It should be less hard to get what's fair

In Cottrill v. Utopia Day Spas and Salons Ltd., 2018 BCCA 383, the B.C. Court of Appeal ("BCCA") overturned a lower court's decision to award $15,000 in aggravated damages.

The crux of the decision reads as follows, and in a vacuum I note that the following excerpt is eminently reasonable.

Given the lack of an evidentiary basis for the finding of mental distress caused by the manner of dismissal, it was an error in principle for the trial judge to make an award of aggravated damages.

Reading all of the case law together, however, the existence of aggravated damages is rendered all-but meaningless since it would appear there is almost no cost-effective way to pursue them. Any award which would have been worth fighting for in the first instance has almost invariably been taken away on appeal. The system is, at its root, premised on litigants acting in a financially reasonable manner.

There is no doubt that damages should be awarded if and when the evidence substantiates them. I have no qualms with that principle. But Canadian courts have long held that in any instance where a legal right exists, there must be an effective remedy (see Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, for example). The existence of damages which cost more to pursue than they are worth if/when awarded helps nobody. Yet that is the exact regime in which we now find ourselves. I am speaking from experience. Dozens of times every year I consult with people who have legitimate arguments for these damages, but the most responsible legal advice I know how to give is telling them to forego these claims because pursuit of them is not viable on a risk-reward basis.

Let us remember as well that aggravated damages (and their oft-misunderstood cousin punitive damages) are supposed to be awarded in circumstances which are really bad to begin with.

There is a historically-entrenched power imbalance as between employer and employee. The Supreme Court of Canada has mandated lower courts with the task of striking a fairer balance. The case law relating to aggravated damages does not currently achieve this balance. Terminated individuals often have difficulty finding the means to pursue litigation at all. If we are to foster a regime in which three-day trials now run to four or five days and where expert evidence is called by one or more of the parties at thousands of dollars in expense, I would suggest that the damages at the end of that road ought to justify the expense and effort incurred. In the Cottrill case (linked above), the damages in question were $15,000. I would argue this modest sum already fails to achieve the balance for which I advocate herein. Taking them away makes the problem far worse.

As far as I am aware, no court has directly considered setting aggravated damages in an amount that reflects the real and substantial costs of litigation. In my view that is exactly what is called for.

I respectfully suggest that advocates should encourage courts to consider implementing a regime wherein persons with legitimate claims are incentivized to pursue them. This would involve setting the quantum of the damages awarded at an amount which justifies the rigours of evidence required to prove them. Without simultaneously considering these factors, the regime might remain as it currently is, with individuals who have suffered real harm giving up far more often than fighting for what is right.

Racist Rant Results in Well-Deserved Firing

The video has been making the rounds of the internet, but you can watch it here if you missed it. It is a horrible spectre, but I forced myself through it once, and only once, in order to issue my commentary. Essentially a woman verbally berated some patrons of a Denny's restaurant in a shockingly un-Canadian racist diatribe. This is somewhat ironic, given that the spirit of the rant was about how she (the berator) was a true Canadian.

This took place after-hours, and in fact took place in Alberta, whereas the individual in question was an employee of Cranbrook Dodge - in eastern British Columbia. She was neither working nor was it apparent where she might work - at least from anything I could see in the video.

This was the only decision the employer could make, and I say this for a variety of reasons.
I am fairly confident that most judges would see this as just cause for termination. I reserve only a small amount of doubt because judges have been known to do shocking things from time to time. But even if the company were scared that this woman would sue for wrongful dismissal, surely the potential business losses would have to outweigh that concern in any event. If I knew where this individual worked, I am confident I would avoid her workplace. Conversely, the act of firing her has earned my respect. I am still unlikely to buy a Dodge from a dealership located nearly a thousand kilometers from my home, but were I considering doing so I would certainly keep this dealership in mind.

There may be a small contingent of the population who do not share my views. Fortunately, they seem to be outnumbered by employers who do share my perspective. I would not have an individual like this as an employee. If forced to terminate an employee in similar circumstances I would be comfortable with any prospective judicial outcome flowing from my decision, much as I would be aware that (as with every case) no legal outcome is ever guaranteed to obtain.

Nothing in this article, or anywhere in my social media writings should be construed as legal advice.

Starbucks does something really good. Too bad it was motivated by something really bad

Watch the video.

The Globe and Mail reports that two black men were taken out of a Starbucks by police officers despite the fact that they were doing nothing wrong. This was initiated by a call to police from the manager. The manager was fired, and rightly so.

To recap, the year is 2018 and the venue is a city which featured prominently in the foundation of a country which now brands itself the world's shining beacon of freedom and equality.

