How to Retain a Lawyer For Your Professional Discipline Case

   Those faced with having to defend themselves at a professional discipline proceeding in Ontario know all too well that it is a very serious matter which calls for top notch counsel.  What is top notch counsel ?  Is it counsel who have written books on the subject matter ?  Is it counsel whose practice is primarily focused on defending the interests of the professional regulatory bodies that regulate the professions ?  Is it counsel who restrict themselves to defending the professionals ?

   One of the biggest mistakes that professionals who are seeking counsel on these make is seeking the first two group of counsel described above - those who have written books on the subject area and those whose practice is primarily involved in defending regulatory bodies.

   The best practice is to seek out counsel who are dedicated to representing the interests of professionals exclusively.  There is a very simple reason for this.  The area of professional discipline, like labour relations and human rights law, is very strongly influenced by a lawyer's ideological belief about what is fairness, natural justice and fundamental justice and what level of deference ought professional discipline bodies be granted in adjudicating cases which come before them.  The degree of variation among lawyers varies significantly. In my personal experience that variation is very pronounced and directly related to who the lawyers habitually represent in the process with those lawyers defending the tribunals singing the deference and expertise of the tribunal song and those lawyers who represent the professionals singing the natural justice and correctness song.

   Once you have passed the first hurdle in retaining a lawyer to represent you - you will want to focus on the economics or financials.  There is no doubt that litigating these cases can be very expensive. That is not a basis to write a blank cheque.  It is vital to be certain of the costs involved.  Do not hesitate to have the lawyer explain to you in plain language the costs involved in the process. You may even wish to consider a retainer based on the various steps involved in the process.

   Retaining a lawyer to defend you on a professional discipline case is like buying a house.  It is one of the few decisions in life that can forever impact your future in either a very positive way or a very negative way.  It is wise to shop around.  Make appointments with at least three lawyers, ask questions and compare.  Your professional future is at stake.  It is critical that you make an informed decision rather than one based on irrelevant considerations.  At the end of the day the question is who do you believe will give you their undivided loyalty.

NOTE: E.J. Guiste represents clients in the area of professional discipline and is available for consultation. (416) 364-8908.

   

College of Veterinarians Counsel's Right to Advise Refering Body and Draft Particulars for Hearing Subject of Appeal

    A Doctor of Veterinary Medicine is asking the Court of Appeal for Ontario(ONCA) to rule on the legality of the College of Veterinarians of Ontario's practice of College Counsel providing legal advice, drafting allegations of misconduct and then prosecuting the said allegations before the College's Disciplinary Committee.  The doctor who was the recipient of a three particular complaint in writing was made to defend a 19 particular Notice of Hearing issued by the College of Veterinarians and drafted by counsel who represented the College before the Discipline Committee and yet later at the Divisional Court and Court of Appeal.

Excerpt from
Applicant's Factum
on Leave Motion:

22.   The Veterinarians Act provides no statutory authority for anyone but the Complaints Committee to refer, "in whole or in part, to the Discipline Committee or to take such action as it considers appropriate.  In this case College Counsel who was advising the Complaints Committee drafted and expanded the allegations of professional misconduct against the Applicant.  Counsel for the College state in their text, "This rule prevents the prosecutor from adding new allegations without the concurrence of the statutory committee that made the referral" at p.6-3. (see A Complete Guide to the RHPA by Richard Steinecke and B. LeBlanc)

    The doctor, with the assistance of his counsel, E.J. Guiste, is challenging the College's long-standing practice as being in violation of s.28(11) of the Veterinarians Act which expressly limits the legal assistance which the College's Complaints Committee can receive to, "an adviser independent from the parties and, in such case, the nature of the advice shall be made known to the parties in order that they may make submissions as to the law."

ONCA Stays Suspension
and Costs Pending Appeal:

   On November 14th, 2018, a day before the Discipline Committee's orders were to be enforced, Justice Pardu of the Ontario Court of Appeal granted a stay of the Discipline Committee of the College of Veterinarian's orders suspending the doctor for three months and slapping him with a costs order of $142,000.  E.J. Guiste made the following points in his factum filed with the Court of Appeal on the stay motion:

[25]    ....These statutory functions under both the Act and the Code are rendered moot or merely illusory if counsel for the Respondent is permitted to be involved in the following conflicting roles:

1.   Advising the Complaints Committee and drafting allegations for them which the Discipline Committee(DC) is to adjudicate;

2.   Participating in the hearing as counsel for the College and asserting privilege over the advice he gave the Complaints Committee in the absence of the Applicant;

3.   Acting as counsel in defending the decisions of the DC and not advising the court of his multiple advisor roles in the process.

