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 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.
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 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.
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.
Law Society of Upper Canada