Law Times

Law Times • June 16, 2014 Page 7 www.lawtimesnews.com COMMENT Employment lawyers should prepare for new world By david Harris For Law Times he recent decision of the Workplace Safety and Insurance Appeals Tribunal on claims for mental distress is significant for employment lawyers. In decision No. 2157/09, the tribunal has declared the statute's provision limiting entitlement to benefits due to mental distress to be contrary to the equality section of the Charter of Rights and Freedoms and hence unconstitutional. The statute presently denies an applicant benefits due to a claim for mental distress under s. 13(4). Section 13(5) then allows for an exception in a circumstance where the mental stress is due to "an acute reaction to a sudden and unexpected traumatic event." The section continues to describe an exception to the exception with respect to the employer's decisions relating to the person's employment or discipline. This latter provi- sion was not in debate in this case. The facts of the case dealt with a nurse employed in a hospital setting who had alleged abuse and ill treat- ment over a 12-year period by a physician. She had been diagnosed with an adjustment disorder, anxiety, and depression brought on by workplace stressors. The worker's initial application for benefits and subsequent first review failed. On the latter appeal, the panel concluded that, but for the wording of the stat- ute, her application would have succeeded. The most recent appeal decision concluded the stat- ute treated people suffering from a mental disability in a substantively discriminatory manner, one that could be not be justified under the s. 1 reasonable-limits quali- fier. As a result, the tribunal allowed the worker's appeal. This decision, apart from allowing for immediate claims for compensation benefits based on work-re- lated emotional distress claims, also has a tremendous impact on civil claims if an employee is directly seek- ing damages for emotional distress or, alternatively, is using a fact situation of emotional abuse to buttress a constructive dismissal claim. When it comes to civil claims in employment law, in the March 2013 decision of Ashraf v. SNC Lavalin ATP Inc., Master K.R. Laycock of the Alberta Court of Queen's Bench dismissed the plaintiff 's claim for mental distress damages due to workplace emotional abuse. The plaintiff qualified for but did not apply for workers' compensation benefits. Alberta's statute allowed for workers' compensa- tion claims based on emotional distress. The court also noted that whether the plaintiff brought the ac- tion in contract or tort was of no moment as the legis- lation forbade any civil claim. The motion succeeded and the court dismissed the claim. On appeal from the master's decision, the employee successfully moved to amend the claim to include re- lief by way of constructive dismissal based on the same abusive conduct. This was of no moment, however, as the court determined the employee's sole remedy was to apply for workers' compensation benefits. The consequences of the latest decision may be dramatic. Rulings such as the Ontario case of Prinzo v. Baycrest Centre for Geriatric Care and indeed the moral or aggravated damage claim as set out in Honda Canada Inc. v. Keays may be of historical value only where the legislation covers the employee. There remains a further argument that the workers' compensation statutes may deprive the relevant human rights commission of jurisdiction to award a damage claim for such a violation given appropriate coverage. Generally, human rights laws are quasi-constitutional and, as such, supersede any conf licting statute unless the legislation specifi- cally states to the contrary. Two consequences may follow. The first is that the latest appeals tribunal deci- sion may have no impact on human rights claims. The second is that it may at least affect a claim for compen- satory damages or lost income based on a workplace human rights offence. The Supreme Court of Canada, in its 1996 decision in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., considered a similar conf lict between the Quebec Charter of Rights and Freedoms and the workers' compensation regime of that province. The plaintiff 's civil claim for punitive damages for sexual harassment as allowed under the Quebec charter failed as she had coverage under the workers' compensation regime. Barry Fisher, a well-known Toronto mediator, de- scribes the latest appeal decision setting aside the Ontario statute's limitation as one that raises compelling legal issues, not the least of which is the status of present civil claims seeking such relief. Must a plaintiff now apply to the Workplace Safety & Insurance Board retroactively? The impact of this decision on human rights remedies remains idle speculation for the moment. Presuming the decision of the tribunal remains good law following an inevitable review, employment and human rights practi- tioners should prepare for a new world. LT uDavid Harris, a former lawyer, is one of authors of the new book Disability Issues in Employment Law. u SPEAKER'S CORNER Lawyers in association should note new ruling he duck test — "If it looks like a duck, swims like a duck, and quacks like a duck, then it prob- ably is a duck" — captures the essence of Jajj v. 100337 Canada, a labour and employment case that concerned the novel issue of whether the law, in dealing with lawyers who practise in association and arguably hold themselves out to the public as a law firm, should treat them as such and hold them to the same conf lict of interest rules as those in partnerships. Sitting on appeal from a master's order, Superior Court Justice David Stinson con- cluded the same conf lict requirements ap- ply in both modes of practice. Aside from clarifying the law of conf licts of interest, Jajj offers insights into addressing vulner- abilities that may threaten a client's con- fidentiality when retaining lawyers who practise in association. In Jajj, the plaintiff, Jaswinder Kaur Jajj, was a 30-year employee of the corporate de- fendant, BJ Supermarket, which operates a