Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Court reporters treated unfairly on despite a six-year-old ruling against the Ministry of the Attorney General' A rather strange case over how many pages court reporters should be able to type, whether their work producing tran- scripts falls under their collective agreement, and the benefi ts fl owing from a determination on that issue is still dragging Abramsky ruled yet again in Ontario Public Service Employees Union v. Ontario (Ministry of the Attorney General). Th e ruling followed her 2006 decision that the work court reporters do in typing and certifying tran- scripts of court proceedings was bargaining unit work rather than ad- ditional freelance-type duties beyond their regular courtroom activities. Under the ministry' fee for transcription work oſt en done outside of regular hours. Th e union, however, argued transcription work was a key function per- formed by court reporters that should be subject to the provisions of the collective agreement and the associated remuneration for things like overtime and holiday pay. Despite the 2006 ruling, the parties have struggled to agree on how s framework, court reporters got a per-page to implement it and, as such, the government has maintained the existing regime that essentially treats court reporters as employees for their regular courtroom duties and independent contractors for transcription work. As a result, they've been back before Abramsky repeatedly since 2010 in a bid to resolve the issue. Some of the arguments on both sides have, quite frankly, been bi- could produce as little as 1-1/2 pages per hour. Th e province put that fi gure at 6-1/2 pages an hour, while Abramsky eventually settled on a number very close to the government' minutiae of a typical reporter's typing speed. It's odd that both sides are having so much trouble resolving the issue. It's inappropriate, for example, s aſt er considering the zarre. Th e union, for example, asserted that in the case of Helen Hag- gith, the employee considered by Abramsky in her ruling last month, the government owed her up to $236,871 "for the period 2004 to 2009 due its failure to follow the collective agreement." As part of its case, the union contended that an inexperienced court reporter T for the government to continue to treat transcrip- tion duties as the work of independent contractors when Abramsky so long ago convincingly ruled that those activities are integral to court reporters' duties. While many employers try to save money by deem- ing people to be self-employed, this is clearly a situa- tion where that shouldn't be the case. Th e union, on the other hand, has made some ridiculous arguments. For example, it asserted that the government shouldn't deduct the fees Haggith received as an independent contractor over the years from the money owing to her as part of the damages fl owing from the violation of the collective agreement. Such a double recovery that would enable her to re- ceive as much as $237,000 beyond her current wages and transcript income is unconscionable. Abramsky was right to reject that proposal in her recent ruling. Both sides, then, appear to be dragging the case on. Th e government was wrong to treat its court re- porters the way it has been. Both it and the union should be reasonable in coming to a resolution to settle the matter. — Glenn Kauth Law should offer real compensation to children who lose parents prehend. According to Fleming's Th e Law he treatment of damage claims resulting from fatal injuries caused by the wrongful acts of third parties is diffi cult to com- of Torts, the common law doesn't treat death as a compensable injury to either the victim' members. While that has been the case since as far back as 1808, a recent Ontar- io court decision has signaled a welcome change in approach. Reform came initially from the Lord Campbell's Act that later morphed into the s estate or surviving family Fatal Accidents Act. Th e issue now resides in Ontario' in ss. 61 to 63. Aside from actual pecuni- ary losses, certain family members, such as spouses, children, grandchildren, parents, grandparents, and siblings of the deceased, may receive an award in respect of "the loss of guidance, care, and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. s Family Law Act, particularly For reasons that escape me, the law " Law Times doesn't presume any compen- sable award for loss of guid- ance, care, and companionship by an eligible family member. Eligible claimants merely have the right to make a claim, but each claimant must provide "affi rmative, objective evi- dence" of the loss (see Wilkin- son Estate v. Shannon). Doing so requires a detailed inquiry into the relationship between the claimant and the deceased. Th ere' for the death itself and the law off ers no compensation for grief, sorrow or emo- tional distress resulting from it. Th e law doesn't concern itself with the extent to which a grieving spouse, parent or child suff ers. Why that' s no compensation age awards for mental distress in less compelling circumstances are available is a mystery. All of this makes me gratifi ed to see the s the case when dam- Social Justice Alan Shanoff awards for loss of guidance, care, and companionship in the sum of $135,000 on behalf of a three-year-old daughter and $117,000 on behalf of a fi ve-year-old daughter follow- ing the death of their mother. It also awarded $90,000 to the husband for the loss of his 30-year-old wife. Th e case resulted from recent Ontario Court of Appeal decision in Vokes Estate v. Palmer. It upheld the jury Sound, Ont. Randall A. Palmer, driving without insurance and running late for a hearing in traffi c court, was travelling at 120 kilometres per hour in a 50-kilome- tre zone. Michelle Vokes, who was nine months' pregnant, was exiting a shop- ping plaza onto the highway when the fatal collision occurred. Th e jury found Palmer entirely at fault for the collision. Th e sums awarded by the jury seem a tragic accident that took place on July 31, 2006, on Highway 6/21 in Owen s treatment of those employees as independent contractors. Last month, Grievance Settlement Board vice chairwoman Randi COMMENT OctOber 15, 2012 • Law times improvement in the law. According to one of the plaintiff s' lawyers, Adam Little of Oatley Vigmond Personal Injury Law- yers LLP, the amounts in favour of the children represent the highest awards in Ontario for a child who has lost a parent. It' close to providing adequate compensa- tion for the loss of a life and that even at- tempting to place a dollar value on it seems almost vulgar. But providing nothing or merely small sums as compensation is an aff ront to justice since awarding money is the only real remedy a court can provide. I'm not saying we need to move to the mul- timillion-dollar awards seen elsewhere, but the commonplace awards of $25,000 to $40,000 for a young child' s trite to say that no sum can come ent should be a thing of the past. I hope the Vokes decision achieves that result. s loss of a par- LT rather miniscule for the loss of a par- ent and spouse but they represent an Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ................... Michael McKiernan Copy Editor ...................... Mallory Hendry CaseLaw Editor ................. 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