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benefits provided until the end of 2010 were a significant milestone for the former employees, but the matter needs to be resolved sooner rather than later as many pensioners and those on long-term dis- ability are struggling to make ends meet. As well, there have been some problems regarding his representation of both the pensioners and long-term disability groups. "We had an allegation of conflict because we represent both groups, so we got other lawyers to represent them," he says. As well, in 2009, the court appointed long- term disability employee Sue Kennedy of Ottawa to be the key representative for a group of 260 employees who are disabled; another 100 disabled employees are in the Canadian Auto Workers union repre- sented by lawyer Barry Wadsworth. Zigler says both groups are very well- organized and extremely patient despite the protracted nature of the process. "It's a really difficult situation in terms of know- ing the outcome in the future," he says. "I would say that ultimately, an insolvency is a losing proposition and once you get to the insolvency stage, it just becomes a fight between the employees, pensioners, and disabled employees." The challenge to Nortel's insolvency FOR BETTER OR FOR WORSE: A PRACTICAL GUIDE TO CANADIAN EMPLOYMENT LAW, THIRD EDITION FULLY REVISED AND UPDATED! FROM START TO FINISH, A COMPREHENSIVE AND PRACTICAL GUIDE TO THE COMPLETE EMPLOYMENT RELATIONSHIP This text is an easy-to-read reference on employment law issues across Canada. It can be read cover to cover to get the full scope of the employment relationship, or it can be referenced by topic so you can quickly find the information you are looking for. Written by two leading authorities on the subject who share their knowledge, tips and techniques with you on the law and how to apply it, you can get answers to your most pressing employment questions efficiently. This new edition provides up-to-date guidance on key topics such as: the end of mandatory retirement inducing breach of contract enforceability of restrictive covenants dependent contractors privacy issues in the workplace employment standards duty to accommodate the new human rights regime in Ontario occupational health and safety offences legislation addressing workplace violence and harassment constructive dismissal, just cause, reasonable notice calculating dismissal damages post Keays v. Honda Canada Inc. Prices subject to change without notice, to applicable taxes and shipping & handling. Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation CANADA LAW BOOK® LT0228 benefits plan on behalf of the long-term disability employees initiated by Rochon is heading to the Supreme Court of Canada. Rochon represents 40 former employees who are taking issue with the HWT fund's depleted assets, the alloca- tion of the remaining HWT assets, and priority of the claims of the disabled compared to the bondholders and others seeking to access some of the worldwide estate assets so as to boost the amount available for them. "The trust fund that was established on behalf of the disabled and others was woefully underfunded," he says. It had a shortfall of at least $37 million dating back to 2008. He agrees the case has been particularly challenging as he says he has been unable to get full financial disclosure from either Nortel or the court-appointed monitor, Ernst & Young. "The timing and extent of dis- closure in this case has been consistently shocking." He adds: "When a company sets up money in an HWT, that money is part of a sacred trust, especially where the beneficiaries are disabled." But he has so far lost his battle in the Ontario courts, so will launch an appeal to the SCC soon. Rochon also says each former employee who was receiving long-term disability when Nortel launched its insolvency has no alternative source of income along with high medical expenses, so it will serve as a matter of national scope and perhaps even lead to legislative changes. "In the context of a CCAA filing, having 40 people object is significant," he says. "These claims should definitely have pri- ority over multimillion-dollar executive bonuses and billion-dollar hedge funds." Jay Carfagnini and Gale Rubenstein of Goodmans LLP's corporate restructuring 32 A PRIL 2011 www. CANADIAN Lawyermag.com orBetterForWorse-CLB_IH_Apr_11.indd 1 3/3/11 3:44:20 PM The Honourabl Mr e . Justice R O ourt Scott Echlin, Superior C of andall Justice ( ntario ) Christine M. Thomlinson