Law Times

March 21, 2016

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Off-duty conduct increasingly under scrutiny: lawyers BY SHANNON KARI For Law Times A judge has ordered a man- ufacturing company in southwestern Ontario to pay 10 months severance to a longtime employee after it fired him for cause upon learning the 66-year-old labourer was fac- ing sexual assault charges involv- ing underage complainants. Superior Court Justice Donald Gordon granted summary judgment in favour of Keith Merritt and against Tigercat Industries Inc., ordering the company to pay nearly $42,000 in damages for wrongful dismissal aer more than 12 years of employment. e judge concluded that Tiger- cat did not take the necessary steps to justify dismissal with cause. "No independent investigation was conducted. No reports were gen- erated. e only knowledge man- agement has is that Mr. Merritt was charged," wrote Gordon, in the ruling issued Feb. 19. e sexual assault trial is not scheduled to take place until this fall. Criminal charges for so-called "off-duty conduct" are not sufficient for dismissal, said the judge. "ere must be a justifiable con- nection to the employer or the nature of employment," Gordon explained. Matthew Lambert, who repre- sented Merritt, says there was no credible evidence put forward by the company that linked the criminal charges to his client's place of em- ployment. "It was as if they decided my cli- ent was guilty [before any trial]," says Lambert, a partner at Bal- lachey Moore LLP in Brantford, Ont. "If you are going to do this, you have to conduct a thorough inves- tigation first." Off-duty conduct by employ- ees is facing increased attention, in part because of social media, say lawyers. ey say deciding what to do, whether it involves crimi- nal charges or comments posted online, can be a tricky area for em- ployers. Erin Kuzz, a partner at Sherrard Kuzz LLP in Toronto, says a com- pany must first assess whether to pay an employee in lieu of notice, or dismiss the person with cause, which could result in litigation. New policy addresses historic issues that divided membership CBA reform outstrips controversial case BY JUDY VAN RHIJN For Law Times T he Canadian Bar Association has researched, drafted, and approved its new court intervention policy, while the case that inspired the change is still moving slowly through the court system. A hasty decision by the CBA executive to intervene in the Su- preme Court`s hearing of Chevron Corporation et al v. Yaiguaje et al prompted a pushback by CBA members that led to a full-scale revision of the policy and process of future interventions, adopted by the CBA last month. "It was necessary to have a new policy. It clarifies that there is to be more fulsome consultation. Previously, it was hit and miss. e new policy ensures the process is more uniform," says David McRobert, an environmental and aboriginal lawyer from Peter- borough, Ont., who was one of many members to register their dis- approval of the decision to intervene in the Chevron case. "You may not get consensus, but at least people have a chance to say their piece. ere is a great degree of confidence that no one is le out." e new policy requires that intervention requests must be sub- mitted to the CBA president and the director of legislation and law reform at least four weeks before the application for leave to inter- vene is due and must include a feasible plan for robust consultation. e Intervention Policy Review Committee stipulated that no- tifications have to be robust enough so that failure to respond can safely be taken to mean a lack of interest in the issue. "e committee found a desire among members to have as broad a consultation as possible," says Michele Hollins, CBA past president. "Every proposed intervention goes to every constituent group. ey don't all have to consent, they don't all have to reply, but they all have the opportunity to comment." CHEO SETTLEMENT Agreement with gene patent owner P3 PONZI CASE Law firm in the clear P4 FOCUS ON Restructuring & Insolvency P9 See Suspension, page 5 PM #40762529 $5.00 • Vol. 27, No.10 March 21, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M See CBA, page 2 & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM Follow LAW TIMES on A DAILY BLOG OF CANADIAN LEGAL NEWS FEEDS LEGAL POWERED BY LEGALFEEDS.CA LegalFeeds_LT_Mar7_16.indd 1 2016-03-03 10:56 AM David McRobert says a new court intervention policy was a necessary step for the CBA. Photo : Laura Pedersen Nicole Simes says there is a 'nuance' to establishing that there has been harm to the employer's reputation in labour law cases.

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