What is it? A unique workshop introducing lawyers to Mindfulness Practices
Date: November 9, 2017
Time: 9:00 am – 3:30 pm
Location: The office of Jewitt McLuckie & Associates LLP, 2nd floor, 1505 Carling Avenue, Ottawa K1Z 7L9
Facilitators: David Jewitt LLB, Partner, Jewitt Mcluckie & Associates LLP and Craig Mackie, MA, MSW, RSW, Owner, Essential Change
What’s in it for me? Accredited by the Law Society for 3.5 Professionalism Hours (that’s all of the mandatory LSUC “Professionalism” CPD requirements for 2017), plus the valuable content outlined below.
Cost: $200.00 plus HST. Includes all course materials. Lunch not included
To Register: email craig@essentialchange.net or david@jewittmcluckie.ca
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Professional Dilemmas with Ethics: Lawyers are held to the highest of ethical standards and are required to resolve ethical dilemmas daily while in the midst of intense adversarial battles. The practice of law requires a fine awareness of our inner personal values and a deep understanding of how the Professional Code of Conduct creates rules of practice and enduring value and respect for the Profession. In this experiential workshop Participants will be offered:
- A deeper understanding of how the Professional Code of Conduct applies to their practice;
- What personal motivations are central to their practice;
- What values they need in order to strengthen their practice and navigate ethical dilemmas.
- Specific Mindfulness practices and techniques to increase the “mindfulness pause” before taking action.
- A copy of the 16 Ethical Guidelines by Alison Murdoch and Deyki-Lee Oldershaw (compassionandwisdom.org) which contains practical exercises to assist in the cultivation of mindful ethical behaviour will be included with the material.
Participants will examine personal and professional ethical scenarios to understand how the 16 Guidelines can be applied with the Rules of Professional Conduct. Basic ethical values such as Honesty; Respect, Confidentiality; Kindness; Generosity; Right Speech; Humility and Patience will be explored in conjunction with the Professional Code of Conduct Rules 3.1 – Competence, Dishonesty, 3.7 – Withdrawal, 3.2.2 – Honesty and Candour, 3.3 – Confidentiality, 3.2.2 – Honesty, 3.4 – Disclosure of Conflict 5.0 – Relationships with Colleagues, and 6.3 – Discrimination.
This workshop is designed to assist lawyers in making the connection between their own inner emotional and mental states and the ethical actions that follow in their day to day practice. Participants will be introduced to the experiential practice of Mindfulness/Meditation and the Ethical Principles outlined in the 16 Guidelines as they relate to the LSUC Professional Code of Conduct.
Mindfulness: Mindfulness allows us to pause between stimulus and response in order to respond most skillfully. It trains our attention, intention and attitude that can influence every situation we encounter (Shapiro,2006). From the Foundation for Developing Compassion and Wisdom (UK); “Training in mindfulness is a conscious & directed way of shaping our neural networks according to our intentions.” With this in mind, in order to heighten a lawyers’ ability to respond ethically across all practice settings, training in mindfulness can help increase ethical decision making. Mindfulness practices will be taught to assist the participants in transforming future personal and professional ethical dilemmas into opportunities for ethical action.
16 Guidelines as a Mindful Ethical Framework: Participants will be presented with a possible framework to understand ethical conduct through a system of applied ethics called the 16 Guidelines (http://16guidelines.org) .
The 16 Guidelines are used to teach applied ethics in multiple settings. They focus on the ethics of Thought, Action, Relationship and Meaning Creation at all levels of corporate, personal and organizational culture. Each of these areas has a set of virtues or practices which will be explored in the workshop.
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More about the Facilitators:
David Jewitt, LLB, Partner, Jewitt Mcluckie & Associates LLP
After ten years of practice at a large Ottawa law firm, David established his own law firm in 1991 specializing in labour and employment law and human rights on behalf of employees and unions. David can be found on the Best Lawyers in Canada list for his expertise in the practice area of Labour and Employment Law. David also has a passion for yoga and meditation of all types having studied extensively with senior yoga teachers throughout North America and in India. He has visited Tibet and studied with senior Tibetan Lamas on various Tibetan meditation techniques.
Craig Mackie, MA, MSW, RSW, Owner, Essential Change
Craig is a consultant, mindfulness teacher and owns a clinical private practice in Ottawa. He has taught mindfulness with clinical populations since 2008 and currently teaches at the University of Toronto Applied Mindfulness Meditation Certificate program. He is an international instructor for the Foundation for Developing Compassion and Wisdom (UK) and certified in symptom and stress management models of mindfulness as well as Transformative Mindfulness and the 16 Guidelines which is an ethical practice. Craig combines his knowledge of philosophy with a very practical approach to help individuals and organizations reach their fullest potential.
