The Lawyers Weekly - May 21, 2010

MORT
MITCHNICK

Within days of a new class action for overtime pay being launched on behalf of financial and investment advisors at BMO Nesbitt Burns, the landscape for such actions changed dramatically. Eschewing the path laid down by Madame Justice Lax in Fresco v. CIBC, [2009] O.J. No. 2531, Justice George Strathy certified the class-action claim on Feb. 19 of a group of sales personnel and account managers at the Bank of Nova Scotia.

The Canada Labour Code, which applies to all federally regulated employers, mandates that employees be paid overtime for all work “required or permitted” by an employer beyond an employee’s standard hours. In CIBC, the bank’s overtime policy provided for this, but also contained a stipulation that overtime be pre-approved before being worked; and that where that was not possible, it be reported and approved at the earliest opportunity thereafter. Dara Fresco’s allegation was that the pressure on employees to perform was such that they were required to work overtime regularly, and that the requirement in the policy for “ pre-approval” violated the statute.

Justice Lax emphatically disagreed, finding that the Code gave employers not only the right but the obligation to control the amount of overtime that employees worked. She stated: “an employee cannot foist services on an employer and expect to be paid wages for them.” The “pre-approval” requirement was the mechanism for providing that employer control.

Beyond that, Justice Lax found that the
evidence before her showed a striking lack of
“commonality” in the reasons why the depos-
ing employees worked overtime. That dem-
onstrated to the judge that entitlement to
compensation would have to be determined
on the basis of an individual examination of
each claim, “which defeats the very purpose
of a class action.” Nor did she accept the evi-
dence of the plaintiff’s experts that damages
could be assessed on a statistical or “aggre-
gate” basis. While one of the experts had
issued a report purporting to identify “excess
hours of chronic overtime” in the federally
regulated sector generally, Justice Lax noted
that this provided no insight whatsoever as
to the situation at CIBC.

Mort Mitchnick is a partner in the Labour and Employment Group in the Toronto and Ottawa offices of Borden Ladner Gervais LLP.

Gus Richardson is pleased to offer his services as an arbitrator and mediator throughout the Maritimes and Ontario from his Halifax practice, Ad+Rem ADR Services. + With over 20 years litigation experience at all levels of courts in Nova Scotia and Ontario, Gus is also a Nova Scotia Small Claims Court adjudicator. Gus brings those skills to his practice as an arbitrator and mediator in labour, insurance, personal injury, commercial and condominium disputes.

www.gusrichardson.com
phone 902.422.6729
email gus@gusrichardson.com

www.lawyersweekly.ca February19,2010| THELAWYERSWEEKLY

September25,2009| 9 THELAWYERSWEEKLY

FOCUS

|January29,2010 www.lawyersweekly.ca THELAWYERSWEEKLY

FOCUS

Family Law
Civil Litigation

FOCUS

Court forbids rubber stamping of youth protection decisions

All’s fair in love and divorce

DONALEE MOULTON HALIFAX

“ThemessageIhopethatwill
be heard by judges of first
instances is that in matters relating
to adoption, the appeal court is
tellingyouthatyoucan—and
even must — ask questions
becauseparentscaughtinthose
situations face a battle akin to
DavidandGoliath,”saidMichel
Tétrault, a family la w expert who
teaches at the Université de Sher-
brooke.“Parentsfeeltheystand
nochancewhenfacingyouthpro-
tection authorities and their
armadaofexperts.Butwhile
judgesshouldbemorecriticalof
decision-makingbyyouthprotec-
tion, this is a culture that must be
developed.Alotofjudgesplacea
lot offaithinyouthprotection
authorities.”

LUISMILLANMONTREAL

AdmonishedbytheQuebec CourtofAppealforsingle-mind-edlytryingtoplaceachildbefore givinganopportunitytothepar-ents to fulfill their parental responsibilities, youth protection authorities no w face a more stringent test before envisioning adoption asa “solution toa difficult situation.” Inoverturningalowercourt rulingthatauthorizedyouthpro-tectionauthorities to proceed with the placement of a child foradop-tion, the appealcourtalsopro-vided guidance to courts of first instances, remindingthemthat they have a responsibility to ques-tiondecisionsmade by youthpro-tection, as is foreseen by the QuebecYouthProtectionAct.

