In a case that raises questions about the professional obligations of an articling employer, a law student is suing Legal Aid Ontario and the Law Society of Upper Canada after being terminated two weeks into his term.
|Andrew Sudano says, in his experience, employers will stick it out with their articling students, even if problems arise.|
He claims the law society, too, was negligent in allowing the breach to occur.
Polanski’s lawsuit relies entirely on a provision within the Lawyer Licensing Policies that states “a Candidate or principal may terminate articles where problems arise between the candidate and the principal that cannot be resolved to the satisfaction of both the candidate and the principal.”
According to Polanski, Scharfe violated her professional duties by failing to specify “unresolvable issues.” Unfortunately for him, the statement of claim lacked any information about reasons for the termination.
Ontario Superior Court Justice Edward Morgan, reviewing a motion to strike the claims for lack of cause, seems utterly bewildered by the dearth of useful information.
“I do not know what happened to abort the Plaintiff’s articles,” writes Morgan in his decision. “One can read and re-read the rather brief Statement of Claim, but nothing will reveal why the Plaintiff was fired.
“To make a short story long, the pleading does not disclose what led to the unfortunate situation in which the Plaintiff now finds himself and what, if anything, he did to deserve having his career cut short at such an early stage. Nor does it reveal why his employer, LAO, dismissed him, what steps Ms. Scharfe as articling principal took or did not take culminating in the termination of his articles, or what LSUC as regulator did or did not do in response to this situation, etc.”
Morgan starts by striking out the claim against the law society. He suggests that Polanski has misunderstood the role of the law society as a professional regulator, and not a service administrator that can be held to account for failing to carry out its mandate.
In a clever analogy, Morgan says that “LSUC no more administers an ‘articling program’ or provides a ‘service’ for licensees than Canada Revenue Agency administers a ‘taxation program’ or provides a ‘service’ for taxpayers. That is simply not the function of the regulatory body.”
Even if LSUC could be considered a service provider, Morgan writes, the law society has a statutory immunity from these claims, which can only be bypassed by a claim of gross negligence.
Morgan then goes on to strike the claim against Scharfe, although he suggests that it’s at least arguable that an articling principal has obligations to the student. He has given the articling student, by definition inexperienced, 30 days to amend his claim to resolve certain defects.
For example, the claim is directed against his supervisor but not LAO — a fatal flaw given that Scharfe herself was only an employee and not the “directing mind” of the organization. Regardless of the merit, Scharfe personally cannot be held responsible for the organization’s decisions.
More importantly, the judge insists any amended statement of claim contain actual information about an instance of negligence or malicious intent.
“Ms. Scharfe’s breach of duty is asserted as a bald fact,” writes Morgan, “with nothing further to indicate what she did to allegedly fail to fulfill her professional duties or to fall below the requisite standard of care.”
Family lawyer Andrew Sudano, at Shawyer Family Law in Toronto, has been on both sides of the issue in recent years. Called in 2012, he articled with his current firm, and then just this year acted as articling principal for the first time.
Sudano says that he feels for the plaintiff: “When we interview with the students, they are, generally speaking, very vulnerable, because they have a lot of debt and they don’t know what they want and they don’t know what to expect.”
While there simply isn’t enough information in this case to speculate as to what might have caused the termination, Sudano says, in his experience, employers will stick it out with their articling students, even if problems arise.
“You’re making such a commitment to that person,” he says. “And this person is going to become a lawyer in their own right, and we may be working together for 30 or 40 years, so it’s important you look at things in the long term and try to not alienate too many people.”
The reality, however, is that some articling students, regardless of their grades or educational credentials, may not be the right “fit” for an organization, he says — a problem that could constitute an “unresolvable issue.”
Practically speaking, Sudano suggests employers and articling students draft an employment contract with clear expectations.
“It’s always good, particularly for students, to put it in writing,” he says. “What are the expectations? What am I explicitly required to do, so this way there’s no mystery and they’ll at least have a better sense of what they’re getting into.”
Counsel for both defendants declined comment pending a revised statement of claim. The plaintiff could not be reached in time for this article.
New judicial appointments will mean fresh faces on the bench in Quebec, Alberta, British Columbia, and Ontario, as well as on the Federal Court of Appeal.
|Freya Kristjanson will join the Ontario Superior Court of Justice in Toronto as a judge.|
On Friday, the Trudeau government announced its first judicial appointments since taking office last fall. There are 15 appointments, including six in Alberta, five in Ontario, two in British Columbia, one in Quebec, and one in the Federal Court of Appeal. Of the 15, 10 are women and five are men.
In Alberta, Sheilah L. Martin — formerly a judge with the Alberta Court of the Queen’s Bench in Calgary — has been elevated to Alberta Court of Appeal in Calgary. She replaces Justice C. O’Brien, who retired in 2014.
