A Sign of the Times
Employment Law At Work Today
In a recent interview with MB, Ron Minken, one of Canada’s top employment lawyers according to Canadian HR Reporter in 2008 and 2009, explained some of the recent changes in employment law and the implications they could have for business in the current economic downturn and beyond.
Recognized as one of Canada’s top employment lawyers is a significant significant achievement. The lawyers featured are chosen according to two criteria: they are identified by their peers as the most frequently recommended employment lawyers in the most recent survey by legal publication, Lexpert, or they are selected in recognition of their contribution to employment law and HR publications.
Ron Minken’s selection is a result of meeting both criteria. He describes his Unionville-based practice, Minken Employment Lawyers, as “the only employment law boutique in York Region. Others dabble in employment law,” he says, “but to the best of our knowledge, ours is the only law firm in York Region which practises employment law exclusively.”
Minken is well known in legal circles. He and his colleagues write for various publications, including Law Times, Canadian Reporter and Canadian Employment Law Today, and are invited to speak at various meetings and conferences. Most recently, Ron addressed the Osgoode Professional Development Centre’s Employment Law Conference on the issue of “just cause”, and the Law Society of Upper Canada on the effect of the economic downturn on notice periods. He also addressed the Human Resources Professional Association of Ontario last September, and has been asked to speak again at their Annual Conference in Toronto in January 2010 on the topic of “electronic media abuse”.
“In this area of law and in the economic times in which we are living, there is a real demand for knowledge by employers as well as employees regarding the latest laws. That’s why we are asked to speak at these events.”
With new court decisions affecting employment rights and obligations almost on a daily basis, it is critical that employment lawyers keep up to date. “We constantly review the latest cases,” he says. “We receive emails almost every morning regarding all of the cases that have come out the day before across Canada. When a case comes out, we need to read that case that very day.
“If you are in court, in mediation or writing a letter, and you are able to quote from or refer to a decision that came out that day or the day before, you have a definite advantage. These days the practice of employment law is so specialised that you need to know the law as it comes out that day.”
What major changes is he seeing in his field currently? “On February 20 last year, I had the privilege of attending the Supreme Court of Canada to hear the most important appeal of the decade - Honda v. Keays. This was law being made. Surprisingly, Justice Bastarache overturned a bad faith and punitive damage award of $100,000 as a result of Honda’s conduct, which originally was ordered at $500,000 by the Trial Court. In rendering its decision, the Court clarified such issues as accommodation, bad faith damages and punitive damages. At the end, Honda had to pay zero in punitive damages.”
In addition to Honda, three additional decisions at the top Court last year will shape the future of employment law in Canada, Ron says. “In Evans v. Teamsters, Justice Bastarache addressed the issue of an employee’s duty to mitigate and determined the employee should have accepted temporary re-employment with the terminating employer when it was offered. In the June 12, 2008 decision of Loehle v. Purolator Courier Ltd., the Ontario Superior Court of Justice followed the Evans decision and placed an obligation on an employee who was constructively dismissed due to a demotion to continue working for that employer while seeking other work unless intolerable to do so.
“In the Hydro-Quebec case, Justice Deschamps established limits on how far an employer must go in accommodating a disabled employee. And in RBC Dominion Securities v. Merrill Lynch, Justice McLachlin determined that some employees do not have a general duty prohibiting them from competing with a former employer after their employment ends.
“In addition, this year the Supreme Court of Canada released their decision in the case of Shafron v. KRG Insurance, with Justice Rothstein determining that ambiguities in a non-competition clause should not be corrected by the Court, and instead, rendered the entire clause invalid.”
So what types of cases are Minken Employment Lawyers seeing now? “Today the biggest issues are notice on termination, including mass terminations which are increasing because of the economic situation, and changes to the contract of employment. We are also seeing more cases involving human rights and discrimination issues, particularily disability in the workplace”.
“While many employers are indeed terminating, some are also trying to cut back without terminating. With changes at the workplace, many employers are cutting back hours and/or remuneration in various forms. The biggest issue in these cases is whether or not these changes amount to constructive dismissal - constructive dismissal being tantamount to termination requiring the employer to provide notice or pay in lieu of notice to the employee”.
“To do your clients a service, you need to choose
one area of law and know it inside and out.
Also, to advocate your client’s interests
properly, team work is critical.”
"The ageing population is also a major factor today. “Because of the ageing workforce, we have seen in recent years possible questions as to whether a particular employee has been terminated because of their age. This is one of the biggest issues in employment law today, and because of the ageing baby-boomers we are going to see a lot more of this. In these situations, the onus is really on the employer to establish that they did not terminate because of age.”
In Canada, the law is more favourable to employees, Minken says, as opposed to the US where the law is more in favour of employers. “The law needs to be proportionately balanced so that in some scenarios employees have protection, and in others employers also have protection. Subtle changes in the last year or two in case law have been advantageous to employers or employees depending on facts and circumstances. Evans and Teamsters, for example, clarified the employee’s obligation to mitigate throughout their notice period. While the employer is obligated to provide or pay notice to that employee, the employee also has obligations.”
Is he seeing more cases arising from particular industries? “The car industry has been particularly hard hit in this economic downturn and that has had a trickle effect throughout the sector, including auto parts producers and suppliers. We are also seeing more cases in other manufacturing sectors and in the high tech field.”
Ron Minken is clearly a dedicated employment lawyer who really enjoys the profession he has chosen. When did he know he wanted to be a lawyer? “Before I was born! From a child, I grew up in an atmosphere where advocating was attractive and necessary. That passion to advocate on behalf of others led me to law school and specialising in this area.”
What advice would he offer those considering a career in employment law? “To do your client a service, you need to choose one area of law and know it inside and out. Also, to advocate your client’s interests properly, team work is critical. An experienced, educated team working together can really move a client’s interests forward. Keep on learning and keep up with case law as it comes out that very day. Get well known in the field by writing articles and public speaking. This will also help to educate others in this field.
“It all adds up to giving your client a definite advantage, and ultimately, a better settlement.”
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