Law Times

Law Times • February 28, 2011 FOCUS PAGE 15 Lawyers, clients waiting for regulations Continued from page 10 Often they are not terribly so- phisticated about investments — most people aren't — and employers have had a concern that if they go down that route, although it's much simpler than a [defi ned-benefi t] plan from an administrative per- spective, there's always been a concern that employees would not end up with account bal- ances that could [last] them in retirement." Unfortunately, it's diffi cult for employment law practi- tioners to advise clients on implementation of many of the pension changes as accompany- ing regulations have yet to be handed down. Th at has forced them to approach the changes from a big-picture perspective until those regulations are re- vealed, likely later this year. "I think it will be a while Irony in Russo's win Continued from page 8 to continue under the new terms. Th e next option, constructive dismissal, allows the employee to reject the alteration and sue for damages. Th e fi nal option allows the employee to tell the employer that the new terms aren't satis- factory. Th e employer may then fi re the worker and off er re- employment under the altered contract. If the employer fails to do so and allows the person to continue working, the employee can demand enforcement of the terms of the original contract. With these options in mind, Gray wrote, "In my view, there is no reason in principle why the plaintiff cannot adopt the course of action that he has." He notes that a letter from Russo's counsel to the employer made clear that the change in terms and conditions consti- tutes constructive dismissal and that the changes weren't con- sented to. "Nothing in counsel's letter, or in any other communication between the parties, changed that state of aff airs," Gray wrote. "Th e defendant could not have been under any illusions. Th e defendant was clearly on no- tice that the plaintiff took the position that he had been con- structively dismissed, and that he did not consent to the chan- ges in his terms and conditions of employment." However, the judge also ruled the plaintiff could stay in the workplace to mitigate his damages only for the period of reasonable notice. If he re- mained in the workplace long- er than that, it would then be accepted that he had embraced the new contract of employ- ment under the changed terms after the reasonable notice period concluded. Based on those considera- tions, Gray determined that Russo was entitled to damages for the period of reasonable no- tice. He found that period to be 22 months and issued par- tial summary judgment in his favour for nearly $82,000. Ian Newcombe of Agro Zaf- fi ro LLP in Hamilton, Ont., who acted as counsel to Kerr Bros., noted the decision made clear that Russo's employment was over at the end of the period of reason- able notice. "Th at ruling raises the ultim- ate irony of the Russo principle," Newcombe wrote in an e-mail. "Mr. Russo could have enjoyed ongoing employment for the balance of his working life at a reasonably competitive sal- ary (albeit lower than before), and instead what he ended up getting was the equivalent of 'working notice.' In other words, he had to work the rea- sonable notice period, and at its end, while he was still about 10 years away from normal retire- ment age, he was jobless." K.C. Wysynski of Evans Law Firm in Burlington, Ont., who represented Russo, says the case demonstrates the need for counsel to take a measured ap- proach when it comes to con- structive dismissal. "Even for employment law- yers like ourselves, we consider ourselves to be experts in the fi eld, but it's still a diffi cult area. And in order to properly advise clients on their rights and entitle- ments, you really have to have a thorough understanding of the facts of the individual case and of all the relevant case law." before we really know how all of this is going to play out," says Brown. In the meantime, it's up to lawyers to take a look at their clients' plans and make sure when issuing advice to avoid "throwing the whole kitchen sink at them," Brown adds. She suggests lawyers need to point out which changes will aff ect each client the most. "It's pretty hard for an em- ployer to grasp and understand immediately the implications of these changes because they Let us open right door for you the We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law fi rm situated in the heart of Toronto. We are comprised of ten lawyers, all of whom specialize in the area of employment and labour law. 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