E.J. Guiste made the following closing submission in the factum filed with ONCA on the stay motion:

[31]   In the final analysis, the test for a granting of a stay of the subject orders is  clearly met. Indeed, it would not be overstating the point to submit respectfully that the issuance of a stay in the circumstances of this case may be necessary to protect the integrity of the professional regulation regime in question on the basis that justice must be seen to be done.

NOTE:

This piece is posted her as a public service.  Thousands of health care professionals in Ontario are subject to professional regulation and discipline in the circumstances in which Dr. Walia was. There can be no doubt that the drafters of the legislation inserted s.28(1) in the Veterinarians Act and s.38(4) of the Health Professions Procedural Code to preserve transparency, natural justice and fairness in the complaint investigation and hearing process.  Below is a copy of the Notice of Motion Seeking Leave to Appeal at ONCA.

                                                                                Court File No.: M49807  

                                                                                               

COURT OF APPEAL FOR ONTARIO

B E T W E E N:

DR. RAVI WALIA

                                                                                                           

                                                                                                                                                                                               Applicant/Moving Party

- and -

COLLEGE OF VETERINARIANS OF ONTARIO

                                                                                                                                                                                                                               Respondent/Respondent

AMENDED

NOTICE OF MOTION FOR LEAVE TO APPEAL

            THE MOVING PARTY, Dr. Ravi Walia,  hereby makes a Motion to the Court of Appeal  for leave to appeal the decision of the Divisional Court (Divisional Court File No. DC-17-0064-00) of October 16th, 2018  – upholding the findings of liability, penalty and costs of the Discipline Committee of the College of Veterinarians of Ontario on a date to be fixed by the Registrar.

            PROPOSED METHOD OF HEARING is to be in writing, 36 days after service of the moving party’s motion record, factum and transcripts, if any, or on the filing of the moving party’s reply factum, if any, whichever is earlier, at Osgood Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N5, pursuant to rule 61.03.1(1) of the Rules of Civil Procedure.

 THE MOTION IS FOR:

1. An order granting the moving party leave to appeal to the Court of Appeal for Ontario from the decision of the Ontario Superior Court of Justice (Divisional Court) dated October 17th, 2018 upholding the Discipline Committee's decisions on liability, penalty and costs.
2. His costs; and
3. Such further and other relief as this Honorable Court may deem just and as Counsel may advise.

 GROUNDS FOR THE MOTION:

 1.         The applicant, Dr. Ravi Walia, is a licensed doctor of veterinary medicine in Ontario.

Breach of Natural Justice,

Fairness and Excess of Juris:

2.         What started out as a three particular complaint in writing against the Applicant filed with the College on or about August 17th, 2014 that he:

                        (1)   Performed cherry surgery on Tucker Cronier (a dog) in an

                                incompetent manner and it resulted in complications and

                                and additional surgery by another veterinarian;

                         (2)   Failed to inform Ms. Cronier that he was inexperienced in

                                performing this type of surgery; and 

                        (3)   Failed to provide acceptable post-operative care to Tucker;

                               on which he was invited to provided a response in writing to

                               - somehow blossomed into a 19 particular Notice of Hearing

                               , with the assistance of Counsel of Record for the Respondent,

                               upon which the Applicant was called upon to defend at a

                               hearing but which were not the subject of the complaint in

                               writing or the investigation carried out by  the Complaints

                               Committee contrary to s.26(1) of the Act and binding legal

                               authorities in Ontario.

