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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2010 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clbmedia.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia. ca, or Kathy Liotta at 905-713-4340 kliotta@ clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Let's avoid polarization on veils I t's one of the more challenging issues the courts have faced re- cently. In the sexual assault trial involving a woman identified as N.S., the On- tario Court of Appeal is weighing the importance of an alleged victim's right to wear the Muslim niqab while tes- tifying against two relatives versus the fair-trial rights of the accused. Mixed up in the controversy are a host of other issues: Does Islam actually re- quire women to remain veiled in places such as a court? Is it really that important to see a witness' face in order to assess truthfulness? Is the case at hand merely a reflection of the broader debate over veils and the sometimes-intolerant attitudes towards them? Would the courts have the same dilemma over head coverings from other religions? Are sexual assault cases a different type of matter requiring another set of rules to protect victims who might otherwise not come forward? It's not going to be an easy matter for the appeal court to rule on. Already, the justices hearing the case have shown some disregard for the trial judge's rul- ing that the woman must remove her veil in order to testify. In the meantime, a number of interveners have waded into the case emphasizing the fair-trial issue and religious-freedoms arguments as well as the special sensitivity sur- rounding sexual assault victims. The case comes as the debate over Muslim veils in Canada continues to rage, particularly in light of Quebec's moves to require people to remove them when ac- cessing public services. But key to dealing with the issue should be an attempt to set out a few guiding principles. In Britain, such an exercise took place three years ago when an advisory committee released of- ficial guidelines saying the courts should allow religious garments such as the niqab as long as doing so didn't interfere with the administration of justice. Under that framework, the committee said a judge should carefully consider any order to force someone to remove the veil. At the same time, would alternatives, such as clearing the court of all those not involved in the case or using screens to shield an unveiled woman's face, address many of the concerns? Of course, those ideas are a somewhat imperfect answer to the central dilemma of religious freedoms versus fair-trial rights but they're at least a reasonable starting point that may deal with most of the situ- ations the courts will face. On the whole, then, what's needed is a careful consider- ation of all of the issues. If universities in a country like Egypt could until recently ban the niqab during exams in order to stop cheating, is it unthinkable for Cana- dian courts to order a woman to uncover in special circumstances? On the whole, the answers aren't obvious. Nevertheless, if the court can get beyond the polarization currently characterizing the debate over the niqab, it should hopefully be able to come up with a reasonable solution. — Glenn Kauth BY DANIEL LUBLIN For Law Times mployees don't always get the bonus they de- serve. Seldom will this amount to a successful lawsuit. Veteran investment banker E Kenneth Mathieson was well rewarded in his good years. In 2005, he earned a bonus of $1.1 million. However, after receiv- ing a poor performance evalua- tion for fiscal 2006, Mathieson's employer, Scotia Capital Inc., decided he deserved a sharply re- duced bonus of only $360,000, the lowest amount he had re- ceived in his position since head- ing up one of the bank's indus- try groups. Because his bonus made up the largest component of his compensation, Mathieson believed the bank was attempt- ing to force his resignation. He wasn't about to go quietly. Mathieson vigorously pro- tested his bonus award to his superiors. They listened to his concerns but ultimately re- mained firm in their decision as his 2006 performance wasn't at par with his colleagues, and Assessing the validity of employee bonuses Speaker's revenues across the entire department were down by 20 per cent. Eventually, after becom- ing fed up with the protests, the bank fired Mathieson. He sued for more than $20 million, claiming damages for the additional bonus he said had been reduced in bad faith and more than 32 months' pay in lieu of reasonable notice along with bad-faith damages stemming from the manner in which he said he was treated. At a recent trial, Justice Mi- chael Code found there was nothing unreasonable about Mathieson's 2006 bonus award. He had received the lowest per- formance score for employees at his level, according to the bank's standard criteria. There- fore, the decision to reduce his bonus was entirely rational. Mathieson sought to draw an inference that, since the 2006 bonus bore no relationship to the amounts in prior years, it was awarded irrationally and in bad faith. However, the court disagreed. Although there's always an element Corner of discretion in granting bo- nuses, in this case, the bank had exercised it fairly. Further, on the issue of bad faith, the court found there was nothing sinister or unfair about the process Scotia employed and that it wasn't a ruse used to drive Mathieson to quit. Manage- ment's response to Mathieson's concerns didn't even begin to rise to the level of bad faith, accord- ing to the judge. Senior bank of- ficials repeatedly gave Mathieson a hearing so he could raise his concerns but were entitled to dismiss his appeals as long as they did so on a principled basis. Simply put, the bank was able to demonstrate that, although Mathieson's bonus award was low- er than previously, it had a reason- able justification for the figure it imposed. As a result, Mathieson's claim to additional bonus com- pensation and bad-faith damages were swiftly dismissed, and he www.lawtimesnews.com was ordered to pay a large component of his former em- ployer's legal costs. Mathieson's bonus com- pensation may apply to few cases. However, the court's legal findings about bonuses apply much more broadly to Ca- nadian workplaces, so both em- ployees and employers should consider the following issues emanating from this decision: • Fairness: Courts are reluctant to supplant an employer's as- sessment of performance and bonuses as long as the pro- cess it followed was fair and consistently applied. Here, the court commented that "fairness" involves using rea- sonable criteria that are com- municated and applied con- sistently among employees. However, since the court also confirmed that a fair and rea- sonable process is an implied term in the employment con- tract, it left the door open for employees to continue to claim constructive dismissal in cas- es alleging that the method used to analyze bonus com- pensation was improper. • Bonuses: Few bonuses are truly discretionary, even those assessed with discretionary factors. That is, once employ- ees receive a bonus year after year, it may be elevated to an implied term of the employ- ment relationship such that they would be entitled one as a component of their sev- erance. Although Mathieson lost the big issue in his case, he was still awarded $920,000 after his termination rep- resenting an average bonus payment over 24 months as a component of his severance during that time. • Challenging bonus awards: It wasn't just cause for his dismissal, but Mathieson's increasing protests ultimate- ly led to his termination, not a reconsideration of the amount. LT Daniel Lublin is an employ- ment lawyer with Toronto law firm Whitten & Lublin LLP. His practice focuses on the law of dismissal, and he can be reached at dan@toronto-employment lawyer.com.