Archive for June, 2009

Leave of Absence for Organ Donation

Thursday, June 25th, 2009

The Ontario Gazette just announced in the latest issue that Ontario’s Bill 154, the Employment Standards Amendment Act (Organ Donor Leave), 2009  has received Royal Assent.  The law will come into force on a date to be proclaimed at some point in the future.  When this law comes into effect, employers in Ontario will be required to give up to 13 weeks unpaid leave to employees who are involved in transplant procedures for various organs (presently they are kidneys, livers, lungs, pancreas and small bowel but others could be added later to this list). 

The explanatory note to the legislation speaks only to the situation where the employee is the donor of the organ, but doesn’t mention the situation where the employee is the recipient.  However, the wording of the act seems to imply both situations.  More importantly, I can foresee a situation where a person donates one of his/her kidneys or lungs as that person could live with only one of those organs.  However, you only have one liver and one pancreas, it would seem odd to have someone be the donor of their only liver or pancreas and then go back to work 13 weeks later  (unless it is possible to donate a part of the organ, which I would doubt – but I admit that I am neither a doctor nor do I play one on television).  If my belief is correct that you cannot live without a full liver or pancreas, then the legislation would only make sense for these types of transplants where the employee is the recipient of the transplant.

While I would hope, for employee morale if no other reason, that most employers would be willing to give at least unpaid leave for such transplants, employers who may not wish to be so generous for whatever reason should now be aware that once this legislation is proclaimed to be in force, they will have no choice.


There’s the Legal and There’s the Practical

Wednesday, June 24th, 2009

I often spend a lot of time explaining to my clients that there are always two aspects to every legal matter – there’s the legal side and there’s the practical side.  Put another way, on one side you have your rights and on the other side you have the politics of human relations.  I was reminded of this recently by the current outside workers’ strike (aka the garbage strike) in Toronto and especially by the impending strike by workers at the Liquor Control Board of Ontario stores (aka the liquor stores).

As the City starts to smell with the combination of rotting garbage and high Summer temperatures, political will to fight the unions and have garbage collection outsourced is likely to grow.  Why is that?  Well, the Toronto suburb of Etobicoke outsourced its garbage collection prior to amalgamating with Toronto and now while the rest of the city starts to stink, Etobicoke is going about matters normally.  There are suggestions that the current mayor (who is friendly to the unions) may have a difficult time being re-elected.  If that happens, then a mayor who is more aggressive to the unions is likely to be elected with the result that the union exercised its legal rights but the practical fallout may well be worse.

I also have to smile at the impending LCBO strike.  It was supposed to have started this morning at 12:01 a.m.  In light of this impending strike, people went to the liquor stores (myself included) to buy wine and spirits in record numbers – it is said that the LCBO stores did at least five times their usual volume of business yesterday.  People with upcoming weddings bought the wine and spirits they needed in case the strike goes for a long time.  Ultimately, 40 minutes before the strike deadline the union said that it was extending the deadline.  Why is that?  It seems to me that they came to realize that (a) people can get locally grown wine in places other than at LCBO stores; (b) they can get beer at the local Brewers Retail outlets; (c) the only thing that people would truly be unable to get elsewhere – spirits and “foreign” wines – were snatched up and people have stockpiled these items; and (d) the Province, as employer, has made enough money yesterday, when combined with what it would save in not paying for the employees while they strike, that it could sit tight for a while before feeling the pressure to negotiate further with striking employees.  Ultimately, then, the legal right to strike was outweighed by the practical reality that would result from exercising that legal right.

The same situation applies in litigation.  I can force the other side to comply with the rules and have an affidavit of documents served within 10 days after the Statement of Defence is served.  That is the rules and I can force compliance.  The reality, though, is that few litigants ever comply with this rule and the result is almost certainly that if I force compliance then I can expect the other side to force compliance with other rules and if my client ever should require an extension of time for anything that the other side will deny the request.

In general, I find that clients are often quick to assert their legal rights without thinking about the practical ramifications of those actions.  In part that is my job – to point out those ramifications.  One of my mother’s favourite sayings was “don’t cut your nose off to spite your face”.  That often applies in situations involving the enforcement of legal rights and is often something to be considered.