Law Times

Page 4 January 22, 2018 • Law Times www.lawtimesnews.com particular skills, background and diversity. This stems from concern over a tension for benchers be- tween their obligation to regu- late the profession in the public interest and the fact that they are elected by members of the very profession they are meant to regulate. But if benchers were appoint- ed, the question would then be- come who would be in charge of appointing them, benchers say. In its research, the task force has been reviewing governance models in other professions, as well as other provinces and countries. Life bencher Heather Joy Ross says the first place the law society should look in terms of governance models are those of indigenous peoples. She says that their process- es are focused on inclusivity, reconciliation and respect for elders and what they have to bring to the conversation. "We have much to learn from them," she says. She says the board also needs to have fair representa- tion across the board for differ- ent practice types, geography, gender and race. It is not clear yet what po- tential recommendations the task force may propose in the process, but the group was man- dated to look at everything in the law society's governance structure. One of the questions the task force will tackle is what bench- ers' roles should be regarding operations and policy, says Schabas. This will include exploring what benchers should be doing as a policy board and what they should leave its experts on the operational side of the law soci- ety to do. Schabas also tasked the group with looking at the size and number of committees, as well as the frequency of meet- ings. During his term, Schabas has cut down the size of the law so- ciety's committees so that they have 15 members at the most — a size he says makes them more effective. Some life benchers — a po- sition for benchers who com- pleted four elected terms before term limits were implemented — have expressed concern that they have had a diminished role on committees in recent years. Schabas has defended his committee appointments, say- ing priority must be given to elected and appointed benchers rather than life benchers. Ross, who was first elected in 1995, says she would like to see the board whittled down to 20 benchers. She says it has become abun- dantly clear that Convocation is just too big to accomplish effect- ive policy work or the running of such a large organization. She says there still, however, needs to be a role for life bench- ers, who can be a valuable re- source. "There is also a danger of throwing the baby out with the bath water," she says. Ross hopes there will be a way for life benchers to offer their wisdom and institutional memory in whatever changes may occur. Schabas says there is general agreement that the law society's governance structure is some- what cumbersome and chal- lenging. It remains to be seen whether benchers will be able to agree on what changes need to be imple- mented to make the board func- tion more efficiently. "This is always a challenging issue, but we're going to have some vigorous discussion about modernizing our governance structure," he says. In May 2017, benchers ap- proved recommendations the governance task force put for- ward to make lawyer and para- legal bencher elections occur on a single date, starting on April 30, 2019. Previously, lawyer and paralegal bencher elections hap- pened in different years. LT you'll be fine. And if you're tak- ing a more relaxed approach to interpreting these termination provisions, then there could be some confusion as to whether or not your termination provision meets this more f lexible test or if it doesn't," says Bernardo, who was not involved in the case. The termination clause at is- sue in Nemeth was: "The Com- pany's policy with respect to termination is that employment may be terminated by either party with notice in writing. The notice period shall amount to one week per year of service with a minimum of four weeks or the notice required by the applicable labour legislation." The Court of Appeal found that the clause provides that Ne- meth is entitled to receive one week's notice for every year of service. Bernardo says that the Court of Appeal has indicated in the decision that while a termina- tion clause doesn't need to ex- plicitly oust the common law, it does need to be clear enough to signal that intention, while not excluding an employee's statu- tory rights. "Employers may find that to be a fine line from a draft- ing perspective, with the result that they may not always be sure whether or not their contracts are enforceable," Bernardo says. "Given that uncertainty, we still recommend that employers be explicit about what employ- ees are and are not entitled to upon termination, so that there's no ambiguity later on." Dorian Persaud, who rep- resented Nemeth, says he was arguing for the law in the area to be advanced so that when an employee signs a contract, they know exactly what they're get- ting, including the provision of severance and benefits, as well as what they're giving up. Persaud says there have been some Ontario Superior Court decisions that have seemed to evolve the law in that direction. The Court of Appeal agreed that a high degree of clarity is re- quired, but it held that the parties can agree to any period of notice as long as they do so clearly and do not offend the Employment Standards Act. He says the court's decision still leaves some confusion, as it could be argued that a clause is simply required to say that, upon termination, the employer will comply with its obligations un- der the ESA. "The fact that the employer is saying we are going to com- ply with the ESA — that doesn't tell you anything that you don't already know, and you would not be alert to the fact that in ac- cepting this agreement that you are giving up your entitlements [under the] common law," he says. This is a deficiency in this area of law as it stands right now, says Persaud. For the time being, it is a best practice for lawyers to draft clauses that do not offend the ESA and make it clear to the em- ployee what they are receiving, which will minimize litigation, Persaud says. Bernardo says the decision means that courts may be more willing to uphold termination provisions than they were in the past. But the safest bet for employ- ers is still to be as explicit as possible in their wording about what employees are and are not entitled to upon termination. "Clarity is always going to be the key element of drafting these types of clauses," she says. William Anderson, the law- yer who represented the employ- er, was not available for com- ment. LT Continued from page 1 Employers should use careful wording Board too big: bencher Continued from page 1 NEWS NEWS NEWS An insightful look at forensic evidence and the justice system Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 988068-65203 $99 Softcover August 2017 approx. 860 pages 978-0-7798-8068-3 Multiple copy discounts available Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Get a thought-provoking collection of commentary, case law, journal articles, and legislation offering new insight on the strengths, weaknesses, and limitations of the law and of forensic evidence. You'll gain a deeper understanding of how forensic science fits within the adversarial model of litigation and the role of police, prosecutors, defence counsel, and judges. 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