As is mentioned in the following article, the National ME/FM Action Network
has been granted permission to "intervene" in the case between Mr. Keays and
Honda at the Supreme Court of Canada. In accepting our application to
intervene, the Supreme Court is recognizing the importance of the case to
the ME/FM community and is indicating that our organization has a
perspective that could be helpful in deciding the case. We were invited to
submit a "factum", a written document outlining our views. In our factum,
we discuss the nature of accommodation required for ME/CFS, the need for
effective remedies for breach of the duty to accommodate and the importance
of incorporating the Human Rights Code into contracts of employment.
Recognizing the difficulty and costs of getting expert witnesses familiar
with ME/CFS, we ask the court to allow judges to access authoritative
websites. Finally, we ask for the opportunity to present our arguments
orally at the hearing on February 20. On January 15, the Court announced
that we will be allowed to give an oral presentation.
We are very grateful to the law firm Paliare Roland Rosenberg Rothstein LLP
who are representing our organization. The firm has extensive experience in
both employment law and in appellate work, a perfect combination for this
intervention.
SUPREME COURT OF CANADA SET TO HEAR APPEAL IN KEAYS V. HONDA
By: Hugh Scher, article published in Quest no. 76, winter 2007-08
On February 20, 2008 the Supreme Court of Canada will hear an appeal from
the Ontario Court of Appeal of their decision in Keays v. Honda. The trial
judge in this case granted the largest ever punitive damages award in
Canadian employment law history when he awarded punitive damages of
$500,000.00 against Honda for its outrageous and high-handed conduct founded
upon its discrimination and harassment of Kevin Keays and intentional
efforts to evade Honda's responsibilities under human rights law. In
addition to this, the trial judge awarded damages equivalent to 15 months'
reasonable notice, nine additional months of notice for reason of Honda's
bad faith in the manner of termination of Keays and an award of
reimbursement for legal costs in the amount of $610,000.00, inclusive of a
bonus premium of $155,000.00 to Keays' counsel Hugh Scher because of the
significant risk assumed and results achieved in this case.
The Ontario Court of Appeal upheld in principle all aspects of the trial
judgment finding that Honda wrongfully dismissed Keays from his employment
and engaged in bad faith in the manner of termination of Keays. The Court
ruled that Honda committed a litany of acts of discrimination and harassment
against Keays which justified a substantial award of punitive damages. The
Court of Appeal upheld the trial judge's award of 24 months' notice for
reason of the wrongful dismissal and bad faith. Justice Goudge, who wrote
for a unanimous court on all other issues, would have upheld the trial
judge's award of $500,000.00 in punitive damages finding that it was a
proportionate response to the blameworthiness of Honda's misconduct, the
harm caused to Keays, Keays' particular vulnerability and the need to deter
this large employer and others from wrongfully terminating in order to evade
their duty to accommodate under human rights law. Justice Rosenberg found
that a substantial award was justified but reduced the quantum from
$500,000.00 to $100,000.00 finding the award to be disproportional and that
certain of the trial judge's findings of fact were not supported by the
evidence.
The Supreme Court of Canada is being asked to affirm the trial judge's award
of punitive damages as well as to grant additional damages for
discrimination and harassment against Honda. Honda seeks to have the
decision of the Ontario Court of Appeal set aside.
The Supreme Court of Canada has granted nine intervention applications from
disability and women's organizations, human rights commissions and employer
representatives who wish to make submissions to the Court with respect to
the legal issues in this case.
The National ME/FM Action Network is one of those interveners. Additional
interveners include the Council of Canadians with disabilities, the Injured
Workers Network of Ontario, LEAF, the Canadian, Ontario and Manitoba Human
Rights Commissions, the Canadian Manufacturer's Association, and the Human
Resources Professional Association of Ontario.
This case offers the Supreme Court a unique opportunity to consider the
relationship between bad faith conduct, discrimination and harassment in the
employment relationship and to determine the best way to compensate victims
of such conduct and to punish the perpetrators. The Courts below have
affirmed the paramount importance of human rights protections to ensure
meaningful access to social and economic life for people with disabilities.
However, a 30-year-old precedent from the Supreme Court prevents Courts from
providing compensation for discrimination and harassment. The Court will be
asked to reconsider this decision and to increase the number of tools
available to Courts to address discrimination and harassment.
This case raises legal issues of fundamental importance to people with
disabilities across Canada and is being watched very closely by people with
disabilities and employers across the country because of its significant
impact.
The trial award of punitive damages is by far the largest ever in an
employment law case and represents one of the largest awards ever in
Canadian history. Should it be maintained by the Supreme Court of Canada it
would send a significant message to employers and insurers that people with
chronic fatigue syndrome and related conditions must be taken seriously and
that their claims to equal treatment, respect and consideration and to their
just entitlement to benefits must be respected or employers and insurers
will face significant penalties.
Note on Author: Hugh Scher is a partner in the law firm of Scher & De
Angelis where he practices civil litigation with a focus on employment,
insurance and human rights law especially in the area of disability rights.
He serves as counsel to the National ME/FM Action Network, ME Ontario and
Fibromyalgia Society of Ontario and has represented dozens of individuals
from across the country with Fibromyalgia and Chronic Fatigue Syndrome in
disputes with long-term disability insurers, the Canada Pension Plan,
employers and Revenue Canada. Mr. Scher served as our counsel in the Lowe v.
Guarantee Insurance (2005), O.J. (O.C.A.) and is counsel to Kevin Keays in
Keays v. Honda.
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