Martin, who holds degrees from McGill University and the University of Alberta and a doctorate from the University of Toronto, has been on the bench since 2005. She spent 16 years as a professor and dean of the faculty of law at the University of Calgary and has spent four years with Code Hunter LLP in Calgary, from 2001 to 2005, and three with Evans Martin and Wilson (formerly known as Wolch Wilson and Dewitt), from 1996 to 1999.
Martin made headlines recently for her decision to grant approval to an ALS survivor for physician-assisted suicide, while the government was still working on its new law in the area.
Shelia J. Greckol has been elevated to the Alberta Court of Appeal in Edmonton from the Court of Queen’s Bench. She fills the spot vacated by Justice Russell S. Brown, who was appointed to the Supreme Court in 2015. Greckol will also be serving as a judge of the Court of Appeal for the Northwest Territories and the Court of Appeal of Nunavut.
Greckol, who was called to the bar of Alberta in 1976, has served on the Court of Queen’s Bench since 2001. Before that, she was a partner with Chivers Greckol & Kanee from 1986 to 2001, and an associate and a partner with Wright Chivers & Co.
Filling Greckol’s spot at the Court of Queen’s Bench in Edmonton is John T. Henderson. Henderson was called to the Alberta bar in 1980, and then spent 19 years with Fraser Milner Casgrain LLP (now Dentons Canada LLP). Since 2009, he has been a judge with the Provincial Court in Edmonton.
Douglas R. Mah, who was secretary and general counsel with the Alberta Workers’ Compensation Board in Edmonton, has been appointed to the Court of Queen’s Bench. The spot has belonged to Justice D.R. Thomas, who elected supernumerary status in 2015.
Since 1988, Mah has been counsel with Worker’s Compensation, and before that was an associate with Milner & Steer in Edmonton. He was called to the bar in 1982.
Another new face at the Court of Queen’s Bench in Calgary is Gillian D. Marriott. Marriott is the former executive director of Pro Bono Law Alberta, from 2009 to 2013, and has been counsel with Widdowson Kachur Ostwald Menzies LLP in Calgary since 2013. Marriott replaces Justice Martin, who was elevated to the Alberta Court of Appeal.
She also is a former associate, then partner, with Dunphy Best Blocksom LLP. She also has experience with the Alberta Law Reform Institute and the Health Law Institute
Rounding out the Alberta appointments is Avril B. Inglis, a prosecutor with Alberta Justice in Edmonton, who will be joining the Court of Queen’s Bench in Edmonton.
Inglis was called to the bar in Manitoba in 2000 and in Alberta in 2003. She was a Crown prosecutor in both provinces from 2000 to 2014. In 2014, she became project counsel with Alberta Justice and Solicitor General, in Edmonton. Inglis replaces Justice F.L. Schutz, who was also elevated to the Alberta Court of Appeal.
New appointments in Ontario will mean new faces in Ottawa, London, Toronto, Oshawa, and Brampton.
In London, Justice Jonathon C. George has been elevated from the Ontario Court of Justice and will join the Superior Court bench. George was admitted to the bar in 2001, and is a graduate of the University of Western Ontario. George replaces Justice B.M. Miller, who has been with the Ontario Court of Appeal since 2015.
Since 2012, George was a provincial court judge in London and previously served as the legal counsel for the Kettle & Stony Point Chief and council, in Kettle Point First Nation, as well as being an associate with Robbins Henderson & Davis in Sarnia.
Longtime Superior Court Master Calum U. MacLeod now joins the Superior Court bench in Ottawa. MacLeod is a graduate of Queen’s University, and has been a case management master since 1998. He was also previously an associate with Zwicker Evans & Lewis, in Barrie, Ont., and was admitted to the Bar of New Zealand in 1988 and the bar of British Columbia 10 years later.
MacLeod replaces Justice H. Levenson Polowin, who died in May.
In Toronto, Freya Kristjanson is also joining the Ontario Superior Court of Justice. Kristjanson has been a partner with Wardle Daley Bernstein Bieber LPP since 2015 and a partner with Cavaluzzo Shilton McIntyre & Cornish LLP in Toronto from 2009 to 2014. She also has experience as counsel and then partner with Borden Ladner Gervais LLP in Toronto from 1989 to 2008. She was admitted to the Ontario bar in 1989.
Kristjanson will replace Justice G. Mew, who is now in Kingston, after being transferred there to replace Justice Scott in 2015.
Toronto lawyer Sharon Lavine will be joining the Ontario Superior Court of Justice in Oshawa, to fill the role vacated after Justice M.L. Lack elected supernumerary status earlier this year.
Lavine has served as the alternate chair of the Ontario Review Board since 2004, as well as an associate and then partner with Greenspan Humphrey Lavine in Toronto since 1993, when she was admitted to the bar in Ontario.
Lastly for Ontario, Lucy K. McSweeney will be joining the Ontario Superior Court in Brampton.
