US Campaign Laws

 

US Campaign Fund Laws

There are two basic sources of funds for a candidate. The are differing rules as to how such funds may be spent.

The Campaign Account

All funds in this account may not be used for personal expenses. Such an expense is defined as one which would have been incurred, whether or not the person was a candidate for political office.

Leadership PAC

These funds are to be used to support the campaign of the candidate. Personal expenses of the candidate are allowed to be paid from this account. There are strict rules on identifying the names of the donors. There are very loose rules on stipulating the recipients of the sums paid out. It is possible to define this entity generically, such as “administrative expenses”. Both Clinton and Trump used intermediaries. Payments have been made to third parties which have then used these funds to pay the candidate’s expenses or otherwise. These funds could be used to pay the damages suffered by Trump in his two civil lawsuits or pay his legal expenses.

Soliciting Donations

The candidate asking for public donations must stipulate where the funds are going, to the Campaign Account or the Leadership PAC. In Trump’s case, this is noted in small font at the bottom of the solicitation, such as 90% to the PAC, 10% to the Campaign, or all funds over $500 goes to the Leadership PAC.

Super Pac

There is also a third bank which is required to be independent of the candidate and have no connections with the candidate. There are no rules on how these funds are spent. It would be hard for this PAC to pay expenses as this would require such co-ordination with the candidate.

 

Odd Truths

Things go round and round

On June 22, 1633, Galileo was convicted of heresy by the Church and forced to recant his statements that the Earth rotated around the sun and not vice-versa as the Bible said and Church taught. hmmmm

On April 12, 1633, chief inquisitor Father Vincenzo Maculani da Firenzuola, appointed by Pope Urban VIII, began the inquisition. Galileo was ordered to turn himself in to the Holy Office to begin trial for holding the belief that the Earth revolves around the sun, which was deemed heretical by the Catholic Church. Standard practice demanded that the accused be imprisoned and secluded during the trial.

This was the second time that Galileo was in the hot seat for refusing to accept Church orthodoxy that the Earth was the immovable center of the universe: In 1616, he had been forbidden from holding or defending his beliefs. In the 1633 interrogation, Galileo denied that he “held” belief in the Copernican view but continued to write about the issue and evidence as a means of “discussion” rather than belief. The Church had decided the idea that the sun moved around the Earth was an absolute fact of scripture that could not be disputed, despite the fact that scientists had known for centuries that the Earth was not the center of the universe.

This time, Galileo’s technical argument didn’t win the day. On June 22, 1633, the Church handed down the following order: “We pronounce, judge, and declare, that you, the said Galileo… have rendered yourself vehemently suspected by this Holy Office of heresy, that is, of having believed and held the doctrine (which is false and contrary to the Holy and Divine Scriptures) that the sun is the center of the world, and that it does not move from east to west, and that the earth does move, and is not the center of the world.”

Along with the order came the following penalty: “We order that by a public edict the book of Dialogues of Galileo Galilei be prohibited, and We condemn thee to the prison of this Holy Office during Our will and pleasure; and as a salutary penance We enjoin on thee that for the space of three years thou shalt recite once a week the Seven Penitential Psalms.”

Galileo agreed not to teach the heresy anymore and spent the rest of his life under house arrest. It took more than 300 years for the Church to admit that Galileo was right and to clear his name of heresy.

 

Dylan Thomas

Dylan Thomas was a Welsh poet who died in 1953 at the age of 39. His most well-known poem is one which you have no doubt heard at many funerals. It is titled “Do not go gentle into that good night”. It was written as a tribute to his father on his death. As one commentator, Denise Levertov, more poetically astute than I, said in her Statement on Poetics:

“Few poems furnish such a wakeful breaking open of possibility more powerfully than “Do not go gentle into that good night” — a rapturous ode to the unassailable tenacity of the human spirit by the Welsh poet, Dylan Thomas”

This poem was first written in 1947, and published in 1951 and included in his 1952 poetry collection “In Country Sleep, And Other Poems.”

In the fall of the following year, Thomas — a self-described “roistering, drunken and doomed poet”, drank himself into a coma while on an American reading tour. The organizer was required to lock Thomas into a room to meet a deadline for the completion of a radio drama “Under Milkwood”. Thomas died in New York in the fall of 1953.

He was staying at the now famous Chelsea Hotel in Soho, the hotel of choice of many artists and writers, including Arthur Miller, Thomas Wolfe, Leonard Cohen, and Brendan Behan.

