Law Times

Law Times • may 17, 2010 NEWS Punitive damages a deterrent: arbitrator Continued from page 1 need four weeks to recover. The GTAA, faced with a costly ab- senteeism problem, conducted surveillance of some employees suspected of fraudulently claim- ing sick leave. It didn't initially suspect C.B., but because her partner was under surveillance, the GTAA decided to follow her, too. GTAA management found that video of C.B. driving, shop- ping, and walking without a limp was inconsistent with her inju- ries. Her doctor said she could go back to work a week early on modified duties but, two days after her return, C.B. was con- fronted with the video evidence and dismissed for cause. After her termination, C.B. suffered mental trauma and was diagnosed with post-traumatic stress disorder, conditions Shime found were foreseeable by the GTAA. In a scathing decision, Shime condemned the GTAA for re- lying on the video evidence, failing to seek medical cor- roboration for its opinions, and neglecting to consider C.B.'s exemplary disciplinary record. "I find that the GTAA came to the meeting with a precon- ceived notion that the griever was dishonest," he wrote. "The GTAA managers arrogated themselves a medical knowledge as to her condition, despite lack- ing any medical training what- soever. Employees are not like tissues to be used up and then thrown out at a whim into the bin of low-level employment or unemployment." Daniel Fisher, who appeared for the union, the Public Service Alliance of Canada Local 0004, says the result was a relief after more than five years of fighting. "At first blush, the amount seems significant, but when you read the decision and you break it down, this award makes sense. The griever's life was severely relegated, financially, emotion- ally, psychologically, physically, for having, according to arbi- trator Shime's findings, done nothing wrong. The decision is of critical importance because it articulates the employer's li- ability where bad faith and un- reasonable conduct have been established. If the employer acts in bad faith, it's going to pay." McKechnie also objects to the award for punitive damages, Out-of-town judge to preside at trial Continued from page 1 hands of police could erode public confidence in the fairness of the criminal justice system and asked the court to act as custodian. Timmins police had the items stored under three levels of seals or locks in a room, with a civilian employee devoted entirely to guarding them. Counsel for the ministry suggested the devices should stay where they were because police wouldn't deliberately interfere with them. Despite the low risk of an accidental breach, Hennessy said the consequences of one happening were huge, especially while they remained with the police, whose interests are adverse to many of Sloan's clients. "Any number of ongoing prosecutions would be at risk if there was any finding whatsoever of the slightest breach of the solicitor-client privilege, no matter how inadvertent," she wrote. "We are in a pre- ventative situation now. Fortunately, we are not dealing reactively to an allegation of an inadvertent breach." Not satisfied with security at the court, Hennessy accepted the offer from the examiner to hold the computers with Deloitte in Toronto. Counsel for the ministry indicated they agreed to the terms in the order that went beyond the necessary precautions for the protection of privilege in order to advance the prosecution. In her reasons for the order, Hennessy noted the co-operative attitude of police in the case. "From the moment when the police learned of the possibility of the offensive material on the subject computers, they have demon- strated their keen appreciation of this privilege," she wrote. For his part, McGinn says the police force had never faced a similar situation before but notes officers were quick to tread very carefully with the case. As a result, police laid the charge without actually examining the computers. According to McGinn, officers acted on information from a member of the public to obtain the search warrants. At the suggestion of police, someone from the LSUC was present while officers executed the warrants to maxi- mize the protection of solicitor-client privilege. But McGinn says sealing and storing computers is normal prac- tice for police in Timmins because they don't have the capability to do a forensic examination on site. "For computer searches, we usually seal the computers so that the evidence remains in tact until we can get them to the Ontario Provincial Police, who does our forensic analysis." The trial is now scheduled to resume on June 9. Because of Sloan's frequent involvement in the Timmins court, a judge from out of town will preside over the trial, and Allison Dellandrea, a Crown counsel from Toronto, will act as prosecutor. 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Only those applicants selected for an interview will be contacted. The Ontario Public Service is an equal opportunity employer. Accommodation will be provided in accordance with the Ontario Human Rights Code. so egregious that there has to be an award of punitive dam- ages to deter them in similar circumstances," he says. LT PAGE 5 For more information contact your D&D Sales Representative or call our Customer Care Line or visit us online dyedurhambasics.ca • 1-888-393-3874 Untitled-4 1www.lawtimesnews.com 5/11/10 2:59:50 PM Since 1998 FREE Samples Available

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