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Image credit: Big Autumn Blue by Stuart Williams via Flickr under Creative Commons licence
An Ontario Court recently released the Hoang v Personal Insurance Co. decision on legal costs against insurance companies that have wrongfully denied a claim. The Court noted that it is typical for courts to award legal costs to the successful party on a partial indemnity basis- that is in the range of 40-60% of one’s legal fees. But the Court here determined that the unique nature of an insurance policy suggests that successful plaintiff’s should be better compensated when fighting the wrongful denial of their insurance benefits:
One purchases an insurance policy for coverage in the event of liability, and it is the premium payable under the policy that is the cost of that coverage. Insurance companies are by their nature constantly involved in litigation, and it would be unfair and burdensome to make their customers pay a premium plus legal fees in order to obtain the coverage they bought. The premium is presumed to reflect the insurance company’s risk. If it chooses to attempt to reduce that risk by engaging in litigation over its obligation to provide coverage it should be made to fully compensate the successful party if it loses.
The Court thereby awarded the plaintiff full indemnity of their legal costs. As an office that assists many people through their struggle to access their insurance benefits, we certainly support the Court’s reasoning.
Image via Flickr: Denied by Jonathan Melhuish under Creative Commons Licence
Reach Canada presents this not-to-be missed seminar, and our own Randy Slepchik will be there to help unpack the legal framework behind addiction issues in the workplace and entitlement to disability benefits. He will also discuss the best practices and strategies for assisting employees with disabilities whether as their lawyer or when assisting a colleague in the workplace.
Addressing this issue from a medical perspective will be Psychologist Matthew Rippeyoung, who will discuss the shift in how substance use and abuse is conceptualized, the variety of treatment approaches, how to support a person struggling with substance use and information about local treatment options.
Date: Tuesday April 25 at 11 am to 1 pm (bring your own lunch, refreshments available)
Location: 601 Cumberland, University of Ottawa campus, second floor above Café Nostalgica. Fully Accessible.
Register: reach.ca
This program is accredited by the Law Society of Upper Canada and contains 2 Professionalism Hour(s).
Employees in Ontario are entitled notice of the termination or pay in lieu if they are terminated without cause. The notice period may be set out in a contract, but employees can be entitled to longer common law notice periods if they do not have a valid contract.
Judges primarily apply the factors set out in Bardal v Globe & Mail Ltd, 1960 CanLII 294 (ON SC) to determine the length of notice required:
- character of employment;
- length of service;
- age of the employee; and,
- availability of other similar employment.
A judge’s analysis is flexible and fact-driven. Nevertheless, length of service continues to be a strong indicator of the proper notice period.[1]
As the population ages, older employees with many years of service might have to deal with the consequences of termination. Ontario courts have repeatedly held that older employees who have worked with the same employer for many years are entitled to longer notice periods.
In Ozorio v Canadian Hearing Society, 2016 ONSC 5440 (CanLII), Ms. Ozorio was 60 years old and had 30 years of service when she was terminated. Her position was Toronto Regional Director, which involved managing 65 staff, overseeing an $8 million budget, and reporting directly to the CEO. She tried to mitigate her damages by searching for a new job, but could not get a similar senior position.
The Court decided that 24 months of pay in lieu of notice was appropriate. The Court noted that while there is an informal cap of 24 months of notice, “there have been numerous cases in which older and long term employees in non-executive positions such as the plaintiff have been found to be entitled to 24 months’ pay in lieu of notice”.[2] Longer notice periods are justified for older employees with longer terms of service because of the competitive disadvantage they face in finding new employment when competing with a younger and less costly talent-pool.[3]
If you need advice on whether to accept a severance package, please contact us today at (613) 594-5100.
Article: Joshua Nutt (Articling Student)
Image: Liam Matthews via Flickr under Creative Commons Licence
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[1] KW Thornicroft, “The Assessment of Reasonable Notice by Canadian Appellate Courts from 2000 to 2011” (2013) 17 Canadian Labour and Employment Law Journal 1, at 29.
[2] See for example: Bolibruck v Niagara Health System, 2015 ONSC 1595 (CanLII); Brien v Niagara Motors Ltd, 2009 ONCA 887 (CanLII); Lowndes v Summit Ford Sales Ltd, 2006 CanLII 14 (ONCA); Kerr v Canada Alloy Castings, [2000] OJ No 5169; Cowper v Atomic Energy of Canada Ltd, 1999 CanLII 14853 (ON SC), affirmed 2000 CanLII 2995 (ONCA)
[3] See Drysdale v Panasonic Canada Inc, 2015 ONSC 6878 (CanLII), citing Mckinney v University of Guelph, [1990] 3 SCR 229, 1990 CanLII 60 (SCC), and also Paquette v TeraGo Networks Inc, 2015 ONSC 4189 (CanLII).
There has been a consensus among Ontario arbitrators that where a worker’s misconduct is connected directly to a disability such as addiction, then termination is not appropriate and the employer should instead accommodate the worker. This approach has applied when three conditions are met:
- There is an addiction;
- The addiction has a nexus (connection) with the misconduct (e.g. stealing narcotics from a hospital);
- The worker came clean about the misconduct, acknowledged the addiction, and sought treatment.