Since 2010, McSweeney served as the Children’s Lawyer for Ontario, with the Ministry of the Attorney General. Her prior experience was as litigation counsel with the Ministry of the Attorney General, including as deputy legal director of the strategic planning unit and of the Crown Law Office – Civil. McSweeney replaces Justice D.L. Edwards, who was transferred in March.
On the West Coast, Margeurite H. Church has been elevated to the Supreme Court of British Columbia in Prince George. Church has been a judge of the Provincial Court of British Columbia in Williams Lake since 2011.
She has prior experience with Cundari Seibel LLP in Kamloops and Rogers & Hyslop in Kamloops. She also was a senior research associate with Department of Asian Legal Studies at the University of British Columbia and an associate with Rudd Watts & Stone in Auckland. She is called to the bar in both British Columbia and New Zealand. Church is taking the spot formerly filled by Justice J.W. Williams, who was transferred to Vancouver in 2014.
Maria Morellato, a partner with Mandell Pinder LLP in Vancouver, joins the Supreme Court of B.C. in Vancouver.
Morellato has been with Mandell Pinder since 2009, and was an associate and partner with Blake Cassels and Graydon LLP from 1989 to 2008. She also has experience with the Industrail Relations Council and as an associate with Alexander Holburn Beaudin & Lang. Justice L.A. Fenton — who previously had the spot — was elevated to the Court of Appeal in 2015.
In Quebec, Éric Downs, who was a judge with the Court of Québec in Montréal, will now be serving on the Superior Court of Québec in Montréal. Downs has been on the bench since 2012. His predecessor in the position — Justice M. Delorme — resigned in 2015.
Downs was previously a partner with Downs Lepage from 2008 to 2012. From 1991 to 2008, he was counsel and then partner with Hebert Bourque et Downs, and a prosecutor with Justice Quebec for four years, from 1987 to 1991.
Judith M. Woods, a judge with the Tax Court of Canada, has been elevated to the Federal Court of Appeal. Woods has been with the Tax Court since 2003. Justice C.M. Ryer had resigned in May from the court.
She was previously a partner with McCarthy Tétrault LLP from 1978 to 2003. She also served as a lawyer with Dow Chemical Canada, and was admitted to the bar in 1976.
The appointments are all effective immediately.
The federal government had come under fire in recent months for judicial vacancies that critics said were clogging the courts.
“We know that our country is stronger, and our judicial system more effective, when our judges reflect Canada’s diversity. As promised, we have filled the urgent judicial vacancies by drawing on a list of recommended candidates who are of the highest caliber and who are as diverse as Canada,” said Jody Wilson-Raybould, federal Justice Minister and Attorney General of Canada.
In a statement, Canadian Bar Association president Janet Fuhrer said, “We are delighted that the government has started to fill the vacancies on the courts. The unfilled vacancies have created some delays and other problems for Canadians seeking justice.
“While we all wish for vacancies to be filled expeditiously, we understand that revamping the process will take time and appreciate the Government’s efforts to do things right. We are in communication with government officials and the Minister’s office and fully expect an ongoing dialogue on how best to fill vacancies and appoint a judiciary that is reflective of Canadian society.”
An Ontario Superior Court judge has ordered a stay of criminal charges against an alleged drug supplier until he gets a government-funded defence lawyer.
|'It should be obvious . . . the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,' wrote Justice Ian Nordheimer.|
A single income individual in Ontario would have to make $12,000 or less in order to qualify for legal aid, according to the ruling in R. v. Moodie.
“It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,” wrote Nordheimer.
“As just one comparator, in a report issued last year, Statistics Canada calculated the low income cut-off, before tax, for a single person living in a metropolitan area (more than 500,000 people) for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses,” he noted. “The low income cut-off is the level of income below which persons are paying a disproportionate amount of their income for basic necessities (food, shelter and clothing).”
The Crown had argued the applicant failed to take adequate steps to come up with enough funds to pay defence counsel, suggesting he could have asked for a bank loan, got a second job, or asked a family member to co-sign for a loan. Nordheimer said none of these suggestions are realistic.
“No financial institution is going to loan the applicant money given his income level, his lack of exigible assets, and his outstanding credit card debt,” said the judge. “The applicant’s father has made it clear that he is not going to assist his son in any way. Unfortunately, the applicant’s mother is no better situated financially, than is the applicant, in terms of co-signing for a loan.”
Partly because the applicant’s bail conditions impose a curfew, he was also unable to find a second job, the judge said.
Rowbotham applications have become more common in recent years, according to criminal lawyer Sean Robichaud.
“In the past five years, I’ve seen Rowbotham applications skyrocket and the reason for that, it seems, just as the justice pointed out, is [that] the threshold and criteria that are being used by legal are entirely out of touch with the standards of poverty and need for people seeking legal assistance who can’t afford it,” Robichaud says.
But part of what’s driving Rowbotham applications is also LAO’s reluctance to grant change of solicitor requests when an accused no longer wishes to be represented by their legal aid lawyer, says Robichaud. That leaves individuals who can no longer continue their relationship with their current counsel without a lawyer.
