Tuesday, February 21, 2017

Law students helping access to justice in BC

This post is intended as a piece of free publicity for the Law Students' Legal Advice Program.  This program is run through the University of British Columbia's law school.  Law students provide free advice to low income individuals on a variety of matters.  They can represent the individuals in provincial court as well as in front of a variety of administrative tribunals.

To be clear, Tevlin Gleadle Curtis takes all inquiries (provided they successfully pass our conflict checking process) and the first call is free.  It is worth calling us with any employment law issues, our lawyers will always estimate for you how likely it is that your fees will be well-spent if you hire us.  For court cases (as distinct from tribunal cases) LSLAP cannot advocate beyond the small claims jurisdiction of $25,000 so a good many claims are unfortunately outside of the realm of what LSLAP can assist with.

In one case, LSLAP won $65,000 for injury to dignity at the B.C. Human Rights Tribunal - nearly matching the all-time record of $75,000.

LSLAP clients get legal advice in cases that often would not justify legal fees at market rates.

The students get experience and exposure.  While a lot of people worry about the students' presumed lack of experience, some of them are quite experienced.  Students can run several trials/hearings by the end of their studies, making them more experienced in court than some lawyers.  Moreover, in a low-value claim the defendant quite often expects a represented party to give up as a result of their inability to afford, or to justify continued legal fees.  In our view any lack of experience can be more than offset by this power dynamic, which most lawyers cannot match.

In short, it is a win-win.

The lawyers at Tevlin Gleadle Curtis support the LSLAP program both in the form of financial donations, summary advice to students on individual cases and in the capacity as supervising counsel during the conduct of small claims trials.

We hope others will share the content of this post in any way they can.  LSLAP is a valuable program and one that deserves widespread public support.

Saturday, October 15, 2016

An article about sexual harassment and (ever-so-tangentially) Donald Trump

Ok, I am sorry, I am truly truly sorry, but I am going to mention Donald Trump ever so briefly.  I swear that this blog post will relate to Canadian affairs, though I wish my no-'u' neighbors to the south all the best with their own matters.

Mr. Trump, via his off colour comments, has blown new life into an important conversation.  To be clear, I give him zero credit for that.  He represents the antagonist in my story.  Why this is germane to the focus of this blog, is that he brands himself a 'businessman' and indeed an attitude like his is far too common in workplaces across British Columbia - as well as the rest of the world.  What I recall of The Apprentice is that Mr. Trump would, for whatever reason, see fit to affirm that a woman he was about to fire was "beautiful" or similar, and then say "but you're fired."  If I cared what Mr. Trump thought, maybe I would ask him how the two thoughts are related.  But I do not care.  Below I refer to many individuals without a single comment about how they look, because it is frankly beside the point.

Much could be done to ameliorate this problem.  I am consistently disappointed by our legislature, administrative tribunals and courts in that regard.  Employment laws have achieved great things for society over the years.  They are the source of minimal wage protections, safe workplaces, countless accommodations of different types of people despite the associated business cost, as well as the nominal, but perennially toothless, rules which govern sexual harassment in the workplace. 

It is already unlawful to harass.  Those laws just have to be rendered effective.

Punitive damages in a court action are supposed to be set in an amount that hurts the guilty party.  Aggravated damages compensate a victim for the deleterious psychological effects.  WorkSafeBC is charged with policing workplace bullying and harassment, and the BC Human Rights Tribunal is supposed to award damages to compensate for the affront to dignity suffered in instances of gender-based discrimination in the workplace.  Despite all this, and with reference to the fact that I think my firm is known for taking bold positions, the advice I routinely have to give in such cases is that the law does not really offer much by way of remedy and pursuit of these cases is not cost-effective.  As such, our system demands that the victim, usually someone who has just left their job due to harassment, must pay out of pocket to tilt at this windmill.  Our highest court consistently emphasizes the importance of access to justice, and yet in this widespread instance of unfairness nobody is doing anything effective about it.