3.         The 19 new allegations which the Applicant was compelled to answer at the hearing on or about April 12th, 2017 - more than 32 months later - included the following:

 (a)        Failed to request, or make sufficient efforts to obtain, Tucker's medical

             history or records from prior treating veterinarians;

 (b)        Failed to perform a proper pre-surgical assessment of Tucker;

 (c)        Failed to properly interpret or adequately discuss pre-operative blood

              test results with Tucker's owner prior to surgery, if in fact the results

              were obtained prior to surgery;

 (d)       Failed to obtained informed consent to surgery treatment;

 (e)        Failed to advise Tucker's owner that he was inexerienced performing

             cherry eye surgery;

 (f)        Performed the surgery without proper training and/ or experience;

 (g)        Failed to perform cherry eye surgery (replacement of prolapsed third

              eyelid/glands properly or competently;

 (h)        Used improper suture material (type and size)

 (i)         Used excessive suture material by using an inappropriate suture 
              pattern and knot placement;

 (j)         Failed to provide  proper and/or adequate anesthesia for surgery;

 (k)        Failed to provide proper and/or adequate pain management before, 
              during and after surgery;

 (l)         Failed to provide proper and/or adequate supportive medications post-

              operatively;

 (m)       Failed to properly manage Tucker following surgery by hospitalizing

             Tucker overnight on IV fluids without any monitoring;

 (n)        Failed to properly document Tucker's healing and responseive post-

              operatively;

 (o)        Failed to either use Elizabethan collar or document its use while 
              Tucker was hospitalized;

 (p)        Failed to provide adequate discharge instructions, and/or failed

              to document same;

 (q)        Failed to properly examine Tucker's eyes post-operativley;

 (r)        Failed to provide appropriate post-operative care through adequate

             monitoring and in appropriate medications; and

 (s)        Failed to create or maintain adequate records.                                              

3.        Counsel of record for the Respondent admits that the "specific allegations are generally drafted by counsel for the Complaints Committee's consideration, which is what occurred in this case."

           

4.   Counsel of record for the Respondent is in fact involved in all facets of the Respondent's discharge of its statutory function and is not restricted to presenting the case against the Applicant independently and impartially and this point of law is before the Divisional Court for  adjudication.*

5.         The Applicant was never invited to provide an Answer to the 19 "new allegations" drafted by counsel.  Indeed, the expert report relied upon by the respondent is based on the original three particular complaint in writing.

Excessive Delay, Breach of

Natural Justice and Fairness:

6.         The 19 "new allegations' comprising the Notice of Hearing belatedly drafted by counsel were the subject of a public hearing 34 months after the filing of the initial complaints in writing in 2014 and the Applicant played no part in this delay.  The delay denied the Applicant of a fair   hearing.

7.   Significant and relevant disclosure required to properly mount a defence
to these allegations were denied the Applicant, including the curriculum vitae of the College's expert witness and notice of material changes to her opinion in advance of her testimony.

Breaches of Natural

Justice, Fairness and

Conflict of Interest:

8.   The intake of the complaints in writing received by the College along with their investigation and processing and the hearing itself were tainted by breaches of natural justice, fairness and conflict of interest which standing alone and cumulatively deprived the Applicant of a fair hearing.

9.         The Divisional Court failed to follow and apply its own jurisprudence as well as other binding legal authorities on the issues of jurisdiction, fairness, breach of natural justice and bias.      Indeed,their upholding of the decisions of the DC is based on flawed premise that 19 particular Notice of Hearing was the result of the assistance of Independent Counsel to the Complaints Committee.

           

10.       These issues raise general questions of law and the application of the very fundamental right to a fair and impartial hearing when one’s professional reputation is in jeopardy – issues which transcend the litigants in this case and are in the public interest for this Honourable Court to give guidance on. 

11.       The within appeal involves the interpretation and application of the Veterinarians Act, R.S.O. 1990 ch. V.3, s.24(1) and (2), s.28(11) and Regulated Health Professions Act, 1991 and in particular Schedule 2, Health Professions Procedural Code s. 25(4), (5) and (6); 25.2(1); 25.3(1), (2); 26(1); s.27, 28; 36(1), 43, 44, 53, 53.1.

12.       The within appeal also involves the interpretation and application of the costs provisions of the enabling legislation - provisions which without guidance from this Honourable Court subject the Applicant and other similarly situated professionals to arbitrariness and prejudice in defending themselves as was the case here.  These provisions have the impact of denying such litigants of access to the courts.

