Law Times

Law Times • December 10, 2012 COMMENT STRICT CONTRACT LAW RULES NOT APPLICABLE TO EMPLOYMENT MATTERS As a practitioner who limits his practice exclusively to issues relating to employment law, I have often been frustrated by the approach the courts have taken when deciding liability and awarding damages in cases dealing with just cause and constructive dismissal. I primarily represent plaintiffs and thus my position is perhaps somewhat biased but I feel that the tortured attempt by the judiciary to apply strict principles of contract law to the analysis is often unworkable. In many instances, it doesn't reflect the reality of the workplace and the modern employment contract both in regard to its creation and its implementation. It has always been my belief that if freed from the constraints imposed by traditional contractual analysis, both employees and employers would be better served. Employees would feel less objectified and employers would benefit from a more motivated workforce whose commitment to the workplace was more motivated by loyalty than fear. It is with this viewpoint in mind that I read Alan Shanoff 's Nov. 5 commentary piece (see "Courts change approach to punitive damages in employment law") with interest. It came as no surprise to me that juries would be inclined to award significant punitive damages. They are not saddled to the same degree as judges with the limitations imposed by strict adherence to legal principles. An employment contract does not lend itself well to doctrinal analysis. As a result, a jury of ordinary citizens is, in my opinion, likely u LETTERS TO THE EDITOR to focus more acutely on the inequities inherent in the actions of management and less likely to limit its reaction to the treatment afforded an employee whose livelihood is on the line and whose resources pale in comparison to those of the vast majority of employers. It was not a flippant remark when the late justice Randy Echlin described termination as the "capital punishment crime of employment law."  I am not trying to suggest that judges are blind to the uniqueness of the employment relationship even when viewed through the filter of legal principles. However, their task in deciding liability and the consequences is necessarily more difficult and, I would argue, less fair to the employee due to the necessity of applying the rules of contract law to a relationship where they often don't apply or are tenuous at best. For instance, the assumption that both parties enter into a contract on an equal footing is a virtual fiction. That imbalance usually continues throughout the currency of the contract and frequently makes its presence felt at its demise. This is rarely the case with other contracts of service. Yet in the employment context, the belief in equality of bargaining power in the guise of the intention of the parties at its inception still holds sway. Certainly, the consideration that this belief is often fallacious seems to be of little consequence. It is my opinion that a new approach is needed in the analysis of employment contracts given the nature of the employment relationship. Concepts such as the intention of the parties in its formulation simply don't apply in most instances. The fact that juries whose members are free from such constraints make enlightened awards provides hope for the future, in my view, particularly if that feeling is adopted by the judiciary as well. Shelley Brown, Steinberg Morton Hope & Israel LLP, Toronto COLUMNIST CHALLENGED OVER BILINGUAL JUDGES I read with disappointment your comment piece on Nov. 26 by Richard Cleroux entitled "Nicholson's letter gets it wrong on bilingual judges." Cleroux suggests that it was the intention of the drafters to grant a constitutional right to be understood in either official language by all nine justices of the Supreme Court. I am unsure whether the author is disingenuous or vitally misinformed. "Nicholson believes the nine judges of the Supreme Court don't all have to understand both official languages," Cleroux wrote.  This is not something that the minister believes. It is a correct statement of the current system of selection for Supreme Court justices. Were that not the case, the NDP's failed motion to require Page 7 bilingual judges would have been completely unnecessary.  The Supreme Court of Canada Act was passed in 1875. The court went to its current nine-seat format in 1949. Neither then nor in 1982 was there any intention to require judges to be bilingual. Suggestions to the contrary by Cleroux are simply wrong. While a full airing of both sides of any such issue is healthy and vital, I would encourage Law Times to ensure that its columnists do not strengthen their arguments at the expense of factual accuracy. Duncan Read, Articling student, Ottawa DON'T CALL PROVINCIAL OFFENCES COURT 'JUNIOR' A recent article, "Right to hearing within reasonable period on trial again," that appeared in the Speaker's Corner section of the Nov. 12, 2012, edition of Law Times made reference to the Provincial Offences Act courts as being "junior courts." Although the article recognizes the often very serious nature of these cases, this terminology, intentionally or not, distracts from the important work of the Ontario Court of Justice, especially in relation to provincial offences. As members of the Law Society of Upper Canada, I suggest that it is our duty to recognize wherever possible the contribution and role of all of our courts. Undervaluing the work of any court is inconsistent with our role