Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 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. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter When rights collide a significant victory for free-speech advo- cates in the battle between right-wingers and lawyer Richard Warman. In making his decision, tribunal vice chairman Athanasios Hadjis noted he lacked the authority to declare the Ca- nadian Human Rights Act's anti-hate provision invalid. Nevertheless, he elect- ed to ignore it in a case involving War- man and Marc Lemire, webmaster of freedomsite.org. He concluded s. 13(1) of the act is "inconsistent" with the Char- ter's provision on freedom of thought, belief, opinion, and expression. The case stems from Warman's allega- tions about comments on freedomsite.org. In one complaint, the only one which Hadjis deemed to have merit, Warman took issue with a column titled "AIDS secrets: What the government and the N ews the Canadian Human Rights Tribunal has ruled the country's anti-hate law unconstitutional is media don't want you to know." In it, the author links the AIDS crisis to the U.S. black population. The article claimed African-Americans are between 14 to 20 times more likely to get infected than white people and that blacks account for 90 per cent of all AIDS infections among heterosexuals. For Warman, those words and other web postings he found con- travened s. 13(1) by exposing minority groups to hatred or contempt. Hadjis' conclusions about the con- stitutionality of s. 13(1) centres on the punitive aspects of the law. Noting the Supreme Court of Canada already dealt with the issue in 1990, he argued that what has changed since then is the im- position of a fine and the expansion of the hate-speech provisions to the Internet during revisions to the Human Rights Act in 2001. It is that aspect that Hadjis determined to be problematic given the earlier Supreme Court decision's focus on a conciliatory, rather than penal, ap- proach in dealing with restrictions on free speech under the act. The many online commentators who have criticized Warman's relentless pur- suit of Internet postings will no doubt declare victory. But it's worth pointing out the Canadian Human Rights Com- mission, which supported Warman's case, can appeal Hadjis' decision to the Federal Court. It should do so. Lemire and his allies make valid points. But as Hadjis noted, the Supreme Court in its 1990 decision emphasized the im- portance of protecting Canadians against propaganda that undermines their digni- ty and erodes society's spirit of tolerance. Whatever the outcome, then, the courts need to reconsider the issue in light of Canada's changing face. More- over, the case represents the ongoing question of competing rights as people like Warman and Lemire make claims that are seemingly irreconcilable. It's an issue requiring clarification that the Ontario Human Rights Com- mission has taken up recently. "Issues of competing rights arise with increas- ing frequency in the context of human rights and constitutional law litigation," the Ontario commission wrote in its ap- plication to intervene in the Superior Court case involving a sexual assault vic- tim who declined to remove her niqab while testifying before a judge. The woman, of course, touted freedom of re- ligion while the accused argued that al- lowing her to keep the veil on impaired his right to defend himself. It's on exactly these types of questions that Canadians need answers. Hadjis' ruling represents an important contri- bution, but we need to hear the court's verdict on where the legal boundaries lie when rights collide. — Glenn Kauth F or lawyers in the field of employment law, it's a common occurrence: a client or potential client has been terminated and wants to know what he can expect to receive as a termination package. Perhaps he's been given a package and needs advice before signing a release. He has asked what he thinks is a simple question and expects to receive a simple answer. Sadly, there is usually no simple answer. After satisfying yourself there is no termination clause in an employ- ment agreement, the first thing you'd do is explain the difference between employment standards or labour code minimum stan- dards and common law. Next you'd ask the myriad questions necessary to provide an opinion. Even then, the best you'd likely be able to do is pro- vide a three-month range. By this time your client is some- what concerned, not being able to obtain a specific number, but at least he has some understand- Employees constitute a vulnerable class Social ing of his entitlement. Your in- trepid client will then instruct you to proceed and collect his entitlement. This is when you must ex- plain that some employers choose not to pay what they rightfully should. Some prefer to wait out the notice period to try and take advantage of any mit- igation earnings. Others choose to pay the least amount possible and force their former employees into a lowball settlement or litiga- tion. This is when you explain the litigation process, including the costs and time investment. If you are lucky enough to achieve a fast settlement your cli- ent may be happy, although there is the small matter of your fees to pay. If you need to commence lit- igation you may be lucky enough to achieve a settlement at media- tion although now your client has additional fees. The good employment law mediators are not cheap, although they are worth what they charge. Justice By Alan Shanoff If mediation fails, it could be years before you see a trial judge, depending on whether you fit within the simplified procedure rules. Litigation involves an ele- ment of judicial roulette. Kevin Keays' battle with Honda Canada Inc. consumed eight years. All this time your client may be under emotional and financial stress and unable to fully under- stand why, if he's owed a termina- tion package, it has to take so long before he receives the package. The determination of a proper termination package is one of the simpler tasks. If a legal system can't answer simple questions or allow simple disputes to be re- solved quickly and at minimum expense then we have a problem, www.lawtimesnews.com and we need to make substan- tial changes. One potential would be minimum statutory entitle- ments increased so employees wouldn't have the necessity of retaining a lawyer or litigating. This required political will and I don't see it happening. Em- ployees as a class of voters don't hold a lot of political power. Another potential, or addi- tional, solution would see courts replaced with a specialized tri- bunal that can hear these cases quickly with minimum expense, perhaps even without the neces- sity of utilizing a lawyer. As Chief Justice Brian Dickson stated in a 1987 decision, "[w]ork is one of the most fundamental aspects in a person's life, provid- ing the individual with a means of financial support and, as im- portantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth, and emotional well-being." September 7, 2009 • Law timeS Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. 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@clb- media.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. The elimination of employ- ment invariably creates a highly stressful situation. Further, there is a gross disparity in power be- tween employer and employee. The employer not only deter- mines the amount of the pack- age, but also determines the tim- ing of payment. The employee must take steps to challenge the employer's decision. It therefore behooves us to provide a relatively fast, yet inexpensive mechanism to allow employees to determine and collect their termination entitlements, without having to engage in potentially lengthy and expensive litigation. To a large degree, terminated employees constitute a vulnerable class. They deserve better. We have the ability to do something about it and we should. LT Alan Shanoff was counsel to Sun Media Corp. He currently is a free- lance writer and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com.

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