The Trusted Legal Advisor
Expanding Corporate Charter Challenges
By Graham McLennan
March/April, 1999 Since 1982, Canada has had a Charter of place periodically but unsuccessfully starting
Rights and Freedoms. The Charter, subject to in 1984. In 1989 and 1991, the two egg pro-
some limitations, provides legislative guar- ducers finally established production facili-
Inside this issue: antees for certain rights and freedoms, such
as freedom of expression, equality, and free-
ties in the NWT.
In 1992, the Canadian Egg Marketing
dom to move about Canada and earn a liveli- Agency commenced an action against the
hood (mobility). When legislation is found egg producers, suggesting that they were
Corporate Commercial to violate one or more of the Charter rights, operating without the appropriate quotas
Securities: then the Courts will strike down the law or and licences and sought injunctions to pre-
Golden Parachutes - exempt it from operation. vent their continued operations. The injunc-
McLennan Ross was counsel in a recent tion applications were unsuccessful. The
Watch Out for the Landings!
Supreme Court of Canada case which signifi- NWT egg producers’ defended the action
- pg. 2 cantly expanded the law on when corpora- arguing that the federal marketing legislation
tions can make use of Charter rights and free- violated their Charter rights of mobility, free-
Employment & doms. The case was Canadian Egg Marketing dom of association, and equality.
Administrative Law: Agency v. Richardson, which was decided by the After thorough arguments on those
WCB Replaces Supreme Court of Canada in November, issues, the egg producers succeeded both at
1998. The case is also significant because trial and at the Court of Appeal. Both Courts
the Supreme Court of Canada defined a new found that the federal marketing legislation
- pg. 3 approach to the application of mobility violated the NWT egg producers’ mobility
Should Employers rights under the Charter. rights and their freedom of association
Attend EI Hearings?
The Facts of the Case Throughout these various Court process-
- pg. 7 The case involved two egg producers es, the Canadian Egg Marketing Agency
(one a corporation) who had established argued that the corporate egg producer
Insurance Law: commercial egg defendant could
Phys Ed Teacher production facili- “The Court decided that a corporation not raise these
Liable for Student’s ties in the Charter arguments.
N o r t h w e s t can raise Charter right defences, not Corporations gen-
Territories (NWT). only in defence of criminal prosecution, erally cannot raise
- pg. 4 A large percentage but also in civil litigation where the Charter rights in
of the eggs they civil litigation.
Litigation: produced were corporation has been sued by a Prior to this case,
Litigation Battles Between marketed in state or state agency” with the exception
David & Goliath Alberta. of public interest
The interprovincial marketing of eggs is standing, a corporation could only raise cer-
governed by federal legislation. Accordingly, tain Charter rights where the corporation was
Important Changes to egg producers must have quota and licences the subject of prosecution for a criminal or
Limitations Legislation to market eggs between provinces (inter- quasi-criminal offence. The best known
provincially) or internationally. The method example is the Big M Drug Mart decision of
- pg. 6
for allocating quota was specified in the fed- the Supreme Court of Canada, where a cor-
eral legislation. At the time the legislation poration was entitled to raise freedom of
Wills & Estates: came into force in 1972, there were no egg religion/expression Charter rights to chal-
Are Insurance Funds production facilities in the NWT. lenge the Sunday closing laws in Ontario.
Protected? Consequently, the Canadian Egg Marketing
- pg. 6 Agency could not grant a federal quota to Supreme Court Decision
these NWT egg producers unless the federal In Canadian Egg Marketing Agency v.
legislation was amended. Richardson, the Supreme Court of Canada in a
McLennan Ross News: Negotiations to amend the federal legis- unanimous decision significantly expanded
- pg. 8 lation to enable a quota for the NWT took the circumstances under which a corporation
. . . continued on page 5
Golden Parachutes - Watch Out for the Landings!