A brief glimmer of hope came in the form of this 2014 case from the Alberta Court of Appeal.  A vice-president was rightly fired for touching women who were asking him to stop.  Yet the world is such that, with the benefit of legal advice, he saw fit to challenge that termination through two rounds of litigation.  Thankfully he lost.  The Court essentially said that the world has changed, and we are living in a new reality regarding workplace harassment.

It is nearly two years since that decision was rendered.  

It has been cited once.

As the reader knows, BC is my focus.  I feel a need to share two further articles with the reader, both of which were posted by my Facebook friends this morning.  First is this article regarding a view expressed by Mr. Trump's son, Donald Trump Jr.  In brief, the (junior) Donald, a rich man in the public spotlight and specifically speaking in a public forum, expressed his view that women who do not speak up in the first instance of sexual harassment are stringing men along.  

Sorry, but that is stupid.  I try to adopt a professional tone in my blog posts, but 'stupid' is simply the best word.

A more progressive view accounts for the nuances of the situation.  See, for example, this article (also featuring... Donald Trump!). There is, and employers in BC should recognize this, a taboo which impedes victims from speaking.  The taboo stems, I suppose, from the way people think, which I respectfully suggest does not reflect well on the status of our society.  Whereas the first instance is bad, the victim might wait until multiple instances have occurred before reaching their breaking point.  Some never speak.  This does not mean the conduct is ok.  Much of what we are discussing are comments that should never be spoken in a workplace, regardless of whether the recipient of that comment voices a complaint.

Being as fair as I can to Trump Jr., workplaces are a place where people meet their partners and I do not think that will change.  Romantic overtures should fizzle though at the very first expression of ambivalence by the recipient.  It should not take an overt rejection.  

Moreover, much of what we are dealing with has nothing to do with workplace romance.  There are multiple instances of comments relating to a person's appearance which have no place in a business environment.  

Transgendered individuals often face questions regarding what their genitals look like.  To the people making those comments, I ask you, in what world is that ok?

Many of us would like to think this attitude had its time and died with the characters of Mad Men.  This is simply not reality.  While we have progressed as a society, we have far indeed to go.  Today's workplace is not immune to terrible instances of sexual harassment.  Things that no reasonable person has any business thinking are acceptable.  I am aware of many such instances both through my fellow graduates of UBC Law, other educated persons whom I know as well as potential clients of mine.  If you could find a more impressive person (not "woman" but "person") in this world than Michelle Obama then I would like to know who that is.  If you have not heard Mrs. Obama's campaign speech this week wherein she personally identifies with women of all stripes facing such comments, then please do yourself a favour and watch it. Why should Michelle Obama, of all people, possibly be made to feel that way?

I will make the observation that we have to also move toward a world where we recognize the existence of a multiplicity of genders.  Anecdotally, however, my experience has been that the vast majority of situations involve a person who portrays himself to the world as a man harassing an individual who gives every outward appearance of being a woman.  This article is largely confined to those situations, but without attempting to diminish the importance of the transgendered conversation.  If you want more on that, you may wish to start with the excellent paper delivered to the Continuing Legal Education Society of BC by Elizabeth Reid and Barbara Findlay, Q.C. in 2014 (sorry, I cannot link to it - copyright material).  I have heard of bosses groping, grinding their crotches against, demanding to change clothes in the presence of, making unwanted comments, gestures, telephone calls and house visits to and arranging for roses and champagne to be sent to co-workers' rooms on business trips (as well as cards inviting a visit from the recipient) and a variety of other scenarios.  Routinely these cases die on the vine.  I blame the system and not the victim.

I call on our legislature to reform laws such that this problem stops.  I call on our courts and administrative tribunals to do their jobs and render decisions which stop this widespread problem and make this world a better place.  I call on survivors (sometimes inappropriately called "victims") to do whatever they think is best, but also to know that they are survivors and do not need to feel any shame.  