13.       Rules  61.03.1  of  the  Ontario  Rules of  Procedure

14.       Such further and other grounds as the lawyers may advise.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion :

1.            Divisional Court Reasons;

2.            CVO Discipline Committee Decisions 
             on Liability and Penalty and Costs;

           

            3.        Relevant segments of the transcripts of the proceedings 
                  before the CVO panel and particularly those segments touching 
                on their consideration of the issues of jurisdiction, denial of natural 
                 justice and fairness and bias;

         4.         *Copy of Notice of Motion filed with the Divisional Court in Berge  
                     v.  College of Audiologists.., 2016 ONSC 7034

             

5          Such other documentary evidence as this Honorable Court may allow and counsel may             advise.

Date:October  31st , 2018                                                                                                                                                                

E.J. GUISTE

Professional Corporation

Trial & Appellate Advocacy

2 County Court Blvd., Suite 494

Brampton, Ontario

L6W 3W8

ERNEST J. GUISTE(34970C)

(416) 364-8908

(416) 364-0973 fax

E mail – ejguiste@yahoo.com

Counsel for the Applicant/Appellant

 TO:  

                        STEINECKE MACIURA LeBLANC

                        Barristers and Solicitors

                        401 Bay Street, Suite 2308

                        Toronto, Ontario

                        M5H 2Y4

                       

                        Bernard C. LeBlanc

                            Tel: (416) 599-2200

    Fax(416)  593-7867

    Lawyers for the Respondent

Right to an Interpreter at Trial Constitutionally Protected

   Individuals facing trial in a criminal or quasi-criminal proceeding have the right to an interpreter if they are unable to understand or speak the language in which the proceeding are conducted.  This right is so fundamental in our system of justice that it actually constitutionally protected under section 14 of the Canadian Charter of Rights and Freedoms.

   s.14 reads as follows:

   A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Application in Criminal Trials:

   A person charged with a criminal offence who does not speak either of Canada's two official languages, French or English, is entitled to the use of an interpreter to provide simultaneous translation during the entire trial at no personal cost.

   My experience in the courts in Peel Region lead me to believe that we are not doing enough to bring this particular constitutional right to fruition.  Many, many individuals in Peel Region and indeed elsewhere are simply unaware of this right.  Trial judges and Crown counsel need to do more to make persons in the community with translation needs aware of this right.

Interpreter Inquiry by
Trial Judge would Help:

   One way to ensure that this right is protected is for trial judges to conduct an inquiry to ensure that persons facing criminal or quasi-criminal prosecution who may need translation services are fully informed and aware of their rights in this regard by way of the following inquiry:

1.   Sir or Madam - s.14 of the Canadian Charter of Rights and Freedoms provides
      that if you do not understand or speak the language in which the proceedings
      are conducted or if you are deaf - then you have the right to the assistance of an
      interpreter ;

2.   This interpreter is provided to you free of  personal cost to you;

3.   If you elect not to use an interpreter - this may be found to constitute a waiver
      of this right and may impact your appeal rights should you be found guilty.

4.   Having said that - do you wish to have an interpreter to interpret the proceedings ?


Impact of Absence of Translation
On Fair Trial Rights:

   The Court of Appeal for Ontario has had opportunity to rule on the impact of the absence of interpretation on a Defendant's fair trial rights.  In R  v. Reale [1973] 3 O.R. 905 (ONCA) the court had this to say about the impact of the absence of translation during the trial judge's charge to the jury on a defendant's fair trial rights:

"We are of the opinion that the accused, by reason of being deprived of the assistance of the interpreter during the trial judge's charge, was not present for that part of the proceedings within the meaning of s. 277 (now 650(1)) of the Criminal Code.  We are of the view that he was no more present than if he were unconscious as the result of a heart attack or  stroke, and was effectively denied any meaningful presence as if he had been physically removed from the court-room during that part of the proceedings.(emphasis added)


Advice to Defendants

1.   Being able to converse in English or French does not translate into being able to fully understand the trial proceedings in a criminal or quasi-criminal trial if neither is your first language;

2.  No one will punish you for asserting your bona fide right to interpretation;

3.  Consulting a lawyer who is knowledgeable regarding these rights is a good first step.


About the author:

E.J. Guiste is a trial and appeal lawyer based in Brampton. He represents clients in
criminal, civil and administrative and constitutional law matters. This piece was
inspired by my representation of an Urdu speaking Defendant who sought my counsel
late in his trial. The Crown's response to his application for a mistrial on account of the
absence of simultaneous interpretation at his trial both shocked and inspired me to
make other similarly situated persons in the community aware of this right.

You Don't Speak English ?: Right to Interpreter on Arrest Part of Right to Counsel

     Today's Greater Toronto Area population is increasingly non-english speaking.  Indeed, in Brampton languages like Urdu, Hindi and Punjabi are spoken by a significant portion of the population.  In Scarborough and Richmond Hill languages like Cantonese, Mandarin and Tagalog are increasingly prevalent. 

