Law Times

Law Times • augusT 8, 2016 Page 7 www.lawtimesnews.com Should legal aid billings be secret? BY SEAN REHAAG L egal Aid Ontario is reconsidering its practices around transparency in light of the province's recent Open Data Directive. This directive requires government data to be made public unless it is exempt on a handful of grounds. In working out how to comply with this directive, LAO is consulting with stakeholders, including lawyers. The most controversial issue in these consultations involves a simple question: Should LAO release aggre- gate data about how much individual lawyers who take legal aid certificates bill for their work? Many associations of lawyers say no. The main argu- ments they offer are that releasing the data would violate the privacy of lawyers, that the information would lack context and be misleading and that it would lead lawyers to stop taking legal aid cases. None of these arguments really holds water. First, would disclosing the data violate the privacy of lawyers? Recently, in Re: Ontario (Health and Long- Term Care), the Information and Privacy Commission granted a Freedom of Information request for informa- tion about OHIP billings by Ontario's doctors. The com- mission determined that disclosing yearly billings would not violate the privacy of doctors because these billings involve business information, not personal information. The commission then went on to find that even if it was considered personal information, a compelling public interest in disclosure outweighs any privacy concerns. This decision is currently undergoing judicial review, but if it is right and OHIP billings by doctors should be disclosed, then so should LAO billings by lawyers. Second, would the data mislead the public due to lack of context? The relevant context is that the public may mistakenly believe that billings represent take-home compensation when, in fact, lawyers receive only a por- tion of the billings as compensation. A related concern is that releasing easy-to-misinter- pret data could decrease public confidence in the legal aid system. Of course, it is true that overhead (such as rent, staff, insurance) takes up a portion of lawyer billings, and that this portion varies depending on how lawyers struc- ture their practices, the region of the province in which they practice, the types of cases they accept and so on. And it is reasonable to worry that some may use the data to give the public the inaccurate impression that lawyers are overcompensated for their legal aid work, which could erode public support for the legal aid system. However, there is a simple answer for this: When LAO releases the data, the necessary context should be em- phasized — and if lawyers feel that the context provided is inadequate, they should supplement it themselves. At a more general level, it is a bad idea to keep data on the use of public funds secret on the theory that this data may mislead the public. As the Supreme Court put it in Merck Frosst Cana- da v Canada (Health), "refusing to disclose for fear of public misunderstanding would undermine the funda- mental purpose of access to information legislation. The point is to give the public access to information so that they can evaluate it for themselves, not to protect them from having it." Third, would disclosing the data lead lawyers to exit the legal aid system, thereby limiting access to justice? Admittedly, some lawyers who were already considering changes to their practices might well exit the system and point to this as the reason. But, realistically, their num- bers would be small. Moreover, there are many young lawyers out there who would love to build legal aid practices in their place. It is also worth noting that many other players in the publicly funded component of the legal system are sub- ject to similar forms of disclosure. Judges, Department of Justice lawyers, LAO staff lawyers and university law professors all have their salaries disclosed publicly, and we haven't seen a decline in the number of people in- terested in these positions. There are also many advantages of disclosure. Simple transparency and accountability in how public funding is used are key benefits. The data would also be useful for legal scholars studying access to jus- tice. For example, it would enable researchers to look at questions such as: How much money does LAO pay to lawyers who are subsequently found to have committed professional misconduct? Or, is there a correlation be- tween high LAO billings and success rates in cases? The information would also be helpful when there are public debates about the legal aid system because the financial interest that individual lawyers have in the existing sys- tem is relevant in these debates. Most would agree that there is an access to justice crisis in Ontario. Lawyer compensation is obviously an important factor in that crisis. In this context, instead of fighting against disclosure of LAO billings, lawyers who take LAO certificates should be clamouring for enhanced transparency and accountability for lawyer compensation, whether in the public or private sector. Lawyers' associations should be doing everything in their power to increase the availability of data that could kick-start conversations about why compensation in the legal profession is skewed so dramatically in favour of lawyers who represent the wealthiest individuals and corporations — and against lawyers who work with the most vulnerable and marginalized members of our communities. These associations should also embrace releasing data that could enhance accountability for the small minority of lawyers who may be abusing the legal aid system and the marginalized clients that they are supposed to serve. And LAO, which has a broad man- date to enhance access to justice in Ontario, should be doing the same. LT uSean Rehaag is an associate professor