I am also happy to put my money where my mouth is.  It will need to be the right case, because I would hate for an argument like this to fail (further entrenching the wrongs I decry herein), but I would love to make my pitch to a decision making body.  I have twice offered to represent a harassed individual for free in trying to make a pitch to a court/tribunal that it is time to set a new precedent.  No takers so far... but I remain willing.

Monday, April 25, 2016

Lessons Learned from Tom Brady's Case

"With all due respect, Mr. Brady's explanation of that made no sense whatsoever" (I get to some legal stuff, trust me; not till the end though).

The above comment was rendered by the majority of an appellate court panel in a decision issued today. In my second blog post this last week to make such an observation, that might seem all telling - were it taken in a vacuum.

For those of you who do not share my love of NFL football, here is a recap:

  • Tom Brady was the figurehead of the New England Patriots when they beat the Indianapolis Colts to advance to Superbowl 49, where they ultimately beat the Seattle Seahawks to claim Brady's fourth Lombardi Trophy.
  • After their win over the Colts, allegations surfaced that the Patriots had tampered with the air pressure in game balls - in defiance of the game's rules, and to gain an unfair advantage.  Some would say "cheating" if being direct.
  • The league eventually found Mr. Brady culpable in the incident, after several rounds of appeals that decision has been reinstated (the prior round of litigation went Mr. Brady's way).
Full disclosure - I am a Broncos fan.  I have a vested interest in things not going the Patriots' way and I will go to my grave having never cheered for Tom Brady.

So what made "no sense" in the above excerpt?  Well, to summarize as dispassionately as I think I am able to, Tom Brady essentially stated that he had a cell phone with conclusive proof of his non-involvement in the "deflate-gate" scandal, but that he destroyed this very phone while cognizant of the fact that it could clear his good name.

Wait, is "good name" the right phrase... "good statistical record," that's what I meant!

Mr. Brady's explanation made no sense, I fully agree.  

If I were a judge, I think I would treat with some skepticism a litigant's statement to the effect of "I had exculpatory evidence, and certainly nothing condemning, but then I just destroyed it - while this proceeding was afoot, and for no particular reason. Nonetheless find in my favour."

So why did Mr. Brady win a round of litigation, and convince one of the three judges on this recent appeal to side with him?

This is my real-world introduction to a problem faced by all litigators, self included. The process ultimately comes down to people, making it very difficult to guarantee a particular result - even when we as counsel and/or parties see the matter as clear cut.  Most sports fans will be able to recount for you a moment where their team lost the 'big game' due to a blown call which video replay conclusively showed was incorrect.  So too, you will find that most litigators likely have a story or two about how the Court misapplied the law. Video replay might be equated to the Court of Appeal in this imperfect analogy.  Eventually, however, there is a final result and many if not most times, at least one of the parties disagrees with whatever that result might be.

I spent the last several months saying the result was not fair, and now I am in the 'fully vindicated' column once more.  If it does not end up in a higher court, I will remain in my happy place - on this result.

99% of cases settle.  Maybe if we were millionaires with millions of dollars in endorsement deals on the line it would be worth fighting to see who wins.  For those of us not in that camp risk avoidance is what makes the world go around.

Wednesday, April 20, 2016

An ounce of prevention - the value of workplace investigations

"Losing $100,000 a month is not good management."  This might be so, but as with all aspects of my job, context is required to assess this comment. Here, I take issue with the word "losing."

The quote is from an article published in the Edmonton Sun, and is ascribed to Tim Reid, CEO of a company called Northlands.  It was apparently exposed that some employee(s) had been stealing money within one of Northlands' divisions.  Rather than conduct a workplace investigation, the company decided to fire all staff who might have been implicated.

The link above describes the resultant $9.7 million dollar class action lawsuit.  From a number of perspectives, I cannot agree with Reid's quote, transcribed above.

According to the article, such an investigation would have taken four months, at a cost of $100,000 per month.  I thought it might be useful to contrast the chosen path with the path that was avoided.