By Clay K. Hamdon
Golden parachutes are com- The method of funding a golden parachute, if not
pensation arrangements made with cash, is an important issue. Over the past few
between a company and its years, a number of questions have been posed to
executives, employees or direc- Revenue Canada concerning the tax consequences of
tors. They first came on the various security arrangements for golden parachutes or
scene in the 1980’s and since other types of retirement compensation arrangements.
then have become a fairly inte- The bottom line is that either a secured guarantee of a
gral part of executive compen- related corporation or a letter of credit (or cash) held by
sation in larger companies. a trustee for the benefit of executives or employees are
The nature of the benefits to be the only safe arrangements currently available to fund a
provided under a golden parachute will vary from agree- golden parachute. But how safe are they?
ment to agreement. Typically, a lump sum amount will
be paid (usually a multiple of 1 to 3 years) based on the The Manalta Coal Ltd. Case
executive’s annual compensation, including bonuses. Recently McLennan Ross was appointed counsel in
Golden parachutes often also provide for the continua- a case where arrangements supporting golden para-
tion of benefits for a period of time, including the “top- chutes previously granted to senior executives were
ping” of pension arrangements and on-going participa- challenged in an Alberta court. Following a hostile
tion in employee loan programs. takeover of Manalta Coal Ltd. by Luscar Coal Income
The rationale for golden parachutes most often Trust in Fall 1998, Manalta’s new board of directors
espoused by corporations is that they are necessary to obtained an injunction preventing the former Manalta
attract and retain talented executives who will, at all executives from filing the necessary certificates with the
times, act in the corporation’s best interests, particular- trustee to release the funds that had been deposited
ly in industries that are susceptible to takeovers. Many with the trustee for the express purpose of funding gold-
golden parachutes will also contain anti-competition en parachutes, even though those payments were
clauses, allowing the company to restrict their execu- secured by an irrevocable letter of credit. The affected
tives’ mobility within the industry after termination. Manalta executives were then terminated.
Employers anticipate golden parachutes will pro- Manalta’s new board argued that the injunction
vide a “safety blanket” for their executives enabling was necessary because it feared the funds would be dis-
them to remain focused and objective during the stress- sipated prior to the eventual trial and the courts’ ruling
ful times of a takeover attempt. This allows executives on the merits of the larger action regarding the legality
to make decisions which are in the company’s best of the golden parachute. The Court of Appeal of Alberta
interests and not out of fear for their personal financial decided that “. . . there must then, at the very least, be a
interests. sufficient evidentiary foundation establishing the likely
inability of the Defendants to pay any judgment award-
Impact of the “Business Judgment Rule” ed to the Appellant (Plaintiff).” A “fear” of the funds dis-
Courts in many jurisdictions have stated that the appearing is no basis for injunctive relief. Presumably,
“business judgment rule” in corporate law applies to concrete evidence of either the Defendants leaving the
golden parachutes. In general, the business judgment jurisdiction, or moving the assets out of the jurisdiction,
rule requires that courts defer to the good faith business is necessary before a plaintiff corporation can “freeze”
judgment of the board of directors of the corporation. assets held by a trustee to fund a golden parachute.
The rule is based on the belief that judicial deference to The resolution of the golden parachute issue
board decisions is necessary to encourage boards to between Manalta’s new board and the former Manalta
take risks and exercise their best judgment. executives is still before the courts. The court’s deci-
Usually, a golden parachute is triggered by the sions in this matter will go a long way to decide how
acquisition of a given percentage of the company’s stock “safe” the future “landings” of golden parachutes will be
by a third party bidder, a substantial change in the com- in Alberta. —MR—
position of the company’s board, or a shareholder
approved merger or acquisition. In a “friendly” atmos-
phere, upon the occurrence of one of these events, the
company’s established board or top executives would
make the necessary financial arrangements for the pay- Clay K. Hamdon (firstname.lastname@example.org) is a partner in the cor -
ment of the golden parachute funds. However, in a hos- porate commercial securities department at McLennan Ross. This
tile takeover, the “landing” of the golden parachute by article was prepared with the assistance of associate Charles R.
former executives may be more difficult to secure. Dalton (email@example.com).
2 The Trusted Legal Advisor - March/April, 1999 McLennan Ross
WCB Replaces Insurance Coverage?