In response, Starbucks has mandated the closure of 8,000 corporately-owned stores in America for an entire afternoon to undergo racial sensitivity training.

Anyone who follows my articles might see this coming, but I am a huge fan of that second piece of news. Also worth commendation: the decision of Starbucks to fire this manager, and the actions of the brave protestors who brought about this change.

Is Starbucks' response enough to end the boycott? That is not the focus or my article nor am I ready to make a prediction. Whether one good act is sufficient to offset a bad one is an inherently subjective question, and for each individual to decide for themself.

This appalling incident should never have happened, and it is a shame indeed that such training often follows such an event, rather than attempting to pre-empt it in the first place. I think any objective person who lives in this world would be forced to agree that more racial sensitivity could only be a good thing. Such is true for other human rights as well, such as gender, age and sexual orientation (to name a few).

But imagine how awesome this news would seem without its dark origins. Why would a large corporation not do this more often? I do not think the goodness of the reaction should be overlooked, much as the triggering event was reprehensible.

To professionals everywhere who read this article I would say you really should consider workplace human rights training. An attempt to make our communities better should not always have to wait until we have already made them worse. But training staff at 8,000 stores and broadcasting it all over the news and social media makes the world a better place than when we all woke up this morning. Please share this article if you agree.

BC Health Authority mismanagement of long term strategy

In this article the Vancouver Sun identifies a looming problem. Specifically our province seems to face an imminent physician shortage. I suspect the reader would agree that they have not recently had an experience which suggests that we currently have enough physicians, or that their services are available more or less on demand. Here are some bullet points to consider, I have no statistics for you and speak only from personal experience:

• Health authorities are constantly looking to decrease doctors' pay.
• Any time physician compensation issue arise, it is never in the nature of 'maybe we should change our approach, which is antiquated and wasteful.'
• Also, it is important to note that it is almost never doctors saying 'we demand more' but rather doctors reacting to health authority actions and saying 'please do not give us less.'
• The doctors (who I feel compelled to emphasize are the people charged with the task of saving our lives) draw very little public support when such an argument becomes public. See the comments sections on any physician compensation news story if you do not believe me.

See my recent article on that latter topic for more. Often doctors are thought of as rich people whereas empirical evidence does not bear out that stereotype. Here is a breakdown suggesting that what doctors make is hard to know, but is likely not higher than $225,000 on average in Canada. That sounds like a pretty good wage, and it is, but a Rockefeller it does not make.

Just using rough hypothetical numbers, assuming we all make our decision about our career path at age 20 and we all retire at age 65, and assuming doctors go to school for ten years, the wage set out above is far less appealing. In order to get there, you start working at age 30, having missed a good portion of your best working years and with a massive student debt. Conversely, if you had taken a well-paid job requiring less or no education, you may well have bought a house and accumulated some serious equity by age 30. Further, if $225,000 is the average, it is fair to assume that the average entry level physician earns less.

Add to this factors like long hours, labyrinthian bureaucracy and constantly facing downward pressure on your earnings from the only employer for whom you can work (let us recall it is a single payer system).

Further, and again to invoke my previous article, Justin Trudeau seems bent on taking even more away from our doctors. I will pause to note the inherent irony in this. You plan to pay doctors less in an effort to collect taxes geared toward (among other things) the creation of a better health care system.

Two general principles I think people could agree upon in principle are as follows:

1. Attracting and retaining more and better doctors is desirable.
2. Key to attracting and retaining people generally to any job is treating them well.

I see this problem as a reflection of the perennial tension between politicians with short term appointments and a burning desire to save money versus the need to make plans for both the present and the future.

I encourage any readers to consider my paradigm. Doctors are highly-educated, hard-working life savers. They are financially comfortable as a group, but not rich as a rule. Even if they were rich, however, I think that would be fair given the job they do. I do not support downward pressure on their remuneration. Like many other professions (teachers come to mind) I feel as though these public jobs are invaluable to us. If anything they should pay better.

Saskatchewan's most-ironic approach to "saving money"

Previously I have written articles criticizing those who express outrage when the government honours its contractual severance obligations. Such opinions can be found here and here, for example. My view remains as it is set out in those prior posts.

This is different.

Today's article in the Saskatoon Star Phoenix suggests that the newly-formed Saskatchewan Health Authority has already paid more than $4 million dollars in severance, and is not clear at all how much more it will have to pay.

This is particularly offensive given that the amalgamation was premised on attempting to save money. For a few thousand dollars worth of my advice, the province could have saved the $4 million which it has instead chosen to waste.

Saskatchewan's taxpayers should be outraged.