     This growth and change in the linguistic composition in the GTA has dramatically changed the way police interview persons in their custody on criminal matters.  Police Services Boards must ensure that their services are well equipped with the necessary translation services in order to respect the rights of those residents whose language is neither English or French.

Right To Counsel:

    At the arrest stage, the obligation on the police to acknowledge a person's linguistic rights when communicating with them stems from that person's right to counsel under s.10(b) of the Canadian Charter of Rights and Freedoms.  That provision provides all individuals with the right to "retain and instruct counsel without delay and to be informed of that right".

     The provision provides two distinct rights - 1. right to retain and instruct counsel and 2. the right to be informed of that right.  For those whose language is not English or French in Canada the second part of the right to counsel is the paramount part.  The right to be informed of that right is not satisfied by simply reading out a statement on the back of a memobook. 

     The right to counsel is a right which  places an affirmative obligation on the police discharging that right to ensure that the receiver actually understands the right. The following excerpts from a recent case I argued on this point makes the point well*.

21.   The most significant aspect of the statement, at least for present purposes, occurred at the end, when the following exchange took place:

                Officer:   Okay, But is it fair to say you're - you don't wanna - you don't
                                wanna go into the details about it ?

                Soares:    Please.

                Officer:   Why ?  Because it's too hard to talk about ?

                Soares:    Is hard is like talking you know, is hard for me. Plus my English
                                not right - is no - no - no good - good - good enough.

                Officer:    Well, I think we're - we're talking okay, here.  You - you've
                                 understood everything this morning that's happened.  But I
                                 understand if you don't wanna uh, discuss, it any forther too.
                                 So are we done, are we -- ?

                Soares:     Yeah.

The interview ended immediately after this exchange.

III

Position of the Parties

22.      On behalf of Mr. Soares, Mr. Guiste submitted that s.10(b) was infringed because it was clear (or it should have been) that Mr. Soares's language abilities were insufficient for the purposes of an interrgoation.  The officer should have taken steps to ensure that Mr. Soares was able to properly exercise his right to counsel and to meaningfully participate in the interview.  On behalf of the Crown, Ms. Garcia argued that, while Mr. Soares's English is far from perfect, his comprehension and expression abilities were adequate for constitutional purposes.

23.     In all of the circumstances, I found that Mr. Soares's rights under s.10(b) of the Charter were infringed by the manner in which Ms. Peters conducted the interview.  It should have been clear from the outset, when the police first encountered Mr. Soares, that ther was a language issue.  This should have prompted the arresting officer to inquire into Mr. Soares's faccility with the English language: R  v. Vanstceghem (1987), C.C.C. (3d) 142 (ONCA), a pp. 147-149.  If it was not apparent at the outset, it became crystal clear during the interview.  There were a number of times that language presented itself as an issue.  When Mr. Soares finally raised the issue himself, saying that his English was not good enough, instead of asking him if he would like n interpreter, Ms. Peters simply asserted that there was no problem, and then brought the interview to a speedy conclusion.

24.     This state of affairs lead me to conclude that Mr. Soares's rights under s.10(b) were infringed.  Further inquires were required to ensure that his rights under s.10(b) were protected: see R  v. Doan [2012] O.J. No. 3066 (S.C.J.), at para 72, R  v. Chan [2012] O.J. No. 2456 (S.C.J.) at para 79 and R  v.  Liew [2012] O.J. No. 1365 (S.C.J. ), at para 83.

27.     In all of the circumstances, the interview of Mr. Soares was unfair and required that the language issue be addressed directly in the context of the right to counsel. For this reason, I found s.10(b) was infringed.

32.   On the facts of this case, each of the Grant factors points in the direction of exclusion.  Accordingly, I find that the admission of the statement would bring the administration of justice into disrepute, within the meaning of s.24(2) of the Charter.


Lesson to be Learned:

1.   If English is not your first language and you are unable to fully understand and express yourself in English do not hesitate to say so and to request the use of an interpreter.  Make this point crystal clear before you are given the opportunity to speak to duty counsel. In fact, if it gets to that point, make this point to duty counsel.

2.   Do not under any circumstances try to or feel obligated to impress anyone with your knowledge of English.  You may only makes matter worst for yourself.  My name is X.  My English is not good enough to answer. Please provide an interpreter for me.