By Gerhard J. Seifner
Worker's Compensation Of importance to all employers and its directors
legislation in Alberta affects and officers is the question of whether the existence
thousands of employees and of directors' coverage under the WCB is the neces-
employers. The WCB scheme sary pre-requisite to the protection from lawsuits.
offers employees benefits in Under the WCB legislation in Alberta, the definition
the event of injuries or occu- of employer includes a person considered by the
pational diseases incurred WCB to be acting on behalf of the employer. In this
while working. These benefits case there is no question or dispute that the two
are paid for through premi- directors were persons acting on behalf of the
ums or assessments that are employer. However, the WCB, in giving clearance to
levied against and paid by employers. In essence, the Nielsen family to sue the directors, ignored that
WCB legislation does away with the need for both definition and simply determined that the absence
employees and employers to obtain insurance cov- of voluntary coverage meant there was no protection
erage paying benefits for workplace injuries. from lawsuits.
Benefits for Directors and Officers Impact on Alberta Business
WCB benefits are not extended to directors and The repercussions from the position adopted by
officers of employers, even if those directors and the WCB in the Nielsen case are very significant. If
officers also do work that would otherwise be carried the Court or WCB upholds the right for this action to
out by workers. In order to obtain the right to claim continue, then employers throughout the province
benefits in the event of an injury, the directors and whose operations are under the WCB would be
officers must apply under the legislation for individ- exposing their officers and directors to lawsuits,
ual coverage. Such an application has always been unless they purchase coverage from the WCB. It
an important consideration for smaller companies would mean that the protection afforded employers
where the owner/director is also actually doing work, would be limited only to the person, partnership or
and not simply managing the operation. By applying firm which has the employees in its service - in other
for and receiving directors' coverage amounts, it is words, the party whose name is on the payroll
recognized that the director is a "worker" and there- cheques. Further, directors and officers of corporate
fore entitled to benefits as a "worker." employers, often the very persons who are the oper-
In exchange for the availability of benefits in the ating minds and managers of the employer's entire
case of injury or occupational disease, WCB laws operation, would be left exposed to lawsuits by fam-
also offer an immunity from lawsuits that might oth- ilies of injured workers. The premiums or assess-
erwise be launched for workplace injury or disease. ments for most employers would also rise.
Workers (or their dependants) who are injured in the The WCB plays an important role in the work-
course of their employment cannot sue their place for many employers and employees in Alberta.
employer, or another worker or employer, covered by It provides a broad mandate to give effect to the
the WCB. basic scheme of benefits. However, at the same
time, the WCB is often criticized as being a night-
Nielson v. Korby & Epton marish bureaucracy working under its own arbitrary
The nature and extent of the immunity from law- and everchanging rules, making decisions without
suits, as well as the whole rationale behind WCB leg- regard to the legislative foundation upon which its
islation, has recently become the focus of attention entire existence depends, and largely ignoring the
in a case that is currently before the Courts. Nielsen v. realities of the workplace in general and individual
Korby & Epton arises from a workplace fatality. Mr. employer-employee relationships specifically.
Nielsen was killed when a wall section of a pre-fab- In Nielsen v. Korby & Epton the very fundamentals
ricated building broke away from the overhead crane of WCB legislation are being tested and the outcome
and fell on him. The family of the deceased worker has the potential to dramatically alter the way
received benefits from the WCB, as well as clearance employers do business in Alberta. —MR—
from the WCB to launch a lawsuit against Korby &
Epton, both of whom were directors of the employ-
er. Neither Korby nor Epton had director's coverage Gerhard J. Seifner (firstname.lastname@example.org), a partner of the firm, is
under the WCB. Of course, neither Mr. Nielsen nor a member of the employment law department. At this time,
his dependants could sue the employer directly. Gerhard is acting on behalf of Korby & Epton and their company.
McLennan Ross The Trusted Legal Advisor - March/April 1999 3
Phys Ed Teacher Liable for Student’s Crippling Injuries
By Sandra J. Weber
In her October, 1998 deci- in the particular activity that led to her injury or, at
sion in MacCabe v. Westlock the very least, supervise and control the activity so as
Roman Catholic School District No. to lessen the risk of harm. In the end, Romaniuk was
110, Madam Justice Cecilia found liable for MacCabe's injuries and damages.
