Ryan Edmonds, a student at Osgoode Hall Law School and Heenan Blaikie student (oh, and former research assistant for yours truly) has won second prize (and $1000) in the student essay writing competition at the Dalhousie Journal of Legal Studies. Congratulation to Ryan!
His paper is entitled “Taking the Risk Out of Termination: An Enterprise Risk Management Analysis of the Normative System of Employment Standards Abandoned by Honda v. Keays“. It examines some issues that I too have considered, including how law and business risk interact to influence employer behaviour. Here’s the abstract:
The purpose of this paper is to analyze the effect of the Supreme Court of Canada’s decision in Honda v. Keays. In particular, the paper considers the Court’s divestment from Wallace v.
United Grain Growers, a case that transformed how non-unionized employees were thought of and treated in Canadian society. This paper examines that policy by discussing the analytical underpinnings of wrongful dismissal law’s previous bad faith damages regime and juxtaposes it to the new regime in Keays, concluding that the shift in focus from employer misconduct to employee loss exacerbates the employment relationship’s power imbalance and deprives employees of protection when it’s needed most. In reaching this conclusion, the paper uses the analytic frameworks of reflexive regulation and enterprise risk management to predict how employers will react to their new found advantage. The finding is that by taking the risk out of termination, there is now downward pressure to do away with the normative “upwardly ratcheting” system of employment standards that workplaces enjoyed under Wallace. The paper concludes by cautioning that subsuming all remedies related to the manner of dismissal – including tort causes of action – into the Keays/Hadley framework is a dangerous misstep that not only withholds recovery from seriously aggrieved employees, but also provides no countervailing incentive for employers to refine and improve their workplace standards.
United Grain Growers, a case that transformed how non-unionized employees were thought of and treated in Canadian society. This paper examines that policy by discussing the analytical underpinnings of wrongful dismissal law’s previous bad faith damages regime and juxtaposes it to the new regime in Keays, concluding that the shift in focus from employer misconduct to employee loss exacerbates the employment relationship’s power imbalance and deprives employees of protection when it’s needed most. In reaching this conclusion, the paper uses the analytic frameworks of reflexive regulation and enterprise risk management to predict how employers will react to their new found advantage. The finding is that by taking the risk out of termination, there is now downward pressure to do away with the normative “upwardly ratcheting” system of employment standards that workplaces enjoyed under Wallace. The paper concludes by cautioning that subsuming all remedies related to the manner of dismissal – including tort causes of action – into the Keays/Hadley framework is a dangerous misstep that not only withholds recovery from seriously aggrieved employees, but also provides no countervailing incentive for employers to refine and improve their workplace standards.It’s great to see a new generation of labour and employment law students doing interesting and thoughtful research. Check out Ryan’s award-winning article at the link provided above.
