Law Times

Law Times • November 16, 2009 FOCUS PAGE 13 Landmark case created two-tier system Continued from page 9 according to the appeal court, came out of the trial judge's fi nding of injury to Slepenkova's reputation. By contrast, in Nikolova v. Ivanov, which involved Slepen- kova's co-worker, the court refused to uphold the Wal- lace damages because there was no similar message in her case "nor was there any other evidence that she suff ered harm, mental distress or actual damage." Still, Josselyn expects the courts will be harder on plaintiff s from now on. "Once the appeals of trial decisions that predate [Keays] work their way through the system, judges will not be tacking on months arbitrarily but will be seek- ing evidence of real mental distress," he says. Th e need to prove actual damages, Josselyn adds, could well complicate wrongful dismissal cases. "It wouldn't surprise me if plaintiff s' lawyers started sending their clients off for medical opinions. But that will make the litigation more expensive, and I'm not sure it will help plaintiff s overall." For his part, Goodman doesn't believe medical evi- dence will always be necessary. "Where there's an intentional infl iction of mental suff ering, I don't think courts will hesitate to award damages without testimony from doctors," he says. Arguably, that's precisely what happened in Slepen- kova. "I think some people on the defence side were too optimistic about [Keays'] impact," Goodman says. "We'll still see Wallace damages but expressed in dif- ferent terms and requiring proof of something that amounts to actual damage." Th e diffi culty with Wallace, according to Goodman, is that it created a two-tier system. "A two-month extension of a notice period is worth a lot more to a senior executive than to an assembly Continued from page 9 Pickets an intrusion ruled that the defi nition of "strike" in the Canada Labour Code didn't off end the Charter. "Th e diffi culty that unions have always faced in challenging the [board's] position on this issue is that provincial statutes, with the exception of B.C., don't permit individuals to honour another union's picket line," says Bruce Laughton of Vancouver's Laugh- ton & Co. He represented the warehouse union. Th e unions applied for a ju- dicial review of the board's de- cision, which the Federal Court of Appeal dismissed in June. Although the decision was unanimous, the reasoning was not. Justice John Evans found that the provision did off end s. 2(b) but was justifi ed as a reasonable limit under s. 1 of the Charter. But justices Pierre Blais and Michael Ryer found that the strike provision didn't off end s. 2(b), which guaran- tees freedom of expression. Th e test for assessing infringe- ments on freedom of expression came out of the Supreme Court of Canada decision in Irwin Toy v. Quebec (Attorney General). Th e test examined whether the activity was within the sphere of conduct protected by freedom of expression and whether the purpose or eff ect of the govern- ment action was to restrict it. While the parties agreed with the board's conclusion that the refusal to cross the picket line was an activity with expres- sive content, they disagreed on whether the purpose or eff ect of the code provision prohibit- ing the crossing of picket lines amounted to a restriction on freedom of expression. As Blais saw it, it was necessary to interpret the code as a whole. "Th e strike provision and its as- sociated purpose cannot be isolat- ed from the provisions regarding limits on the employers' rights," he wrote. "Th e limits on strike ac- tivity do not have the intention of prohibiting expression when they are considered in context." Rather, the defi nition of strike was, as the board had stated, "part of a comprehensive legislative scheme designed to introduce certainty into labour relations by regulating the right to strike. "Regulation of work stop- pages is intended to control the physical consequences of the ex- pression, namely the cessation of work by the applicants, regard- less of the meaning conveyed by it," Blais wrote. In other words, the strike provision didn't have the aim of silencing workers wishing to ex- press solidarity. As for the eff ect of the strike provisions, lawyers acting for the unions argued that their clients' expression related to participation in social and political decision- making as well as individual self- fulfi llment through a show of soli- darity with the PSAC. Th ey also argued that the form of the message — the withdrawal of services — was indivisible from its content and that it was impos- sible to communicate it other- wise. But Blais saw neither a social nor a political purpose to the unions' activity. "It was an intrusion into a pri- vate contractual dispute between PSAC employees and their em- ployer, the Canadian Grain Com- mission," he concluded. In Blais' view, the applicants were free to support the striking workers in other ways. "Th e eff ect of the applicants' work stoppage was on their em- ployer, it was not an attempt to draw attention to the strike from the wider public," he wrote. "Th e Charter does not guarantee indi- viduals or groups their most eff ec- tive means of expression." Mitchnick lauds the decision. "It enunciates a bright-line test that represents a fair balance," he says. "It's perfectly correct for legislatures to say that they won't leave the issue to the courts to de- cide on a case-by-case basis, and the court recognized this." LT line worker where both have suff ered roughly the same amount of harm. Wallace damages are not dead. It's just that we won't be seeing the extraordinary awards that have benefi ted some big earners." Meanwhile, Sorensen says she has recently received two statements of claim that refl ect little appreciation of any change in the law. "Th e claims aren't based on actual damages," she says. "Th ey're just thinly veiled Wallace claims with hurt feelings as their basis." Indeed, as a matter of practice, it's not at all clear that Keays will change much. "Employers always have to ask themselves whether it's worth going to trial in employment cases," Sorensen says. "And you can never tell what the judge is going to do because employment cases are always crapshoots where sympathetic judges have enough leeway to fi t the facts around the law." 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