Johnstone concluded phys-ed
teacher Darcy Romaniuk failed Determining Damages
in his duty of care owed to an In advance of trial, the parties had agreed to gen-
injured grade 11 student. The eral damages of $255,000. At trial, MacCabe was also
case is significant for a num- awarded past and future loss of income, as well as
ber of reasons that are out- past and future care costs.
lined below. In calculating the plaintiff's loss of income,
Justice Johnstone refused to determine damages
Establishing Liability based on statistics which were gender specific. She
On April 23, 1991, during gymnastics class, the reviewed prior decisions which had addressed this
then 16-year-old Margaret Ann MacCabe attempted a issue by starting with either female or male wage
back flip off the box horse. Tragically, she did not tables and then including a positive or negative con-
complete the flip, landing with her head and neck tingency. In doing so, the prior cases have been
wedged between the mat and the horse. MacCabe attempting to "ensure that weight is given to societal
sustained a spinal cord fracture that left her a quad- trends so that future loss of income reflects relevant
riplegic. future circumstances."
Justice Johnstone concluded that the teacher- However, in previous cases, the courts consid-
student relationship clearly gave rise to a positive ered pay inequity to be a reality and therefore used
duty of care and supervision on Romaniuk's part in one of the above approaches to reflect this. J u s t i c e
directing and controlling Johnstone was of the opin-
the activities in the gymnastics ion that “. . . it is entirely
class. She described the “In calculating the plaintiff’s loss inappropriate that any
standard of care in these
circumstances as "some-
of income, Justice Johnstone assessment I make contin-
ues to reflect historic wage
what higher than the care-
ful parent of a large family."
refused to determine damages inequities." She stated that
she “. . . will not sanction
The “careful parent test” based on statistics which were the 'reality' of pay inequity.
arises from a number of The societal trend is and
decisions which have estab- gender specific” must embrace pay equity
lished the general standard given our fundamental right
of care for teachers and/or schoolmasters. However, to equality which is entrenched in the constitution."
in this case, Justice Johnstone determined that a She felt that the practice of trying to alleviate dis-
modification to the test was necessary due to the crimination by using the male or female wage tables,
specialized training, experience and knowledge that modified by either negative or positive contingen-
a physical education teacher ought to have. This cies, merely masked the problem. She concluded by
higher standard is also reflective of the inherently saying, "I cannot apply a flawed process which per-
dangerous equipment and manoeuvres involved in a petuates a discriminatory practice."
gymnastics class. Thus, the test is "that of a prudent Justice Johnstone directed that all income calcu-
and careful parent having the supra-parental exper- lations would be based on male statistics if there was
tise that is demanded of a gymnastics instructor." a disparity in the male and female statistics. Further,
Justice Johnstone concluded that Romaniuk's she concluded that there would be no reduction for
conduct did not meet the standard of care. Her con- gender specific contingencies such as time off to
clusion was based on a number of factors including raise children, for example. The only contingencies
allowed would be those for voluntary withdrawal
improper supervision and failure to properly set up
from the workforce and/or part time work, however,
equipment. She found that Romaniuk had knowl-
such contingencies were to be based on male statis-
edge that the students engaged in unsafe activities tics only.
and that Romaniuk failed to take reasonable mea- The plaintiff's loss of income was based on the
sures to either ensure that MacCabe did not engage assumption that had the accident not happened, she
. . . continued on page 7
4 The Trusted Legal Advisor - March/April 1999 McLennan Ross
Litigation Battles Between David & Goliath
By Michelle G. Crighton
The Walt Disney Company Disney’s opposition to Fantasyland Hotel’s trade-
is perhaps best known to most mark. Not so. Disney appealed the Hearing Officer’s
people for Mickey Mouse and decision to the Federal Court Trial Division, again
Goofy. It is best known to the relying on arguments rejected on three previous
owners of the Fantasyland occasions. Once again, Fantasyland Hotel Inc. pre-
Hotel for its apparently limit- vailed.
less legal budget. Disney is With all of these judicial precedents behind it,
again facing off against its Fantasyland Hotel Inc. presumably should be able to
favourite Canadian nemesis, return to its more important duties of running its
Fantasyland Hotel Inc. This hotel business without worrying it might have to
will mark the fifth clash between these two titans over change its name. Not yet.
