Law Times

Page 6 OctOber 19, 2015 • Law times www.lawtimesnews.com A look at the platforms on election day egardless of who wins today's federal election, Canada isn't going to be a radically different place from a legal perspec- tive. While Law Times columnist Richard Cleroux reports on the opposite page about some of the legal issues that have had particular political currency — notably the niqab debate — the party platforms do offer plenty of fodder in a number of other areas. For the Conser- vatives, they largely tout their track record while making a number of boutique promises if they win today's election. On crime, for ex- ample, they highlight their life-means-life legislation and a proposed amendment to the Criminal Code to provide for a mandatory min- imum sentence of two years in jail for financial fraud over $5,000 with multiple victims. They'll also restore mandatory minimum sentences for illegal possession of loaded prohibited or restricted firearms and bring in legislation restricting Canadians from travel- ling to areas where terrorists are active. Besides crime, the Conservatives are planning for changes in oth- er areas. The plans include legislation granting the federal competi- tion commissioner authority to investigate geographic differences in prices as well as a law to require operators of vital cyber systems to implement robust security plans. As we might expect, we'll continue to have more of the same if the Conservatives win today. The Liberals and NDP, of course, have been battling over which party best represents change, but their platforms — at least when it comes to several legal issues — on many levels seek to undo laws and reforms brought in by the Conservatives over the years. The NDP, for example, promises to repeal what it deems to be anti-union legislation and, most prominently, seeks to revoke Bill C-51. The party would also turn back the clock on the Fair Elections Act and restore the Court Challenges program. The Liberals, meanwhile, focus less on re- pealing legislation and more on amendments to controversial laws such as Bill C-51 to make them more palatable to their critics. The opposition parties don't have a lot to say about getting rid of COURT SHOULD HAVE RULED IN EMPLOYEE'S FAVOUR The recent commentary piece by Nikolay Chsherbinin (see "Deductions of disabili- ty payments in wrongful dismissals clari- fied," Aug. 24) highlights what I believe is a major difficulty inherent in contracts of adhesion where one party, typically the employer, has far greater bargaining pow- er and the employee is essentially left with a take-it-or-leave-it option. In such instances, the courts often im- pute the intention of the parties in order to resolve the issues being litigated. In my opinion, while the resolution provides some future guidance for lawyers in the employment bar, it does so to the detri- ment of the employee who is virtually never given an opportunity to express his or her intentions. As well, the doctrine of contra proferentem, which should be the analytical standard, is usually disre- garded. Given that it is the employer who drafts the contract, any doubt or ambigu- ity should be interpreted in favour of the employee. In Fernandes v. Peel Educational, the court was tasked with deciding the ques- tion of entitlement to double recovery (whether an employee should be entitled to simultaneous payment of notice and disability benefits) in the absence of a clause expressly dealing with that issue. The court came to a decision denying concurrent payment based upon an as- sumption of the employer's intentions. It also distinguished previous decisions where concurrent entitlement was only denied if the employer paid the entire premium. Previous decisions held that if the employee paid any portion of the premium, concurrency was the outcome (the basis for which is another fiction into which I will not delve). In its wisdom, the court distinguished Fernandes from prior decisions on the basis that the employer, and not an arm's- length third-party insurer, was the payer. According to Chsherbinin, the court held that where the employer was the payer, it would be inequitable to allow double recovery as that would put the employee in a better position than had the termi- nation not occurred. However, double recovery and a preferable position are exactly what occurred in those previ- ous cases. The employee was equally in a better position. However, in Fernandes, the court felt that an employer would never have intended to put itself in that position and decided in the employer's favour. The court states that the employ- ment contract speaks against the inten- tion of double recovery but does not point to wording to support that statement. The decision makes no reference to the contra proferentem rule. It may arguably be true that an em- ployer would never knowingly expose it- self to make concurrent payments. How- ever, I suggest that it would be incumbent upon an employer to spell that out clearly in its contract. As the contract was silent and it was, at best, ambiguous in that regard, the court should have decided in the employee's fa- vour. Absent anything that expressly es- tablished the parties' intentions, I believe the employee should have been successful on that point. Shelley Brown, Steinberg Title Hope & Israel LLP, Toronto ©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. 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The Liberals, of course, would remove marijuana consumption and incidental possession from the Criminal Code and propose to "legalize, regulate, and restrict access" to the drug. They also plan to more severely punish those who give the drug to minors. In addition, they're touting significant electoral reform and promise to hold an inquiry on missing and murdered aboriginal women. The NDP would do so as well and also propose significant targeted reforms such as a cap-and- trade system for greenhouse gas emissions. The party would also crack down on unpaid intern- ships in the federally regulated sector and amend Canada's privacy laws to provide for mandatory reporting of data breaches. When it comes to legal issues, then, the plat- forms offer a mix of the status quo, targeted re- forms ranging from the minor to the significant, and a reversal of several Conservative changes during their time in office. So no matter who wins, Canadians for the most part aren't likely to wake up to a very different country tomorrow, even when it comes to the financial and economic issues that have dominated the campaign. Of course, the election will still affect many people and will say a lot about Canada's style of governance and what Canadians value. And with the fine details being so significant when it comes to the practice of law, the election does have implications for lawyers and their work. LT u Letter to the editor COMMENT R

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