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Spotlight: ‘The Most Interesting, and Spiciest, Practice Area’

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Capital Perspectives – Newsletter

In his quest for a mentally stimulating occupation, Boris Subara found exactly what he was looking for in the practice of law.

Boris recently joined Fasken’s Labour, Employment & Human Rights group as an associate from another national firm. Boris puts a strong focus on employer advocacy in his practice.

He advises employers with respect to terminations, human rights issues, the management of absenteeism, administration of discipline, use of independent contractors, accommodation of injured or disabled workers, workplace investigations mandated under occupational health and safety legislation, and any employment issues arising in corporate transactions, such as mergers and acquisitions. His work extends to drafting and reviewing agreements, and to representing clients in litigation and labour arbitrations.

We recently caught up with Boris to ask what drew him to the practice of law and to discuss the big issues that face employers as the world of work finds its post-pandemic footing.

Why did you decide to pursue a career in law?

Boris: From a young age, my parents have been telling me that I am stubborn. They assumed that this would qualify me to become a great lawyer and litigator.

While I have always enjoyed debating and reading, I was never particularly good at math, physics, chemistry or biology, nor did I ever enjoy those subjects in school. I also don’t have much talent in coding, either. That eliminated the majority of STEM careers. In other words, I chose my career by eliminating the impossibilities.

In all seriousness, I simply believed that being a lawyer would be an interesting and challenging profession. However, it was not until well into my bachelor’s degree in Conflict Studies and Human Rights at the University of Ottawa that I realized I wanted to enroll in law school. While I was still undecided, I acknowledged that a degree in law could give one the skills, not only to be a successful lawyer but also a successful politician, manager, journalist or diplomat. I realized that a law degree would equip me for almost any profession that requires intellectual strength combined with a practical approach to the world.

Why labour and employment law with your focus on employer advocacy?

Boris: I did not immediately have an interest in labour and employment law when I attended law school. As with everything else, I had no clear idea what I wanted to do after graduation.

Just a few months after completing my articles, I decided private practice was not for me and so I decided to explore a career outside the traditional practice of law. On a whim, I took a job at ENCON Group (now known as Victor Canada), as a claims analyst in the directors and officers (D&O) claims department. As it turned out, most of the insurance claims I handled were employment claims, and I suddenly developed an interest in labour and employment law.

For me today, labour and employment law is the most interesting, and spiciest, practice area. There is no typical day and learning about different clients’ operations and industries is always interesting. Aside from the variation in tasks and clients, each case brings a unique set of facts and allegations that are never boring and often require a keen and creative legal analysis.

What do you consider to be a chief LEHR legal issue/challenge for employers today?

Boris: In my view, the chief legal issue is the interpretation of employment contracts and incentive plans and policies, and the need to review and update termination clauses and standard form contracts, plans and policies, to keep pace with changing and evolving legal interpretations. 

A number of important case law developments in recent months are presenting challenges for employers and for employment lawyers to understand and adjust to complex jurisprudence: Matthews v. Ocean Nutrition Canada Ltd., Waksdale v. Swegon North America Inc., and Battiston v. Microsoft Canada Inc., to name just a few, all of which examine the technical aspects in contractual language.

I expect this trend to continue as more decisions come out on COVID-19 and its impact on the workplace.

To your point, how has the employer/employee relationship changed for the foreseeable future because of the pandemic?

Boris: As a result of the pandemic, many employers were forced to adopt “work from home” arrangements hastily as their workplaces were closed. Many embraced the flexibility (and in some cases, cost savings) of having employees working from home (or “working virtually” elsewhere). However, from a legal perspective, remote work can create as many problems as it solves.

Some employers have been surprised to learn that laws related to the physical workplace can also apply to remote workplaces. For instance, the minimum requirements contained in employment standards legislation, such as those relating to hours of work, meal periods and overtime, are not suspended or limited when employees are working remotely from home or elsewhere. Employers have to monitor employees to manage performance or productivity, but also to ensure that all applicable minimum requirements are complied with. This can be a challenge without the ability to directly supervise the workplace.

Employers have also been surprised to learn that permitting an employee to “work virtually” from another country or even another Canadian province, is also not without risk and should be approached with caution. This situation raises questions as to whether workers’ compensation coverage extends across jurisdictions and could expose employers to potential risk in the event of a workplace injury. As well, the employment standards legislation in the province where the work is being performed may apply to the employee, notwithstanding that the employer’s actual workplace is elsewhere. Employees working outside of Canada (and their employers) may be subject to the employment laws of the country in which they are working. There is a plethora of additional potential issues relating to tax, immigration, privacy and data protection that arise with similar remote work arrangements.

Employment law has become increasingly globalized due to the breaking down of business borders such that these issues would have arisen with or without the pandemic. However, the pandemic has no doubt accelerated the trend very significantly. It will be interesting to see, once the pandemic subsides, whether employers will recall their employees to a physical workplace and, if not, whether they can maintain a productive, sustainable workforce that allows them to stay competitive.

You recently joined Fasken from another firm – why Fasken for the next phase of your career?

Boris: The reputation of Fasken’s labour and employment practice is what drove me to join the firm. I have always paid close attention to law firm rankings, and I knew that the firm was always ranked as Band 1 or Tier 1 in that practice area. I assumed that such a reputation would attract major clients and interesting work, and I was right.

While I have only been here for a month or so, the job has proven to be more rewarding and challenging than I could have ever imagined.

What was the last book you read?

Boris: 1984, by George Orwell.

What are your hobbies/interests outside of work?

Boris: Outside of work, I am an avid sports fan (and player). While my favourite sport is soccer (which I insist on calling football), I also enjoy basketball, hockey, tennis, volleyball and practically any other sport. I am a huge fan of a soccer/football team called Red Star Belgrade and I have been known to fly to Europe for a couple of days just to catch a big game before flying back to Canada.

I also enjoy reading the news, current events, politics, watching dystopian movies and television shows, and watching my daughter grow up.

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