There were many“debatable, if notdubious”decisionstakenby theMontérégieyouthprotection service inthiscase that should have beenquestioned, pointed out theappealcourt.OnJuly20, 2006, the youthprotectionservice receiveda complaint that a t wo-month old infant was not receivingadequatecarefromher 18-year-oldmotherand28-year- oldfather. Weekslater, theyouth protection service placed the infantinafosterfamilywhowas

“The name itself caught our attention,” she noted. “It was attractive and effective in getting the message across. The flippant name either grated on one’s senses or provoked a giggle, because most know that divorce tends to be a painful and high-stress, private process.”

SeeAdoptionPage12

For roughly 40 per cent of Cana-
dians, “until death do us part” is
wishful thinking. Nearly four out of
every 10 marriages in this country
will end in divorce, yetdiscussions
about the implications and the
impact often happen in back rooms
and in hushed conversations.
The Legal Information Society
of Nova Scotia (LISNS) brought
the issue out into the open with
what is believed to be North Amer-
ica’s firstDivorce Fair. “We wanted
to fill a needs gap. We know from
the calls we get and visits to our
website thatfamily law is the big-
gest topic,” said LISNS Executive
Director Maria Franks.
It’s also a topic that, for many,
is narrowly defined, she noted.
“When people think about
divorce, they think about a lawyer
but notother issues, issues like
property and pensions.”
The two-day event, held in Jan-
uary (the peak month for divorces),
featured information sessions on a
range of topics related to the “D”
word, such asseparation, parenting
during and after divorce, dealing
with stress, property andpension
issues. Several law firms had booths
at the event andtheir lawyers made
presentations on a range oftopics.
For most law firms, however,
participating in Canada’s first
Divorce Fair came after some seri-
ous contemplation —and consider-
able media attention. “This was a
fair unlike those we attended as
children,” said Leisa MacIntosh, a
family mediator and la wyer with
MacIntosh, Mac Donnell & Mac-
Donaldin New Glasgow.

“Initially we said ‘noway,’” said Sandra Barss, a family law lawyer with McGinty La w in Halifax. “Then we started hearing more about this and readingabout this.” “We liked the philosophy behind it —get the information out there so people know whatthey’re entitled to andwhat they’re responsible for,” she added.

Competitive intelligence can be broadly characterized as the act of “defining, gathering, analyzing and distributing intelli-genceabout products, customers, competitors and anyaspect of the environment needed to support executives and managers in making strategic decisions for an organization.”

Howto use competitive intelligence in litigation

Education was at the heart of

JOSEPH GRIFFITHS

See Fair Page 10

SPECTRAL-DESIGN / DREAMSTIME.COM

NEXT WEEK

Protecting privilege:
how safe are your e-mails?

The information related to an investigation into allegations of pros-ecutorial misconduct made against Convertino, by, among others, the former First Assistant United States

Protecting assessors
from disgruntled parents

JEREMY BRUNEEL / STOCKO.CC

The United States District Court for theDistrict of Columbiarecently weighed in on this issuein Convertino v. United States Department of Justice, et al., 2009 U.S. Dist. Lexis 115050. Convertino, an Assistant United States Attorney, brought a claim against the U.S. Department of Justice(DOJ), alleging it had wilfully and intentionally disclosed information abouthimtoa reporter in violation of the Privacy Act.

Professional bodies for lawyers
and judges screen out many com-
plaints that are frivolous or vexa-
tious. La w societies, for example,
are especially cautious in dealing
with complaints by family litigants against
the lawyers for their former spouses, rec-
ognizing that most such complaints are
unfounded, or raise issues that could be
the subject of an appeal rather than a pro-
fessional discipline complaint.
However, mental health professionals
who perform assessments for
family proceedings may be sub-
jected to complaints to their pro-
fessional bodies without any
screening. While unwarranted
proceedings are eventually dis-
missed, unfounded complaints to
regulatory bodies are a signifi-
cant factor in driving mental
health professionals a way from
acting as assessors, increasing
the delay and expense involved
in obtaining assessments.
Court-appointed mental health profes-
sionals often play a critical role in the reso-
Family law is an area of professional
practice with high levels of complaints,
not only for la wyers, but also for judges
and psychologists. This reflects not
a lack of professional competence,
but rather the fact that this is an
emotionally intense area, with
unsuccessful litigants who may be
more inclined to unjustifiably
“blame” various professionals for
outcomes than accept responsibil-
ity for their own situations.