  • The chosen path involves 19 individuals pursuing their cases, the path avoided could have been down to one employee, who would likely have slim to no chance of winning having been fired for stealing.  It seems unlikely that all 19 employees were involved in this theft.  Accordingly, some number of them could likely have been cleared through a proper investigation, and their reputations preserved.
  • The chosen path involves a prolonged court battle.  If successful, the company most likely recovers nothing.  The path avoided may not have involved a court battle at all.
  • The chosen path guarantees that all erstwhile employees sue for money.  The path avoided might have seen at least some of these making valuable contributions to the economy for the same or more money, and contributing to the company's bottom line.
  • Given the lawsuit, I am hard pressed to see how the investigation (or something similar) would not still have to proceed, except that it will now be very much compromised by the company's actions.
Bear in mind, nothing stated in the article is proven and one should always take a summary of a lawsuit with a grain of salt.  There are innumerable reasons a party might act in a certain way, only some of these reasons might be in the public eye.

But in a vacuum, I ask the reader to say "did I agree with the quotation that started this article?"  I hope by this point you at least see another perspective.

As with everything we lawyers do, a workplace investigation is supposed to pay for itself via the liability which is offset by engaging our services.  Blair Curtis and David McWhinnie of our office are experienced investigators and as their colleague I would argue have always delivered value by conducting such investigations.  Moreover, a short consultation with them might yield the response that an investigation is not warranted in certain cases, while affording peace of mind to the client making the inquiry.

So while losing $100,000 per month is likely not good management, spending $100,000 per month might be.  As a final comment, I doubt our bill would have been anywhere near $400,000 given my limited understanding of the circumstances of this case.

Monday, January 11, 2016

Liberals address public grievance with severance pay

It seems as though after any given election, at every level of government, Canadians bring a rash of complaints about severance payments made to ousted officials. Here is an article about a plan to change that.

The Trudeau Liberals have introduced two new Bills with the proposed effect of eliminating such severance payments. Judging by the comments made following online coverage of these new Bills, the public does not like the new proposal either. Voters have a legitimate grievance in some instances, but not all severance packages are bad or unjustifiable. This article neither attacks nor defends the current public severance regime, but rather advocates for more targeted public backlash, if backlash is in fact warranted.

The first fact to bear in mind about these so-called “severance” payments is that they are often a contractual, or even a statutory right. If the government failed to make such payments, it would violate its obligations, a result voters would not tolerate in a number of other contexts.

Moreover, “severance” as a concept typically seeks to compensate individuals for the sudden loss of their employment. Elected officials are in a unique position in this regard. Not only do they often face the sudden and unpredictable news on election day regarding their future, but the nature of their jobs often means they must forego other – often more lucrative – opportunities throughout their tenure as public servants. In the face of this, and given the important nature of politicians in a democratic society, it is not categorically unfair that they should receive severance pay when voted out. Like anyone else, many elected officials have children to feed and mortgages to pay. Like many people they do not wish to have the loss of their job result in an inability to support their families.

Some of the outrage expressed stems from politicians voluntarily resigning and thereby invoking their severance rights. This practice is more difficult to support from the perspective of allowing officials an opportunity to arrange their affairs. Where a contract provides this, it seems more appropriate for the public to decry that contractual provision. Outside of the political realm, not many people have the option of invoking a large lump sum payment via voluntary resignation. Nonetheless, under the regime present in many different jurisdictions across Canada, this remains an elected official’s entitlement unless and until something changes.

For every perceived problem with the status quo, the time to attack it is at the time of signing the employment contract. The striking of such an agreement occurs upon electing our officials, but the public outcry comes at the other end of their careers, often years after their entitlement has crystallized. This is a typical device seen in politics, and is by no means limited to this context. It is easy to defer payments until a later time in order to make your own current budget look better, and with the added advantage of making your successor justify the cost of your own severance package to his/her constituents.

The above explains the status quo, as well as much of what voters find distasteful about it. It is desirable to find a system going forward which allows for our elected officials sufficient time to rearrange their lives, all while keeping taxes and spending in check.

