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The Supreme Court's recent decision in Keays v. Honda Canada, 2008 SCC 39, (summarized by Solomon Lam here) was a major victory for employers everywhere. In reducing both aggravated and punitive damages to zero, the Supreme Court of Canada has effectively deemed that Honda's conduct, while harmful, was not egregiously harmful.
It is worth remembering the facts at hand that led the lower courts to find aggravated damages as prescribed in the Wallace v. United Grain Growers of Canada, [1997] 3 S.C.R. 701. Mr. Keays, acting in good faith, received a diagnosis of chronic fatigue syndrome (CFS). Honda, growing aggravated with Mr. Keays' absences from work for medical reasons, consulted with two other doctors, and in their letter of March 28th to Mr. Keays asserted "[b]oth doctors advised us that they could find no diagnosis indicating that you are disabled from working."
Justice Bastarache, at p. 39, explains that although Dr. Affoo did not disagree with the diagnosis of CFS, he still felt that working would be beneficial for Mr. Keays' health. At paragraph 40, Justice Bastarache further explains that Dr. Brennan, the second of these two doctors, communicated to Honda that he was unable to diagnose Keays with CFS without first examining him. As such, Justice Bastarache concludes that
[t]here is nothing misleading or false with Honda’s assertion that both doctors advised that they could find no diagnosis that would bar Keays from working. Dr. Affoo clearly stated that he thought it would be good for Keays to work, and Dr. Brennan clearly could find no diagnosis of CFS without first meeting Keays. Honda was simply relaying the information it received from its experts to Keays. Given this evidence, I do not see how the trial judge could have concluded that Honda was trying to intimidate Keays by twisting the positions of the physicians.
This is almost a deliberately obtuse reading of the facts. While it is technically true that Honda was only repeating the facts at hand, realistically, what Honda did in its letter was conflate Dr. Affoo's belief in the potential therapeutic value of work with Dr. Brennan's inability to diagnose CFS and then use stern wording to imply that Mr. Keays was either mistaken or lying about his illness. This reading was the basis for the punitive damages' judgments passed down by the lower courts, and the principle was that Honda abused its power in its relationship with Mr. Keays as his employer. Consider the language used in paragraph 4 of Honda's letter to Mr. Keays:
When we met on March 21, 2000, we advised you that we would no longer accept that you have a disability requiring you to be absent. Dr. Brennan and Dr. Affoo both believe that you should be attending work on a regular basis.
Justice Bastarache, writing for the SCC, contends that there is nothing "misleading or false" about this statement, which in turn removes the justification for aggravated or punitive damages. But that statement clearly implies that Dr. Affoo and Dr. Brennan both believed that Mr. Keays had no disability; the way the paragraph is constructed leads the reader to accept that Honda's reasoning for its decision (first sentence) is the expert opinion of the doctors (second sentence). This is, of course, flatly untrue. Dr. Affoo's testimony made it obvious that he concurred with the diagnosis of CFS, and Dr. Brennan was in no place to determine that Mr. Keays was not suffering from CFS.
Taken in context, one can clearly see that Honda was trying to intimidate Mr. Keays, implying that he was either mistaken or dishonest about his condition. (When someone offers you the choice of being either ignorant or a liar, it's already a lose-lose situation.) That is the root of Mr. Keays' argument for aggravated damages, but Justice Bastarache's decision nitpicks at technicalities.
Justice Bastarache points out that Dr. Brennan, Honda's handpicked doctor, relied on the criteria outlined by the Centre for Disease Control in diagnosing CFS. However, he offers no comment on Dr. Brennan's belief that CFS only exists as a genuine medical condition in "very limited circumstances," which clearly suggests that Dr. Brennan thinks the majority of CFS cases stem from incorrect diagnosis. Justice Bastarache does not explain why the Centre for Disease Control should be a pre-eminent authority in Canadian jurisdictions either, particularly when Health Canada had already recognized CFS as a serious condition at the time and when Alberta courts had already ruled in 1998 (here) that CFS was a genuine medical condition.
In short, Justice Bastarache's decision completely dismisses the tone of the letter, the antagonizing situation around its creation, and the fact that Honda Canada, very patronizingly, felt the need to get independent medical analysis, from not one, but two handpicked doctors - suggesting that they believed Mr. Keays was being dishonest with them from the start of this affair. The fact that they were unwilling to advertise that - is furthermore, wholly ignored. Their use of half-truths is the worst sort of legal weaseling that gives the profession a bad name; technically true but nonetheless designed to insult, hurt and inflame. For this, Honda Canada have been given a pass by the Supreme Court of Canada. And that's just wrong.
8 Comments
"Their use of half-truths is the worst sort of legal weaseling that gives the profession a bad name; technically true but nonetheless designed to insult, hurt and inflame. For this, Honda Canada have been given a pass by the Supreme Court of Canada. And that’s just wrong."
While I share some of your concerns over the majority's revised approach on aggravated and punitive damages, the impact of your analysis is diminished by your injudicious use of inflammatory rhetoric. Rational argument has no room for ad hominem attacks by resorting to describing Justice Bastarache's legal reasoning as musteline.
