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PAGE 12 FOCUS March 8, 2010 • Law TiMes Smoothing the bumps in hiring foreign workers BY ROBERT TODD Law Times A s the business world continues to shrink and companies spread their wings across the globe, SELECTIONS AVAILABLE NOW! NEW more and more employers are dealing with issues surround- ing foreign-worker transfers. One of the ways lawyers can help smooth any bumps in the road as a foreign national is brought into the fold is through organization and preparation. Rima Shouli, senior legal counsel at Magna International Inc. in Aurora, Ont., has creat- ed a streamlined approach that has benefi ted her company. 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Subscribe today and receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE www.mckellar.com www.mckellar.com 1-800-265-8381 $3.55 • Vol. 20, No. 13 Covering Ontario's Legal Scene together we have all the tools. TitlePLUS title insurance and you, TitlePLUS title insurance and you, together we have all the tools April 20, 2009 dicial Council's decision to call for his ouster, saying he was compelled to resign due to his pending retire- ment, despite finding aspects of the council's report "troublesome." Cosgrove tells Law Times in an interview that once the CJC issued its recommendation to the justice minister, "My options were pretty narrow." While he believes he could have appealed an earlier committee report at ormer Ontario Superior Court justice Paul Cosgrove has spo- ken out on the Canadian Ju- month after the CJC issued a final re- port stating that his actions in a late- Cosgrove F 'Shock and disappointment' BY ROBERT TODD Law Times Cosgrove says 'life goes on' after the bench Cosgrove's final criticism is the people in public office, and they were given little weight, according to the decision." CJC's determination that the issue of public confidence was central to its decision. He suggests that it remains unclear what evidence is required to make such a determination. inquiry the Federal Court, he says a decision was un- likely before his mandatory retire- Former Superior Court justice Paul Cosgrove tells Law Times that his ment took hold in December. resigned earlier this 1990s murder trial led to the conclusion that he "failed in the execution of the duties of his judi- cial office and that public confidence in his abil- ity to discharge those duties in future has been irrevocably lost." The decision made him only the second federal judge to meet such a fate. But the former judge says parts of the CJC's the senior regional judges in Ottawa since I've been here for the last 24 years, all wrote very positive recommendations, and they also were aware of the trial," says Cosgrove. "So to say that these letters, the people had final report could have been challenged. The council did not use a set of 32 letters of pending mandatory retirement compelled him to resign from the bench rather than battle a call for his ouster. given rise for us to challenge," he says. "The problem with that is, of course I'm retired — manda- tory retirement in December of this year. And the process, for ex- ample, dealing with the constitu- tional issue, took three years." He says he did not want to "So, all of those issues may have Financial Matters with 20,000 pages of evidence likely put forth. The 74-year-old former judge, who will gamble and let the matter play out before Parliament, where an un- precedented joint resolution would have been required to finalize his ouster. Doing so may have proved cumbersome, suggests Cosgrove, no knowledge of what was going on was not accurate." Cosgrove also suggests the council should support written by judges and retired judges, law- yers, and members of the public when coming to its decision, saying they were irrelevant, he notes. "Personally, I found that difficult because, for example, there were my supervising judges, have used the letters from community mem- bers when considering whether he had lost the public's confidence. "It would seem to me that it's logical to test collect an annual pension of about $170,000, says that before the decision he was reason- ably confident that the council would not call for his dismissal. Independent counsel Earl Cherniak, a partner at Lerners LLP, had previ- ously told the council such a stern punishment was not necessary. "It was shock and disappointment," Cos- what the public's demeanour is; you ask people who are knowledgeable in the public," he says. "And there were a number of letters from See Cosgrove, page 4 9 Focus On ADR/ Mediation Inside This Issue 3 Fight Over Fees 6 Quote of the week grove says of his reaction to the final decision. He says he has been dealing with the fall- out by responding to media inquiries, and "It is now incumbent on sports federations in selection disputes to show they had the proper criteria set up and that it was properly applied . . . The onus is now on the organiza- tion not the athlete. It wasn't quite as clear a few years ago." BY TIM NAUMETZ For Law Times OTTAWA — The possible closure of McCarthy Tétrault LLP's high- profile office in the nation's capital is unrelated to dire economic cir- cumstances that have hit home for some Canadian law firms, a senior McCarthys partner says. Future uncertain for McCarthys' Ottawa office zation we review our business plans on an ongoing basis," Boake tells Law Times when asked of the Ot- tawa office closure possibility. She adds the firm wants to meet the needs of its clients, and that each of its offices have a practice and focus which aligns with McCarthys' over- all strategy. "So it's in that context "Yeah, I guess, like any organi- staff, remains undecided. "It's really just a question of the fact that we are in discussion with lawyers there as part of an overall strategic review," she tells Law Times. "These discussions have been decisions" because of a drop in busi- ness due to the economy, letting go less than 20 of its 650 lawyers across the country. She would not give the specific number or other details. Gowling Lafleur Henderson going on for a while and are not related to the economy," she says. "I would call it a strategic review. Our firm really focuses on integrat- The financial crisis that has hit directly New York and London, being financial centres of the world, and the financial institutions based there, has not hit to the same degree in Canada, primarily because of the strength of the financial