Supreme Court of Canada Set to Hear Appeal in
                                    Keays v. Honda

Hugh Scher

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.

Scher & De Angelis Professional Corporation, Barristers & Solicitors. Suite 210, 69 Bloor Street East, Toronto, Ontario, Canada, M4W 1A9   Telephone (416) 515-9686 Facsimile (416) 969-1815 Email: hugh@sdlaw.ca Web: http://home.interlog.com/~scherde/

[Ed. Note: As is mentioned in the 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. Chris Paliare and Andrew Lokan have donated considerable time, effort and skill. You can learn more about this Toronto firm at http://www.paliareroland.com/.]