Law Times

PAGE 8 NEWS/COMMENT structively dismissed after siding with a man who opted to keep working while refusing to accept a massive pay cut. Th e case, Russo v. Kerr, shows workers have 3rd option granted in constructive dismissal O BY ROBERT TODD Law Times ntario's Superior Court of Justice has issued a rare ruling outlining a third op- tion for employees who have been con- more room to manoeuvre than many employment lawyers thought. It began when plaintiff Lorenzo Russo brought a motion for partial summary judg- ment in an action that alleged he was construct- ively dismissed. Th e case was complicated by the fact that, in a move rarely seen in the workplace, he opted to remain in his position and claimed it was necessary to mitigate his damages. Th e dispute arose in the midst of a set of dif- fi cult years at Kerr Bros. Ltd., a candy product manufacturer operating for 114 years that had lost more than $7.4 million over the previous nine years. Russo, 53, had worked for the company for 37 years after starting out as a shipping clerk before moving to the position of warehouse manager, a pos- ition he had held since 1977. He was making about $115,000 annually that consisted of bimonthly pay- ments totalling $85,000 and a $30,000 lump sum. Letter Th e role involved managing logistics, scheduling shipments, overseeing warehouse staff , and inven- tory control. Sometime around April 2009, Fayez Zakaria was brought in to determine whether the company could continue operating. During that process, he concluded that employees were getting paid more than competitive market value and more than the company could aff ord. He asked workers to take a 10-per-cent pay cut and dissolved a pension plan. However, Zakaria targeted four specifi c employ- ees, including Russo, for additional pay concessions and eliminated their bonuses. Russo's remuneration was reduced to $60,000. Russo retained a lawyer and remained in his existing position while conducting the same activ- ities and receiving the reduced pay. In his analysis of arguments in the case, Justice Douglas Gray pointed out that employees are en- titled to dispute new terms and conditions of em- ployment and can seek damages accordingly. He noted that the 2008 Ontario Court of Appeal de- cision in Wronko v. Western Inventory Service Ltd. outlines options available to an employee after a unilateral amendment to a key aspect of the em- ployment contract. Th e fi rst option sees the work- er accepting the change, whether it be expressly or by acquiescing, which allows employment See Irony, page 15 to the Editor LSUC does help lawyers in trouble: CEO Th e Law Society of Upper Can- ada agrees with Bill Trudell (see "Whose law society is it?" Law Times, Feb. 7) that the upcom- ing bencher election is an ex- tremely important one. Th ere are other assertions in Trudell's commentary, however, that dis- tort how the law society fulfi ls its statutory mandate to regulate in the public interest. First, it must be stressed that the number of complaints against lawyers that result in public, for- mal discipline represents a very small percentage of the approxi- mately 6,000 complaints we re- ceive each year. Th e vast majority of them are addressed through a variety of informal means that en- sure public protection, point out practice defi ciencies with a view to avoiding future similar com- plaints, and address any regulatory issues without a public hearing. Complaints that do not involve formal discipline are not pub- licly disclosed. Second, the law society directs signifi cant resources towards cor- rective and constructive guidance and support for lawyers (and, more recently, licensed paralegals). Our practice management hotline pro- vides confi dential assistance, links to helpful resources, and access to counsel or a mentor if appropri- ate. Th e staff of the hotline serve more than 500 lawyers a month. We conduct a variety of audit and review programs all designed to help lawyers manage their practic- es better and improve their client service. More than 500 of these reviews are conducted annually and they receive extremely posi- tive feedback from lawyers whose practices are reviewed. Th e LSUC also off ers more CANADIAN LAW LIST 2011 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: an up-to-date alphabetical listing • • • of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year On subscription $146 • P/C 0600140999 One-time purchase $162 • P/C 0600010999 • ISSN 0084-8573 Prices subject to change without notice,to applicable taxes and shipping & handling. Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation than 90 continuing professional development programs each year. Th ey include a signifi cant em- phasis on ethics and professional conduct. Th e programs, some of which are free, are made available in multiple formats, including webcasts, teleseminars, video, and classroom instruction. Th e focus of all these initia- tives is remedial rather than pu- nitive. Th e goal is to support law- yers in their practices and ensure the best possible service for their clients. Despite Trudell's claim that lawyers, by their training, "can't seem to ask for help," our practice support resources are very heavily used. Trudell also complains about the discipline process, alleging a lack of fairness. Th e discipline process is set out in the Law So- ciety Act as well as our bylaws and rules. It is designed to en- sure, to the greatest possible ex- tent, a balanced and fair process that also permits the law society to discharge its responsibility to protect the public. Each discipline prosecution is authorized by a committee of benchers, the proceedings autho- rization committee, whose role is to review the results of the inves- tigation and determine whether a prosecution is necessary. In a typical year, only about 140 cases actually go to hearing. Where there is a prosecution, the results of the investigation are disclosed to the lawyer in keep- ing with standard prosecution requirements in law. Th e lawyer is free to challenge any of the evidence we put forward and put forward his or her defence in a hearing process that aff ords a full opportunity to be heard. Th ere is a full appeal process for those not satisfi ed with the results of their discipline hearing. Th e law society has to be CANADA LAW BOOK® www.lawtimesnews.com CLL - 1-2 page - 4X.indd 1 2/17/11 3:45:58 PM seen to be regulating the pro- fession in the interest of the public. If we fail to do that, we undermine public confi dence in the legal profession. Malcolm Heins, CEO, Law Society of Upper Canada February 28, 2011 • Law Times

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