Important Message Concerning Mental Health From OSC Justice

 In Practice Management

In a recent endorsement out of Civil Practice Court in Toronto (713949 Ontario Limited, Applicant and Hudson’s Bay Company ULC, Respondent, OSCJ January 25, 2021) Mr. Justice F.L. Myers took an important moment to remind law firms and their leaders of the need in COVID and one suspects other times to protect junior associates and staff from burn out and worse.

The Application

The issue was whether or not an adjournment would be granted to the hearing of an application on short notice by a landlord who had just entered into a conditional lease with a new tenant which would significantly affect the change of use of retail space in an Ottawa mall.  The respondent, another tenant in the mall, asserted it had a consent right over the proposed lease and it objected to the loss of retail space in the mall.  The application sought an order determining that the respondent tenant had no such right.  The landlord argued immediacy on the grounds that it had entered into the proposed lease with a conditional period expiring in less than two weeks and it wished to determine the efficacy of the respondent’s position before it had to address the condition.  At CPC the court set a tentative date for the hearing of the application.  The respondent subsequently sought an adjournment of the application to give it sufficient time to prepare.

The Moment

Counsel for the applicant landlord was pushing hard to proceed on the date set tentatively by the court.  Counsel for the respondent tenant was conflicted by another proceeding he was scheduled to attend on.  The court offered an alternative date for the hearing, a Saturday.  The landlord was prepared to proceed.  The tenant was not, counsel noting that while his firm had conducted “a fair bit of work” during the pandemic on weekends and evenings, it had been encouraged “to be alive to the effects of doing so on younger members of the team who have childcare commitments etc.”

My interest is not so much in what the parties were fighting over.  My interest is in what Justice Myers made of the fight, particularly in relation to the above submission from counsel for the responding tenant.  Here, in part, is what Justice Myers said:

“…recognizing that there is no objective urgency but, a landlord seeking to narrow its risk profile on an upcoming decision, leaves me less concerned about prejudice to the landlord in considering granting the adjournment sought by Mr Lisus. There is nothing untoward about a commercial party seeking to lessen its risk by obtaining a ruling on its legal rights. However, absent objective urgency, it is incumbent upon it to bring a proceeding that is fair to the responding party and to the court.

The court takes very seriously issues of health and wellness of practitioners, members of the judiciary, and court staff during the pandemic in particular. While lawyers and the courts are in a service business, there has to be a brake applied to service providers’ willingness to compete themselves (or their juniors) into unhealthy states in the ordinary course of business. Recognizing that young counsel and staff may have other responsibilities or just need down time does not impair access to justice provided that everyone understands the need to make personal sacrifices when truly urgent circumstances arise”.

Good for Justice Myers.

COVID–19 and Mental Health

Concern for the mental health of Canadians in the course of and as a consequence of COVID- 19 is very much a live issue.

In a significant Policy Advice Paper released by CAMH (Centre for Addiction and Mental Health) in July, 2020 (Mental Health in Canada: Covid-19 and Beyond) the following crucial observations (among many others) were made:

  • The COVID-19 pandemic is an unprecedented global health, social and economic crisis.
  • Canada was already in the midst of a mental health crisis prior to COVID-19.
  • COVID-19 is having a negative impact on Canadians’ mental health, with many seeing their stress levels double since the onset of the pandemic.
  • People are struggling with fear and uncertainty about their own health and their loved ones’ health, concerns about employment and finances, and the social isolation that comes from public health measures such as quarantining and physical distancing
  • Substance use is also on the rise in Canada during COVID-19. The current and ongoing financial impacts of COVID-19 can also be expected to take a toll on mental health.
  • Similar to health crises, previous financial crises have had a negative impact on mental health.
  • Fortunately, most Canadians who are struggling with their mental health as a result of COVID-19 are experiencing a normal stress response to the health, social and economic crisis, and readily available mental health resources and supports can help them to cope.
  • Some groups of Canadians are more vulnerable to the mental health impacts of COVID-19. Women, people who have lost their jobs as a result of the pandemic, those who are worried about their personal finances, people with children at home, and young people are more likely than others to experience symptoms of anxiety and depression at this time.

It is this latter group that Justice Myers focused on.  And of course, the Policy Advice Paper was released in June, 2020, it is now February, 2021, we are no longer in the first wave but the second wave of the pandemic, and not out of the woods yet.

Good Advice for Law Firms and Their Leaders

Of 5 important recommendations made by the CAMH Policy Advice Paper, the statement from Justice Myers echoes Recommendation #3, which is that “employers must prioritize the mental health needs of their employees in the wake of COVID-19”. The Policy Advice Paper advises that businesses, and therefore law firms refer to the CAMH Workplace Mental Health Playbook for Business Leaders.  While the Playbook was released prior to the onset of the pandemic, it highlights “the importance of creating a long-term organization wide mental health strategy, instituting mandatory mental health training for leadership and developing tailored responses to varying needs”.   And it emphasizes that mental health training include a “focus on resiliency”, and that leaders support employee mental health through “clear, compassionate and authentic leadership”.

Good advice indeed.

This blog post was written by K. Scott McLean, General Counsel and Director of Practice Management.  He can be reached at (613) 369-0375 or at scott.mclean@mannlawyers.com.

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