Law Times

Page 6 June 15, 2015 • Law Times www.lawtimesnews.com COMMENT Employer smoking ban an unfair intrusion hile it's fine for governments, institutions, and busi- nesses to restrict smoking, an Ontario employer went too far in trying to implement a total ban on its em- ployees from lighting up during the workday. In the recent case of United Steelworkers Local 7175 v. Veyance Technologies Canada Inc., arbitrator Norm Jesin considered the union's grievance of the employer's two-phase smoking policy. In the first phase that began in 2014, employees could smoke in designated areas on company property during their breaks. In the second phase that began in January 2015, employees couldn't smoke anywhere on company property nor could they leave the premises to light up a cigarette. The policy, then, was an effective ban on smoking while at work. In support of its policy, the company raised a few interesting points: the costs associated with increased absenteeism and insur- ance benefits as a result of the health effects of smoking. It also noted government policies aimed at reducing smoking, the fact it had al- ready prohibited employees from leaving the premises, and the need to ensure they return from their breaks on time. It also pointed out it pays employees during their breaks. In addition, the employer referred to case law that essentially up- held such policies. But as Jesin noted, the employer's property in one of the two cases was so large that a ban on smoking on the premises meant the employees couldn't leave during their breaks and return Limit campaign spending for bencher candidates n my view, bencher election cam- paign spending should not be al- lowed for candidates and, if allowed, it should be a very modest amount. I did not spend any money to pro- mote my candidacy as a bencher. I believe we are a self-governing profes- sion mandated to govern and provide legal service to the Ontario public. The bencher election campaign is not for the purpose of determining which group interest will be advanced. It is to deter- mine who is better qualified to govern a professional organization. To the extent that we have a conf lict between our self interest as a group in sharing the revenue pie and competing with each other in providing legal ser- vices to the community as a professional group, the conf lict should be resolved by advancing the principles of democracy, transparency, and adjudication in disci- pline matters within our institutions of Convocation and governance with well- enunciated principles of fairness that we advocate in our daily lives. The reason, I believe, only a fraction of the membership takes an interest in voting in the bencher election is many younger and small-firm practitioners and diverse groups do not feel they will have the ability to achieve the make changes in our governance. Yes, we are a conservative profession and need to be, but the pace of change for the better should not be slowed down to the det- riment of small-firm practitioners and equity-seeking groups. The fact that 20 seats of the 40 up for grabs go to lawyers from Toronto works in favour of the large firms that already have the vote banks and the financial resources to pay for expensive cam- paigning. The weight of their opinion in governance works in their favour at Convocation meetings that I feel should be made transparent through open meetings. Why should campaign funds not be allowed? First, most of the 45,000 law- yers in Ontario have two degrees and can easily read the background of the candidates put out by the Law Society of Upper Canada. When you permit campaign spending, you are allowing the candidates with particular interests to promote themselves and maintain the status quo. On that issue, introduc- ing term limits was a good change. Second, about 80 per cent of lawyers in Ontario practise at small firms, but it is the big firms that have the financial resources to pay for expensive adver- tising of up to $70,000. The fact that there are no limits placed on campaign spending works in favour of large firms. Spending should be limited by a resolu- tion of Convocation. We should not forget the legislated and historical mandate of the legal pro- fession to protect the public interest. The first six barristers from England who started the law society in 1797 brought with them a few hundred years of a tra- dition of law and equity that has evolved over the last 200 years in Ontario and is now a part of s. 4(2) of the Law Society Act that mandates that we must protect the public interest and we have a duty to act in a timely, open, and efficient man- ner. Timeliness, in my view, includes advancing democratic principles such as the Human Rights Code and in dis- cipline matters. I believe what we preach in the courts each day should be prac- tised in our governing institutions. In the 21st century, the profession needs to look outwards to other juris- dictions for ideas in a shrinking world. We have achieved a great reputation abroad, but the task of maintaining our reputation as a leading jurisdiction is an ongoing challenge. In my lectures to several bar associations around the world, including the Bermuda Bar As- sociation where I spoke in April of this year, I've sensed a great degree of aware- ness of our role as lawyers acting in the public interest. The assumption that minorities and women have less to con- tribute in leadership roles in our profes- sion needs to change, something that is not necessarily achieved with political- style campaigning with no limits on spending. Jay Chauhan, 2015 bencher candidate, Richmond Hill, Ont. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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 disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. LT.Editor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $199.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $199 + HST per year for online only. Single copies are $5.00. Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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Employees have the right to go off the premises during their breaks and, consequently, partake in a legal activ- ity such as smoking at that time. It's true that some employees take too long while on their breaks, but that's an issue for the employer to find a way to monitor rather than banning smoking. Jesin, then, was right to find the prohibition a violation of the collective agreement. The employ- er's policy was an unfair intrusion onto employee rights. — Glenn Kauth W I u Letter to the editor

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