Canadian Lawyer InHouse

May 2016

Legal news and trends for Canadian in-house counsel and c-suite executives

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7 CANADIANLAWYERMAG.COM/INHOUSE MAY 2016 ization, she was entitled to expect more as- sistance in overcoming her newly alleged shortcomings. I fi nd the GAP program as implemented by the Defend- ant was less an instrument of help than it was a way to rec- ord Ms. Brake's anticipated in- ability to meet the Defendant's shifting expectations in order to justify a decision that had ef- fectively already been made. "I fi nd that in the overall circumstances, PJ-M2R unilaterally made a sub- stantial and fundamental change to Esther Brake's employment contract and that in do- ing so constructively dismissed her without cause," wrote Phillips. Employers must remember to apply the standards set out in their performance im- provement plans consistently and in accor- dance with the terms of those plans, says Madeleine Loewenberg of Loewenberg Psarris Workplace Law LLP. The franchisee in this case was criticized for failing to provide performance reviews at the milestones established in its own performance improvement plan. The fran- chisee was also criticized for appearing to arbitrarily assign performance ratings to Brake; assessing her as "needing improve- ment" despite having achieved numeric per- formance scores that had previously earned her "excellent" reviews. "Employers should also remember that they do not have a unilateral right to de- mote an employee who has unsatisfactory performance. Doing so, even in the absence of a decrease in salary and/or benefi ts, may give rise to a constructive dismissal. If an employer is genuinely dissatisfi ed with an employee's performance, it should con- sider severing the relationship, either with or without cause," says Loewenberg. "If cause is to be asserted, the employer must have engaged in a transparent performance review process that has been administered fairly. The employee must understand what criteria she or he has to meet and must un- derstand that failing to meet that criteria may result in his/her termination." It is also interesting the court set the notice period with reference to (among other factors) "the manner in which she ization, she was sistance in over shortcomings as imp ant help ord M abilit shiftin to jus fect employment ing so constructiv cause," wrote Phil l A roundup of legal department news and trends was dismissed." While the court was critical of Brake's treatment during the course of her employ- ment, it relied on that treatment to establish that she was constructively dismissed. "It does not appear that it can rely upon that same treatment to establish an exten- sion to the notice period," says Loewen- berg. "In any event, the Supreme Court of Canada eliminated what had been referred to as "Wallace damages," or the extension to the notice period based on the manner of dismissal in 2008. Since then, and fol- lowing Honda v. Keays, damages on account of the manner of termination are meant to be assessed with reference to the mental dis- tress caused by the employer and the actual damages fl owing from the employer's con- duct. That analysis does not appear to have been followed in this decision." Franchise owners must take care to heed the advice set out above. The corporation assigning the franchise may want to reinforce that advice in order to preserve the goodwill that is attached to the corporate name. Although the defendant was PJ-M2R Restaurant Inc., people will associate the McDonald's brand with the facts of the case and the outcome. In March 2013, Brake accepted a pos- ition 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 dimin- ish the loss of the latter," wrote Phillips. IH Conduit combines with Deloitte for lawyer-on-demand service A fter several years as a disrupter of traditional legal services on Bay Street, Conduit Law announced it is forming a new legal entity with professional services giant Deloitte. Conduit Law Professional Corp., founded by Peter Carayiannis four years ago, will now become Deloitte Conduit Law LLP and offer outsourced lawyers and other services along with Deloitte to support in-house legal departments as well as law fi rms, and provide support for short-term projects. In a statement released Monday, Deloitte said it is investing in "new models" through affi liated law fi rms to "address the evolving legal requirements of clients." Carayiannis said the deal is about offering existing clients more services with a broader, national footprint. It's not the fi rst alternative services fi rm to be consumed by a larger entity. Last month, Cognition LLP, founded 10 years ago, announced it was merging with U.S.-based Axiom. Carayiannis founded Conduit after many years in-house as general counsel in several posi- tions and seven years as a corporate-commercial lawyer at Gowling Lafl eur Henderson LLP. A year ago, Conduit had about 12 lawyers on staff and clients included Cisco Systems. Many included chief fi nancial offi cers and other C-level executives in companies that don't have legal departments. In August 2014, Conduit introduced the ability for clients to change the amount of their invoice to refl ect their opinion of the value they received for the fi rm's services with a "client value adjustment." Carayiannis is also co-founder of StandIn Law, a location-based application that matches lawyers with other lawyers and legal professionals for court appearances. In 2014, Conduit was a winner of a Canadian Lawyer InHouse Innovatio award for work it did with client Cisco Systems. IH PETER CARAYIANNIS

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