Please contact an employment lawyer before firing anyone. Our advice will pay for itself.

NFL Gender Gap - A Disgrace

The National Football League gives me such a robust body of material about which to write, as an employment lawyer, that it is kind of breathtaking.

Or maybe I am just a little bit obsessed.

Either way.

Cam Newton recently, and unfortunately, scoffed at a reporter (who happened to be female, which I only mention because her gender is relevant to the tale I tell) when she asked him a question about routes. Mr. Newton, who routinely connects on such routes with receivers who were ushered through college despite not working and not learning, not to mention some criminals, was surprised that a woman understood the concept of a 'route.' I mean you've got your uneducated criminals on the one hand, but she's a woman. You see Cam's point, right? If yes: hello Donald Trump Jr., can't say I've missed you during the ten minutes since your last tweet.

Disgraceful.

But at least she was not Cam's employee, or worse still denied employment due to his ignorance.
Enter the NFL.

In two ways that I will delineate today (and several others I do not propose to mention), the NFL fails in delivering on what I would call its obligation to be a progressive member of society, specifically with respect to gender rights. This obligation derives from its prominence and the fact that it will clearly impact millions via its actions leaving us only to hope those actions are principled and virtuous.

First, cheerleaders are not paid. If you could find a way to more clearly state your stone-age leanings, than getting hundreds of young women to dress and dance provocatively every week with a view to profit but refuse to pay them, then: hello Snoop Dogg, I am ashamed to admit I like some of your songs.

Second, why are there no female announcers? This is on networks too but the NFL could help and would improve its image by doing so.

And yes, I have watched Pam Oliver, Michelle Tafoya and others reporting, but this makes my point. These women, with actual credentials and (I'm just guessing) who have to work twice as hard as their more prominent male counterparts to get where they are have been literally sidelined. They report from the sidelines alone.

Many of the male commentators' credentials seem to be that they either played or have generally been around football. Based on nothing more, they receive fat paychecks [sic: paycheques] for making stupid comments. Matt Millen comes to mind, Tony Siragusa comes to mind ... Remember that thing where Terry Bradshaw was against black quarterbacks? I love the game but honestly I have to mute my television sometimes the problem is so bad. Meanwhile, in a country of over 300 million people I hazard a guess that there is more than one rabid football fan who is well spoken whose insights and opinions I would love to hear more of and yet who is in possession of an extra 'x' chromosome.

In fact, my inspiration for this blog post came from Lindsay Jones' appearance on Bill Barnwell's podcast summarizing week 5 NFL action. Ms. Jones made a comment about some man telling her he didn't like listening to female voices, and then she forever won my heart by telling a hilarious anecdote about what a jerk Jay Cutler is (in addition to being a dreadful quarterback making $10 million this year playing for the Miami Dolphins and thus guaranteeing they will not win the Superbowl).

Society needs to do better and the NFL needs to lead by example. To do less is disgraceful.

Harvey Weinstein - Let's Call it Like it is

The New York Times broke a story about Harvey Weinstein and his decades of sexual misconduct at work.

Here is what Forbes had to say about the scandal.

The Weinstein company board released a statement Sunday, which read in part:

"In light of new information about misconduct by Harvey Weinstein that has emerged in the past few days, the directors of The Weinstein Company have determined, and have informed Harvey Weinstein, that his employment with The Weinstein Company is terminated, effective immediately," [underlining my own]

What was this 'new information?' well, for one thing it was in fact quite old information, allegedly newly discovered. More than a decade ago Weinstein is alleged to have masturbated in front of a female reporter. If this were an isolated incident it would be denied, and most likely privately settled.

But it is not isolated, and that is kind of the point.

Weinstein is alleged to have reached settlements in a host of other allegations at least a portion of which is said to be documented within his companies: Miramax and the Weinstein Company.
The Board knew. Right now it is scrambling to control the fallout, part of which is masquerading as champions of gender equality. Their strategy appears to include pretending it was the new information that prompted Weinstein's firing. In fact, such misconduct was well documented over the years and known to the controlling minds within the company.

Weinstein was fired due to bad press, not the board of the company caring about gender rights in the workplace.

If this were in Canada, I would proudly represent any survivors of Weinstein's workplace misconduct.
If Mr. Weinstein were to call me with this high-profile case which could boost my profile, I would tell him he was fired for just cause and I cannot help him.

People should take sexual harassment in the workplace more seriously. Most particularly my comment is aimed at politicians and adjudicative bodies, but all members of the public should heed my words if we truly want to foster harmonious and respectful working environments in this country. I do, and I will happily tilt at this windmill now and in the future.

Weinsteins of British Columbia be warned.