More Leave Application Decisions

On Friday, Tom Schreiter briefly introduced three cases for which leave to appeal was granted by the Supreme Court of Canada (“SCC”). There are two further cases in which leave to appeal was also granted.

Honda Canada v. Keays, 2008 SCC 39

Of these five, the case that I believe is likely to be of the most interest is Keays v. Honda, (2005) CCEL (3d) 258. In 2005, Ontario Superior Court Justice McIsaac set tongues wagging in the employment law and human rights communities when he awarded Kevin Keays, a Honda employee for 14 years, punitive damages of $500,000 in a wrongful dismissal claim. This was in addition to an award of 15 months’ salary as reasonable notice and 9 months salary to compensate for Honda’s bad faith behaviour in the termination. This damage award was unprecedented in employment law cases, where such awards typically range from $10,000 to about $75,000 at most.

In order to award punitive damages, there must have been an “independent actionable wrong” going beyond bad faith conduct relating to the employment contract itself. In this case, the independent wrongs were discrimination (Mr. Keays was found to have been terminated because he suffered from Chronic Fatigue Syndrome) and harassment (found in the way that Honda dealt with Mr. Keays’ disability before the time of termination). The trial judge also made a large costs award, with a risk premium of 25%.

Few observers were surprised when the Ontario Court of Appeal (“ONCA”) drastically reduced the damage award from $500,000 to $100,000. Even at this reduced level, the punitive damages are unusually high in the employment law context. The ONCA also reduced the risk premium in the costs award by half. Finally, the Court of Appeal rejected Honda’s argument of bias on behalf of the trial judge and upheld the total notice period of 24 months.

Justice Goudge dissented on the issue of punitive damages, arguing that although the amount seemed high, it was “not so disproportionate as to exceed the bounds of rationality.”

The Ontario Human Rights Commission brought a motion for leave to intervene which was rejected by the SCC.

R. v. H. (L.T.)

This case deals with a prosecution for dangerous driving causing bodily harm under the Youth Criminal Justice ActSC 2002, c 1 [YCJA]. The youth in question, who was 15 at the time, made a video-taped statement to police after his arrest. He was informed of his right to retain counsel and to obtain immediate free advice from duty counsel. He was also told of his right to contact his parents. He turned down all of these offers and made his statement.

The Youth Court Judge held that the Crown had not satisfied its requirement to prove beyond a reasonable doubt that the statement was voluntary because there was some doubt as to whether the youth had understood his rights (his mother testified that he suffered from a learning disability). This led to an acquittal.

The Court of Appeal overturned the acquittal. They held that s. 146(2) of the YCJA merely required the police to clearly explain these rights to the young person, in language appropriate to his or her age and understanding. There was no requirement on the police to actively ensure that the accused in fact understands these rights. They also held that although the Crown had to prove beyond a reasonable doubt that they had properly informed the accused of his rights, they had only to prove on a probability standard that the accused had voluntarily waived those rights under s. 146(4).

New Brunswick Human Rights Commission v. Potash Corporation of Saskatchewan, 
2008 SCC 45

Tom’s article on Friday summarized the facts of this case. I would merely like to comment that this may be one of the cases (like the recent election results publication ban case, R. v. Bryan, 2007 SCC 12) where the decision ends up having little practical relevance in the face of social changes.

Whether or not the SCC upholds the decision of the New Brunswick Court of Appeal (“NBCA”), it is likely that within a few years, the law will be changed to provide that mandatory retirement provisions only be permitted if they constitute a bona fide occupational requirement. In fact, New Brunswick itself announced intentions to end these exemptions during the government of Premier Bernard Lord (these amendments were later withdrawn). In Alberta, Manitoba, Prince Edward Island, Quebec, and most recently Ontario, as well as all three territories, mandatory retirement is already prohibited.

By upholding the NBCA’s decision, the SCC may hasten this demise, opening employers to numerous claims and making it much more difficult for them to justify the existence of such a provision. On the other hand, an opposite decision is unlikely to reverse the trend away from permitting mandatory retirement.

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