“The change of solicitor application is a different procedure altogether that has nothing to do with poverty, therefore it’s a way for [LAO] to claw back on certificates without violating their own internal polices that have been set by the government,” says Robichaud.
He says these kinds of administrative difficulties add to defence counsel’s hesitation to take on legal aid certificates.
For its part, Legal Aid Ontario says it has to make do with its fixed funding from the province.
“As with all legal aid plans, Legal Aid Ontario operates within a fixed budget so must be responsible in how the public money it receives from the Ontario government is spent,” says spokesman Feroneh Neil.
“The demand for legal aid assistance for low-income Ontarians is high. While the province has recognized this by raising the legal aid financial eligibility thresholds, Legal Aid Ontario has a yearly budget it must adhere to and must prioritize, in accordance with its legislation, the cases it is able to fund.”
Order could be restored at the Ontario Superior Court’s overstretched fee assessment office, thanks to a decision yesterday from the Divisional Court that relieved the court of sole jurisdiction to handle those files.
The Divisional Court’s ruling contradicts another one released by the same court in 2014. Jane Conte PC v. Josephine Smith shocked the system when it said all lawyer fee disputes must be resolved at the Superior Court. Prior to the 2014 ruling, those matters could be dealt with at the Small Claims Court.
A more liberal interpretation of the Solicitors Act, Justice Michael Dambrot’s decision in Cozzi v. Heerdegen, says the Small Claims Court has jurisdiction to deal with claims arising from simple retainers. Dambrot says only contingency fee arrangement accounts need be assessed by the Superior Court’s assessment office.
In Conte, Justice Ian Nordheimer pointed to a little-known section of the Solicitors Act, which states all claims for non-payment must go to the Superior Court.
“Partly because of that decision, a very significant jam was created,” says Toronto lawyer Ben Hanuka of Law Works PC. “Everything had to be diverted through this narrow pipe [at] the assessment office.”
In an endorsement written early this year, Superior Court Justice Sean Dunphy said the delay required to get an assessment hearing is “unacceptably long.” But in the same ruling, Dunphy dismissed requests by Toronto intellectual property law firm Gilbert’s LLP for an order that two clients pay outstanding bills arising from undisputed retainers.
Essentially, the issue at the centre of the chaos is poorly drafted legislation, according to Hanuka. He says, s. 17 of the Solicitors Act might could, technically, be read to suggest that every written agreement for legal services must get a blessing from the Superior Court before a payment can be made.
“The problem is that it’s almost nonsensical,” Hanuka says, adding Dambrot’s decision in Cozzi is “the only way forward.”
After Nordheimer wrote Conte, paralegals like Frederick Goodman, who went the Small Claims Court to resolve lawyers’ fee dispute matters, could no longer do those jobs as paralegals don’t have standing at the Superior Court. This morning, speaking from the Small Claims Court, Goodman says he’s “back in business.”
“This decision . . . restores our ability to pursue claims for lawyers in the Small Claims Court for unpaid accounts but only in so far as those [accounts] which are not contingency fee arrangements,” says Goodman .
With files from Michael McKiernan
A class action launched by land surveyors who claimed copyright infringement against Teranet — the private sector company that manages Ontario’s land registry system — has been dismissed.
|The Ontario Superior Court has ruled the Crown has copyright over plans of survey. (Photo: Shutterstock)|
The class action in Keatley Surveying v. Teranet was filed in 2007, and was certified on appeal in 2015. Both sides moved for summary judgment on the common issues and the decision was issued May 6 in Ontario’s Superior Court.
Keatley Surveying brought the action on behalf of about 350 land surveyors in private practice in Ontario whose surveys were scanned and copied into Teranet’s digital database and made available online. By copying and selling their plans online, the surveyors claimed Teranet was breaching their copyright and unlawfully appropriating for itself the benefit of the class members’ professional land survey work.
The class members’ complaint was that a for-profit third party inserted itself between the government and users of land registration services and “reaps substantial profits at the expense of class members.”
Justice Edward Belobaba decided in favour of Teranet and the class action was dismissed on common issue two, which asked whether the copyright in the plans of survey belongs to the Province of Ontario under s. 12 of the Copyright Act, as a result of the registration or deposit of the plans of survey in the land registry office.
Teranet argued the plans of survey in question were “prepared or published by or under the direction or control” of the province and therefore copyright belongs to the Crown.
Belobaba said in his view “ . . . statutory provisions make clear that when plans of survey are registered or deposited at the land registry office, the province takes ownership of the property in these works which includes the right to make copies.”
“In my view, s. 12 of the Copyright Act, primarily a ‘term of copyright’ provision, clarifies Crown copyright but does so ‘without prejudice to any rights or privileges of the [provincial] Crown.’ Thus, the provincial ‘property of the Crown’ provisions already discussed, and s. 12 of the federal Copyright Act, can live together and operate concurrently,” wrote Belobaba.
