Law Times

March14, 2016

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Law Times • march 14, 2016 Page 7 www.lawtimesnews.com COMMENT Lawyers at heightened risk of substance abuse M any people assume a peron's ability to gain prominence or professional success includes a unique strength of character and imperviousness to life challenges that average people face. This includes depression or addiction. The notion that legal professionals are at a higher risk for substance abuse than the general population has been widely discussed, mainly based on anecdotal ex- periences and observations of the role al- cohol plays in the legal community. For example, one inevitably encoun- ters myriad hospitality suites at legal conferences. These are some of the most popular and anticipated elements of such gatherings. Lawyers in the banking sector are ex- pected to wine and dine (mostly wine) current or potential clients, often repeat- edly. Many firms have weekly gatherings of associates to share drinks and camara- derie, where the pressure to attend is con- siderable. And given the significant stress faced by members of our profession, alco- hol can serve as a readily available, if ulti- mately destructive, coping mechanism. Lawyers are expected to be able to avoid such perils, and where they cannot, to keep such difficulties hidden. It is in this context that a new study of lawyers and substance abuse in the Journal of Addiction Medicine by the Hazelden Betty Ford Foundation and the ABA Commission on Lawyer Assistance Programs was recently released. It is the most extensive ex- ploration of this subject to date, with almost 13,000 em- ployed and licensed American lawyers having participated. Along with alcohol abuse, rates of drug use and symptoms of depression, anxiety, and stress were also examined. The study found that 20.6 per cent of survey participants screened positive for hazardous, harmful, and potentially alco- hol-dependent drinking. That's one in ev- ery five lawyers struggling with unhealthy drinking behaviours. Men, as well as younger and newly practising lawyers, showed a higher pro- portion of problematic responses. In ad- dition, the study found that levels of de- pression, anxiety, and stress were also high among this cohort. The study reported that 28 per cent of participants experienced symptoms of de- pression, 19 per cent suffered from anxi- ety, and 23 per cent dealt with elevated levels of stress. The study's authors further observed that these levels of distress are higher than those found in other professions. Specifically, one of the study's authors, Patrick Krill, told the Chicago Tribune: "I haven't seen a professional population out there with a higher level of problem drinking." The study also highlighted other concerns. Of those who reported addiction or mental health concerns, very few sought out help, despite the existence of lawyer assistance programs in most American states. It's worth noting most Canadian prov- inces have similar programs, such as Ontario's Member Assistance Program (myassistplan.com) or the Lawyer As- sistance Program of British Columbia (lapbc.com), which provide effective, no- cost, confidential support for members of the profession. Despite the availability of such assistance, the study's authors found significant numbers of the study's partici- pants feared others finding out they need- ed help, as well as many having concerns about their privacy and confidentiality. These impediments to seeking help confirm what I have observed in my 10 years working in the lawyer assistance field. Many lawyers are unaware that help is available. Others are in denial about their own conditions, so they would not seek help for a condition they deny having. Once one gets past these barriers, the fear of stigma by colleagues, clients, friends, and family, as well as the concern that the individual's sensitive situation may be disclosed to the professional regulator, becomes a third barrier. With the new empirical evidence in this study backing up years of anecdotal observation, there can no longer be any doubt that the high-achieving members of this profession are not only not im- mune from addiction or mental health challenges, they are, in fact, more vulner- able than others, including those in other professions. No matter what your station in life, when in distress, get help and get healthy. LT uDoron Gold is a registered social work- er who's a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assistance Program as well as with members of the general pub- lic in his private psychotherapy practice. He's available at dorongold.com. Employment contracts through the looking glass BY SHELLEY BRIAN BROWN "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be the master — that's all." — Lewis Carroll, Through the Looking-Glass, and What Alice Found There T he conventional model of contracts postulates equal bargaining power between the parties. In theory, a balanced agreement is struck wherein rights, entitlements, and respective obligations are clearly set out and freely agreed upon. However, in em- ployment law, an unswerving belief in the conventional model of bargaining equality is fanciful. In virtually every case, the employer has the upper hand. In the vast majority of instances, no bargaining takes place between employers and prospective employ- ees. Furthermore, unlike most service-oriented contrac- tual relationships that tend to be relatively short, the em- ployment contract can last for years or even decades. During this time, the environment within which the parties function will inevitably, and in most instances, drastically change. The employer usually has greater re- sources. Therefore, the employer arguably is better posi- tioned to adapt to these changes. Often, modifications to a work contract