Law Times

PAGE 4 NEWS June 6, 2011 • Law Times Companies facing criminal charges over deaths Continued from page 1 that way of viewing it, then we are doomed in arbitration. It's not sustainable now. It's not sus- tainable for an arbitration case to take two years to be com- pleted. Th at's a complete and utter failure of the system. It's a betrayal of the principles on which arbitration is based." Th e evolution of the arbitra- tion process during the last 50 years has contributed to the cur- rent state of things, according to Steinberg. It was county court judges who did early arbitrations in their spare time on the basis of written briefs and largely without the involvement of lawyers. When judges were prevent- ed from moonlighting in the early 1960s, a cadre of young law professors, led by Bora Laskin and Harry Arthurs among others, fi lled the void and brought a higher degree of legal reasoning to decisions. While that has given Canada a rich jurisprudence admired around the world, it also added a layer of complexity to the process, especially for the par- ties involved, Steinberg said. "For the people who had to live with the decisions, they were impenetrable," he noted. Since then, a series of decisions has signifi cantly broadened the scope of mat- ters decided by arbitrators. Th e Supreme Court of Canada's landmark ruling in Weber v. Ontario Hydro in 1995 meant arbitrators could hear matters such as defamation and assault when they arose out of an em- ployment dispute. Jurisdiction has since expanded to include Charter of Rights and Free- doms applications and alleged human rights breaches. "It makes a lot of sense for there to be one-stop shopping when you have employment disputes," Steinberg said. "If you've ever had anything to do with the human rights process, you'd rather have a root canal without anesthetic than have to go through that process. Th ere's a huge advantage to have this put before an arbitrator who knows the workplace and un- derstands the relationships." Despite those benefi ts, the arbitration process has struggled to keep up with the demands on it. But by intervening early in a dispute, Steinberg believes the labour relations board can signifi - cantly reduce the number of cases that come before an arbitrator. He said all parties would ben- efi t from a less litigious attitude and speedier conclusions when a full hearing can cost as much as $60,000. In the meantime, David Ban- non, a partner at Norton Rose and another speaker at the con- ference, warned employers that an infamous construction acci- dent on Christmas Eve in 2009 could prompt a surge in criminal negligence charges for corpora- tions when fatalities occur. Amendments to the Criminal Code passed in 2004 established a legal duty to "take reasonable steps to prevent bodily harm" to workers. Th ere has been a very small number of charges across the country, and it took until 2008 to achieve the fi rst conviction in a case in Quebec. Th e 2009 accident in Toronto resulted in Ontario's second case of criminal charges after four im- migrant workers died when the swing stage they were working on collapsed and fell 13 storeys. Th e company, its president, and two managers all face crim- inal charges, but the case has yet to come to trial. Meanwhile, in British Co- lumbia, the United Steelworkers union recently gained judicial CHOOSE FROM CANADA'S TOP MEDIATORS AND ARBITRATORS approval to proceed with a pri- vate prosecution of Weyerhaeus- er over the death of a worker in 2004 when he was buried under wood chips. Th e union has also threatened to launch private prosecutions in other provinces where prosecutors decline to pursue criminal charges. "Th is is going to be a much more common occurrence, if not the norm when there is a fatality," Bannon said. Madeleine Loewenberg, another employment lawyer at Norton Rose, provided an up- date on Bill 168 almost one year after the workplace violence and harassment provisions made their way into the Occupational Health and Safety Act. She said Ministry of Labour offi cials have been out enforc- ing the new act, which requires employers to conduct a risk as- sessment of their workplaces, develop policies and procedures to address the issues identifi ed, and have a program in place to train employees. Th ey must also review the policy and pro- gram at least once a year. "Ministry of Labour in- spectors have been coming into workplaces and entering and asking to see the poli- cies and program," Loewen- berg said. "Where they have not found policies and pro- grams yet in place, they have generally ordered them to be created and posted." LSUC survey gets lacklustre response Continued from page 1 Shawyer struggled himself to secure an articling principal through the traditional interview process and eventually found one through a friend. Th e law society was no help, he says. "Th e programs they have are not helpful to people going through arti- cling. When I contacted them, the basic answer I got was, 'Sorry, can't help you. Look at our web site.' Th en you go on the web site, and there's fi ve jobs with 200 people chasing them." Like many of the province's lawyers, Shawyer believes articling still has a place in the profession. "School can only teach so much. It's the real life experience of working under a lawyer and getting your feet wet in the client's fi le that teaches you how to be a lawyer." At Convocation, Conway said that was the clear message the last time the law society consulted the profession on articling during the 2008 task force on licensing and accreditation. Th at's when lawyers balked at the idea of scrapping the process. Many have come to view articling as a "scared cow," according to Conway, who nevertheless suggested it may be time for a rethink given that a disproportionate number of those struggling to fi nd positions come from equity-seeking groups. "It appears that articling . . . is the barrier for many candidates who are good candidates," he said. "Th ey have graduated from law schools, they have good degrees, good credentials, but they can't get into the profession. We have to ensure that candidates that are licensed are competent and ethical, but is articling truly the way of doing that? Maybe it is, but maybe there are other ways of address- ing the challenges that the articling crisis poses for us." Th e 2008 task force also recommended an exhaustive survey of the province's law fi rms to get the lay of the land and sell them on ideas that may increase the number of articling positions, such as joint articles. Ninety-four per cent of the province's law fi rms, including sole practitioners, completed the survey. Only 661 fi rms contacted — 8.5 per cent of them — had articling positions available. A followup survey targeted fi rms considered most likely to ex- The Honourable Donald Cameron, Q.C. specializes in commercial, employment, real estate and environmental disputes. He is a former Superior Court Judge of Ontario, where he presided over civil and commercial cases including insolvency and bankruptcy disputes. Don possesses a balanced judgement and a sense of fairness in all his dealings. H. Michael Kelly, Q.C. is a mediator, arbitrator, and former Case Management Master. Michael specializes in personal injury, professional liability, disability, property and casualty insurance claims, commercial disputes, wrongful dismissal, and libel and slander. He will also arbitrate motions, on consent, to facilitate confidentiality and scheduling issues. perience articling growth and that expressed an interest in the idea of joint articles. From the 277 identifi ed, just 11 fi rms indicated a fi rm commitment to joint articles. Th e eff ort resulted in just four matches, equating to two new articling positions. Neither posi- tion has actually been created yet. "I don't think we can blame the profession for not rising to the call because the profession in private practice is responding to a mar- ket that is essentially not permitting them, they think, on a business proposition to employ more articling students," Conway said. But Shawyer would like to see more eff orts to promote articling to practising lawyers who don't take on students or even fi nancial incentives for potential principals. "If they put more energy into explaining to lawyers what it means to hire an articling student, what the requirements are, and what the benefi ts are, I think you'd have more lawyers willing to actively con- sider hiring an articling student," Shawyer says. He recently hired an articling student himself after discovering he needed only three years of experience to become a principal. "I do it because I value the training that an experienced lawyer adrchambers.com 416.362.8555 Untitled-4 1 www.lawtimesnews.com 5/31/11 4:33:09 PM can off er to a younger lawyer and I feel it's my obligation to give back to the profession," he says. Even after clearing the articling hurdle, the report also shows that the problems may only have started for many new lawyers. A survey of new calls reveals that the number of respondents hired back by their articling fi rm fell to 42.8 per cent in June 2010 from 52.3 per cent in June 2005. Over the same period, the total number of respondents employed at the time of their call declined to 55.5 per cent from 66.3 per cent.

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