Below is the dedication to Thomas in front of the hotel.

The statue of the man located in front of theatre dedicated to his name in Wales

Bob Zimmerman adopted Thomas’ first name as his surname. Christopher Nolan made “Do not go gentle into that good night” a narrative centerpiece of his film “Interstellar”. The Beatles’ Sargeant Pepper’s Album featured his likeness immediately to the right of Marlon Brando, wearing the odd looking hat, left hand side, middle-ish row.

Nothing could be better than listening to Thomas read his best work:

And Anthony Hopkins:

We all need more poetry to guide our thoughts.

Vicarious Liability & A Drunken Woman Assaulted in Taxi

An inebriated woman calls a taxi. She enters the cab and is sexually assaulted. Should the taxi cab company be held strictly liable for these damages suffered by her?

In the absence of negligence, as was the case in this instance, the Ontario Superior Court, on a summary judgment motion, refused to apply the concept of vicarious liability to hold the employer 1 strictly responsible for the intentional act of wrongdoing of its driver. 2

Indeed, the Court of Appeal agreed. Leave to appeal was denied.

The principal of vicarious liability holds the employer legally responsible for the wrongdoings of its employees. It is a difficult concept to show successfully, as the questioned conduct must be closely and materially connected to the business of the employer. It is even more difficult to apply when the wrongdoing is intentional.

Does this make sense ?

Debating the legal correctness of these decisions and whether the application of Bazley principles was right or wrong will not change the law.

What of the moral correctness? Should a vulnerable person, such as in this case, an intoxicated woman or a child or an elderly person, not have a viable remedy in the event of an intentional wrongdoing of the driver when the passenger has been locked into the car without means of escape?

Somehow it just does not seem right that such persons would be without a meaningful remedy.

In the cited case, the company accepted that the relationship was one of employment. Uber and similar app services are not even close to making this admission which is normally a building block to the finding of vicarious liability.

What of policy considerations?

The business reality is that the taxi cabs of the world will insure the liability and hence spread the risk. There will some additional costs to be absorbed by the passenger, certainly. Is it worth the additional 50 cents a ride to allow for this remedy?

Error Made at First Base

The irony is that the plaintiff missed a fundamental argument. There was no claim made in contract. There are precedent cases establishing an implied term of a contract between the passenger and a “common carrier” that the transporting company must insure safe passage to the passenger. Too bad.

Canadian Curiosities

Check out the lowest point

Beer Bets

One thing that no American would ever know, or for that matter most Canadians, is that the most southern part of Canada, specifically Point Pelee National Park in Lake Erie, (think Detroit-Windsor) is farther south (41.75 degrees latitude) than the most northern part of California next to the Oregon border. (41.99 degrees) Hard to imagine, yes. This one has won a lot of beer bets over the years. (red wine actually but that does not sound quite as macho as it should)

On a similar subject matter, Canada shares a land border with how many countries ? One is rather obvious. The second one will also lead to a few winning bets. Unknown to many, Canada shares a land border with Denmark. It seems that there is an island in the Arctic, somewhere in the middle of nowhere, Hans Island is the name. After years of to and fro, there was an agreement to divide ownership into two, thereby creating a land border.

Sports Trivia

The national sport of Canada is…nope, not hockey, seemed like it was basketball in 2019, but it actually is, drum roll please,……… lacrosse.

Speaking of the Raptors, we must recall that this sport was invented in 1891 by a Canadian.  True

I know what you are thinking. Big deal, no Canadian players in the NBA since? Not quite. Steve Nash from Vancouver was MVP two consecutive years in 2004 and 2005.

And……Andrew Wiggins from Toronto was first overall pick in 2014 NBA draft.

And…the first ever NBA game was played between the Toronto Huskies and the New York Knickerbockers on November 1, 1946 at Maple Leaf Gardens in Toronto.

Speaking of “first evers”, the first recorded baseball game took place in Beachville, Ontario in 1838. (no clue where this place is)

.and…..Babe Ruth hit his first professional home run on the Toronto Islands as a rookie in the International League on September 5, 1914.

Fascinating Trivia

The population of Canada is 40 million in 2023 whereas that of California is 39 million. Canada, however, is divided into 10 provinces, 3 territories each with a legislative body and one federal government. Seems like a lot of governing to me.