the rights relating to the name of the Hotel. Once Predictably, Disney has appealed the decision to
again, McLennan Ross is representing the Hotel. the Federal Court of Appeal. It will be Summer 1999
In 1987, Fantasyland Hotel Inc. filed its applica- and possibly longer before Fantasyland Hotel Inc. will
tion to register FANTASYLAND HOTEL as a trade- know for certain if it can keep its name. More impor-
mark. Disney does not operate any hotels in Canada, tantly, Fantasyland Hotel Inc. will be forced to incur
but nevertheless Disney opposed that registration. In further legal fees to defend itself against Disney’s pur-
the meantime, Disney commenced a passing off suit of the desired answer to a question the Courts
action in the Court of Queen’s Bench of Alberta have already answered on four prior occasions.
against Fantasyland Holdings Inc., a company related There are many lessons that businesses can take
to Fantasyland Hotel Inc. That action also involved away from the Disney/Fantasyland Hotel dispute, but
the use of the name Fantasyland Hotel. Both the two are fundamental. First, your trademark is only as
Alberta Courts of Queen’s Bench and Appeal rejected good as your ability to defend it. Second, it is danger-
Disney’s arguments and affirmed the Hotel’s right to ous to be a corporate “David” facing off against a multi-
use the name Fantasyland Hotel. national “Goliath.” Sometimes in our legal system, it
The trademark matter was finally argued before can be very costly to prove you are right. —MR—
the Trademarks Opposition Board’s Hearing Officer.
On June 18, 1997 the Hearing Officer similarly reject- Michelle G. Crighton (email@example.com), a partner of the firm,
ed Disney’s arguments and allowed the trademark to practices in the areas of commercial and construction litigation with
be registered. One would think that would finally end an interest in forestry, agriculture and aboriginal issues.
Expanding Corporate Charter Challenges (continued from page 1)
can raise Charter rights. The Court decided that a and the Federal Government continued negotia-
corporation can raise Charter right defences, not only tions that ultimately culminated in critical amend-
in defence of criminal prosecution, but also in civil ments to the federal legislation thereby enabling
litigation where the corporation has been sued by a NWT egg producers to be given a quota. Although
state or state agency. In this case, because the cor- these negotiations began in 1984, they were not suc-
porate egg producer had been sued by the Canadian cessfully concluded until October, 1997. Today, the
Egg Marketing Agency seeking to enforce federal two NWT egg producers who
legislation, the defendant was entitled to raise started this legal journey still
Charter mobility rights in defence. await enactment of those
The Canadian Egg Marketing Agency v. Richardson case amendments to the federal
is also of interest to the legal community because the legislation that will finally
Supreme Court of Canada outlined a new approach to enable them to obtain quota
the mobility rights provision in the Charter. This new and join the regulated
approach was not unanimously endorsed by the Canadian egg marketing sys-
Supreme Court of Canada. The majority endorsed a tem. —MR—
new approach to reading Charter mobility rights provi-
sions, while the minority (Justices Major and
McLachlin) endorsed the more traditional approach
to reading Charter mobility rights provisions. Graham McLennan (firstname.lastname@example.org) is a partner of the
While these Charter arguments were working firm who focuses his practice in the areas of commercial litigation,
their way through the Courts, the NWT Government media law and construction law.
McLennan Ross The Trusted Legal Advisor - March/April 1999 5
Important Changes to Limitations Legislation
By Corbin D. Devlin and Neal A. McLennan
The Limitation of Actions Act, whose demise has been least one situation where it will shorten the length of time
promised for years, was finally repealed as of March 1, in which you can sue. If you know on or before March 1,
1999. It was replaced by the new Limitations Act which came 1999 that you have a right to sue, and you have obtained
into force the same day. legal advice that you have until some time after March 1,
Limitation periods are of utmost importance for 2001 to commence your lawsuit, this advice may no longer
clients and lawyers alike. For clients, they define the time be correct. In these circumstances, your limitation period
period in which a lawsuit can be commenced, and if you is likely shortened to March 1, 2001.
are out of time you are generally out of luck. For lawyers,
missing a client's limitation period means that, while the Issues to Watch
client's right to sue may extinguish against a third party, Although the new Act simplifies the state of the law,
the lawyer may be liable to the client for negligence, in fail- there are still a few difficult issues in this area. In particu-
ing to sue in time. lar, it is not always easy to determine when your limitation
period begins. For example, the two year limitation peri-
Two Important Limitation Rules od may start before you actually discover your right to sue,
The new Act seeks to simplify the determination of if the court decides you ought to have discovered the right
when the limitation period starts. Under the new Act, a to sue earlier. Further, there are unique provisions for
party needs only to be aware of two limitation periods. minors and disabled persons.