“In any event, the answer to Common Issue 2 is ‘yes.’”
As both sides agreed that was the determinative issue then there is no copyright infringement “and that is the end of the class action.”
The next step could be an appeal to the Court of Appeal, but plaintiff lawyer Garth Myers would not comment on whether an appeal will be pursued.
“We were successful on a couple of the common issues and we’re quite pleased we succeed on the Crown copyright issue and assignment issue. We got caught on the second part of common issue two, which was determinative. We don’t agree with the judge’s finding on that issue. The issue that remains is whether the provincial statutes provide for copying that takes away copyright of land surveyors,” said Myers, an associate with Koskie Minsky LLP.
Belobaba decided Teranet was entitled to costs and while it would have sought $200,000, he indicated a reasonable costs award is “probably around $125,000.”
Myers said there will be submissions on costs.
Legal Feeds could not reach counsel for Teranet before publication.
A personal injury lawyer won’t be getting thousands of dollars in fees after a judge ruled an agreement reached with her clients was “not fair or reasonable.”
|Clients will get $2.75 million after a sailboat incident but their lawyer won’t be getting all the fees requested.|
Edwards — who has been developmentally delayed since shortly after his birth — suffered serious health effects from the fall, with a doctor indicating he is permanently disabled.
In 2012, Edward’s mother Eve Ojasoo and her husband retained De Rose PC to seek damages as a result of Jared’s fall, on Jared’s behalf, as well his family members.
A settlement of $2.75 million was reached, however, in his ruling Ontario Superior Court Justice Mario D. Faieta said he did not approve of the contingency fee agreement the law firm had with its clients.
“Unlike other CFAs, the Agreement does not state that the client has been advised to obtain independent legal advice before signing the CFA,” said Faieta.
“The misunderstanding related to the payment of disbursements demonstrates the importance of encouraging prospective clients to obtain independent legal advice before signing CFAs.”
In his ruling, Faieta stated an agreement must comply with the provincial Solicitors Act, and regulations that fall under it. In particular, Faieta emphasized an agreement must state that a client is advised hourly rates can vary among lawyers and the client can consult with other solicitors to compare rates. He also said the agreement did not show an example how the contingency fee is calculated.
“While some may view this conclusion as a harsh result, even though these requirements have existed for more than a decade, there is nothing in the Act or O. Reg 195/04 that permits this court to waive compliance with these requirements,” wrote the judge.
Faieta also said Ojasoo believed the law firm bore the risk it would not be reimbursed if the matter was unsuccessful, but this wasn’t accurate.
The agreement actually stated: “In addition to the Legal Fee or the Court/arbitration-ordered Costs, you agree to pay all expenses, even if we cannot settle your claim and/or you lose at trial.”
“Clearly Eve did not fully understand this agreement,” wrote Faieta.
“A significant aspect of this Agreement is establishing who bears the risk of paying for litigation expenses in the event that this action is unsuccessful. Eve did not understand that she, rather than De Rose, bore the risk of paying for disbursements in those circumstances. Eve’s misunderstanding of the Agreement is troubling as it demonstrated that De Rose did not adequately explain the Agreement to her.”
In his conclusion, Faieta approved the settlement to Edwards, but declared the agreement with the firm to be void.
He slashed the amount the firm was set to receive.
“I order De Rose’s account for legal fees, disbursements and taxes in relation to Jared’s claim be reduced by $381,311.30 to $225,00.00,” he ruled.
Darryl Singer, a litigation lawyer with Singer Barristers, said the “real lesson from this decision is for personal injury lawyers to ensure their retainer agreements will be upheld.
“For example, my firm’s contingency agreements specifically state that if there is no settlement or judgment the client pays nothing and I eat my disbursements,” he says. “Additionally, rather than sign the client immediately and have an ‘out’ clause, don’t have the client sign the retainer until you at least have some basic information to determine if you want the case.”
Lawyers can protect themselves by explaining the agreement to a client and ensuring it complies with the Act, Singer says, as well as stating “in the agreement that no fees or disbursements will be payable to you if there is no recovery.”
“Cases like this . . . embolden clients to challenge fees that for the most part the lawyers deserve,” he says.
An Ottawa woman who worked for McDonald’s restaurants for more than 25 years has received $104,499.23 in lieu of 20 months notice for wrongful dismissal.
|The thresholds a former McDonald’s manager was ordered to meet ‘were arbitrary and unfair,’ ruled an Ontario judge. (Photo: Jacky Naegelen/Reuters)|
On Aug. 2, 2012, PJ-M2R ended Brake’s employment after 20 years with the company. Brake felt she was constructively dismissed and sought damages for common law notice and severance.
Employment lawyer Ellen Low, of Whitten & Lublin, says the amount awarded “isn’t totally out of the ballpark” largely due to Brake’s age and years of service.