Ninety percent of the Canadian population lives within 100 miles of the American border. We are not crazy, after all !

Toronto is the fourth largest city in North America at 2.79 million, just a tad ahead of Chicago. Mexico City, New York and Los Angeles are the top three.

Canada is a parliamentary democracy. The Prime Minister is the leader of the party in power. He or she is not specifically elected for this position as is the case in the republic to the south. However, the PM must be the successful candidate in his or her riding to sit in the House of Commons. All cabinet ministers are generally also elected members of Parliament. It is a custom as opposed to a legal requirement.

The Senate is an appointed body. It is an anachronism. It should be abolished. Every bill which is passed by the House of Commons must also receive Senate approval. The last Conservative government stated that it would simply refuse to appoint any more members to the Senate. The present Liberal government has not made any official position known.</p>

Quebec City is the sole walled city in North America and is a UNESCO site. It was founded in 1608.

La belle ville, the only walled city in North America

Lunenberg, Nova Scotia also has the same international designation. It is an example of a planned British colonial settlement built in 1753. It remains today as originally constructed.

Lunenberg, home of German immigrants, initially

Many Canadians will know that Tommy Douglas is widely considered the person responsible for the creation of the Canadian universal medical health care system, but few know that his for real life grandson is….Kiefer Sutherland !

When Really Was The War of 1812?

The War of 1812 was kinda sorta between Canada and the US, except that Canada did not yet exist. Both sides claim victory but we know the real story. It actually was the war of 1812 to 1814 between the British and the US but the majority of the war was fought in Ontario and upper NY state, including Lake Ontario.

The war started because the British were then fighting Napoleon and the French, as usual, and had barred any trade between France and neutral countries, which included the US. This annoyed the powers-to-be in Washington who then declared war on the Brits. Actually, in fairness, the British had intercepted American merchant marine ships and “suggested” their sailors join the British Navy.

When the Americans burned down the Capital building in Toronto (actually called York at the time), the British retaliated by burning down the White House, although it was not white then, it was then red . It became white when it was rebuilt.

Something to Sing About

After the British ransacked Washington, they then attacked Baltimore in the battle of Fort McHenry. It was not victorious as the Americans defended successfully. To get to the point, however at long last, it was this battle which inspired the American anthem, the Star Spangled Banner.

When the war was resolved by the Treaty of Ghent in December of 1814, news of this event had yet to reach the soldiers of either army in Louisiana. The Battle of New Orleans was fought when both sides had yet to learn that the war was over. Now that would be a tough way to go.

Long before email

Beer Rocks

This advertisement caught the eyes of Canadians, appropriately run by a beer company, Molsons, which is no longer Canadian owned, but part of the Anheuser-Bush empire. It well reflects Canadian views of not being Americano.

Pithy Quotes and Such

Edmund Burke 1729-1797

A quote which may have greater meaning today:

The only thing necessary for the triumph of evil is for good men to do nothing.

Socrates 470-399 BC

Contentment is natural wealth. Luxury is artificial poverty.

Dalai Lama (14th)

When asked what surprised him most about humanity, he said “Man. Because he sacrifices his health in order to make money. Then he sacrifices money to recuperate his health. And then he is so anxious about the future that he does not enjoy the present; the result being that he does not live in the present or the future; he lives as if he is never going to die, and then dies having never really lived.

When you talk, you are only repeating what you already know. But when you listen, you may learn something new.

Robert Burns 1759-1796

Long may thy hardy sons of rustic toil be blest with health, and peace, and sweet content.

Eleanor Roosevelt

Great minds discuss ideas.

Average minds discuss events.

Small minds discuss people.

Brian Grosman yesterday

Good friends are God’s apologies for relatives

Oscar Wilde 1854-1900

Never judge anyone shortly as every saint has a past and every sinner a future.

A little sincerity is a dangerous thing. And a great deal of it is absolutely fatal.

Youth is wasted on the young.

Old age is a high price to pay for wisdom.

Niagara falls – a new bride’s second biggest disappointment.

We are all in the gutter, but some of us are looking at the stars.

Always forgive your enemies — nothing annoys them so much.

Henry James writes fiction as if it were a painful duty.

Work is the curse of the drinking class.

Education is an admirable thing, but it is well to remember from time to time that nothing that is worth knowing can be taught.

Some cause happiness wherever they go; others whenever they go.

