My apologies for the lack of posts this week. I have been in hearings and out and about the province and will get back into it next week (promise).
425.1 (1) No employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer shall take a disciplinary measure against, demote, terminate or otherwise adversely affect the employment of such an employee, or threaten to do so,
(a) with the intent to compel the employee to abstain from providing information to a person whose duties include the enforcement of federal or provincial law, respecting an offence that the employee believes has been or is being committed contrary to this or any other federal or provincial Act or regulation by the employer or an officer or employee of the employer or, if the employer is a corporation, by one or more of its directors; or
(b) with the intent to retaliate against the employee because the employee has provided information referred to in paragraph (a) to a person whose duties include the enforcement of federal or provincial law.
(2) Any one who contravenes subsection (1) is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction
As I said earlier, the defence relied on the testimony of one independent medical expert evaluation, the actual physical examination component of which lasted less than 30 minutes or perhaps as little as 15 minutes, the testimony of one of two Functional Capacity Evaluators (and at that the partner with the lesser involvement), and the "hunches" of an Early Intervention Consultant and the Manager of Human Resources, both of whom were employees of the defendant, which had the dual capacity of employer and disability insurer.In considering the employee's duty to mitigate her damages Mr. Justice Pitt stated as follows:
It is notable that the letter of instructions to the independent medical expert conveyed the clear impression that the defendant was suspicious of the plaintiff's complaints and expected confirmation of its suspicions.
On more than one occasion, the plaintiff was advised to seek psychiatric help and once to seek a neurological consultation. When her family doctor, Dr. Lodenquai, who saw her during a period of domestic difficulties, suggested psychiatric attention, the plaintiff's response was that it was her husband who needed help rather than her. As I indicated earlier, the plaintiff's medical treatment was sporadic to say the least. She did not see Dr. Leung until November 2000, having been treated up to March 2000 by Dr. Khoury, whom she dismissed for reasons that are not clear to me.This would have established an interesting principle had it been allowed to stand. The Court of Appeal today released an endorsement in this case where it varied Mr. Justice Pitt's decision as relates to the issue of mitigation. The Court also increased the period of reasonable notice from 12 months to 18 months. Read the Endorsement here. A couple of points. When you are retaining a specialist, resist the temptation to express your views in the letter. Try to be as objective as possible in the engagement letter. Also, consider how much weight will be given to the report generated by the expert where a physical examination is not conducted. The employer will probably still engage the expert, but should be prepared for the obvious attack and challenges.
It is my view that the plaintiff had a duty to mitigate her damages by seeking additional medical care in the form of psychiatric assistance as recommended by more than one doctor, and neurological help, to expedite relief from the consequences of the Fibromyalgia. In fact, Dr. Sokoluk assumed in September 2000 that the plaintiff was in the care of a psychiatrist. I believe that it is a fair inference that she would have recovered earlier if she had done so. In light of her past medical history, December 31, 2000 would be a reasonable projected date for such recovery.
The section dealing with determining whether the Act applies to your organization was an eye opener.
The scheme of the statute involves a screening process so that only complaints with sufficient merit will proceed to a hearing. The HRC was assigned the role of gate keeper. Thus the HRC had to assess this case in a preliminary way and make a judgment whether the matter warranted the time and expense of a full hearing. The threshold is not particularly high: whether the evidence takes the case "out of the realm of conjecture": Onischak v. British Columbia (Council of Human Rights) (1989), 38 Admin. L.R. 258 at 266 (B.C.S.C.) per Huddart J. (as she then was), followed by Shaw J. in Rogers v. British Columbia (Council of Human Rights) (1994), 21 C.H.R.R. D/67,  B.C.J. No. 698 (QL) at para. 18 (B.C.S.C.), which in turn was applied by this Court in Kratoska v. British Columbia (Council of Human Rights) (1997), 88 B.C.A.C. 241,  B.C.J. No. 638 (QL) at para. 11.
I understand that memories fade over time. Further, some events that appear inconsequential as they are occurring, take on great significance years later in the courtroom. I am always puzzled when a witness in a theft case says "I don't recall" when asked if he took the money, product or whatever. I would have thought that the answer is either "yes" or "no". Also, it amazes me how much clarity and detail plaintiffs or grievor's can provide about the minutiae of a day or week 2 years ago but yet they can't remember things that I would have thought were significant. As the Gibbons case illustrates, the Court will make note of this in weighing the totality of the evidence.
If you're an employer carrying on business in Ontario I would encourage you to read the Year-End Results: 2003-2004 and News Release. You will have to click the "next" button at the bottom of the page to scroll through the report. If you're only going to read one thing, though, you should scan this chart
Here are some of the highlights (for me):
In any negotiation, there's nothing more powerful than being ready, willing and able to walk away. Most people, however, are not prepared to walk away; instead, they have invested time, effort and resources in trying to achieve an agreement. At a certain point, they feel that they are committed and, if the other side sees this, they will exploit it to their advantage. This is the case in any negotiation whether it be a collective bargaining, buying a car or a house. Herb Cohen, a master negotiator, calls this "caring, but not too much".
Sometime, of course, you can't walk away, there are other pressures to conclude an agreement.
So read the article, if for no other reason than it has some great stories in it. Also, pick up Herb Cohen's excellent book You can Negotiate Anything.