“While it’s always an individual assessment every time and we know the Court of Appeal hasn’t said one month per year, she’s been there 20 years and is 62 years old at the time she is let go,” says Low. “So despite the fact most people would assume this is a lower managerial position, whenever you’re dealing with someone who is 62 it may become more persuasive.”
Even though the woman received glowing performance reviews, Low says that isn’t supposed to be taken into account with the Bardal factors (age, length of service, character of employment, and availability of similar work).
“My personal view is there was some weighing of those non-Bardal factors whenever judges are making a determination about a notice period,” she says. “It’s always more art than science.”
Low suggests Brake might have also been able to make a case for unpaid overtime since she clamed to have worked 12-hour days almost seven days a week, but she didn’t.
“It was possible if she was truly a manager she was exempt,” she says.
PJ-M2R’s owner, Perry McKenna, thought he had the right to terminate Brake since she failed to meet the standards expected of her position.
At the time Brake was dismissed, she was 62 years old (now 65) and had worked for McDonald’s for the majority of her working life — about 20 of those years was for PJ-M2R. Her career with the restaurant chain started in 1986 in Corner Brook, Nfld. She moved to Ottawa in 1999 and started working for PJ-M2R and was considered a top employee for many years. In 2004, she was promoted to store manager. From 2000 to 2007, she received high ratings in her performance reviews.
In 2008, Brake was transferred to manage the company’s Kanata, Ont., McDonald’s. As part of her duties, she also managed a nearby McDonald’s located within a Wal-Mart store. Eventually, in November 2011, Brake was assigned exclusively to the Wal-Mart location.
Her first negative review came in 2011 from McKenna. The Wal-Mart location she had been transferred to had been trending badly since at least April 2011. The location ranked 1,410 out of 1,437 McDonald’s restaurants in Canada.
On April 16, 2012, Brake was summoned to a three-month review meeting. She received another overall rating of “needs improvement.” At the meeting, she was informed that as a result of her performance, she would be participating in McDonald’s progressive discipline program known as Goals Achievement Process.
On Aug. 2, 2012, McKenna told Brake she had failed the GAP program and they needed to discuss her future. She argued she should be allowed to stay on as a manager, but she was offered the position of first assistant. The salary would be the same, but the benefits would be less. She would also have to report to employees she had trained and supervised, many who were younger and less experienced.
McKenna said she had to “take a demotion or go.” Brake refused to accept the demotion and left, never to return. The termination of her employment “for cause” was sent to her in writing soon thereafter.
In his decision, Phillips wrote: “I find that the GAP program was not implemented in accordance with its terms, either in letter or spirit. The thresholds that Ms. Brake was ordered to meet were arbitrary and unfair.”
Since her dismissal, despite several efforts, Brake was not able to secure a comparable managerial position.
“I find that her subsequent employment represents a reasonable effort on her part to mitigate her losses. However, I also find that her ability to find employment does not take away from the loss she suffered from being dismissed without cause.”
Phillips wrote that Brake was “set up to fail” from the beginning of the GAP program.
“Not even the fact that she did ultimately manage to meet the Defendant’s heightened expectations could save her in the end,” he said. “Well before the completion of the GAP, Ms. Brake’s removal from her manager position was a foregone conclusion. Given the length of her employment and her loyal history of contributions to the organization, she was entitled to expect more assistance in overcoming her newly alleged shortcomings. I find the GAP program as implemented by the Defendant was less an instrument of help than it was a way to record Ms. Brake’s anticipated inability to meet the Defendant’s shifting expectations in order to justify a decision that had effectively already been made.
“I find that in the overall circumstances, PJ-M2R unilaterally made a substantial and fundamental change to Esther Brake’s employment contract and that in doing so constructively dismissed her without cause,” wrote Phillips.
In March 2013, Brake accepted a position as a cashier at Home Depot. She works about 35 hours a week and earns $12.50 per hour. She continues to work there.
“The cashier position she occupies now at Home Depot is so substantially inferior to the managerial position she held with the Defendant that the former does not diminish the loss of the latter,” wrote Phillips.
Well-known veteran lawyer George Walker says he has been vindicated following the release of an Ontario’s Superior Court ruling in a lengthy battle against a former client seeking to assess the lawyer’s accounts.
“Counsel can never be too careful in documenting instructions received from a client or steps taken on a client’s behalf,” says Walker, a 45-year veteran of law and certified criminal law specialist who once represented Karla Homolka.
Earlier this week Superior Court Justice Catrina Braid released her decision in Tsigirlash v. Walker, dismissing a former client’s efforts to assess Walker’s accounts.
The client, George Tsigirlash, made allegations in late 2013 that he had paid Walker a $20,000 cash retainer as well as disputing total fees of a little more than $61,000. He also alleged Walker did not follow instructions.