If a thing is worth doing, it is worth doing well. If it is worth having, it is worth waiting for. If it is worth attaining, it is worth fighting for. If it is worth experiencing, it is worth putting aside time for.

Thomas Jefferson

I am a great believer in luck and I find the harder I work, the more of it I have.

He was also pretty “lucky” with Sally Hemings, but that is another story.  His relationship with his slave, Ms. Hemings, began after the death of his wife. It seems that the man who wrote the Declaration of Independence, all men are created free and all that, forgot that given his slave holdings,  that he had three children with his “friend”. Jefferson, ironically, promised freedom to his children with Ms. Hemings. So generous to offer this to his own children. Hard to imagine.

Ms. Hemings traveled to France with Tommy when he was the American ambassador. She lived as a free woman when she was there, in her own residence and free to do as she pleased. This must have been quite the experience for her. She was 14 when she first arrived in France.

James McNeill Whistler 1834-1903

If other people are going to talk, conversation becomes impossible.

Robert Frost

The afternoon knows what the morning never suspected.

Tolstoy

If you harbour bitterness, happiness docks elsewhere.

It is not how compatible you are, it is how you handle the non compatibilities.

Charlotte Bronte

He that is low need fear no fall.

It was a relationship of mutual respect…they respected him and he respected that.

George Jonas

Marry a doctor and you will appreciate poetry.

Marry a poet and you will appreciate money.

Yeats

Every trial endured and weathered in the right spirit makes a soul nobler and stronger than it was before

Judy Garland

For it was not into my ear you whispered, but into my heart. It was not my lips you kissed, but my soul.

William Zara

Heaven has no rage like love to hatred turned. Nor hell a fury like a woman scorned.

Kennedy on Contest with Russians in Space

Now we will see once and for all who is smarter – their Germans or our Germans

John Kennedy on Winston Churchill – he mobilized the English language and sent it into battle.

Churchill

From now on, ending a sentence with a preposition is something up with which I shall not put.

From Casablanca

You must remember this, a kiss is just a kiss…

As time goes by…

Play it again, sam

We’ll always have Paris

Here’s looking at you, kid.

La bella royal – the day the Germans walked in to Paris

Who are you really and what did you do before ?

This could be the beginning of a beautiful friendship.

Kiss me as if it were the last time.

Of all the gin joints in all the towns in the world, she walks into mine

Is that cannon fire or my heart pounding?

Round up the usual suspects

Where the Crawdads Sing by Delia Owens

His dad had told him many times that the definition of a real man is one who cries without shame, reads poetry with his heart, feels opera in his soul, and does that which is necessary to defend a woman.

Confucius

You have two lives. The second one begins when you realize you only have one.

Native Indian Proverbs

The only true wisdom is knowing that you know nothing.

The more you give, the more good things come to you.

Never judge a man until you have walked two moons in his moccasins.

Never trust a woman who loves money.

The greatest healing therapy is friendship and love.

Anon

The significant difference between genius and stupidity is that genius has its limits.

Anthony Bourdain

Eat a local restaurant tonight. Get the cream sauce. Have a cold pint in a mostly empty bar. Go somewhere you have never been. Listen to someone you think may have nothing in common with you. Order the steak rare. Eat an oyster. Have a negroni. Have two. Be open to a world where you may not understand or agree with the person next to you, but have a drink with them anyways. Eat slowly. Tip your server. Check in on your friends. Check in on yourself. Enjoy the ride.

New High Award in Human Rights (January 2018)

The HRTO has set a new high water mark for compensatory damages, awarding the sum of $200,000 in a decision released in January of 2018.

The applicant was employed with the company for some 29 years and resided in an apartment also owned by a related company. She was the sole supporter of a disabled son.

She was required to submit to various forms of sexual demands, including sexual intercourse, over a period of 18 years. Following her report of this conduct to the police, she faced eviction. The criminal charges were dismissed. The award was made against the owner of the business personally and against the company.

Prior High Water Mark

The highest award, prior to the most recent decision, had been $150,000 to one complainant and $50,000 to a second, also in particularly unattractive fact situations.

Both complainants were migrant workers from Mexico in Canada on temporary work permits and threatened with termination and hence deportation, failing each one’s willingness to comply with the owner’s demand for sexual favours. The women faced not only loss of employment, but loss of a residence and the right to remain in Canada.

The tribunal found the conduct to be unprecedented. The second victim, 22 years old, was required to leave Canada and return to Mexico.