institutions in Canada. McCarthys' Ottawa contingent is a "strategic review" based on the firm's national business plan, and the role played by all of its six loca- tions across Canada, says Barbara Boake, national leader, profession- als, at McCarthy Tétrault. Consideration of the future of that we're currently reviewing the Ottawa office, but no decision has been made to close it," she says. Boake would not divulge fur- ther details and said the fate of the office, along with the employ- ment of its seven partners, two associates, and 11 administrative ed practices; we have offices right across the country. We have a very diversified practice geographically and our overall strategy is to inte- grate those practices and develop client teams on a firm-wide basis." Boake, however, confirmed Mc- Carthys has taken "difficult staffing LLP also confirmed to Law Times the firm released staff last week. But Gowlings chairman and CEO Scott Jolliffe said the shakeup did not involve partners or associ- ates. Jolliffe says the firm is shifting toward a "pod" model where law- yers and associates share a smaller number of secretaries, but he would not say how many were affected. The move not only economizes, but also creates a team atmosphere among secretaries that is useful for mentoring and sharing workloads. Sources in the legal community See Ottawa, page 4 say McCarthy Tétrault's Ottawa re- view may be related to a management WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 www.lawtimesnews.com Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca Magna, Shouli fi rst deals with a work permit application after the company makes a condi- tional off er of employment to a foreign national and executes the employment contract. She has made the process easier for managers and foreign workers by sending them a Canadian work permit questionnaire, which includes a checklist of documents to collect. An up- to-date resumé, copies of edu- cational credentials in English, and a photocopy of the prospec- tive employee's passport photo page go into that package. After receiving that infor- mation, Shouli determines which category best fi ts the prospective employee in the immigration process. Often, she said, the foreign worker's application will fl ow through the government's process with ease, but there can be major headaches. Naseem Malik, counsel at McCarthy Tétrault LLP whose practice focuses on business im- migration law, is familiar with many of those complications. He noted the importance of se- curing a labour market opinion from Service Canada before a temporary foreign worker re- ceives a work permit from Citi- zenship and Immigration Cana- da. With new national standards introduced last year, all applica- tions in this category require advertisement and recruitment standards based on the national occupational classifi cation sys- q Send me 1 year of Law Times for only $135.00 (Total with GST: $141.75) Name: __________________________________________________________________________ Company: _______________________________________________________________________ Address: ________________________________________________________________________ City: ____________________________ Prov: _______________ Postal Code: __________________ Tel: ( ) _______________________ Fax: ( ) ______________________ Email: ____________________________________________________________________________ q Payment enclosed q Charge my: q Visa q Mastercard q American Express Card #: __________________________________ Expiry Date: ___ / ___ (mm/yy) Signature (required): ________________________________________________ Date: ________________ 240 Edward St. Aurora, ON. L4G 3S9 Tel: (905) 727-0077 Fax: (905) 841-4357 Mail or fax this form to Law Times www.lawtimesnews.com LT_1-4sub.indd 1 12/16/09 11:04:45 AM tem. Malik noted employers in need of labour market opinions must advertise the job for at least 14 days during the three months before applying. While there typically is much urgency on the employ- er's side to secure the labour market opinion, patience is necessary. In Ontario, the pro- cess often takes four to eight weeks, he said. Shouli noted just how much havoc the process can create. "At Magna, we're dealing with just-in-time delivery of parts, which means just-in-time people," she said. "Th ey've got to be there right away, yester- day, or else the program is going to stop, or there are penalties Because the government seeks to protect the labour market in Canada, employers need to ensure they can live up to their promises, says Naseem Malik. and all kinds of things." Although the department has a process for urgent applica- tions, Malik noted this avenue is often misused and cautions against it. He suggested the best way to ensure the process moves as quickly as possible is by carefully preparing a concise and accurate application. In particular, he urges em- ployers to include proof of ad- equate advertising of the job and to consider including a list of candidates who applied but were not suitable for the position and why. At the same time, Malik cautioned against overstating the need for the foreign national. "Understand that Service Canada is here to protect the labour market in Canada," he said. "Make sure that the promises that are made, all the facts that are contained in the original submission, can be verifi able after the fact." Turning to general work per- mit applications, Malik noted that process can be more seam- less. Foreign nationals may be able to pick up their own per- mit at their point of entry to Canada. Otherwise, they will have to make arrangements with a Canadian consulate or embassy abroad, he said. Employers have also ben- efi ted recently from temporary foreign-worker units located in major centres throughout the country. Th ese offi ces don't pro- cess work permits but will con- sider pre-approval, said Malik. "Th ese particular types of ap- plications are especially handy when a case is borderline or if you've got a company or em- ployee that's a bit twitchy about getting adjudicated," he said. It goes without saying, Ma- lik suggested, that employers must pay particular attention to addressing any criminal- ity issues when seeking a work permit for a foreigner. If ad- dressed early in the process, in some circumstances criminal convictions may not prevent a temporary work permit from being issued, he said. LT www .lawtimesnews.com Includes a FREE digital edition!