at Osgoode Hall Law School, specializing in immigration and refugee law and access to justice. COMMENT Terminated employees need protection M ost employees serve at the mercy of their employers. There is little job security save for non-managerial employees of federally regulated employers, union members and employees dismissed contrary to human rights codes. Most others serve at the pleasure of their employers. Of course, some employees are highly skilled or have the ability to protect themselves in negotiated employment contracts. Job security isn't much of a concern to them. But job security is a major concern for the majority of employees. Regrettably, employment standards laws provide little protection for terminated em- ployees. In the absence of just cause, ter- minated employees are entitled to meagre notice or termination packages. However, we have common law to thank for its laws requiring employers to provide reasonable notice or compensation in lieu to employ- ees of indefinite duration. Common law entitlement is f lexible and provides ad- equate compensation in most cases. Yet, employers continue to attempt to prevent terminated employees from access- ing their common law entitlement. They rely on case law that allows them to contract out of the presumption that employees of in- definite duration are entitled to reasonable notice or compensation in lieu. Contracting out of or rebutting this common law presumption was express- ly recognized by the Supreme Court of Canada in Machtinger v HOJ Industries [1992] 1 SCR 986. The Machtinger case involved two man- agers, both of whom had signed employ- ment contracts, one of which al- lowed termination with no no- tice and the other allowing ter- mination on two weeks' notice. Because these notice periods were less than the employment standards minimum, they were held to be invalid. The employ- ees were entitled to receive their common entitlements, which far exceeded the minimum statutory requirements. However, the Supreme Court made it clear that "[a] bsent considerations of unconscionabili- ty," properly drafted provisions that satisfy minimum employment standards require- ments "would be sufficient to displace the presumption that the contract is terminable without cause only on reasonable notice." At the same time, the Supreme Court recognized the importance of the com- mon law reasonable notice requirements in mitigating the financial and psycho- logical repercussions created by employee terminations. The Supreme Court quoted from an article written by Katherine Swin- ton, contained in a 1980 book called Stud- ies in Contract Law. "Discharge has serious financial ram- ifications for the individual in that it puts an end to remuneration, as well as to less quantifiable economic benefits such as accrued seniority. Discharge can have ongoing financial effects, as well, for the reason given for termination (if any) may affect accessibility to future jobs as well as entitlement to government benefits such as unemployment insurance. The psycho- logical effects of discharge are also important, because of the disruption in the individual's life caused by seeking new employment and establishing himself in a new environ- ment," said the ruling, quoting Swinton. The recognition of these financial and psychological re- percussions as well as the min- imal notice and severance per- iods in employment standards legislation has led courts to em- ploy highly technical techniques to nullify many contractual provisions that attempt to rebut the common law presumption of rea- sonable notice. Employment contracts that do not spe- cifically mention continuation of benefits or payment of statutory severance or that could theoretically result in the provision of a notice period less than the minimum statutory requirement have been held to be inadequate to rebut the common law pre- sumption. But as long as courts focus solely on these technical arguments, they leave the door open for employers to draft better contracts; contracts that make it clear that there was no intent to contract out of the statutory re- quirements. These contracts rebut the com- mon law presumption, thereby allowing employers to terminate upon the provision of the statutory minimum provisions. That's what happened in a recent On- tario Court of Appeal decision, Oudin v. Centre Francophone de Toronto, 2016 ONCA 514, where the court found there was no intent to contract out of the statu- tory requirements even though the con- tract did not specifically mention either benefit or severance entitlement. But what courts seem to be missing is the fact that most of these are take-it-or- leave-it contracts, where the employee has little or no ability to negotiate terms, and where the references to employment or statutory standards are unintelligible to prospective employees. The vague refer- ences to statutory requirements in employ- ment contracts provide no real informa- tion to prospective employees. Most prospective employees do not understand the common law presumption of reasonable notice or what they are giving up. They believe they are being protected by references to employment standards laws. They have no reason to think otherwise. There are several potential solutions to be considered. Minimum statutory ter- mination provisions should be increased. Provincially regulated employees should be given statutory rights of reinstatement as is the case for non-managerial employ- ees of federally regulated employers. Courts should also require employment contracts to set forth in plain language precisely what is being given up; that is, the difference be- tween what employment standards would provide as compared to common law. LT uAlan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Hum- ber College. His e-mail address is ashanoff@gmail.com. u SPEAKER'S CORNER Social Justice Alan Shanoff

• Cover