The first is a “two year rule” which enshrines the legal prin- The new Act expressly provides that you can extend
ciple of "discoverability." Simply stated, you must com- the applicable limitation period by agreement between
mence a lawsuit within two years of discovering the exis- the parties. Thus, if you are getting involved in a contrac-
tence of a cause of action. tual relationship which is long-term or may have long-
The second limitation rule you must remember is the term consequences, this may be an issue to consider. The
“ten year rule.” It states that all claims must be started Act lays out specific requirements for such an agreement
within ten years of when the claim arose. This rule to be valid; e.g. it must be in writing and signed by the per-
attempts to ensure that a claim is heard within a time son adversely affected.
which allows there to be sufficient evidence for a court to If you have received advice regarding limitation
make a proper determination. periods in the past, it is important that you determine
Where there is a conflict between these two rules, it is how the new Act affects your potential claim. The
the lesser of the two periods which will apply. Therefore, if legal professionals at McLennan Ross are ready to
you discover the cause of action nine years after it initially assist you on this issue. —MR—
arose, you will be bound by the ten year "ultimate" rule
and not by the two year "discoverability" rule. Corbin D. Devlin (email@example.com) and Neal A. McLennan
Overall, the new Act will not generally extend the (firstname.lastname@example.org) are associates primarily practicing in the
length of time in which you can sue. However, there is at firm’s litigation department.
Are Insurance Funds Protected?
By Karen A. Platten
A recent Supreme Court of Canada decision, Royal be set aside for the benefit of the creditors. Therefore,
Bank of Canada v. North American Life Assurance Co., is an it would seem that the overuse or abuse of this creditor
important decision that redefines the law in relation to proofing could have the opposite effect. If the only rea-
creditor protection for life insurance policies. son for using an insurance product is to defeat credi-
In recent years credit-proofing has been a selling tors, be wary.
point of insurance policies because the Insurance Act of The good news from this decision is that the insur-
each province in Canada gives protection from credi- ance policies which are taken out for the benefit of cer-
tors to the proceeds of insurance policies where a ben- tain individuals, and most certainly close family mem-
eficiary has been designated and that beneficiary is a bers, will be protected from creditors even if the policy-
spouse, child, grandchild or parent of the policy-holder. holder later declares bankruptcy. —MR—
If the designation is irrevocable then the proceeds of
the policy are absolutely creditor proof no matter who
the beneficiary is. Karen A. Platten (email@example.com) is a new associate who
The use of insurance policies becomes an issue focuses on estate planning. For additional information on
when the intent of the policy-holder is to defeat credi- important estate planning changes, please contact any member
tors and this becomes a fraudulent conveyance and can of the firm’s wills & estates practice group.
6 The Trusted Legal Advisor - March/April 1999 McLennan Ross
Should Employers Attend EI Hearings?
By Stuart W. Chambers
There has been some debate recently over question of whether there has been misconduct,
whether or not employers should attend decided by the Board, is not the same as the ques-
Employment Insurance (EI) hearings. It has been tion of whether there was just cause, decided by the
suggested that an employer should in many cases court. The employer will not be prevented from argu-
decline to participate in EI hearings, because some ing just cause in court unless the narrow factual sit-
Ontario decisions have found that an employer who uation described above applies and the alleged mis-
has participated in these hearings is bound by their conduct is the only basis of just cause.
findings in any future court proceedings. Further, there is an issue as to whether the
However, the issue is not that simple. It is cases which found the employer to be bound were
important to note that these cases apply only in a correctly decided. A recent British Columbia deci-
very specific situation: where the finding of the Board sion has criticised the reasoning in these cases, not-
of Referees is that the employee had not been guilty ing that it is based on Employment Standards cases
of misconduct (which means the employee can which really don't apply in the Employment
receive EI benefits), and where this is precisely the Insurance context, where different legislation and
same issue in a later court case, because the employ- policy considerations apply.