This is particularly inappropriate given the recent Federal Court rebuke of former Justice Gomery in the Sponsorship Inquiry. As Justice Teitelbaum notes, judges should speak only through their judgments: "This is the only appropriate forum in which a decision-maker should state his or her conclusions. As my colleague, mentor and friend, the late Justice Frank Collier, once said to me when I was first appointed as a judge, 'let the decision speak for itself.'"
Fair comment is one thing; disrespecting the judiciary is another. Your time and efforts would be better spent in developing new legal arguments for future cases.
I disagree with your assessment of the case and of Honda's conduct. One of the scariest things about the lower court decisions was that Honda's conduct was more or less reflective of what most of us would advise as responsible disability management practices. Part of it is interpretation of the facts, though, so I see that there's room to disagree.
One point that I might clarify from your comments. You find the statement " ... we no longer accept that you have a disability requiring your absence from work. The Drs believe you should be attending ..." to be misleading because the doctors did not challenge the diagnosis. There's a fundamental difference, though, between a diagnosis and a disability. A doctor can talk about a diagnosis and the associated limitations; but only an employer can conclude that those limitations amount to a disability requiring absence from work. That is is a fundamental part of good disability management, and the distinction gets lost all too often.
Finally, a grounded review of this decision. Now if only someone would point out that Honda doctors would have relied on the bogus, farcical medical assessment its group health carrier used to blow Mr. Keays off his long term disbility benefits and put him at the mercy of Hobda's hand-picked, hardball doctors.
The SCC has given employers and their group health carriers to declare open season on disabled employers. Further, the SCC has demonstrated it will look the other way and feigh blissfull ignorance while corporations use bogus third party medical assessments to bolster the biased opinions of its own doctors.
The ONCA said "not all of the blame can be laid at Honda's feet" and reduced the punitive award accordingly. The SCC erased the award completely. Both failed to say at whose feet - if not Honda's - the remainder of the blame rests. Both the ONCA and the SCC avoided even mentioning this related finding (below) by the trial judge. At the very least this bit explains why Mr. Keays would not be willing to easily trust Honda's hand-picked doctors. The SCC intimited that Keays mistrust was completely unwarranted and without the slightest justification. On the contrary!
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Keays v. Honda Canada Inc., 2005 CanLII 8730 (ON S.C.) — 2005-03-17
[4] Mr. Keay’s health situation deteriorated to the extent that he was off on disability from October 1996 until December 1998. The insurer had originally denied coverage because his claim could not be supported by “objective medical evidence”. After a period on Short Term Disability benefits (“STD”) he was approved for Long Term Disability benefits (“LTD”) in November 1997 and these were terminated as of December 1998 following a Work Capacity Evaluation (“WCE”) conducted by Assess Med on behalf of London Life. The plaintiff has described this process as a “farce”. No evidence has been led to contradict this position. Accordingly, I find that he was wrongly terminated from his LTD. His attempt to appeal this determination using the advocacy of his physician, Dr. Morris who proposed the diagnosis of CFS, was summarily dismissed by the insurer.
[12] In the meantime, due to the frustration and stress that was being generated by the “stone-walling” on the part of the Honda management hierarchy, Mr. Keays decided to retain legal counsel to attempt to mediate his concerns. I am satisfied that he did this as a last resort because he legitimately felt that his disability would result in his termination, disqualifying him from the LTD which has been wrongly cancelled due to the “bogus” WCE conducted by Assess Med.
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I really don't see how the (external) insurer's decision has any bearing on the employer's trustworthiness. An insurer's decision is subject to appeal and eventual court challenge. The trial judge determined that the insurer's decision was wrong, based (explicitly) on the lack of evidence that it was not a farce. I have trouble even making sense of that finding, let alone seeing how it has any bearing on the issue of wrongful dismissal damages.
Mr. Bird points to the way in which "Dr. Affoo's belief in the potential therapeutic value of work" played into painting Mr. Keays as a faker.
This tactic of talking up the value of therapeutic value of work while relegating the disability/pain to the background is not unusual.
Here is what a FSCO arbitrator had to say on this very topic:
This may be a laudable statement were it not that AssessMed appears to consider pain to be largely irrelevant.
(FSCO A03-000056)
I'm just a working joe with a fair understanding of English, but I work in the workplace safety education field. Do I correctly understand that Honda tried to threaten this guy to back work on the advice of two doctors at least one of whom had never even met him?
And yet there are people on this thread defending that course of action?
Remind me not to ask any of the defenders for referrals for dental work.
Honda stated outright that two doctors said Keays was fit for work. Only one had suggested RTW. That makes the statement half-truth at best.
Oddly, no-one's paying attention to the half-lie, so it seems. Arriving at this late date, it looks to me as though Honda didn't like the second opinion, and so went shopping for a third, then wallpapered the actual meaning of the doctors' reports to look like a solid argument for screwing over one of its workers.
Having worked for Honda I know for a fact that they play hardball with any "associate" that tries to take disability. The workers basically live in constant fear of losing their jobs buy hey that's good for business right. Keeps workers on their toes.