to promote confidence in the administration of justice. Thomas Conway, Treasurer, Law Society of Upper Canada Court to determine fate of Harper's residential schools promise B ack in 2008 when Prime Minister Stephen Harper made peace on our behalf with victims of Indian residential schools, it was a historic moment. Aboriginal leaders believed Harper's promises. Some even cried. It followed on the Indian residential schools settlement of 2006 and 2007 when the federal government promised it would set up a national research centre on residential schools as a documentary repository for the horrors that took place in them. The federal government would hand over all of its files and materials linked to the cultural genocide so that for academics, historians, researchers, and especially Aboriginal Peoples themselves, there would be a permanent and indelible record for all future generations. The truth and reconciliation commission had the task of setting up the research centre. For a while, it seemed that everything was working out. Various government departments sorted through files and prepared them for presentation. The churches that ran those schools for the government until 1995 did their part by freely handing over their documents. Everything seemed all right. But things then began going terribly wrong. Harper discovered that setting up a research centre was a lot more complex and expensive than simply making a promise to do it. Besides finding a physical location, those involved had to gather the material, sort it, prepare it, and digitize it. And now as we approach the end commission's application of the five-year mandate of has been "encounthe truth and reconciliation The Hill says it serious difficulties" tering commission, only about after trying many times to 937,000 of the estimated obtain the remaining remillions of additional cords from the federal govdocuments still to come ernment. are ready for presentation It's a financial issue. to the research centre. The Canada's Aboriginal Peomoney has already begun ples recognize that but they to run out. Harper is running yet Richard Cleroux also know Harper is spending money elsewhere while another large deficit this year. The national debt has ballooned they wait. It's their history that's falling victim to more than $600 billion. Government efforts to gather and present re- to the money crunch. A people withcords and materials for re-enactments out history isn't a people and should of the War of 1812 and a nationwide be assimilated, Lord Durham said in publicity campaign have cost upwards 1838 about French-Canadians. It was as true then as it is today. of $8 million. If you deny a people their history, Harper can't just tell aboriginals to look up his War of 1812 documents you also deny who they are. That's and try to make do with that. They'll what taking their kids away and trying to make them into white people is all hold him to his promise. The millions of documents, re- about and is exactly what the residencords, and materials still to come go tial schools did. In November, the federal governback 140 years to when the schools began. The truth and reconciliation ment and the commission squared off commission grew tired of waiting for in the Superior Court with factums, them this year and in March 2012 affidavits, and other written docufiled an application with the Ontario ments. The government argued it's too Superior Court to force the Harper difficult to organize and present the government to come through with remaining documents. It wrote that promises the prime minister made not all of the residential school documents it has are relevant. during the last decade. It also noted that some of the docuThe commission hired Toronto lawyer Julian Falconer as its outside ments belong to the churches. It's as if legal counsel to put Harper's feet to the churches were trying to hold the the fire. The court will hear the case in government back when in fact they've Toronto on Dec. 20 and 21. It should been co-operative, forthcoming, and always overwhelmingly apologetic, as continue into the new year. In a polite understatement, the they should be. www.lawtimesnews.com The government documents relating to the residential schools have been out of public view for so long that most Canadians, especially aboriginals, don't even know what exists. Talk about being denied your own history. The truth and reconciliation commission expresses the issue well on its web site: "For over 100 years, aboriginal children were removed from their families and sent to institutions called residential schools. The governmentfunded, church-run schools were located across Canada and set up to eliminate parental involvement in the spiritual, cultural, and intellectual development of aboriginal children." More than 150,000 First Nations, Métis, and Inuit children had to attend these schools. In many cases, the parents never saw their children again, leaving what the commission calls "a legacy of unresolved trauma passed from generation to generation." It has had a profound impact on the relationship between Aboriginal Peoples and the rest of Canada. So at the end of the month, the final chapter in what has been an enduring horror story of the residential schools will emerge from a Toronto courtroom to determine whether a promise is a promise or if the words of a white man are worth no more than they have been for the past 140 years. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com.

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