Canadian Lawyer

December/January 2021

The most widely read magazine for Canadian lawyers

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Page 14 of 43 13 partner at Levitt LLP in Toronto who repre- sented the successful appellant before the Supreme Court. The decision has "made it virtually impos- sible to contract out of benefits that would have accrued during a period of notice if an employee's wrongfully dismissed," says Levitt. It will affect "virtually every executive" and a large percentage of Canadian employees, many of whom enjoy bonuses, stock options or long-term incentive plans. When David Matthews resigned from Ocean Nutrition Canada in 2011, he sued for wrongful dismissal, seeking damages for breach of his employment contract and the loss of an LTIP with the company. Ocean Nutrition was sold in 2012, some 13 months after Matthews had left. The trial judge at the Supreme Court of Nova Scotia found that Matthews had been constructively dismissed and that the appropriate notice period was 15 months. A majority of the Court of Appeal upheld the finding of constructive dismissal, but it found that the trial judge erred in awarding damages pursuant to the LTIP. In his reasons, Justice Nicholas Kasirer of the Supreme Court noted that, although employers have the right to require employees to leave their positions, there is always the duty to give reasonable notice, and failure to provide such notice can lead to an award of damages, including benefits and bonuses had they been given reasonable notice. Even if an employee was not actually working for the employer at the relevant time but the notice period is active, the period of the employment contract stays alive for the purpose of calculating damages. SCC affirms concept of substantive equality Q&A Paul Champ Principal CHAMP & ASSOCIATES On Oct. 16, the Supreme Court of Canada ruled in Fraser v. Canada (Attorney General) that former members of the Royal Canadian Mounted Police who job-shared while raising young children were discriminated against in not being able to "buy back" full pension credit for their periods of reduced working hours. Paul Champ, principal of Champ & Associates in Ottawa, was counsel for the appellants in the case and has appeared in the Supreme Court of Canada on several other occasions. What was the significance of the Supreme Court's decision in this case? This is a huge win for equality and women in the workplace — and in the home. The federal government has tinkered with the RCMP pension plan over the years to make it fairer for women who have interruptions in their service for childbirth and care for small children, but it continued to penalize women who wanted to balance their job duties and childcare responsibilities for young children. How was this case important to equality rights under the Charter? This judgment is an important affirmation of the concept of substantive equality, which has really been at the heart of s. 15 Charter jurisprudence. This case focuses on "adverse effect" discrimination; that is, the inequality that can be caused by facially neutral laws. The majority elaborates on how to identify adverse effect discrimination in a way that it hasn't really done before. The judgment is part of the important line of cases for equality of women such as Brooks, Janzen and Action Travail. These cases pushed back against the argument that unequal results in the workplace for women is often caused by their "choices." In balancing the responsibilities of family and career, women far more frequently than men must make decisions that affect their career. What stands out to you among the other equality cases you've argued before the Supreme Court? I've been fortunate to appear before the Supreme Court of Canada in seven cases, and my client's position has been on the winning side six times. I think we have seen the Supreme Court's growing awareness of access-to-justice challenges for parties with human rights complaints, but I still think the court doesn't fully appreciate the David-versus-Goliath nature of these cases. I appeared for the Council of Canadians with Disabilities in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011, in which the Supreme Court interpreted the Canadian Human Rights Act narrowly and found the tribunal had no jurisdiction to award legal costs to successful claimants. That overturned 30 years of tribunal jurisprudence and made it immediately more difficult to advance cases for victims of discrimination in the federal jurisdiction. That was the one case I was involved in and lost, and it still really burns. "It's made it virtually impossible to contract out of benefits that would have accrued during a period of notice if an employee's wrongfully dismissed." Years in practice: 20 Career highlight: » Winning Abdelrazik v. Canada (Minister of Foreign Affairs) in the Federal Court in 2009. It not only established key precedent on s. 6 of the Charter, but [it] provided an amazing moment I will never forget in seeing my client reunited with his children in Montreal after Canada was ordered to repatriate him from Sudan. Career lowlight: » I was disappointed to lose in the Afghan detainees case. On behalf of Amnesty International, I argued that prisoners in the custody and control of the Canadian Forces overseas were subject to the protections of the Canadian Charter of Rights and Freedoms. But the Federal Court and Federal Court of Appeal disagreed, finding that Charter rights don't follow the Canadian flag everywhere.

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