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Page 6 April 7, 2014 • lAw Times www.lawtimesnews.com COMMENT Just the facts, please ith growing concerns over the government's use of deten- tion in immigration matters, a recent case shows just how far offi cials will sometimes go to keep people behind bars. Last week, Federal Court Justice Russel Zinn decided a new panel should review Giga Odosashvili's detention pending an ad- missibility hearing. Federal offi cials sought to lock him up a er police charged him in December with two counts of break and enter, posses- sion of property obtained by crime, and obstructing a peace offi cer and then a further two counts of break and enter in February. Part of the government's case rested on assertions about Odosash- vili's involvement in organized crime. While a government lawyer re- ferred to "overwhelming documentary evidence" of such involvement, Zinn found otherwise. An exhibit fi led by government counsel, Zinn noted, "contained a statement that was known or ought to have been known to be false." e case included a statutory declaration about Odosashvili's association with two men charged with break and enter who were leaders of a break-and-enter ring. "However, all of the crimi- nal charges against those two men were withdrawn by the Crown 10 months earlier on April 24, 2013," Zinn noted. "With that withdrawal, the charges ceased to exist. . . . Criminal counsel further attests that nei- ther was ever charged with any organized crime related off ence." Zinn noted other misrepresentations as well. At Odosashvil i's detention hearing, his counsel, Nikolay Chsherbinin, attempted to raise objections to the misrepresentations, but the immigration division member refused to hear them. "I did not fi nd that I am required any further information and I was prepared he Ontario Court of Appeal endorsement in Musoni v. Logi- tek Technology Ltd. has caused many employment lawyers to reconsider the validity of termina- tion provisions that have the potential to provide for notice or payment below the minimum requirements of employment standards legislation. In Musoni, the employee, Bernard Musoni, signed a contract stating that ei- ther he or the employer had the right to terminate the employment agreement by providing notice of 15 days. At the time of termination, the employee had been with the employer for about 2-1/2 years. e minimum requirement for termination without cause in Ontario's employment standards law for such an employee is two weeks notice or compensation in lieu. e notice required and provided un- der the employment agreement there- fore satisfi ed the employment standards minimum at the time the termination took place. However, had the termina- tion taken place at any point a er the em- ployee's three-year anniversary, the con- tractual termination notice would have fallen below the escalating employment standards minimum. Prior case law made it clear that a contractual termination clause that creates a result be- low the employment standards minimum at some point in the future is void ab initio. However, in this case the Court of Appeal dismissed the employee's appeal with a curt endorsement. " e employment contract between the appellant and the respon- dent was clear in providing for 15 days' notice in order to ter- minate," wrote the court. Lawyers are now considering whether the Court of Appeal has modifi ed or is willing to reconsider the law. However, the employee conceded the validity of the employment contract and neither the trial nor the appeal court considered the issue of whether a future potential violation of minimum employment standards require- ments invalidates a termination clause. erefore, there doesn't seem to be much of an argument that the Court of Appeal has changed or is reconsidering the law. e case has little signifi cance from an employment law point of view. How- ever, it's signifi cant from an access to justice point of view. e plaintiff represented himself. Whether that was his choice isn't clear, but given the short duration of employment and his salary (approximately $43,000 per year), it seems unlikely many lawyers would have been able to handle the case on an economic basis. It's apparent the plaintiff had little, if any, legal training. He appeared not to understand the concept of wrongful dismissal as he focused his evidence on the reasons for termination rather than the validity of the termination clause and his entitlement to reasonable notice. He shouldn't have conceded the va- lidity of the termination clause. We can't fault counsel for the defendant for the result. ere's no obligation on op- posing counsel to assist a self-represented litigant. Opposing counsel owe a duty to their clients and the court. While counsel have a duty to bring relevant case law to the attention of the court even where it may not support their case, the case law on the validity of termination clauses wasn't rel- evant based on the manner in which the plaintiff pleaded and presented his case. Equally, there can be no criticism of the judges. Judges must conduct themselves in a neutral manner and can't provide legal advice to a party. Judges can't dra pleadings for self-represented litigants or advise parties on their submissions. So while no one is at fault, we have a self-represented plaintiff who lost a case he likely ought to have won. Based on the length of employment and his position, the likely reasonable common law period of notice was certainly more than 15 days and was likely three months. With proper pleadings, evidence, and argument, the plaintiff could have achieved an award of about $9,000. Instead, he faces cost awards requiring him to pay $8,512.48. Did this plaintiff get a fair hearing? He certainly did according to the laws of evi- dence and the manner in which he pleaded his case. But without those qualifi cations, can we really say he received a fair hearing? As we go forward to discuss access to justice issues, we must consider how to ad- dress such cases. 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. ©2014 Thomson Reuters Canada Ltd. 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For Zinn, the misrepresentations put forth by the government were "very disturbing." Noting im- migration regulations require more than suspected involvement with a criminal organization (in this case, it was the Georgian Mafi a), he granted the ju- dicial review application and sent the matter back to a new panel. Offi cials may believe their suspicions about Odosashvili's involvement with members of a criminal organization, "but there has been no fi nding of any criminal court that any one of them is a member of such an organization," he wrote. e case, then, is an example of the government going too far in its zeal to enforce immigration laws. ere's nothing wrong with doing that, but it should be basing its legal assertions on the facts, es- pecially given the growing concerns by groups such as No One is Illegal about lengthy detentions in im- migration matters. — Glenn Kauth Social Justice Alan Shanoff T W

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