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dismissal. The Supreme Court disagreed with several of his findings, including that Honda's decision to fire Keays was an attempt to punish him for getting a lawyer to deal with the matter. Fitzgibbon says the court has clari- fied and redefined how damages are to be considered in employment law as flowed from the pivotal 1997 SCC case Wallace v. United Grain Growers Ltd. Keays restates the factors that should be considered when determining a reason- able notice period upon termination, and changes the way employees should be compensated for bad-faith conduct on behalf of an employer. It also makes clear that a breach of the Human Rights Code doesn't constitute an actionable wrong when considering punitive dam- age awards. "Each of these items, indi- vidually, is significant and together pro- vide assistance to the workplace parties as they navigate this complex legal area," says Fitzgibbon. He says Keays has now usurped Wal- lace in the employment law realm. "I think people might apply [Wallace] in a sentimental, historical way, but I don't think it's going to be applied going for- ward. Certainly, the Supreme Court said bad-faith type conduct is compensable in some way, but it's compensable in the same way as other damages." Honda's lawyer, Earl Cherniak of Lern- ers LLP, says employers are "wholly re- lieved at the decision. The fact that an em- ployee is very upset at the fact that he loses his or her job, is not compensable, because everyone appreciates that a job may ter- minate, and the employer's responsibility is simply to give reasonable notice." Keayes' counsel Hugh Scher ques- tions whether the Supreme Court should have engaged in a factual review of the trial decision. "The court has repeatedly warned appeal courts against engaging in that process, recognizing the paramount role of the trial judge and the unique perspective of the trial judge to actually hear the evidence and assess credibility and demeanor of witnesses, as well as the entire trial record." He calls the decision Ball&Alexander Barristers & Solicitors Excellence in Employment & Labour Law Wrongful Dismissal Labour Relations Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Workers' Compensation Employment Standards Administrative Law 82 Scollard Street, Toronto, Canada, M5R 1G2 Phone: (416) 921-7997 Fax: (416) 921-3662 web: www.staceyball.com www.kenalexander.ca "a terrible blow to workplace fairness" in Canada. "The elimination of damages for conduct which we put forward is dis- criminatory and in bad faith would seem to create an even higher threshold than the present law provides for establishing this type of conduct, and makes it far less likely that employees across the country are going to be able to get redress for this type of egregious conduct." George Avraam, of Baker & McKenzie LLP who represented the Alliance of Manufacturers & Exporters Canada, says changes to the Human Rights Code in Ontario mean the case will have a differ- ent effect in the province. The amend- ments allow employees to sue for breach- es of the code as a secondary cause of action. "So to the degree that this deci- sion deals with the jurisdictional aspects in Ontario, it's probably not all that rel- evant anymore," says Avraam. "But on the duty to accommodate and the em- ployer's ability to request medical infor- mation to monitor absences, employers will breath a sigh of relief." GILBERTSON DAVIS EMERSON LLP BARRISTERS AND SOLICITORS practice restricted to CIVIL LITIGATION, INSURANCE LAW Angela Emerson John L. Davis John L. Davis Professional Corporation Richard Hayles R. Lee Akazaki James W. Wilson Nazanin Aleyaseen Jody W. Iczkovitz Jonathan J. Weisman Counsel: James E. Adamson 20 Queen Street West, Suite 2020 Toronto, Ontario M5H 3R3 Tel: (416) 979-2020 Fax: (416) 979-1285 email: office@gilbertsondavis.com www. Law ye rmag.com A UGUST 2008 61