About the author:

E.J. Guiste is a trial and appeal lawyer in the areas of Criminal, Administrative law and Civil Litigation and is based in Brampton.  Tel.(905)783-8908

* R  v. Soares [2013] O.J. No. 72; 275 C.R.R. (2d) 33.



   

 

   

Province's Invocation of Notwithstanding Clause Troubling

   The Province's decision to invoke the Charter's "notwithstanding clause" to usurp the unconstitutional finding by the Superior Court of Bill 5 puts a particular gloss on the new government which will likely be imprinted in the consciousness of Ontario's voters for years to come.  Both the manner in which the Ontario Government passed the law and the manner in which they responded to the Superior Court's finding of unconstituionality conveys to Ontario residents that public consultation, due process and The Rule of Law are not high on this government's agenda.

   What is clear to this writer is that this government does not seem to appreciate the substance of the Superior Court's decision.  This is problematic.  Reading between the lines from the Premier's comments about the judge who authored the decision, it is clear to this writer that parliamentary supremacy is his thing.  The judge is appointed and not elected by the people he raged.

   If I was a betting man I would bet that this will not be the last time this government turns to the notwithstanding clause during their tenure.  Fasten your seat-belts !

Bromley Armstrong: My Thoughts on a Great Canadian.

   When I arrived in Toronto from Montreal in and around 1987, I was directed to meet  two gentlemen in order to get myself "settled" and "involved" in Toronto's African-Canadian community.  Those two men were Charles Roach and Bromley Armstrong.  I first met Mr. Roach.  He too directed me to meet Mr. Armstrong and so I did.

   At the time, Mr. Armstrong was a union representative on the Ontario Labour Relations Board(the Board). The Board sits in a tripartite format with a chair, a union sides person and a management sides person. I called him and provided him with a little introduction about myself and my ambitions. Mr. Armstrong was beyond himself that I had studied Industrial Relations at McGill University and that I intended to practice in that area of law. Mr. Armstrong was a very firm believer that the trade union movement could play a much more significant role in the areas of racial discrimination and the quest for equality and that greater involvement by members of those impacted groups was a key to change in the workplace.

   While a student-at-law, I worked as both a Summer Student and Articling Student with the Ontario Labour Relations Board where Mr. Armstrong worked.  It is primarily through my tenure at the Ontario Labour Relations Board as a law student that I got to work with and get a very unique perspective on the man and his ideas.

   Bromley Armstrong was by no means a one issue man.  His contributions in the areas of immigration policy and racial intolerance and inequality are well documented. He was fearless and uncompromising in his commitment to change what ever he saw as unjust.

   This quality in Mr. Armstrong was an understandable by-product of two of the
corner-stones of what made him what he was; his love and respect for The Rule of Law
- coupled with his unwavering conviction that social change and advancement is only
attainable through organizing and political action.  Mr. Armstrong understood that
change does not happen unless one makes it happen. This guiding principle was a
constant in both his work at the Ontario Labour Relations Board and his community work.

   At the OLRB, Mr. Armstrong and I spent many hours debating labour relations history and policy and how it could be improved.  He embraced his role as a union sides person on the Board and saw it as an opportunity to advocate the union perspective on an issue at any opportunity that presented itself. To the best of my recollection he may well have employed his right to dissent more than any other sides persons - management or union. Mr. Armstrong understood the value of the right to dissent. It is a hard fought for right that many policy-makers and the like appear dedicated to eradicating - ever so slowly - if men like Mr. Armstrong are not there to challenge them.

   I always marveled at Mr. Armstrong's level of community involvement.  It seemed that every week he was giving a speech or participating on a panel at some conference or another.  Preparation and organization were a constant in anything he did.  Before he spoke or participated on any panel he prepared an outline or his written speech.  As he got to know me better he would ask me to review and critique his drafts.  I can not begin to put into words the pride that I felt in being asked by him to do that. I will never forget one occasion when he was to give a talk on section 15 of the Charter and how it could be a vehicle to social change in the area of racial discrimination and inequality.  We  thoroughly discussed the issue and in so doing I came to formulate much of my current thinking on how racial profiling by police officers is in fact a violation of section 15 of the Charter.

