Thoughts from a Management Lawyer

Effective Releases in Human Rights Cases

The Ontario Human Rights Tribunal in Oxley v. Gus Brown Pontiac Buick GMC considered whether a release signed by a terminated employee was effective to bar her human rights complaint.  The release included a provision that released the employer from complaints under the Ontario Human Rights Code. 

The applicant claimed that the release was not enforceable to bar her application under the Code because, in part, she "was under considerable stress as a result of an ongoing family dispute".  There were other arguments and you can read them in the case.

The preliminary issue to be decided was the effect of the release on the complaint.  The fact that the release expressly forecloses a human rights complaint does not end the inquiry.  The Tribunal stated in Bielman v. Casino Niagara that:

The Code does not explicitly bar applications such as this where a release has been signed by the applicant. In each case where a respondent requests early dismissal of an application, the Tribunal must decide whether, in the circumstances, it would constitute an abuse of the Tribunal’s process to allow the application to proceed to a hearing on the merits.  An important consideration in that analysis is the respondent’s reasonable expectation that a release of this kind will bring finality to any employment related dispute they may have with a former employee.

As the Tribunal noted in Oxley, failure to uphold releases "and to hold parties to their commitments, can undermine the integrity of negotiated settlements and hinder the timely and informal resolution of disputes."  True enough. 

The Tribunal also considered the leading case of Pritchard v. Ontario (Human Rights Commission).  While this was decided under the old-Code, the Tribunal nonetheless held that the Pritchard-factors "can be useful in determining whether it would be an abuse of process to proceed with a hearing on the merits".  Those factors are:

1. whether the party fully understood the significance of the release;
2. whether she received sufficient and fair consideration for signing the release;
3. evidence of economic pressure; and
4. evidence of psychological or emotional pressure amounting to duress. 

The Tribunal found that there was no "severe financial pressure or at imminent risk of adverse health consequences" nor was there any "misrepresentation in the negotiations that led to the signing of the release".  Accordingly, the Tribunal dismissed the application.

Bielman was considered by the Tribunal in a number of cases.   

In Arrindell v. Toronto Marriott Downtown Eaton Centre, an employee was terminated after 18 years employment and offered 11 months salary and benefits in return for her signing a release.  She retained a lawyer (two it seems) who assisted in negotiating a settlement.  Although the employer would not change its original offer the employee signed a release that included a release of claims under the Human Rights Code.  The Tribunal dismissed the application on the basis that it was an abuse of process:

The applicant did not articulate any compelling reasons why the settlement and Release should not be binding on her. I find that she understood the consequences of what she was signing.  I also find that there was good and sufficient consideration for the Release.  She had the benefit of independent legal advice and took several months before executing the Release.

The Tribunal commented on the "economic pressure" faced by the applicant:

If a settlement freely arrived at can be avoided merely by asserting economic pressures, the incentive for the parties to resolve their disputes without a hearing will be gone and every such claim will have to be fully adjudicated. 

The effect of a release (including Bielman) was considered in a unionized setting in Ababio v. Humber River Regional Hospital.  The tribunal dismissed the application and discussed delay, but went on to discuss the release.  Among other things, the Tribunal noted that:

There may be circumstances where the Tribunal will look behind the terms of an agreement to settle to determine whether the there are Code-related issues which may have forced the applicant into the settlement (see for example Bielman and Casino Niagara/Complex Services Inc. 2009 HRTO 123 (CanLII), 2009 HRTO 123 (CanLII).  In this case, however, there is no claim that there was a nexus between the settlement and the applicant’s disability.

The Tribunal in Ababio discussed the purpose of the Code provisions as relates to claims against a Union:

The allegations against the union focused on its representation of the applicant as bargaining agent, which was dealt with in the applicant’s complaints to the OLRB.  As stated in Barton v. Miller, 2008 HRTO 205 (CanLII), 2008 HRTO 205 (CanLII), the Code is not intended to address issues of misconduct or incompetence which that are not based on a prohibited ground.

The Tribunal also dismissed the application in Jiang. 

It is clear that, in an appropriate case, a full and final release that clearly encompassed claims under the Code can be enforced so as to result in the dismissal of an application under the Code.  This is not to say that the fact that an employee signed a release is an automatic full-stop.  The Tribunal will be called upon to conduct an analysis of the surrounding circumstances surrounding the signing of the release and the factors emerging from the case law. 

While the role of the Commission has changed under the new Code, you can read the Human Rights Commission Policy Guide to Releases with Respect to Human Rights Complaints. 

Transparent Value Based Pricing

Jordan Furlong has an article in The Lawyers Weekly in which he asks whether 2010 be the year of the fixed fee?  Jordan says:

Many lawyers have grown accustomed to matching price to cost by directly billing their costs (hours worked) to clients, and to growing their revenue principally by encouraging the continuous generation of more hours at higher rates. That simply won’t work in a fixed-fee environment. Firms must learn to monitor and precisely calculate their internal costs of doing business and find ways to reduce those costs by sourcing their work more efficiently.

Clients are demanding transparency and predictability in pricing and expecting their law firms to act efficiently in all their dealings.  The question is whether the traditional model built on hourly billing including annual billing targets achieves those things that clients are requiring of their law firms.  Jordan's article is well worth a read.