Tsigirlash, who could not be reached for comment prior to posting, had retained Walker in 2006 on some criminal matters and again in 2011, when he was charged in Niagara-on-the-Lake, Ont., with a series of fraud and possession of stolen property charges related to an alleged automobile “chop shop” there.
Tsigirlash claims Walker had approached him in a courthouse hallway suggesting Tsigirlash should hire him, saying “I am the man for you.” Tsigirlash told the court Walker wanted the $20,000 retainer in cash so police would be less likely to take the money as proceeds of crime.
Walker, through his counsel Robert Macdonald, an associate with Fogler Rubinoff, argued he never received a cash retainer and that the fees were reasonable for a highly complex matter involving more than 40 total charges of fraud and possession of stolen property.
“In my 45 years of practice, I have never had an account assessed or faced allegations of impropriety from a client,” says Walker. “I’m pleased that the court rejected Mr. Tsigirlash’s malicious and false allegations.”
The client did pay down the bulk of the fees and first raised concerns about the accounts four months after the final of six accounts had been sent to the client, well after the retainer had ended.
“I have carefully considered the evidence of Tsigirlash. In my view, his evidence was self-serving, contradictory, illogical and wholly unreliable,” Braid wrote in her decision.
“Walker was cross-examined regarding hours billed and the tasks completed,” the judge added. “Walker relied on detailed notes of his work when explaining the accounts and was able to justify and explain the time entries.”
Macdonald says the matter should serve as a strong caution to lawyers to ensure proper detailed notes of all actions taken on behalf of a client as well as strong financial accounting.
“What assisted Mr. Walker in this case was that his file was well documented,” Macdonald says. “None of us can anticipate that we’re going to face these sorts of malicious and false allegations from a client, but if it does happen you want to have your file there to substantiate the work you did, the instructions that you took and the information the client had when they gave you those instructions.”
Both sides in a class action case involving VIA Rail have been sent back to the drawing board with a litigation strategy template from the Ontario Superior Court.
|Jay Strosberg admits there isn’t much case law guidance on the individual issues phase of class actions.|
Calling the matter “a test centre for undeveloped but very important aspects of class action procedure” under the Class Proceedings Act, Justice Paul Perell ruled on an individual issues motion Nov. 16 in Lundy v. VIA Rail.
He gave both parties 30 days to consider and adapt his litigation strategy and if an agreement cannot be made in that time, he ordered a case conference where he will settle the plans.
“One might think that the matter of designing the individual issues phase of a class action is no big deal and that designing the individual issues phase pales in significance to the matters of certification, the common issues trial, and the settlement approval stages of a class action,” Perell wrote.
“However, one would be wrong in undervaluing the importance of the litigation plan for the final stage of a class action. The design of the individual issues phase has a substantial impact on achieving the goals of the class action regime of access to justice, behaviour modification, and judicial economy.”
In the issue before him, the parties could not agree about the litigation plan for the individual issues phase of the action and both presented strategies to the court. The 45 class members were all passengers on a VIA Rail train in early 2012 when it derailed near Burlington, Ont.
In mid-2014, VIA served offers to settle to each individual class member, ranging from $8,000 to $40,000 and the promise VIA would pay members’ legal fees and disbursements in an amount equal to 15 per cent of the settlement amount paid to the class member.
At that time, Perell ordered the parties to prepare individual issues litigation plans, an assessment of costs to date, and judgment on common issues of the certification order. He ruled that once the litigation plans were settled, VIA could then deliver the individual offers to settle. But the sides could not agree on those plans and Perell ordered they try one more time.
Jay Strosberg, partner at Sutts Strosberg LLP, says the individual issues stage of a class action is not common as cases generally settle beforehand. He says when that procedure isn’t agreed upon, there isn’t much guidance on how individual issues should be resolved.
“In one sense it is reassuring that there isn’t a lot of case law on this point, because it means that counsel have generally been able to come up with a plan they both agree with. In another sense, it would be helpful if there were more input from the judiciary about what types of procedures they feel are manageable for handling individual damages claims,” he says.
Strosberg says procedure should allow for class members to submit their claims without huge hurdles, while allowing the defence to also lead evidence and make its case.
“It is a tricky balancing act and one that requires a good deal of practical foresight,” says Strosberg.
“Perell took this opportunity to propose a plan of his own in which he underscored the importance of access to justice and judicial economy, which really should be the focus when coming up with a plan.”
Margaret Waddell, of Paliare Roland Rosenberg Rothstein LLP, says the rules under the CPA are purposefully broad to ensure an efficient process."
“If the parties can’t reach an agreement, then the court has tremendous discretion and latitude in creating a bespoke process for each case. Once a case reaches this stage of the proceeding, the efficiencies of the CPA really come home to roost,” she says.
“The parties can agree on their own efficient process, or if they can’t agree, then the court has the power to craft a procedure that works for the litigants in a way that best meets the objectives of access to justice, efficiency and proportionality for all the remaining parties.”