These fact situations, while certainly dramatic and unusual, nonetheless reflect the disparity between awards for human rights violations in Canadian jurisdictions. Most jurisdictions do not provide a statutory cap, yet the damage awards in many administrative tribunals have tended to be relatively modest. This pattern is clearly changing in many jurisdictions.

Other Canadian Jurisdictions

In British Columbia, a young Filipino mother who was hired as a housekeeper and required to perform sexual acts “at the whim” of her employer was awarded $50,000. The highest award made to date has been $75,000, but this was not a sexual harassment case. This decision was set aside upon judicial review but later reinstated by the Court of Appeal. The latter noted that the tribunal should not be bound by what had been considered as a historic “range” of damage awards and that is was not “patently unreasonable” for the tribunal to award a sum in excess of the prior maximum, given proper consideration of the evidence before it.

Other jurisdictions do set a statutory maximum. Had the complainant in Singer Shoes resided in Saskatchewan, her maximum recovery, including punitive damages, would be $20,000.

Had she worked for a federally regulated business, her case would be capped at $40,000, which sum is inclusive of the maximum of $20,000 for compensatory damages and a further $20,000 ceiling for “special compensation” for conduct which is wilful or reckless. Sexual harassment is routinely considered as such conduct.

There remains an evident difference in awards across other jurisdictions.

The New Brunswick Tribunal had ordered the sum of $15,000, an inordinately high sum in this jurisdiction, to the male complainant who was subjected to severe harassment by a male colleague. This is likely to be set as the high end of the expected range in New Brunswick.

In Manitoba, an award of $15,000 for general damages and $5,000 for punitive damages was made in favour of a woman who was subject to physical contact by the owner of the business which caused severe emotional harm, including “anxiety, depression, flashbacks and panic attacks which continued for several years.”

The panel noted the Ontario law which then suggested a range of $12,000 to $50,000. It observed that awards in other provinces have been higher than that of Manitoba. Nothing was done to correct that. The facts in this case were said to support an award in the high end of the range.

Until the decision of the Alberta tribunal awarding $25,000, the rough maximum was $10,000. The Alberta Court of Appeal noted in this case that prior generally damage awards “have been low, arguably nominal”. This was not a case of sexual harassment but it does set the bell weather for the future of such awards.

Ideally, there should not be such a vivid disparity between jurisdictions, particularly one cemented by statute.

For this reason, complainants in such jurisdictions may well be advised to seek compensation by the traditional tort remedies. For a complete review of administrative and common law claims for sexual harassment, see the 2021 updated damage summaries.

 

Text Books and Other Stuff

The following employment law text books have been written by David Harris as a Toronto employment lawyer.

Wrongful Dismissal, 3 volume loose leaf series on the law on termination of employment in the common law jurisdictions in Canada. This book is updated 10 times annually. Published by Thomson Carswell since 1978.

The Written Contract of Employment published by Emond Press

Disability Issues in the Workplace published by Emond Press

The Law and Practice of Workplace Investigations, with Gillean Shearer, published by Emond Press

The Law on Workplace Sexual Harassment in Canada. This is a free public access site.

Employment Law Human Rights in Canada, to be competed June 2021

Editor in Chief of the Canadian Cases on Employment Law from 1981 to 2011

Significant Cases Argued

The following is a summary of significant cases argued by David Harris, as a Toronto lawyer, primarily on behalf of employee/plaintiff clients.

Trial and Appellate Counsel in Reported Cases of Consequence to the Profession

1. Counsel to plaintiff in Clark vs. BMO Nesbitt Burns at trial and Court of Appeal.

This was the first decision to award not only damages for wrongful dismissal but also the capital value of the book of business of the financial advisor. The company BMO Nesbitt Burns had fired the plaintiff and then assigned the plaintiff’s book of business to another advisor.

2. Counsel to plaintiff in McNamara vs ACIL at trial and in Court of Appeal .

This was also an important decision. It was the first case in Ontario to award wrongful dismissal damages, without offset for concurrent disability benefits. This was an argument based on the Supreme Court of Canada decision of Sylvester, which contemplated a contemporaneous award of wrongful dismissal damages plus, in certain situations, to allow for such an award without regard to disability benefits for the same time period. McNamara was given 22 months damages for wrongful dismissal and kept all his disability benefits for 2 years.

