Canadian Lawyer InHouse

news roundup million for corporations. When the private right of action comes into play receivers of messages can also sue for $200 for each individual communication. "The costs and annoyance for companies significantly outweigh the purported benefits," says Szentesi. "It's just another case of legislators not understanding businesses. It's overkill for an issue that's not significant enough to do this. It's a proportionality issue — $1-million individual fine and $10-million corporate fine for spam? We've had corruption law for 15 years and we've had one or two prosecutions. When you compare price-fixing of auto parts versus spam — what, you can't just delete the message?" Political parties and registered charities also get an exception but there may be some fine print they need to examine to be sure they don't violate the legislation. "There is an exemption for the cause industry has tried to get consent [and format of e-mails] clarity and exemptions so it for charities but the message sent would have a more reasonable out has to be primarily for fundapplication. While the regularaising purposes," says Jonathan tions provide some assistance Lau, senior legal counsel with most businesses and organizaTVO, a registered charity in Ontions will still be left with many tario. "Where it can be tricky is questions," he says. how far charities may stretch Kuhl concurs the law, with its what that means. For example, "opt-in" consent requirement some charities send status upand significant fines — and Sanjeev Dhawan dates or e-blasts. So charities even imprisonment — make it need to be careful about the content of their some of the toughest anti-spam legislation messages as they may unwittingly fall afoul in the world. If an organization is sending of the exception." a message to an individual or organization Fekete says the resources required to get listed as part of a list of foreign countries up to speed will be "significant." they must comply with the legislation in "The legislation is broader in material that country. If they don't they would then ways than legislation in other jurisdictions be doubly punished — by the countrythey and the reason there has been a three-year are sending the message to and under the delay from enactment to finalization is beCanadian legislation. IH notice period was 20 months and awarded damages based on lack of notice for 18 months. Waterman was paid pension benefits after termination based on a fully vested pension. The trial judge did not deduct the amount of pension benefits paid during the notice period from the damages award. However, IBM appealed, arguing an amount equal to the pension benefits should have been deducted from damages. The Court of Appeal for British Columbia dismissed the appeal and now so has the Supreme Court. It took the SCC a year to render a decision on a matter many thought was settled in Canadian employment law. Godkewitsch says she was "surprised" it was appealed to the SCC and that it granted leave. "It's certainly an issue of national importance but I thought the law was fairly settled in this regard," she says. Of interest to some in the employment bar was that Chief Justice Beverley McLachlin was one of the two dissenting on the case along with Justice Marshall Rothstein. "I think the dissent rationale is compelling," says Erin Kuzz of Sherrard Kuzz LLP. "For them it really came down to it being a defined-benefit versus a defined- contribution benefit plan. If you have a defined-benefit plan where at the end of the day you're going to continue to get those benefits for the rest of your life when you retire, it's not like having a bucket of money you're drawing against. So on the minority reasoning why should you get to double-dip for the notice period?" While the decision wasn't a huge surprise it was "kind of disappointing" from the employer side, says Craig Neuman of Neuman Thompson in Edmonton. "When leave was initially granted on the IBM case there were some — me included — who were hopeful this area might get sorted out in a more rational way than unfortunately the majority of the court has concluded is the appropriate direction," says Neuman. "Speaking for the majority, Justice [Thomas] Cromwell said the collateral benefits issues in determining damages in figuring out a breach of contract case has seemed to bedevil judges for a long time and seems to be continuing to do that in terms of the decision that came out today." Neuman was involved in a case in Alberta (Edwards v. Royal Alexandra Hospitals) where a similar conclusion was reached involving what to do with pension benefits post termination. The Court of Appeal in Alberta came to the same decision the B.C. Court of Appeal adopted in IBM, which the SCC endorsed. There is an aspect of the majority reasons that may give employer counsel new opportunities to argue in future cases that receipt of disability benefits during the notice period should be deducted from wrongful dismissal damages, says Hendrik Nieuwland of Shields O'Donnell MacKillop LLP, even if the employee contributed to the disability benefits plan. The Ontario Court of Appeal has relied heavily on employee contribution to disability benefits to justify its refusal to deduct disability benefits. However, in the majority reasons in Waterman, Cromwell says there are "strong arguments against giving this consideration [employee contribution] much weight as an explanation of why particular benefits should or should not be deducted." This is because "whether deducted from damages or not, the plaintiff receives the benefits." "In my view, these statements by Justice Cromwell make the Court of Appeal's reasoning in Sills and McNamara less persuasive," says Nieuwland. IH canadianlawyermag.com/inhouse February 2014 7

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