus in 2008 Winnipeg on Aug. 20; Charlottetown on when Vince Li beheaded him while people Aug. 22; Halifax on Aug 23; and St. John's, watched from outside. The court found Li not criminally reN.L., on Aug. 26. "Giving victims of crime a more effective sponsible and confined him to psychovoice in the criminal justice and corrections logical care. But like all mentally ill patients systems continues to be a priority for our confined to care, he has a right to a review board hearing. (The review board hearings government," said MacKay. At every event, there's an accompany- used to happen every two years, but Prime ing press release, pumped out by the same Minister Stephen Harper has now made it aide in Ottawa, rattling off the same re- every three years.) At the review board hearing, according to cord of achievements giving victims that de Delley, Li's lawyer "clearly stated" that "no crime was committed here." "Vincent Li is not a criminal?" she asked. "Does that make me a victim of crime or not?" Actually, the court found Li not criminally responsible, which is why he gets medical treatment instead of a jail cell. The distinction between a crime and mental illness isn't clear to everyone, especially those who see themselves as victims. "When I think about the millions of dollars that they have spent on one offender and what they provide for victims, there's a really, really big imbalance," the CBC quoted de Delley as saying. The concern here isn't about reintegrating Li into society. "I'm more concerned with victims getting back their lives," said de Delley. MacKay says only that he's listening. Later on a TV show, he said the victims bill of rights legislation would give victims "a greater sense of inclusion, respect, and dignity." Everybody keeps pushing him for details on how the government will do it. "Some of the practical elements that we'll attach are guarantees of information," he replied. Is that all there is? LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. Courts slow to fill void in awarding prejudgment interest for wrongful dismissal awyers representing dismissed employees typically include a claim for prejudgment interest in a wrongful dismissal lawsuit. However, there appears to be no controlling authority governing a method for calculating prejudgment interest and circumstances when the court should deny it. This void renders the rules regarding the propriety and calculation of prejudgment interest on wrongful dismissal damages difficult to grasp fully. A claim for prejudgment interest isn't by itself a cause of action. It's a statutory right set out in s. 128 of the Courts of Justice Act that permits litigants to claim prejudgment interest from the date the cause of action arose to the date of the order. In wrongful dismissal cases, there are two competing methods for calculating prejudgment interest: a lump sum and salary continuance. Under the first method, prejudgment interest accrues on the full value of the awarded damages from the date of dismissal. Under the second method, it accrues on payments as they would have occurred had employment continued during the notice period. A survey of wrongful dismissal jurisprudence ranging from 1985 to 2013 reveals the absence of consensus with regards to the preferred method of calculation. In the 1985 decision of Chang v. Simplex Textiles Ltd. and Stevens v. The Globe & Mail in 1996, for example, the Ontario Court of Appeal acknowledged that the lump-sum method had a logical basis and was in general accord with other wrongful dismissal cases. In the 1997 decision of Janke v. Cenalta Oil Well Servicing Ltd., the Saskatchewan Court of Appeal favoured the salarycontinuance method because the damages suffered by a wrongfully dismissed employee only received a employee accrued throughout the notice period and, Labour payment equal to his statutory entitlements. therefore, required periodic Pains While jurisprudence exassessment along the way. hibits uncertainty as to which In the 2006 decision in approach applies when calcuLowndes v. Summit Ford Sales lating prejudgment interest Ltd., the Ontario Court of Apon wrongful dismissal dampeal overturned the trial court's ages, the Ontario Court of application of the lump-sum Appeal made it clear in Chang method as conferring an "imand Stevens that it wouldn't permissible windfall" on the interfere with trial judges' exemployee who received notice Nikolay ercise of discretion in favour in the form of a salary continuChsherbinin of either method. ance. It further rationalized that Damages for wrongful the lump-sum method compelled the employer to repay interest to the dismissal may include moral and puniemployee on salary-continuance payments tive components. This begs a question as before they would have fallen due. People to whether the court can award prejudgshouldn't take Lowndes as expressing a con- ment interest on these damages. In paraclusive opinion that salary continuance is graph 128(4)(a), the Courts of Justice Act the preferred method in Ontario because prohibits an award of prejudgment interthe court declined to determine whether est on "exemplary and punitive damages." "an award of prejudgment interest on a The reason for barring prejudgment inlump sum basis is generally appropriate in terest is that these damages penalize an employer for its bad-faith conduct at the a wrongful dismissal case." In the 2011 decision in Chandran v. Na- time of dismissal rather than compensattional Bank, the Ontario Superior Court ing an employee for a loss. Until the Supreme Court of Canada's relied on Lowndes in advancing what appears to be the hybrid method for calcu- 2008 decision in Honda Canada Inc. v. Kelating prejudgment interest: "Therefore, ays, there was confusion between punitive calculating the prejudgment interest on and moral damages, formally known as the damage award is calculated as follows: aggravated or Wallace damages, because First, the interest owed from the beginning both have to do with the employer's conof the notice period to the end must be cal- duct at the time of dismissal. However, like culated monthly on the basis of what was the two-headed God Janus, these damages owed at that time; second, the interest on aim in opposite directions: Punitive damthe total amount of the award outstanding ages aim to penalize the employer's repreat the end of the notice period must be cal- hensible conduct while moral damages culated from the end of the notice period aim to compensate the dismissed employee for the psychological injury suffered as a to the date of judgment." Then in the 2012 decision in Olivares result of the employer's bad-faith conduct v. Canac Kitchens, the Ontario Superior in the manner of the termination. Lawyers may cite the Supreme Court Court was of the view that, in the circumstances of that case, the lump-sum of Canada's 1992 decision in Norberg v. approach was appropriate because the Wynrib for the proposition that moral www.lawtimesnews.com damages are subject to prejudgment interest. Sixteen years later in Keays, the top court rationalized Wallace and aggravated damages under the single head of moral damages but said nothing about the effect this might have on the applicability of prejudgment interest to them. People may view the Supreme Court of Canada's passivity on this point as approval of its earlier principle. This conclusion finds support in the 2013 decision of Capital Pontiac Buick Cadillac GMC Ltd. v. Coppola in which the Saskatchewan Court of Appeal refused to overturn the trial judge's decision to award prejudgment interest on $20,000 in moral damages. Having regard to the fact that in Keays, the court resolved that moral damages are compensatory and available on the basis that "reflects the actual damages," the Saskatchewan Court of Appeal's apt conclusion in Coppola that there is "no reason the practice of awarding prejudgment interest on awards of [moral] damages would not continue" is a welcome clarification on this confusing area of the law. As is evident, the rules governing the propriety and calculation of prejudgment interest aren't straightforward. Given that prejudgment interest could form a significant part of damages payable on a tax-free basis, prudent counsel should treat a claim for it as a cause of action and plead the facts necessary to prove entitlement from the earliest arguable date. The delay in prosecuting a wrongful dismissal case, as illustrated by Coppola, may negatively affect the award of prejudgment interest. LT uNikolay Chsherbinin is a founding partner of Chsherbinin Litigation and author of The Law of Inducement in Canadian Employment Law published by Carswell, a Thomson Reuters Business. He's available at 416-9072587, nc@nclaw.ca or by visiting nclaw.ca.

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