3. Counsel to plaintiff in Rasanen vs Rosemount in Court of Appeal.

This became the leading case on question of issue estoppel barring an employee from suing following an unsuccessful ESA complaint for the minimum statutory payment. Rasanen lost his complaint for this minimum sum and when he sued for the wrongful dismissal claim, the employer successfully defended this claim by arguing that the issue had already been decided and hence dismissed the case. Harris took only the appeal to the Ontario Court of Appeal which was decided in the employer’s favour, with one judge dissenting. The application for leave to the Supreme Court of Canada was dismissed. A differently constituted panel of the Court of Appeal later agreed with Harris’ submission in a subsequent case involving the same issue.

4. Counsel to plaintiff in Ribeiro vs Bank of Nova Scotia in a motion granting right to use discovered evidence to commence new proceeding against defendant disclosed by discovery process.

5. Counsel to plaintiff in Riberio vs. CIBC in the Court of Appeal increasing award of punitive damages of $10,000 to $50,000, then highest sum of punitive damages awarded in an employment case. The plaintiff was charged with criminal wrongdoing by the Bank and was acquitted of such charges. He later sued for wrongful dismissal and was awarded punitive damages. Today such conduct by an employer has resulted in punitive damages in the hundreds of thousands of dollars. This decision became a foundational stepping stone to these later awards.

6. Counsel to plaintiff in Skopitz vs. Intercorp Excelle Foods, the first trial decision awarding incremental damages for human rights violation committed by defendant employer.

7. Counsel to plaintiff in Galbraith v Acres International, a constructive dismissal case in which incremental damages were awarded for first time in Ontario, due to discrimination on account of age, affirmed by the Court of Appeal.

8. Counsel to complainant/plaintiff in Mathur vs. Bank Nova Scotia, ( affirmed on appeal in Federal Court ) in which plaintiff successfully showed no “discontinuance of a function” due to re-organization and was successfully reinstated plus lost wages to date of reinstatement and full costs:

9. Counsel to plaintiff in Marshall vs. Watson Wyatt, a decision of Ontario Court of Appeal setting aside punitive damage award of $75,000 awarded at trial by jury, upholding award of 9 months and 3 months incremental for bad faith conduct given to employee of one year. Total trial award was $516,000.

10. Counsel to plaintiff, an international figure skater celebrity and on-air broadcaster, in Toller Cranston vs. CBC, in which an incremental award was made for damages for loss of on air publicity. Cranston was fired because he was accused of being biased in his on air coverage of an American figure skater, Scotty Hamilton, whom Toller coached. The case was successful. Ironically the CBC lawyers never figured out that they had a defence to this case. Cranston was a member of a union and was not allowed to sue in civil court because of this. When the case came to Harris, the time for filing a grievance under the collective agreement had long since evaporated. CBC was too stupid to ever figure this out, thank goodness.

11. Counsel to plaintiff in Dunning vs. Royal Bank in which damages trial judge determined need for employer to act in good faith, referenced in Supreme Court of Canada decision in Wallace v United Grain Growers. Dunning had been employed by the Bank in Toronto and moved to Chicago on its request. The Bank had a very generous moving package which was allowed to Dunning when he was moved to the USA. When Dunning was terminated in Chicago, the Bank wrongly asserted US law applied, which would have allowed very modest severance pay. Dunning and his wife and children were also denied the Bank’s moving package to leave Chicago. Needless to say, the Bank lost big time but it took a trial to do this.

12. Counsel to plaintiff/appellant in successful appeal from wrongful dismissal award to Court of Appeal, which ordered reinstatement plus 10 years back pay in McCaw vs. United Church of Canada.

McCaw had been thrown out of his church in North Bay due to his evangelic form of worship. The Church did not use the proper hearing process to expel him. Harris challenged this and was ultimately successful. Over the 10 year period, unduly long as McCaw was required to use the slow Church internal appeal process first, McCaw paid not one cent in legal fees.

Significantly the Court of Appeal set aside the award of the trial judge who had simply awarded routine wrongful dismissal damages. Due to a subsequent Supreme Court of Canada decision, the law allowing for this type of remedy is no longer available.

When the decision was made, McCaw was then required to pay income tax at the highest marginal rate as the lump sum payment was significant. Harris advised against accepting the payment and instead having a further damage assessment to account for the higher taxes to be paid. The client resisted. Harris was correct in his view as later cases agreed with this new argument. McCaw’s damages would have at least doubled, had he paid heed to this advice.