er has argued there is just cause due to misconduct. Therefore it is incorrect to say that employ-
With the Board finding that there was no miscon- ers should avoid EI hearings unless there is a com-
duct, there can be no just cause and the employer's pelling reason for them to be there. All that the EI
argument is defeated. Referees can decide is whether there was "miscon-
However, in many cases just cause will be duct." If there was, it removes the employee's enti-
based on more than a simple assertion of miscon- tlement to benefits. Only in the narrow situation
duct. There may be issues as to sufficiency of warn- where a finding of "no misconduct" is enough to
ings, condonation, or severity of the misconduct. eliminate the argument of just cause does an
While the Board's findings related to misconduct as employer risk prejudice from attending the EI Board
a fact will be binding on the employer, all of these of Referees hearing. —MR—
other issues will remain open. Further, as Canadian
courts have said in several cases, not all misconduct
will give rise to just cause for dismissal, and just Stuart W. Chambers (firstname.lastname@example.org) is a student-at-
cause is broader than "misconduct." Therefore, the law with McLennan Ross.
Phys Ed Teacher Liable for Student’s Crippling Injuries (continued from page 4)
would have pursued a University education and found the evidence establishes that the exceptional indi-
employment as a full-time physiotherapist; a job she vidual characteristics of the plaintiff are such that
would have enjoyed until retirement at age 65. Based her abilities would have commanded the equivalent
on the medical and other evidence before her, Justice salary of her male counterparts.” As a result, the
Johnstone concluded MacCabe's post-accident award to the plaintiff ". . . it should not and cannot
employment path had been significantly impacted. be solely determined by her gender.”
Although it was found that the plaintiff would com- The actual dollar value of the loss of income was
plete her Master's degree and eventually find employ- not calculated by the trial judge as she did not have
ment in an administration position in either the the figures before her to do the calculation.
Health or Recreation field, chances of finding employ- Direction was given to both counsel that the loss
ment were assessed at only 50%. Furthermore, due to was to be calculated as per her findings and total
her disability, MacCabe was found to have capacity damages reportedly exceeded $4 million.
for only 60% of full-time work. Finally, it was found NOTE: The defendants filed a Notice of Appeal
that she would retire early at age 52. of Justice Johnstone's decision on December 31,
Justice Johnstone concluded that the plaintiff 1998. Please watch for further information on this
would have been committed to her career and would important case in future issues of The Trusted Legal
not have experienced a significant withdrawal from Advisor. —MR—
the labour force; as she would have utilized the ser-
vices of a nanny for her family.
Justice Johnstone's decision is, of course, based Sandra J. Weber (email@example.com) is the firm’s newest
on the specific facts before her. She stated she was partner. She practices in the litigation area with an emphasis
justified in utilizing male wage tables as ". . . clearly on insurance law.
McLennan Ross The Trusted Legal Advisor - March/April, 1999 7
Trusted Legal Advisors
McLennan Ross News to Alberta Business
McLennan Ross is pleased to The partners, associates and
announce the addition of Kar en A. staff of McLennan Ross are The Trusted Legal Advisor
Platten as the firm’s newest associ- pleased to announce the appoint- newsletter is published bi-
ate. Karen will practice as a member ment of Sandra J. Weber as the
of the firm’s wills & estates depart- firm’s newest partner. monthly. It is written to keep
ment, primarily in the estates area. A graduate of the University of clients and other friends of the
She brings many years of experience Alberta, Sandra Weber completed firm informed of current legal
to her new position. her bachelor of commerce degree in issues. It is not intended to
Before joining our firm, Karen was an estate con- 1986 and bachelor of laws in 1990. Sandra articled with provide legal advice. As indi-
sultant with Canada Trust, where she concentrated in McLennan Ross and was admitted to the Alberta Bar in
the areas of estate administration and estate planning. 1991. vidual circumstances may vary,
She also enjoyed running her own financial planning Over the years, Sandra has built a successful prac- readers with questions about
company for over two years. tice serving her clients as a member of the firm’s civil lit- issues raised by this newslet-
Karen has been very active in support of her pro- igation department, focusing in the area of insurance ter, or any other legal issue,
fession as an instructor of bar admission courses, a law. Her clients include many of the leading national should contact their counsel
speaker for the Legal Education Society of Alberta and and international insurance companies operating in
an active member of the Canadian Bar Association’s Alberta today, as well as numerous claims/risk manage- for specific advice.