Workers have been reinstated even where the employer was unaware of the addiction and where the conduct was criminal.[1] Workers are often reinstated with conditions (limited tasks, regular drug testing, and disclosure obligations).
A recent arbitration decision in Cambridge Memorial Hospital v Ontario Nurses’ Association, 2017 CanLII 2305 (ON LA) has challenged this consensus.
A nurse admitted to stealing narcotics, sometimes diverting them from patients, and falsifying records to conceal the theft. CMH alleged that the nurse could control her behaviour and was not compelled to steal. CMH argued that it had just cause for termination because the conduct was criminal and a fundamental breach of trust.
The arbitrator considered the BC Court of Appeal’s decision in Gooding (2008 BCCA 357) which has received little attention from Ontario arbitrators. The Court of Appeal found that Mr. Gooding’s termination was not discriminatory because his alcoholism had no bearing on the decision to fire him. The Court held that he was terminated because theft is criminal misconduct and the employer would have terminated other employees for the same misconduct.
The arbitrator in the CMH decision didn’t fully adopt the Gooding decision, but relied on it for guidance. He found that before considering accommodation, “the first issue is whether an addiction is a defense to the criminal misconduct”. The arbitrator concluded that it is not:
“I don’t accept that pleading an addiction to the drug being stolen, which is to say, establishing a nexus between the addiction and the misconduct, is, in itself, a defense to termination. Put differently, it is not prima facie evidence of discrimination.”
The arbitrator distinguished this case from other decisions which have focused on the compulsive nature of an addiction as a mitigating factor. The evidence here showed that while the nurse was addicted, she was not compulsive and could abstain from using narcotics. This case was also distinguishable because the nurse failed to own up to the full extent of her misconduct. Finally, the arbitrator sought to send a message of general deterrence that pleading addiction only after getting caught should be strongly discouraged.
This decision may represent a shift in the way that addiction and associated misconduct are dealt with by arbitrators. However, these decisions are always fact specific and this decision does not bind other arbitrators. This case was factually different than previous cases because the evidence of the nurse’s addiction and compulsion to steal narcotics was weak. In many of the previous decisions which represent the consensus among Ontario arbitrators, there was strong medical evidence from addiction specialists which supported a disability-based defence to the termination.
This case raises important questions about how to handle addiction and associated misconduct. The number of reported arbitration decisions dealing with addictions and theft in medical workplaces might reflect a lack of adequate support and mental health treatment options available. The arbitrator acknowledged that “evidence suggests that drug dependency is an occupational hazard for doctors, nurses, pharmacists and other healthcare professionals, who have regular access to opioids”. Ideally, employers and unions will be able to work together to prevent these situations in the future by ensuring access to timely and effective support programs and treatment. This could mean using joint health and safety committees to identify and respond to risks in the workplace. It could also mean ensuring that workers feel comfortable raising their concerns, knowing that there will be resources available to support them and help accommodate their disability. Finally, problems associated with workers suffering from addictions are not limited to those working in the healthcare field. All employers should be aware of their duty to accommodate employees disabled by addiction.
If you were terminated because of a disability or need advice on disability accommodation in the workplace, please contact Jewitt McLuckie & Associates LLP at (613) 594-5100.
[1] See these eight previous arbitration decisions dealing with addiction and theft: William Osler Health Centre and ONA (Katie Ward), (2006), 85 CLAS 7 (Keller); Collingwood General & Marine Hospital and ONA (Smart), (2010), 195 LAC (4th) 124 (Jesin); Thunder Bay Health Sciences Centre and ONA (Gabriele), (2010), 104 CLAS 263 (Sheehan); St. Mary’s General Hospital and ONA (Harris), (2010), 199 LAC (4th) 75 (Stephens); London Health Sciences Centre and ONA (BS), (2013), 230 LAC (4th) 22 (Hayes); Hamilton Health Sciences and ONA (Pinsonnneault), (2013) 117 CLAS 6 (Herman); Sensenbrenner Hospital and ONA (Dagenais), unreported, July 6, 2015; ONA v Sunnybrook Health Sciences Centre, 2016 CanLII 62577 (ON LA)
Article: Joshua Nutt (Articling Student)
Image: “Addiction” by Kaushik Narasimhan via Flickr under Creative Commons Licence
Here at JM&A we firmly believe that taking time to relax is crucial to being a happy, healthy and productive workplace, so we decided to hold an office social this past Friday. Enjoying what may turn out to be the last great skating day on the canal this season, JM&A staff took to the ice for some bonding, exercise and fresh air (and, okay, a few BeaverTails). Although there were a couple wipe-outs, everyone stepped off the ice in high spirits, not least because we were heading into a long weekend!
When John noticed that Cara’s skates weren’t tight enough, he sprang into action
We could not have asked for a bluer sky, nicer ice, or a more beautiful Ottawa day
Getting our skates on with excitement and, in Cara’s case, severe trepidation
We aren’t sure what’s going on here but despite appearances we were having fun