Update Nov. 24: Quote from Margaret Waddell corrected.
In what he called a “bizarre and lamentable” motion, an Ontario Superior Court judge has taken the “extra-extra ordinary” measure of awarding $70,000 in advance costs to an aboriginal woman seeking to bring a class action on behalf of the former students of Fort William Sanatorium School.
There’s evidence that aboriginal children who needed hospitalization for tuberculosis were sent to a sanatorium and schooled Fort William Sanatorium School, said Justice Paul Perell, but the school is not among the recognized residential schools under the Indian Residential Schools Settlement Agreement, a contract signed in 2006.
Henry is seeking to have the Northwestern Ontario school listed as a residential school under the agreement, but Canada argues the sanatorium, while residential, was a health facility and therefore the responsibility of a board of directors first, and later, the Province of Ontario.
Lawyers and non-profits refuse to take up cases like this one because of there is no established process to obtain remedies for students who went to schools like Fort William Sanatorium School. Getting those institutions recognized as residential schools is onerous and costly.
“It is a lamentable motion, because, for a variety of reasons, ‘nobody’ was prepared to provide legal services to Mrs. Henry, unless she obtained an advance costs award for the [request for direction]. At least 18 lawyers were asked to take the legal brief, but for a variety of reasons, they all declined,” Perell wrote.
“In the discussion below, I shall identify most of them by initials, because I do not wish to shame them, and because having regard to the entrepreneurial access to justice model that governs class proceedings, it is understandable, but sad, that all the lawyers declined the Sanatorium School RFD brief.”
Henry — who is 82-years-old, disabled, unemployed, and impoverished — could not by herself bring the request for direction under IRSSA. Edward Sadowski, a researcher who has helped up to 1,000 aboriginal claimants with respect to claims under the IRSSA, filed the request on her behalf but failed to obtain legal assistance to advance it.
The motion was “bizarre,” according to the judge, because the very question of who was bringing it was in dispute. Canada argued Sadowski, who is not aboriginal and did not attend a residential school, was the person bringing the application and seeking advance costs.
But Perell disagreed. “Mr. Sadowski did initiate the RFD, but it was never his RFD, and why he should be treated as if he were a busybody stirring up litigation, when he has no personal financial interest in having the Fort William Sanatorium School listed as an IRS and has spent 17 years helping claimants, totally escapes me,” he wrote.
“In any event, in my opinion, Mrs. Henry has done enough to show that she is impecunious and an advance costs award is her last resort to access to justice,” Perell added.
He ordered the federal government to pay Henry $70,000 in advance costs as well as the cost of the motion.
Christa Big-Canoe, legal director at Aboriginal Legal Services of Toronto, says Perell’s ruling is “a significant win.”
“It speaks to the need to recognize that things don’t always fit into a box laid out in a settlement agreement,” says Big-Canoe. “It speaks to recognizing there are more survivors of this type of colonial legacy and it will provide an opportunity for those survivors to at least have their day in court.”
Big-Canoe says aboriginal students were, at times, sent to sanatoriums for being unco-operative, deemed “insane,” or otherwise sick. In some cases, the residential schools they attended before going to a sanatorium would take their names off the attendance roll, leaving them with no record of having attended a recognized residential school.
In some cases, the students only ever attended sanatorium schools, and “atrocities” have taken place in those schools as well.
“It becomes a Catch 22; they’re not being recognized,” she says.
Big-Canoe says while unfortunate, it’s understandable that both private practitioners and non-profits like her organization are reluctant to take up cases like Henry’s. When a person is seeking to have a school recognized officially as an Indian residential school, there are huge disbursement costs as well as dozens of hours of work with no guarantee of success, she says.
From a non-profit perspective, “we would be putting out all that money and time and the reality is if the process isn’t going to accept the claimant’s application, it’s money that could have been used for a person who would fit within the claim parameters,” adds Big-Canoe.
According to Perell, the case is an example of a “pandemic” issue in class proceedings as well.
“In a problem which has become pandemic in class actions, class counsel are not much interested in small value cases,” he wrote. “The entrepreneurial model for class actions works wonderfully well for many cases, but actions for a declaration that might help a small group are not a success story for the class action regime. Support for the individual issues part of a class action is also becoming an access to justice problem.
“I am not to be taken to be critical of the 18 lawyers who declined Mrs. Henry’s brief. I also am not to be taken to be critical of the entrepreneurial model chosen by the Legislature. I am only saying that class actions are only a partial solution to serious access to justice problems,” Perell continued.
“The sad truth is that Mrs. Henry, despite the valiant efforts of Mr. Sadowski, cannot obtain access to justice because she is too poor to pay for it.”
Subscribe to Legal Feeds
- Gabrielle Giroday
- Mallory Hendry
- Alex Robinson
- Patricia Cancilla
- Gail J. Cohen
- David Dias
- Yamri Taddese
- Jennifer Brown
- Karen Lorimer