Wills & Estates section. She currently sits as a member ment departments of national corporations and a num-
of the CBA Annual Meeting subcommittee and the ber of individual Albertans. We welcome your input.
Edmonton Community Foundation - Wills Week Sandra is a member of both the Edmonton and Please address comments and
Committee. Within her community, Karen serves as a Canadian Bar Associations and she regularly volunteers suggestions to one of our two
member of the board of The Support Network. her time to the Lurana Women and Children’s Shelter.
McLennan Ross offices:
What's Happening at McLennan Ross? Edmonton
Damon Bailey presented labour relations sponsored by the Centre for Labour-Management
600 West Chambers
issues to Safeway in Calgary on January 8, 1999. Development. He covered the topic of Illness and
Tom Ross conducted a Drug Testing Seminar Disability in the Unionized Workplace.
12220 Stony Plain Road
for the Canadian Bar Association in Calgary on Phil Ponting, Q.C., presented a seminar on Edmonton, AB T5N 3Y4
January 13. Monitoring & Surveillance to the Institute of Internal Phone: (780)482-9200
Glenn Tait and Vicki Giles delivered informa- Auditors in Calgary on February 16. Fax: (780)482-9100
tion on employment standards to the Agora Food Hav Madill, Jon Rossall, Don McGar vey, Toll-free: 1-800-567-9200
Merchants in Edmonton on January 13. Donald Dear, Steve Livingstone, Sandra W eber e-mail: firstname.lastname@example.org
Phil Ponting, Q.C. and Damon Bailey pre- and Dave Risling hosted the first annual Insurance
sented information on employment contracts at a Year in Review seminar on February 18th at the
seminar for the Association of General Counsel of Edmonton Delta Centre Suite Hotel. Issues covered
Alberta on January 14 in Calgary. included causation in tort law, employer liability for
Peter Taschuk, Q.C . was a featured speaker at sexual misconduct, changes to Rules of Court and 1801 Altius Centre
the Construction Super Conference organized by the Limitations Act information, quantifying the loss of 500 - 4th Ave S.W.
Canadian Institute in Calgary on January 21. future earnings and assessment of damages. Calgary, AB T2P 2V6
Hugh McPhail and Vicki Giles met with Telus Hav Madill, Don McGar vey, Donald Dear and Phone: (403)543-9120
representatives in Edmonton on January 29 to dis- Sandra W eber delivered similar insurance informa- Fax: (403)543-9150
cuss details of Bill C-19. tion in Calgary on February 19. Toll-free: 1-888-543-9120
Dave Ross, Q.C., Phil Ponting, Q.C., Hugh Glenn Tait, Hugh McPhail, Michael Vos, Leita e-mail: email@example.com
McPhail, Damon Bailey, Leita Siever and T om Siever and Vicki Giles provided industrial relations pro-
Ross conducted the annual Employment Law Year in fessionals, business owners and managers, and those in
Review seminar in Calgary at the Westin Hotel on the field of human relations, with a full day seminar
February 3. The seminar focused on a number of entitled Employee Discharge and Documentation in Alberta on
important employment law issues including wrong- February 19. This seminar was organized in conjunction
ful dismissal, labour relations, human rights and with Lorman Education Services. Newsletter Committee
arbitration. Yolanda Van Wachem and Kar en A. Platten Jon P. Rossall
Dave Ross, Q.C., Hugh McPhail, Glenn T ait, discussed wills, personal directives (living wills), Karen A. Platten
Gerhar d Seifner, Michael Vos and Vicki Giles, con- financial management and common law rights as Karen J. Metcalfe
ducted the Employment Law Year in Review seminar in they pertain to pensions, RRSPs and real estate Blain Banick
Edmonton on February 4. issues with members of the Northgate Lions Senior
Ron Kr uhlak was one of the speakers at the Citizens Recreation Centre in Edmonton on
Structuring Oil & Gas Property Transactions seminar at February 24.
Design and Layout
the Pallisades Hotel in Calgary February 8 - 9. Christopher Lane and Vicki Giles presented Catherine Doull
Damon Bailey was one of the featured information on employment standards to Sobeys
speakers at a seminar in Edmonton on February 11, West in Edmonton on March 2.
8 The Trusted Legal Advisor - March/April, 1999