Law Times

Law times • SEPTEMBER 8, 2008 t's maddening to watch gov- ernments mess up in monu- mental fashion and the me- dia offer as a solution — more government. I Leaf Foods listeriosis outbreak and the Sunrise propane ex- plosion in Toronto. Two decades ago, it was sug- gested that deli-style foods be irradiated after processing to kill hitchhiking bacteria. The usual suspects from the anti-nuclear and anti-innovation crowds ob- jected, and craven governments bowed to the pressure. A former Liberal government, Cases in point: the Maple Eyeballing not the answer Queen's Park Inside By Derek Nelson reacting to the failure of govern- ment inspection that levelled a propane facility in 1986, said it would propose a model bylaw for propane storage. What happened? Nothing. Much of the media have used both incidents to campaign for more inspectors and more direct government control, which is ex- actly the wrong approach. In the particular case of propane, there is a concerted push on to dis- mantle the Technical Standards & Safety Authority, the not-for-profit stand-alone agency that is respon- sible for public safety inspection. Until Sunrise, TSSA appeared to have produced results, in terms of safety (higher) and cost (lower), better than those of the civil ser- vants who previously had the task, hobbled as they were by competing priorities and rigidly bureaucratic operating procedures. TSSA's only mandate is public safety. Yet, even before investigations are concluded, the critics now want to return that inspection duty to government departments. They even dredge up, like the its job properly, although it is prob- lematic whether his ban-happy and union-dependent government will continue to hang tough on the agency. It's an easy way out for him to shift blame to "Mike Harris." (There's that name again; reach for your cross and garlic.) In contrast, the federal govern- ment, which has hired 200 more food inspectors in the recent past, panicked and announced it was going to hire 58 more. Unfortunately, neither govern- ments, nor their media lickspittles, want people to know the dirty little secret of all public-safety regula- tion: it is actually and always has been self-regulation, even in plants like Maple Leaf Foods where in- spectors are stationed full-time. Just think of the last time you ate in a restaurant. No inspector was watching the food preparers, and the chance of the ingredients in the food you are getting hav- ing been "inspected" before it got to the restaurant is probably in the one-per-cent range. The underlying premise of COMMENT PAGE 7 f one were look- ing for a reason to toss out the current method of dealing with wrongful dismissal ac- tions one needn't look further than the Honda Inc. v. Keays case. There has to be a better way I Social Creature from the Black Lagoon, the tainted water tragedy at Walk- erton and attempt to blame it on "privatization" and the premier of the time, Mike Harris. (Whenever you hear Ontario's chattering classes intone the phrase "Mike Harris," think of it not as the name of a real person but sim- ply as the ritual calling-up of the source of all evil.) Walkerton's water supply was public when it had its problems. Back then it was run by the mu- nicipal government. Incompetent unionized municipal waterworks officials tried to lie and bluff their way through an E. coli contami- nation. The supposed watchdogs from the provincial environment ministry didn't seem to notice. It was a private water-testing laboratory that discovered the problem and promptly informed Walkerton — only to have the in- formation ignored. Walkerton's water has since been privatized, to the benefit of everyone. is even more bizarre. Heavy duty scrutiny by on-site inspectors missed the listeria contamina- tion — yet the critics laud even more government inspection as the solution, and issue dire warnings against a mythical "privatization." To his credit, Premier Dalton The case of Maple Leaf Foods McGuinty refused to rush to judg- ment on whether TSSA was doing regulation is that people want to do the right thing. Regulation provides them with a framework within which to safely work out the delivery of the service or product that they are putting into the marketplace. Safety is a process, and a culture, not a conclusion. Does anyone doubt that Ma- ple Leaf Foods wants to produce contamination-free food regard- less of whether an inspector sits at every employee elbow? Or that propane operators don't want their businesses to blow up? What is noticeable about the listeriosis outbreak is that it was caught by what amounted to sys- tem analysis, a statistical bump in the iPHIS (Integrated Public Health Information System) re- porting data — in other words by a public-sector agency doing its proper overview job, not staffing a production line. As a society, we're getting bet- ter and better at making system- atic rather than spot approaches to safety work well; for example, HACCP (Hazard Analysis Criti- cal Control Point) in the food industry. No safety system is foolproof, of course, because humans are in- volved, and people will make mis- takes. Some will even deliberately dodge rules, and systems should be aimed at ferreting such people out. But making civil servants re- sponsible for either propane safety or food safety in the old-fashioned, government-department, eyeball- ing way is not the answer, and, despite