The recently-elected Liberals seek to re-balance the equation in a much more forthright manner. This article will not address the quantum of this proposed re-balancing. Rather, it defends the concept.

As we understand the draft legislation, Members of Parliament would receive higher salaries up front, while eliminating severance on the back end. Critics of the proposal will no doubt point to the increased cost up front, though this argument is tempered by several considerations.

First is the perennial theory (imperfect though its practical application may be) that higher salaries attract better talent. Although this theory is not implemented perfectly, the new proposal would be a disincentive to persons who decide to quit for reasons of pure self-interest, including the severance package they know they will receive. Instead, it incentivizes job performance in the present.

Second, this so-called up front cost will be somewhat illusory as it will significantly reduce the back end cost associated with severance packages as they presently stand. In effect, it is a more forthright manner of paying salaries for current work out of the current budget (and for the politicians collecting those salaries to be the ones forced to defend them).

The comments under the article in the above hyperlink indicate (rather predictably) that public sentiment immediately took the 'overpaid-politicians' approach. Forgotten in this reaction is the fact that the proposal addresses a long-standing grievance which the public expresses when government entities honour their obligations.

 The new proposal seeks to fix an old problem. It may not do so but it would be unfair to portray it as a simplistic, greedy political move.

Tuesday, May 12, 2015

Another media story criticizing the government for honouring its contractual obligations

Here is yet another story where the press gets upset when the government honours its contractual obligations.

You will never read a news headline akin to "sales force given enormous commission cheques due to its role in record sales" or, for that matter "vehicle purchased at price agreed between buyer and seller." Why then are these stories so prevalent in the limited context of public-sector severance packages?

There are two sides to the equation.

On one side, the government is an entity playing with a large pool of money, but without the same kind of personal impetus to manage that money as individuals exercise over their own finances. This makes it easy for the government to waste money, and especially easy in self-serving circumstances like establishing one's own severance package.

On the other side, persons working in and for the government are either largely or entirely subject to the whim of the electorate and can lose their job without notice. Wrongful dismissal litigation is premised on the idea that almost no person should be fired without reasonable notice as this would result in unbearable financial burden on people - our jobs are our livelihood after all. In the context of government, fixed severance provisions can be a tool to offset the often unpredictable employment landscape, which in turn becomes a tool to incentivize talented individuals to take these jobs.

At TevlinGleadle Employment Law Strategies, we deal with the enforcement of employment contracts on a daily basis. If the government would not enforce a contract, it would be sued and it would lose the lawsuit - adding wasted legal bills to the problem alleged by the media in the above link (and countless others like it). In fact, Blair Curtis of our office recently did exactly that in a case where the government wrongfully refused to pay severance to which it had agreed in a contract.

As a voting taxpayer, I am offended when my tax dollars fund overly-generous contractual severance packages. My point is not that this does not happen (although there are new stories which blast packages which strike me as reasonable too). My point is that this problem should be addressed at the time of hiring the person.

Instead of this, the media seems to report these stories exclusively at or after the time of termination. I posit that a contractual arrangement, even one which is badly bargained, should be honoured by a government organization. The media, and taxpayers, should be vigilant for excessive severance packages, but the time to exert pressure is at the time of bargaining, not the time of termination. The focus of these stories on the wrong time period allows the current political regime to say 'the last guys did it' all while doing exactly the same thing themselves.

Politicians: If you will impugn the payment of severance packages as agreed in employment contracts, I hereby call on you to utter in the same breath 'and my government will not be doing this' or words to similar effect.

Journalists: Please scrutinize the contracts in place and the current Human Resource practices of a government if you want to be the mouthpiece of change.

Monday, March 30, 2015

Future Shop Group Termination under s. 64 Of the Employment Standards Act

Future Shop has fired an unknown number of employees, definitely exceeding 50. This is a group termination as defined in s. 64 of the Employment Standards Act.

Certain other Future Shop locations are converting to Best Buys. This too might give rise to certain claims for any affected employees.

Before signing off on any deal, I would strongly encourage any such employees to contact me.