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THE LAWYERS WEEKLY
Older adult law under scrutiny as senior set grows
Six principals of equality outlined in Law Commission of Ontario report
ANN MACAULAY
As Canada’s population ages,
laws and policies that affect older
adults will have an impact on
growing numbers of people over
the coming decades, legal observers say.
The number of Canadians
over the age of 65 is projected to
rise to nearly 25 per cent of the
population by 2036 — nearly
double that of 2005, when they
comprised 13. 2 per cent.
This demographic shift has significant implications for all areas
of public policy and was the
impetus for a recent report by the
Law Commission of Ontario,
Framework for the Law as it
Affects Older Adults.
The goal “was to develop a
framework; a set of guidelines or
principles that anyone dealing
with older adults in some way
could use to ensure that the needs
and the diversity of older adults
are taken into account,” said
Patricia Hughes, executive director of the LCO.
The project team, headed by
staff lawyer Lauren Bates, conducted three and a half years of
research and consultation and
assembled an advisory panel of
experts. The report states: “Law
commonly uses age, at both the
younger and older ends of the
spectrum, as a category on the
basis of which distinctions may
[The report] does a
really good job of
highlighting where
certain laws fail to take
into account the needs
of older people.
Saman Jaffery
hull & hull LLP
be made. Older age is often used
as a requirement for access to
particular benefits, or as a marker
for the addition of responsibil-
ities or requirements, or as the
basis on which particular activ-
ities or benefits are restricted.”
Unlike other reports the com-
mission has undertaken, this one
is wide-ranging, Hughes said. “We
didn’t look at a particular area of
law and make recommendations
about how it might change.…Any-
one who wanted to could pick it
up and ask: ‘How does this apply
to what I’m doing?’ ”
The report highlights six prin-
ciples to be considered when for-
mulating legislation or policy
geared to older people: respect-
ing dignity and worth;
n Fostering independence and
autonomy;
n Promoting participation and
inclusion;
n;Recognizing the importance of
security;
n Responding to diversity and
individuality;
n;Understanding membership in
the broader community.
The report has met with a great
deal of support, Hughes said.
“We have had some real excite-
ment around this particular pro-
ject. People have wanted some-
thing that really addresses very
pragmatically how to provide ser-
vices, how to develop law, what-
ever it might be.”
Saman Jaffery, of Hull & Hull
in Toronto, said the report
“does a really good job of high-
lighting where certain laws fail
to take into account the needs
of older people.
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Cases highlight changing interpretations in employment law
DONALEE MOULTON
Three court cases this year have
turned the spotlight on employment law, providing clarification
on some long-standing issues in
the field.
The most recent decision, Bowes
v. Goss Power Products Ltd.
[2012] O. J. No. 2811, investigated
the nuances of employment contracts, specifically if an employee
with a fixed severance clause is
subject to a duty to mitigate by
seeking out other employment.
As far as the Court of Appeal for
Ontario is concerned, such a duty
does not explicitly exist.
“The important implication of
this decision is that if employers
want the duty to mitigate to apply
to a fixed severance clause, they
have to expressly include a reference to mitigation in the employment agreement,” said Alex Van
Kralingen, who represented the
appellant.
However, he stressed, “counsel
should…be conscious when crafting such clauses that mitigation
does not apply to minimum
statutory entitlements.”
The important
implication of this
decision is that if
employers want
the duty to mitigate
to apply to a fixed
severance clause,
they have to expressly
include a reference
to mitigation in
the employment
agreement.
Alex Van Kralingen
van kralingen Law
In this case, the appellant contended that when parties fix the
period of severance it is either a
liquidated damages clause or a
contractual sum owing, and
therefore, there is no duty to
mitigate. The respondent argued
that the parties were just setting
the period of reasonable notice
and that the duty to mitigate
still applied.
The latter was an argument
that had been successful before
the Superior Court of Justice,
but it failed to convince the
appeal court. “[A] broad release
in an employment agreement, as
here, demonstrates an intention
to avoid resort to the courts,
confirms a desire for finality,
and bolsters a finding that the
parties intended that mitigation
would not be required unless
the agreement expressly stipulates to the contrary,” Justice
Warren Winkler wrote in his
26-page decision.
That decision brings clarity to
an issue that has experienced
some legal uncertainty. Earlier
this year, for example, a Mani-
toba court cited the application
judge’s decision in Bowes because
there was no case law in the prov-
ince addressing this question.
Still, there are numerous deci-
sions to support the appeal court
finding, said Van Kralingen, who
recently started his own firm,
Van Kralingen Law, in Toronto.
“[We] presented appellate court
jurisprudence from B.C., Alberta,
Nova Scotia and the Court of
Appeal for England, all of which
agreed with our submission that
the duty to mitigate did not apply
in these circumstances.”
In Brito v. Canac Kitchens
[2012] O.J. No. 376, the Court of
Appeal for Ontario confirmed
that if an employee is terminated
without cause, employers can
end up footing the bill for bene-
fits if an employee becomes dis-
abled within the notice period.
