The Lawyers Weekly - July 6, 2012

Employers must be
careful when terminating
older employees

PRIVACY

Courts increasingly
undertaking critical
examinations of statutes
SHANNON KARI

The fact there may be “individ-
ual issues” related to damages
does not mean there is not the
necessary “commonality” for a
class action proceeding to be cer-
tified, the Ontario Court of Appeal
has ruled.

The finding was outlined in two of three closely watched cases about employee overtime in federally regulated companies that were all released by the appeal court on June 26.

“The fact that individual
issues — including whether par-
ticular class members actually
worked uncompensated overtime
hours, and if so, how may overtime
hours they worked — would
remain after the common issues
trial does not prevent a finding of
commonality,” wrote Ontario Chief
Justice Warren Winkler in Fresco
v. Canadian Imperial Bank of
Commerce, 2012 ONCA 444.
“These alleged differences in
individual class members’ experi-
ences are not relevant to the sys-
temic issues raised by the appel-
lant,” added Justice Winkler, with
Justices Susan Lang and David
Watt concurring.
The Court of Appeal certified
the class action brought on behalf
of 31,000 CIBC customer service
employees in Fresco and more than
5,000 Bank of Nova Scotia retail
sales staff in Fulawka v. Bank of
Nova Scotia, 2012 ONCA 443.
A panel made up of Justices
Winkler, John Laskin and Elea-
nore Cronk declined to certify an
See Banks Page 5

Court of Appeal finds
‘commonality’ in claims
of unpaid overtime
THE LAWYERS WEEKLY
PAGE 10
PAGE 15
Legal Aid
Vol. 22, No. 27 NEWS FOR THE LEGAL PROFESSION
December 6, 2002

MATCHMAKER

pay rules
slammed

MEGAN O’TOOLE

Criminal lawyers defending clients through Legal Aid Ontario say they are facing increasing pressure to plea bargain or risk financial penalty, amid a push by the publicly-funded agency to tighten its practices around discretion pay.

Since a 2010 agreement to raise hourly rates, Legal Aid has engaged in a “thinly disguised clawback” by routinely refusing lawyers’ requests for additional funding when they exceed the allotted number of hours to complete a trial, said Toronto criminal attorney Christopher Hicks.

THE LAWYERS WEEKLY
VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
Websites offer faster
and easier way to team
up with lawyers
PAUL LAWRENCE FOR THE LAWYERS WEEKLY

Alex Van Kralingen, outside his Toronto law office, was successful in a severance pay case before the Court of Appeal.
No duty to mitigate losses

MEASUREMENT

“I can walk out of the courtroom in one day with three guilty pleas and make something like $3,500,” Hicks said. “If I do three trials, I don’t know what I’m going to get, so it encourages pleas, it discourages trials and… there’s no viable means of appealing the exercise of discretion by some Legal Aid bureaucrat who simply doesn’t accept your bill.”

Severance pay cannot be
deducted in notice period
have a duty to find another job in
order to mitigate the losses,
unless the contract says so “in
clear and specific language.”
THE LAWYERS WEEKLY
CRISTIN SCHMITZ OTTAWA

“If employers want to make
payments pursuant to a fixed sev-
erance clause subject to an
employee’s mitigation efforts,
they will now have to include an
express term in the contract, and
that’s a big change,” said Alex Van
Kralingen of Toronto’s Wardle
Barrie lawyer Tom Bryson,
who serves as regional vice-
president of the Criminal Law-
yers’ Association, said a key diffi-
culty with Legal Aid’s service
See Funding Page 2
Thousands of employment
contracts are up for review in the
wake of a decision that an
employee who is contractually
entitled to fixed severance, and is
fired without cause, does not
The Ontario Court of Appeal’s
unanimous five-judge decision in
Bowes v. Goss Power Products
Ltd. [2012] O.J. No. 2811, on
June 21, also means that, absent
such clear contractual language,
the employer cannot deduct from
the severance pay the income
earned from alternative employ-
ment during the notice period.
Daley Bernstein.
He predicted there will be
pushback from employees if
employers seek to contractually
impose on them a duty to mitigate.
VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
See Severance Page 27