a Luddite media, never will be in the 21st century. LT Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is ugurtha@rogers.com. www.lawtimesnews.com This case tells me that something has gone horribly wrong and we must find a better way to resolve wrongful dismissal claims if we want to retain the public's confidence in both the legal profession and the civil litiga- tion system of justice. The facts of the case are not complicated. After 14 years of employment (with about two years of that on disability leave) Keays, 35 years old, was fired. He had worked for Honda first on the assembly line and later doing data entry work. Keays had a high school education and one year of commun- ity college. Keays was diag- nosed with chronic fatigue syndrome. He eventually ap- plied for and was approved for disability insurance coverage. He was accepted as being disabled for about 26 months and then was told by the insurer that he was able to return to work. Keays didn't feel that he had recovered but, having been cut off dis- ability payments, he had to return to work to earn some money. As it turned out, his condition did not improve and his attendance record was poor. He was required to supply a doctor's note to justify each absence. Honda wasn't satisfied with the in- formation provided in the notes. Honda sought medical advice and was told that there was no reason for Keays to be missing so much work. Keays retained a lawyer. The lawyer tried to advocate for his client. Honda ignored the lawyer and told Keays he had to see a doctor of their choice. Based on legal advice, Keays sought clarification of the "purpose, the methodology and the par- ameters of the assessment" by this doctor. Honda refused to elaborate and insisted that Keays attend upon the doctor. He refused to attend without the elaboration and was fired in March 2000. An action was quickly Justice By Alan Shanoff commenced and the trial started in March 2003. Think about that for a minute. We have a terminated employee with a disability and it takes about three years — I under- stand that part of the delay was due to an earlier trial that was aborted due to the illness of the trial judge — to get to trial. That in itself has the potential for creating a tragedy, but that was noth- ing. You see, the trial took place over 29 days. That's a long trial, but that was nothing. You see, the trial didn't take place in consecu- tive days. No, the trial took place over a 20-month per- iod and didn't finish until late October 2004! That is outrageous for a wrongful dismissal action. Even so, a decision wasn't released until March 2005 — two years after the trial began! I know there were a lot of issues, and I know that they were hard-fought, but please, how do we justify all of this in a case where a traditional an- alysis of the Bardal [v. Globe and Mail Ltd.] factors would have warranted an award of compensation in lieu of about 12 months? The trial judge however awarded 15 months and in- creased that to 24 months to reflect what he saw as the abu- sive manner in which Honda handled the termination. On top of that, the judge assessed punitive damages in the sum of $500,000 and awarded costs on a substantial-indem- nity basis plus a premium. Clearly the judge was in- censed by what he thought was Honda's egregious con- duct and wanted to make an example out of Honda. How- ever, by issuing such an award the judge forced Honda to ap- peal. The appeal was heard in April 2006, and in September of the same year the Ontario Court of Appeal released its decision. Save for a reduction of the punitive damages to $100,000 and a reduction in the costs premium, the ap- peal was dismissed. The Supreme Court of Canada heard the case in February 2008 and re- leased its decision in June. The majority took a differ- ent view of the facts. They didn't see Honda's conduct as being particularly offen- sive. The majority reduced the 24 months to 15 months and eliminated the punitive damages in toto. The costs premium was also eliminated, but worse for Keays is that the costs for trial were reduced to costs on a partial-indemnity basis. Costs of the appeal were awarded to Honda. So, we have a wrong- ful dismissal case that took about eight years to reach a conclusion. There were 31 court days (trial plus appeals) plus examinations for discov- ery and other proceedings. Disbursements to the end of trial were about $40,000. Absent a contingency-fee ar- rangement, only the wealthi- est of clients could afford such an ordeal — eight years of slow torture. While Keays achieved an award commen- surate with what the facts warranted, it will be a minor miracle if he recovered any- thing after costs. I'm not pointing fingers at anybody. There's plenty of blame to go around. Er- rors in judgment were made by many. Yet, I have to think that in all of this the plaintiff was forgotten. Remember the plaintiff, Kevin Keays? He was wrongly dismissed and suffers from a disability. Do you think he got justice? Did he get what he deserved? Shouldn't terminated em- ployees have a right to have their cases decided quickly and at minimum expense? Ask yourself whether this case fosters public trust in either the legal profession or the civil litigation system of justice in Canada. There has to be a better way. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com.

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