Discussing the Duty to Accommodate

There's a good discussion of the duty to accommodate in the recently released Human Rights Tribunal case of Scarlett v. Hamilton Health Sciences Corporation.  Among other things:

1. The duty to accommodate has both procedural and substantive obligations. (Meiorin)
2. The procedural component requires an individualized investigation of accommodation measures and assessment of the employee’s needs.
3. The substantive aspect of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation.
4. The test of when the duty to accommodate is triggered is whether the employer knew or ought reasonably to have known that the applicant had a disability requiring accommodation.
5. While an employee need not necessarily disclose the diagnosis of the disabling condition, he or she "should endeavour to provide as much information as possible to facilitate the search for accommodation." (Simpson v. Commissionaires (Great Lakes))
6. The duty to accommodate is part of a collaborative process, in which the employer’s actions and responsibilities must be understood in the context of the information before it and positions taken by the employee.

In the end, the Tribunal dismissed the complaint.

Not only does this case provide a good overview of some key components of the duty to accommodate but it also highlights the collaborative aspects of the duty and the fact that the procedural aspects of the duty and how the employer deals with the employee and the employee's response can greatly influence the outcome of the case.  

Determining Jurisdiction in a Unionized Workplace

Sometimes unionized employees will sue their employer instead of pursuing the complaint as a grievance under the collective agreement.  After considering the claims advanced and the collective agreement in issue, the employer will often bring a motion to strike out the claim on the basis that the Court has no jurisdiction to hear the case.  The leading case is Weber v. Ontario Hydro decided by the Supreme Court of Canada in 1995 and applied in countless subsequent decisions. 

The most recent case to discuss the Weber doctrine is Kohlhammer v. Modern Railings & Metalcraft Ltd. where the court considered a number of claims brought by a unionized employee, applied the Weber principles and concluded that it was without jurisdiction to hear the matters.

The Court also discussed the Workplace Safety and Insurance Act and whether "assaults" fall within the exclusive jurisdiction of the Tribunal.  The Court held, in obiter, that:

The second submission addresses the claim for assault which is clearly a workplace injury within the “exclusive jurisdiction” of the statutory scheme for such injuries established by ss.26 and 118 of the Workplace Safety and Insurance Act 1997.  Even deliberate assaults fall within the extended definition of an “accident” in s.2 of the Act.  The Court has no jurisdiction to hear this matter and it must be heard by the regulatory tribunal established under the legislation.

It's an interesting case in a long line of cases.

Thank You and Clawbies

Thank you for all who emailed me with good wishes in response to my last post.  I am excited about this new opportunity and am having a tremendous amount of fun so far.  And, no, I do not miss the commute.

Also, I am delayed in thanking all those who nominated this blog for the 2009 Clawbie's and for making it a Finalist in the category of "Best Practitioner Blog" won (a tie) by Erik MacGraken’s BC Injury Law and ICBC Claims Blog and Dan Mikaluk's All About Information.  I've been following Dan's blog since its inception and this honour is well deserved as his blog is one of the most informative legal blogs out there. 

I'd also like to thank Steve Matthews and all the folks at Stem Legal for promoting Canadian legal blogs and for supporting the Clawbies.

A New Year and a New Beginning

Happy New Year and I wish you all the best for 2010!

I've been getting some email asking why the blogging has been so light.  Well, now I can explain.

After 17 wonderful years practicing labour and employment law with one of Canada's largest national law firms, I have decided to take my career in a different direction and have resigned as a partner with the firm effective December 31, 2009 in order to start my own labour and employment law boutique called Watershed LLP with my good friend and now partner Steve Mendelssohn.

This was, as you'd expect, a pretty tough decision.  I have worked with some great lawyers at my old firm and have made some great friends there over the years and I will miss our daily dealings greatly.  Sometimes, though, an opportunity presents itself that hits home with such force that you simply have to pursue it.   The opportunity to found something that was my own and on which I could directly put my mark was simply too much to pass up. 

For a long time I have seen that the practice of law and the way in which legal services were delivered was at a fork-in-the road.   The recession sped things along, but even before that the signs were there that change was coming.  Steve and I have talked about this for some time and decided that we can either keep talking about it or do something.   

Steve is, of course, a lawyer, but more than that, he's a lawyer with 20 years of business experience working at a senior level as a labour and HR practitioner in some of Canada's largest companies and, more recently, as the president of an HR consulting firm.  His experience is quite unique among lawyers and Watershed's "Two Lenses One Focus" approach is what we strive to bring to every project.   Steve knows first hand what it means to be "the client" and understands the issues that a client faces when engaging outside counsel.  That allows Watershed to offer something that is unique in terms of services and delivery.

We're also joining a growing list of lawyers and law firms including employment lawyer Jay Shepherd (Shepherd Law Group) and Patrick Lamb (Valorem Law Group) and with a nod to the vision of my friend  Jordan Furlong that are moving away from hourly-billing in favour of more innovative approaches built on transparency and predictability.   We firmly believe that billing by the hour is not sustainable (for lawyers or clients) and that law firms will have to change, whether or not they want to.   We're not alone in holding this view or in wanting to change things.  These "alternate" (Jay calls it "open" which I like) pricing models force efficiency onto the lawyers, which is not a bad thing.

Some clients are currently comfortable with and have become accustomed to hourly based billing.  We get that and we can accommodate those situations in our model though will be discussing with our clients options that bring efficiencies to our relationships. 

Law is a conservative profession and change does not come easily or quickly despite the fact that the writing has been on the wall for a while.  Have a read of Jordan's award-winning blog Law21 and his posts including, among others, Ready or not here come the clients where he suggests that "we’re entering the Decade of the Client".  That's a great thing so far as I'm concerned.

To say that I'm excited about this new venture would be an understatement.  So stay tuned as I’ll be posting more about the goings on at Watershed LLP and, of course, about labour and employment law.