Law Times

March 6, 2017

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Page 2 March 6, 2017 • Law TiMes Ras says the government should let other reforms such as bringing the whole province under a unified family court and expanding limited-scope retainers play out before even considering a widening of the scope of family law. Of particu- lar concern to FOLA are the lawyers in small communities whose practices can include 20 to 25 per cent family law. "If suddenly there is compe- tition in town that is providing that same or similar level of ser- vice, maybe not to the full scope of what a lawyer can do but close, for lower rates, the economic logic suggests that the lawyer would just find other things to do," says Ras. "So, instead of in- creasing access to justice, you would have one less lawyer do- ing family law or providing that service." Family lawyers question whether paralegals will be able to provide the same service, in what is considered a complex area of law, if the report recom- mends this. Robert Shawyer, of Shawyer Family Law & Mediation PC, says giving paralegals the un- fettered right to practise family law could lead to problems. "They frankly just don't have the training that lawyers do," he says. Jonathan Richardson, a family lawyer and partner with Augustine Bater Binks LLP, says he would like to see the report recommend the expansion of articling students in family law. Currently, articling students are not allowed to appear in court in family law proceedings. "That would certainly re- duce costs to have the ability to have articling students appear on non-contentious matters and would provide good experience for the articling students as well," he says. A spokeswoman for the LSUC said the law society was waiting on the release of the re- port to provide comment. "We know that navigating the system without legal assistance can be difficult and confusing, and we are committed to identi- fying ways to improve access to justice in family matters," said a spokeswoman for Ontario At- torney General Yasir Naqvi. "We are looking forward to making Justice Bonkalo's report public shortly." LT NEWS paid her base salary and ben- efits for that time. At the end of that period, the company also paid her an amount worth eight weeks' salary as compensation for her entitlement to severance and a number of other payments. Wood brought an action against the former employer, ar- guing that the termination clause was unenforceable, as it expressly excluded the employer's obliga- tion to contribute to her benefits plan during the notice period. Wood's appeal was of a failed summary judgment motion, in which she sought damages worth 12 months salary and benefits. In its decision, the Court of Appeal found that the termina- tion clause contravenes the act, as it excludes the company's obligation to severance pay and also excludes the employer's stat- utory obligation to contribute to the employee's benefits plan during the notice period. While the company and Wood had agreed to a different notice period, in which Wood actually got paid more than she would have under the minimum requirements of the ESA, the court found the company's pay- ments to the employee on ter- mination "should have no bear- ing on whether the termination clause itself contravenes the ESA." The appeal turned on the wording of the clause, which said the company was required to give the employee "two weeks' notice of termination pay in lieu for each year or partial year of employment." The clause also said that the company would not be obliged to pay anything other than what was in the clause, and that the payments and notice were "in- clusive of [Wood's] entitlements to notice, pay in lieu of notice and severance pay." The court found the clause was "not merely silent about Deeley's obligation to contribute to Wood's benefit plans during the notice period," but it also used language that excluded that obligation. Landon Young, a partner with Stringer LLP, who was not involved in the case, says that the decision makes it "crystal clear" that a termination clause will fail if it does not provide for contin- uation of benefits, and if it also includes language that says that everything the employee will re- ceive is in the clause. "It doesn't matter what the employer actually does when he carries out the termination," he says. "All that matters is what's in the contract." The court also determined that the clause failed to satisfy the company's obligation to pay her severance, as the company had combined separate obligations of notice of termination or pay, and severance pay. Under the ESA, Wood would have been entitled to eight weeks' notice of termina- tion, as well as severance pay, but the clause was not drafted to re- f lect both, the court found. The Court of Appeal deter- mined that Wood should receive damages equal to nine months, which the motion judge had determined would be the appro- priate amount if he had ruled the clause was unenforceable. Daniel Lublin, lead counsel representing Wood and a part- ner with Whitten & Lublin PC, says the Wood decision shows that the Court of Appeal has sid- ed with an approach that inter- prets these clauses in a way that protects employees' rights. "The court set out this ap- proach that should be viewed as the proper approach to in- terpreting a severance limiting clause and it's a high standard," Lublin says. The lawyers representing the defendant did not respond to a request for comment. LT Continued from page 1 'All that matters is what's in the contract' Other reforms first? Continued from page 1 TECHNOLOGY LAW SPRING FORUM CHAIRED BY Kirsten Thompson, McCarthy Tétrault LLP Ian Thorburn, Solicitor, City of Toronto St. Andrew's Club & Conference Centre 150 King Street West 16th Floor, Toronto ON, M5H 1J9 MAY 18, 2017 | WWW.IT-CONFERENCE.CA 2017 JOIN US FOR THE SAVE 10% Register before April 3, 2017 Powered by Untitled-2 1 2017-02-28 2:28 PM

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