The effect of providing
only minimal severance

PAGE 9

PRIVACY PROBLEM
The need for a tort
of invasion of privacy

PAGE 14

SERIES
Part two of a three-part
series on big law firms

PAGE 21

CRISTIN SCHMITZ The nature of a worker’s employment may be “of declin- ing importance” in determining notice, the Ontario Court of Appeal has suggested in rebuffing an employer’s bid to impose a “hard cap” of 12 months pay in lieu of notice on clerical and unskilled employees.

On June 22, the Court of Appeal unanimously upheld an award of 22 months pay in lieu of notice for a 62-year-old mechanic who was let go after 33 years of employment when his employer, Crown Metal, shut down the metal manufacturing facility where he worked: Di Tomaso v. Crown Metal Packaging Canada LP.

The appeal court rejected the appellant employer’s contention that the Court of Appeal’s own ruling in Cronk v. Canadian General Insurance Co., [1995] O.J. No. 2751 was authority for the proposition that there is a “hard limit” of 12 months notice for clerical and unskilled workers.

Justices Stephen Goudge,
James MacPherson and
Andromache Karakatsanis said
their court had already rejected
that proposition in Minott v.
O’Shanter Development Co.,
[1999] O.J. No. 5.
Notwithstanding Justice John
Laskin’s suggestion for the court
in Minott that it might be appro-
priate to “establish upper limits
for particular classes of cases,” he
did not in fact do so, “and I
would decline to do so here,” Jus-
tice MacPherson commented in
dismissing Crown Metal’s appeal.
Remarked the plaintiff’s
counsel, Peter Cicak, “it’s another
nail in the coffin of Cronk in
terms of moving us further away
from a situation where people in
higher positions in a company
would be given higher damages
awards than people in lower
positions, simply by virtue of the
fact that they are higher up in
the company.”

Added Cicak, “I think it certainly does change things, or at

OCA rejects argument
of limited notice for
unskilled workers

Peter Cicak (l) and Lior Samfiru won a significant wrongful dismissal action at the Ontario Court of Appeal.

PAUL LAWRENCE FOR THE LAWYERS WEEKLY

See Di Tomaso Page 8

THE LAWYERS WEEKLY
Vol. 22, No. 27 NEWS FOR THE LEGAL PROFESSION December 6, 2002
THE LAWYERS WEEKLY
VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
E
I
MONEY
E
BC benchers strike fraud reference from rules of conduct
Survey: Most law firms
planning raises, bonuses

PAGE 24

Law Society of B.C. benchers have approved an amendment to their Professional Conduct Handbook in the wake of a high-profile decision around potential fraud and dishonest dealings.

The handbook had included
a section that said a lawyer must
not engage in any activity that
the lawyer knows or ought to
know assists in or encourages
any dishonesty, crime or fraud,
including a fraudulent convey-
ance, preference or settlement.
On June 17, the B.C. benchers
passed a resolution to amend
the section by striking the
phrase “dishonesty, crime or
fraud, including a fraudulent
conveyance, preference or
settlement” and substituting
“dishonesty, crime or fraud.”
The change not only brings
the handbook in line with the
thinking of the courts, but also
removes the possibility of mis-
conduct findings as a result.

The changes stem from a
decision in the B.C. Court of
Appeal which held that the
words in s. 1 of the B.C. Fraudu-
lent Conveyance Act — “by collu-
sion, guile, malice or fraud” — no
longer perform a meaningful
function and should be struck:
Botham Holdings Ltd. (Trustee
of) v. Braydon Investments
Ltd., [2009] B.C.J. No. 2315.

According to the lower B.C. Supreme Court ruling, Botham was advised he could protect

See Handbook Page 7

Amendment brings
rules of conduct in line
with courts’ approach THE LAWYERS WEEKLY

VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002

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