family-run grocery store owned by the Jajj family. As a result of a breakdown in the relationship between the Jajj family mem- bers, the plaintiff retained a lawyer to make demands of BJ Supermarket. In anticipation of a wrongful dismissal lawsuit, BJ Super- market obtained advice from an employ- ment lawyer, Kevin Fox, who practises in association with Kenneth Alexander at the Davenport Law Group. Three months later, the plaintiff served BJ Supermarket with a statement of claim that listed Davenport Law Group as his lawyers with Alexander acting on his behalf. The claim concerned the very issues BJ Supermarket had dis- cussed with Fox. In response, BJ Supermarket's lawyer, Gregory Sidlofsky, wrote to Alexander stating that Fox' previous advice to his client put the Davenport Law Group in a conf lict of interest and asked him to remove himself from the re- cord. Alexander refused. In his opinion, Fox didn't act for BJ Su- permarket in the ensuing litiga- tion but merely provided it with general employment law advice. Consequently, BJ Supermarket brought a motion to remove Al- exander as lawyer of record. In dismissing BJ Supermar- ket's motion, Master Benjamin Glustein opined that while the presentation of an association as a collective entity could lead to a reasonable perception by a client that a lawyer is working in a law firm with other partners and associates, it would be inappropriate to presume that a practi- tioner who meets with someone would then discuss the matter with colleagues or conduct a common conf licts check. Such a presumption would be contrary to the lawyer's professional and ethical obliga- tions set out in Rule 2.03(1) of the Rules of Professional Conduct that compel a practi- tioner not to disclose anything about a cli- ent to someone else in the association. That includes the fact of someone consulting or retaining the lawyer. Glustein concluded a reasonably in- formed client wouldn't expect the lawyer to share confidential information with any other practitioner in the association, thereby distinguishing Jajj from MacDonald Estate v. Martin. In that case, the Supreme Court of Canada created a presumption that in a law firm setting, a client's reasonable expecta- tion is to infer that lawyers discuss files and as such, firms must establish that protective measures were in place to prevent the disclo- sure of confidential information. Without a presumption of disclo- sure of confidential information, the court must review the evidence to deter- mine whether the lawyers have separate practices. If they do and there's no evidence of any disclosure of confidential information, disqualification isn't appropri- ate. Having found Alexander and Fox had separate prac- tices, bank accounts, and con- f lict-check systems and given the fact Fox never discussed the issues raised in his meet- ing with BJ Supermarket with Alexander, Glustein dismissed the motion. BJ Supermarket appealed. On appeal, Stinson observed that Alexander and Fox hold themselves out as lawyers practising under the name Dav- enport Law Group and they share the same business address, premises, telephone and fax numbers, and suffix for their e-mail ad- dresses. Their letterhead and business cards disclose neither that Davenport Law Group isn't a partnership nor that it's an association of independent practitioners. The absence of any precaution to prevent sharing of confidential information pertaining to the clients of any particular lawyer concerned Stinson. For example, he pointed out that all of its lawyers share a common fax number, yet there's no evidence regarding how they deal with fax communications to prevent disclosures to the wrong person. Of note is Stinson's instruction that law- yers who practise "in 'association' ought to maintain some form of common conf licts search system in order to avoid the very type of problem that has arisen in this case." Regrettably, he didn't offer an example of what the proposed common conf licts search system might look like, nor did he comment on how it would affect lawyers' obligations under Rule 2.03(1). Therefore, the court's instruction creates uncertainty and puts lawyers who practise in asso- ciation in a tricky situation. If they don't create a common conf licts search system, they'll be in defiance of the court's instruc- tion. If they merge their conf licts search sys- tems, they may be in breach of Rule 2.03(1). In light of Jajj, lawyers who practise in associations should take a number of measures: Not hold themselves out as anything the public would mistake as being a law firm partnership. They must make it clear they're practising in association on their letterhead, business cards, and web site. If they fail to do that, they run the risk of disqualification. Develop and implement mechanisms designed to prevent impermissible disclo- sures of confidential information pertain- ing to a client of any particular lawyer. Instruct their shared support staff to take precautions aimed at maintaining confi- dentiality and dealing with such things as mail addressed to an association, direct in- formation, and telephone communications. Consolidate their individual conf licts search systems in order to detect, warn of, and respond appropriately to situations where overlaps and potential conf licts exist with the clients of others in the association. Jajj makes it clear that if lawyers who practise in association hold themselves out to the public as being part of a law firm, the court will treat them as such and subject them to the same disqualifying conf lict of interest standard as practitioners in law firm partnerships. This expectation f lows not necessarily from concerns about the misuse of confidential information but from the need to preserve the public's confidence in the administration of justice. LT uNikolay Chsherbinin is an employment lawyer at Chsherbinin Litigation and au- thor of The Law of Inducement in Cana- dian Employment Law published by Car- swell. He can be reached at 416-907-2587, nc@nclaw.ca or nclaw.ca. T T Labour Pains Nikolay Chsherbinin

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