   Mr. Armstrong is gone in the flesh.  However, his passion for justice and his conviction in The Rule of Law combined with his unwavering commitment to social change through social and political action has left us a clear blue-print for us to follow on our quest for social change and justice. Rest in Peace Sir !  You did well and I am proud to have spent the time that I did with you at the Ontario Labour Relations Board ! I learned much and I thank you !



 



   

Have You Been Constructively Dismissed ?

   The traditional firing where the employee is marched into a meeting with his or her supervisor and a human resources manager and then handed a letter informing them of the termination of their employment is not the only way that one can be terminated. Our law now firmly recognizes the legal concept of constructive dismissal.

   Constructive Dismissal is a dismissal which arises not by an affirmative act by the employer as described above but through acts and omissions on their part which may entitle an employee in law to consider their employment to have been terminated by those acts and to walk away from the employment relationship.

Unreasonable Demotion:

    Typical fact-scenarios for a constructive dismissal include the unreasonable demotion of an employee.  For example, the employee is employed as the Vice President, Marketing. He or she receives an annual salary of $250,000 plus a bonus based on company performance which historically has placed them in the range of $300,000 to $375,000 of annual monetary compensation.  One day management decides that this employee will now report to his subordinate, the Director of Local Marketing and will be denied the bonus portion of their compensation. Courts have consistently found this fact-scenario to constitute constructive dismissal.  As such, the employee is entitled in law to refuse the demotion and to commence legal action against their employer based on a theory of recovery of constructive dismissal.  The damages available to the employee are the same as if the employer conducted the traditional dismissal.

Changes in Compensation
and Benefits:

   Another change to the employment relationship which our court's have recognized as constituting constructive dismissal is where the employer makes significant and unreasonable changes to the employees compensation or benefits.  Typically speaking an employee whose contract of employment provided them with an annual salary of $150,000 a year would be entitled to consider his or her contract of employment at an end were the employer to unilaterally decide to decrease the employee's compensation.

Failure to Provide a Safe
Work Environment and to
Follow Published Policies:

   At common law an employer has a duty to provide its employees with a safe work environment.  Under our human rights statutes employers have a duty to provide workplaces free of discrimination and harassment.  The two sources of legal obligations are the rationale why many employers pass workplace polices and manuals delineating the employee's rights and how they are to be enforced and respected in their workplaces.  Many a job seeker places reliance on these published policies and manuals in their decision to both join the employer and to remain in their employment.  These policies provide employees who have traditionally been subject to employment discrimination and harassment with a significant form of security.

   An employee who is the victim of workplace bullying, harassment or other forms of  discrimination who complains, makes reasonable efforts to apply the employer's published policies in these areas and receives no protection from the employer will have a compelling case of constructive dismissal. The strength of that employee's case substantially increases where the bullying, harassment or discrimination adversely impacts the employee's health and well-being.

"Shoddy" Workplace
Investigations:

   The increased importance of the obligation to provide harassment free workplaces in today's workplaces has brought with it a corresponding duty on employers to treat employees accused of such infractions fairly.  Once again the employer's published polices on these issues often provide employees so accused with certain fundamental rights which are articulated in such policies. The right to a fair and impartial investigation is one which comes to mind.  An employee who is so accused and is denied the basic application of the employer's own stated policies with respect to how these matters will be investigated will also have a compelling case of constructive dismissal.  Again, the strength of that employee's case increases substantially where the "shoddy investigation" and the failure to follow the employer's own polices adversely impacts the employee's health and well-being.

Relocation of
Workplace:

   Relocation of the workplace is yet another change in the terms of employment which may entitle an employee to consider their employment to have been constructively terminated.  Of all of the grounds upon which an employee can ground a claim of constructive dismissal this one is easily the most challenging one upon which to base liability.  The court will evaluate the employee's claim to turn down the relocation on all of the facts and circumstances.

Seek legal advice:

   Claims of this nature are not cut and dry.  They involve the consideration and application of laws which are in a state of constant flux.  They also often involve questions of law which may go beyond the scope of employment law.

   Employees who find themselves in situations like any of the one's noted above would be well served to seek out a legal opinion.

About the author:

E.J. Guiste holds a degree in Industrial Relations from Montreal's McGill University.  He completed part of his Articles of Clerkship with the Ontario Labour Relations Board and was employed as an Employment Standards Officer with the Ontario Ministry of Labour.  Employment law and human rights represents a major part of his work as a lawyer. Tel. (416) 364-8908 - E mail: ejguiste@yahoo.com