Page 43 - CCCA61_2008

CCCA61_044,046,047,053.qxd:CCCA_V1No2_Col-CorpLaw-V1.qxd 02/07/2008 06:21 PM Page 53 Labour & Employment Law Corporate Law Litigation continued from page 44 continued from page 46 continued from page 47 2. The title of “supervisor” or “manager” Changing governance shareholders as prospective plaintiffs. The does not necessarily disqualify an indi- Governance processes for distressed enter- business judgment rule shields directors vidual from overtime entitlements.You prises will be fundamentally impacted as (and possibly officers) in choosing between must consider the nature of the work well. Ensuring compliance with disclosure a range of alternative business decisions the employee is performing to deter- requirements will require more coordina- aimed at achieving the best interests of the mine if he or she is truly supervisory tion. Greater reliance on process and doc- company. The justification for the rule is or managerial. umentation for decision-making will be that directors should be able to perform required to ensure compliance with duties their role without fear of second-guessing 3. Salaried employees are not necessarily and avoid or minimize third-party liabili- by courts. Mr. Justice Binnie held that this excluded from overtime pay. Many ties. External advisors will be relied upon rationale does not apply to statutory disclo- salaried employees are entitled to over- more as distressed businesses seek to grap- sure requirements established by the legisla- time pay if they work more than the ple with the procedural drag of dealing ture. In reaching this conclusion, he dis- prescribed number of hours. with enhanced internal processes, engag- agreed with the Ontario Court of Appeal ing with stakeholders and managing dis- and agreed with the Ontario Securities 4. Do not inadvertently discourage the closure objections. Commission, which had intervened. reporting of overtime. Be sure that Large enterprises and their directors employees do not get the wrong impres- and officers (especially those with multi- Not all questions fully resolved sion that the employer views a model ple levels of corporations and enterprise- Danier Leather squarely dealt with these im- employee as one who comes in early wide decision-making at a holding com- portant issues, but other questions were not and/or stays late but does not report his pany) will be subject to heightened fully resolved. For instance, the Supreme or her extra time. scrutiny of both their decision-making Court left open the possibility that forward- processes and the results at each level looking information in a prospectus may 5. Keep accurate records of hours worked within the enterprise. Corporate counsel contain an“implied representation of objec- (both regular and overtime) and wages will also come under increased scrutiny in tive reasonableness” upon which sharehold- paid to employees. Regulations in sev- terms of their participation in, and rec- ers could bring claims.The Supreme Court eral jurisdictions require the mainte- ommendations to, one or more levels found, as a matter of fact, there was such a nance of such records. In addition, if within enterprises,all against a more chal- representation in Danier’s forecast,but that it there is a dispute, you will require lenging environment in which to pre- was as of the date of the prospectus,not as of records to support your position that serve solicitor-client privilege. the IPO’s closing. Questions of law regard- you have complied with the applicable Against this backdrop, distressed debtors ing whether and when such representations legislation. and their counsel will need to choose may be actionable were not addressed. external counsel and advisors carefully – Predictions about the future of securities Hugh Dyer is a partner in theToronto office ensuring that they have the experience, class actions in Canada must be made with of Miller Thomson LLP. His practice is breadth of expertise and depth of resources caution, because so much legal territory restricted to advising and representing to deal effectively with these matters. remains uncharted and market perform- employers in labour relations and employ- ance will play a pivotal role in shaping this ment-related matters. Edward Sellers is a partner in the Toronto practice area. Laura Cassiani is an associate in the office of Osler, Hoskin & Harcourt LLP’s Toronto office of Miller Thomson LLP. She Business Law Department.He is also chair of Andrew Matheson is a partner with provides legal advice to a range of employers the firm’s Insolvency & Restructuring Practice McCarthy Tétrault's Litigation Group in on a variety of issues, including human Group,and he provides business-critical advice Toronto. He specializes in commercial and rights, workplace privacy, health and safety, to our corporate, financial services and public securities litigation, regulatory defence and and grievance management. sector clients. cross-border matters. PRINTEMPS 2008 CCCA Canadian Corporate Counsel Association 53