are made to the detriment of the employee. This is not inconsequen- tial. It is usually of limited solace to a financially strapped employee that she or he may be able to claim constructive dismissal and sue for damages. Asserting this right can be a task of Sisyphean proportions. First, claiming constructive dismissal and suing for damages can be a lengthy and costly undertaking. Sec- ond, even modest alternative employment is often un- available. There are myriad other factors that illustrate how an employee can be disproportionately impacted during, and at the end of, the employment relationship. In employment law, the employer usually drafts the contract. Despite an inequality that predominantly fa- vours the employer, the judiciary frequently undertakes a contractual analysis predicated upon the conventional model of equality of bargaining power. This is particularly prevalent in the areas of double re- covery, limitation of notice, and frustration of contract. The decisions are replete with references to the intention of the parties as if the parties were equal and there had been a process even remotely resembling bargaining. The issue of whether an employee who is terminated while receiving disability benefits is entitled to double re- covery provides multiple glaring examples of this form of analysis. The watershed case of Sylvester v. British Columbia provided the opening that spawned a series of decisions relating to this issue. In Sylvester, the Supreme Court of Canada decided against double recovery. However, the court left open the possibility that double recovery could occur if the parties explicitly provided for it or if that intention could be inferred. One such inference posited by the court to support the intention of entitlement to double recovery was whether the employee provided some payment toward the premium. As a result, subsequent cases were decided upon the basis of actual contribution by the employee toward the premium or "indirect payment" whereby the employee provided consideration by foregoing something of value, such as higher pay. However, it appears that the courts may be revisiting this inference. For example, in a pre- vious Law Times, I took issue with the decision in the case of Fernandes v. Peel Educational, where the court found against double recovery. The previous body of decisions predominantly sup- ported double recovery where the premium was at least partly paid by the employee. Here, despite the employee paying the entire premium, the court held double recov- ery could not have been intended by the employer. The decision was based on two considerations: that no employer would intend double recovery where a plan was self-funded; and no employee should be in a better position than would have been the case had the termina- tion not occurred. However, previous decisions had allowed for such preferable payments to occur. While it may arguably be true that an employer would be loath to allow such dou- ble recovery, there are other potential interpretations. Nevertheless, the court chose the interpretation benefitting the drafting party. A simple clause expressly indicating such an intention would obviate the need for a court to come to such a tortuous and presumptuous decision. In similar fashion, in the area of frustration of con- tract, the judiciary has resorted to a similar exercise. Where an employee has been on long-term dis- ability, the courts have pointed to the existence of such benefits as an indication of the employer's intention that the contract was meant to be of long duration as a rationale for deciding a contract has not been frustrated. I would think the mere absence of a definite term to the contract would be a clearer indication of the parties' understanding of long duration than the imputation of such an intention predicated on the existence of long- term disability coverage. This also creates a fallacious argument in favour of frustration for those employees whose employers don't or can't offer such benefits. Why put those employees in a more precarious position? Finally, there is recent jurisprudence that focuses on clauses that purport to limit notice payable on termi- nation to the minimum required under applicable em- ployment standards legislation. Case law is somewhat divided on the issue. However, the process that is used in every instance is virtually identical. The decisions parse the wording to determine if the employer intended to exclude the employee's rights. Recent decisions have focused on whether the absence of explicit reference to benefits in light of the use of the word "entitlements" as opposed to "payments" in the exclusionary phraseology was indicative of an in- tention to provide less than the statutory minimum. Employment contracts are, by virtue of the unique nature of the employment relationship, notoriously poor candidates for the strict application of conven- tional rules of contract interpretation. The attempt to do so, where presumption and assumption are used to manufacture conclusions regarding the parties' inten- tions, results in specious rulings. These provide mini- mal consistency and continuity in an area that is in per- petual f lux. As the employer is usually the drafting par- ty and the one that, at least at the outset, has the greater resources and power, it should be incumbent upon the employer to draft an employment contract that is clear and unambiguous in regard to its intentions. The fail- ure to do so should, in all cases, results in an interpreta- tion that favours the employee. LT uShelley Brian Brown has a master's degree and more than 30 years' experience in employment law. He prac- tises at Steinberg Title Hope & Israel LLP in Toronto. u SPEAKER'S CORNER The Lawyer Therapist Doron Gold

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