Parents exploit discipline process

Cadwalader. No oneelse was copied
on thee-mails, and Tukel took steps
to deletethem. However, apparent-
lyunknown to Tukel, the DOJ regu-
larly accessed and saved e-mails
sent from his account. Subsequently,
when the action between Convertino
and the DOJ went into the discov-
ery phase, these e-mails became one
of a number of produ ction issues
between the parties.

Tukelhad met with Convertino to discuss Convertino’s handling of cases, and had been involved in draft-ingallegations totheDOJ’s Officeof Professional Responsibility. It must have been a messy affair, because Tukel retained private counsel, Cadwalader, Wickersham& Taft LLP, in anticipation of litigation.

From his DOJ-provided e-mail
address, Tukelcommunicated with
If your client gives you his busi-
ness e-mailaddress to communicate
with him about his personal legal
matters, how sure are you that those
e-mails are privileged and immune
from disclosure? The answer, it
seems, is “it depends.”

JASMINE

AFFORDABLEILLUSTRATIONSOURCE/ IMAGES.COM

AKBARALI

Why custody labels matter

Untted- 3 1

Attorney of the Eastern District of Michigan, Jonathan Tukel.

MARTHA MCCARTHY

NICHOLAS BALA

“

High-conflict families are not able to manage their interactions and communication at any level.

Mostfamilylawyersin Ontario
likelyreceivedatleastonetele-
phonecallfromadistraughtclient
this winterfollowingtheseriesof
nationalnewspaperarticleson
parentalalienation.Manyofmy
clientscalledwithaself-diagnosis:
theywereclearly“beingalien-
ated.” Ahandfulofhelpfulclients
clippedoneofthearticlesoutof
thepaperandmailedit tomeper-
sonally. Sadly(butsomehownot
surprisingly)manyofmyclients
hadthepleasureofreceivinga
copyfromaformerspouse.
The dialogue surrounding
alienationhascaughttheattention
ofnotonlythefamilylawcommu-
nity, butalsothepublicatlarge.
Amidsttheflurryofattentionthat
it hasgarnered, weneedtoreflect
ontherealitythatalienationdoes
not occurinavacuum. Itexistsas
one of the manyproblemsthat
lawyers,judgesandotherhelping
professionals face when con-
fronted with ahigh-conflict family.
Although many issues sur-
roundingalienationarehotlycon-
tested, it almost al ways occurs in
the context of high-conflict fami-
lies followinga separation. High-
conflict families exist andinteract
ina state of perpetual dysfunction
anddisorganization,whichleads
tofurtheremotionalandpsycho-
logical strain.
Alienationornot,high-con-
flict families are not able to
manage their interactions and
communicationatanylevel.They

Clinicians and family justice

See Assessors Page 13

For many lawyers, competitive
intelligence, to the extent any
thought has been given to the
subject at all, is often viewed as
nothing morethan a marketing
tool, one in which the lawyer
attempts to discern keyinforma-
tion about prospectiveor existing
clients with thegoalof using that
intelligence toobtain new work.
Like the proverbial articling
interview, it is presumed that the
firmthat has an intimate under-
standing of aprospective client’s
business stands a better chance
of attracting a new or morecom-
prehensive retainer fromthat cli-
ent. In the marketing context,
Tukel sought, and was granted,
leaveto intervenein thecase for the
purposeof assertinghis attorney-cli-
entprivilege. Tukel had to provethat
he had taken reasonablesteps to pre-
vent disclosureof his privileged mate-
rial. Thecourt accepted that he had,
noting that he had deleted his e-mails
and sought leaveto intervene in the
production motion in a timely way.
Tukelalso had to establish that
disclosureof these e-mails to theDOJ
was inadvertent. He argued he had
no intention to allow his employer to
read the e-mails he was sendingto his
personalattorney through his DOJ-
Even more surpris ing is the
realization that, unlike other
endeavours such as medicine, cli-
ents do not seem to have any