Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth W Strikes should be an option Th e implication has been that a strike or lockout isn't an option. But it's interesting how the political discourse has changed. We used to oc- the legislative route this summer by imposing a wage freeze. But what about the rest of the public sector? Th ere' ith the Ontario government struggling in its negotiations with public sector unions, the debate has focused al- most exclusively on whether it should impose a contract through legislation or seek one at the bargaining table. casionally have teacher strikes, for example. But with the introduction of provincewide bargaining, an assumption has emerged that strikes would be too disruptive. So it' work government employees do is valuable and necessary, but do they provide de fa cto essential public services in the way teachers now do? For many of them, the answer is no. So rather than accept the dichotomy that we have to push the unions s no surprise that Premier Dalton McGuinty took s no doubt that the COMMENT November 5, 2012 • Law Times to either accept a contract they don't like or face the same terms through legislation, what about allowing for the possibility of stri kes? Given that many unions have already realized that any wage settlement is likely to be at or near zero per cent, a strike wouldn't necessarily be that long. And if the public fi nds the disruption intolerable, we'll end up with settlements close to what the government has been seeking anyway. We seem to have forgotten that labour relations are essentially about the power struggle between two sides as each seeks leverage over the oth- er. In the end, if we truly want to reform the compensation structure for G the public service for the long term, we may have to accept the messy reality of strikes. Th at may be what it takes to get rid of provisions such as banked sick days until retirement. Imposing a contract may do that, but the government should use that option sparingly. Th ere' to tackle public sector compensation given the fi s- cal realities. Th e unions, too, would be wise to ac- knowledge this, which some of them have already s no doubt that the government is right done to some extent. But let's allow the bargaining process to play out. If the government can't save as much money as it hopes, it can propose the service cutbacks economist Don Drummond proposed in his report this year. Th e public, then, will have to choose between maintaining services and suff ering a strike for a while to get the savings in another way. Th at' s how it works in the real world. — Glenn Kauth Courts change approach to punitive damages in employment law iven the importance of people's jobs to their well-being, it's time awards are insuffi cient to truly compen- sate an employee or punish an employer for bad-faith or egregious conduct. Th e major impediment to fair compen- for courts to recognize that small and oſt en insignifi cant sation in bad faith cases remains Honda Canada Inc. v. Keays, in which the Ontario Court of Appeal reduced the punitive dam- age award of $500,000 to $100,000 before the Supreme Court of Canada completely eliminated it. Th e top court set a high threshold for the awarding of punitive dam- ages only in "exceptional cases" in which the employer' or outrageous to warrant them. Judges were naturally reluctant to s conduct is suffi ciently egregious award substantial punitive damages awards following Keays. So it was a pleas- ant surprise to see the Ontario Court of Appeal set aside the punitive dam- age award of $25,000 in Pate v. Galway- Cavendish and Harvey (Townships) and instruct the trial judge to consider grant- ing a higher sum. Th e trial judge did as ordered and came back with an award of $550,000 as punitive damages. Th e Pate award, which is under ap- peal, related to the employer's egregious Law Times conduct in making unfound- ed claims in a criminal pros- ecution and its statement of defence that, according to the Court of Appeal, "amounted to the intentional infl iction of mental distress and social and economic damage. it's not every day that an ap- " Still, peal court instructs a lower court to assess a higher level of punitive damages and a $550,000 award for punitive damages is highly unusual in Canada. Juries, it seems, have little diffi culty in awarding massive punitive damage awards in wrongful dismissal actions. Earlier this year, a B.C. jury awarded Larry Higginson $573,000 as punitive damages due to his employer' faith conduct. Higginson's lawyer ar- Alan Shanoff Social Justice reached a confi dential settle- ment. Last month, a jury in On- tario awarded former Walmart assistant manager Meredith Boucher punitive damages in the sum of $1,150,000 in her action for constructive wrong- ful dismissal. While it wasn't a punitive s bad- gued that an allegation of just cause was fabricated as part of a bogus attempt to avoid paying severance to employ- ees. Th ere was evidence that prior to the dismissal, Higginson was asked to waive most of his severance rights and that when that failed, his employer tried to force his resignation. Th e employer, Babine Forest Products Ltd., appealed the jury verdict and the parties recently General) is also instructive on the extent to which the courts will approve or up- hold signifi cant general damages awards in favour of an employee. Th is time, it was an award of $250,000 as compensa- tion for damage to reputation. Th e government fi red Douglas Tipple damages case, the Federal Court of Appeal decision in Tipple v. Canada (Attorney pr essure off the minister and no eff orts were made to set the record straight and repair his reputation despite an internal report absolving him of any misconduct. Following a three-week grievance hear- ing, an adjudicator awarded $250,000 as compensation for damage to reputation. A Federal Court judge allowed an ap- peal and discharged the award but an ap- peal to the Federal Court of Appeal earlier this year restored it. In doing so, the appeal court cited Wallace v. United Grain Grow- ers Ltd. and its statement that "where an employee can establish that an employer engaged in bad-faith conduct or un- fair dealing in the course of dismissal, injuries such as humiliation, embar- rassment, and damage to one' in 2006 aſt er he worked for just under a year as special adviser to the deputy min- ister for real property business transfor- mation at Public Works and Government Services Canada. As a senior executive in the public service, Tipple' ceived much media attention. Th e media attention was negative as it falsely implied that Tipple had been guilty of serious breaches of duty. But Tipple had been set up to take s termination re- 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 .............................. 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Employ- ers should understand there are conse- quences for their bad-faith actions. 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. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com

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