Threshold Motion Dismissed on Small Jury Award for Chronic Pain

Car insurance premiums are an important public policy consideration, even in light of the compensatory rationale underlined in tort law. In Ontario, the legislature has created a balance through s. 267.5 of the Insurance Act and its Regulations, which creates a “threshold” before which an injured person can receive damages after a motor vehicle collision.

Although brought into statute through Bill 198 in 2002, the test used on this threshold precedes the amendments and can be found in Meyer v. Bright, as follows:

(i) Has the plaintiff sustained a permanent impairment of a physical, mental or psychological function?

(ii) If yes, is the function so impaired an important one?

(iii) If yes, is the impairment of the important function serious?

A motion dismissing an action on the basis that a plaintiff has not met this test is often brought by defence counsel as a means of creating immunity to liability. Absent such a motion, a judge is required to conduct this assessment even after a finding of liability by a jury.

The Ontario Superior Court of Justice recently released a decision in Maxwell v. Luck on a relatively small jury damages award, but dismissed the threshold motion and awarded the damages comprised largely of future income loss and general damages.

Justice Howden heard evidence from an orthopedic surgeon specializing in the area of chronic pain assessment, as well as a spine and trauma surgeon who did not specialize in chronic pain, brought by the defence.

The orthopedic surgeon stated that the plaintiff was permanently disabled for the rest of her working life due to chronic neck pain, pain in the upper back, and headaches. Her functions as an exotic dancer were impaired because she could no longer do the “high-energy, high flexibility dancing” she did before to support herself.

The defence trauma surgeon, however, believed the plaintiff had recovered from her injuries with no objective mechanism for causing her pain. This sentiment is not uncommon for many in the medical industry, who can often dismiss chronic pain as an artificial illness.

Pain, however, is a subjective experience.

The perpetual nature of chronic pain has itself been held to meet the permanence requirement of the threshold. Justice Roccomo stated in Hartwick v. Simser, [2004] O.J. No. 4315,

87 It is now trite law that chronic pain arising from injury sustained in a motor vehicle accident, and which accounts for limitation in function unlikely to improve for the indefinite future, will meet the requirement of “permanence” in the threshold: see Bos Estate v. James (1995), 28 C.C.L.I. (2d) 166 (S.C.J.); May v. Casola, [1998] O.J. No. 2475 (Ont. C.A.); Altomonte v. Matthews, [2001] O.J. No. 5756 (S.C.J.).

88 In Meyer, supra, it was held that an “important” bodily function is one that plays a major role in the health, general well-being and way of life of the particular injured plaintiff. The determination of what is an important function invokes a subjective analysis, as there are bodily functions important to some but not to others.

89 The more litigious component of the threshold test surrounds the question of what functional limitations will constitute a “serious” impairment. It is now clearly established that one who can carry on daily activities, but is subject to permanent symptoms including sleep disorder, severe pain, headaches, having a significant effect on the enjoyment of life, will demonstrate symptoms constituting a serious impairment. Ongoing and debilitating pain, even in the absence of objective findings by medical experts, will constitute serious impairment: see Chrappa v. Ohm, [1996] O.J. No. 1663 (S.C.J.); Skinner v. Goulet, [1999] O.J. No. 3209 (S.C.J.); May v. Casola, supra.

[emphasis added]

The legislation only requires an interference with a substantial ability, not a complete inability. A slightly lower threshold is used for activities of daily living, because s. 4.2(1) of the Regulation uses the word “most,” as opposed to the interference with employment or training. However, this interference should be more than just “frustrating and unpleasant” and should be an interference “beyond the tolerable to the serious.”

An injury has been considered serious by cases even if a plaintiff returns to work. The focus should be the effect on the person’s life. In this case, the plaintiff was no longer able to engage in recreational horseback riding, for example, in addition to having her career derailed.

Justice Howden referred to the Supreme Court of Canada decision in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54 (CanLII):

There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.
[emphasis added]

Justice Howden highlighted the jury charge provided for assessment of medical examinations:

The opinion of a doctor may be based entirely on objective symptoms revealed through observation, examinations, tests or treatments, or the opinion may be based entirely upon subjective symptoms…in part upon objective symptoms and in part upon subjective symptoms.

He preferred the evidence of the chronic pain specialist, who had confirmed the plaintiff’s symptoms through objective observation that the defence physician failed to even attempt,

[21] …I do not accept [his] opinion nor do I sense that [he] has an understanding of the fundamental aspect of those chronic pain cases, which lack objective proof. Nevertheless they are very real to the patient.

Finally, Justice Howden considered Strangis v. Patafio, where the plaintiff relayed that he felt like “less of a man” due to his injuries. Justice Corbett did not find the plaintiff in that case met the threshold, as some injuries which cause permanent pain are not compensable,

33 The intent behind the threshold is clear: people are required to bear some non-trivial non-pecuniary losses arising from car collisions without compensation. The policy debate behind this provision is one which has been ongoing for many years. It is not for the court to read down the provision to apply it only to trivial functional impairments: that is not the language of the section, and clearly not the legislative intent.

Justice Howden would have assessed damages at a higher range than the $108,000 awarded, he acknowledged that this plaintiff met the threshold for compensation despite approaching the non-trivial non-pecuniary losses enunciated in Strangis.

Although this is a minor damages award, it does indicate that judges can and should go beyond the medical evidence to consider the qualifications of the experts specifically for the medical conditions experienced by a plaintiff. Chronic pain should be understood and assessed comprehensively, and where this is not done so, such evidence should be discounted accordingly.

 

Summaries Sunday: SOQUIJ


Every week we present the summary of a decision handed down by a Québec court provided to us by SOQUIJ and considered to be of interest to our readers throughout Canada. SOQUIJ is attached to the Québec Department of Justice and collects, analyzes, enriches, and disseminates legal information in Québec.

PÉNAL (DROIT) : En concluant que le public raisonnablement informé ne perdrait pas confiance dans l’administration de la justice si l’intimé, inculpé du meurtre au premier degré de ses deux enfants, était remis en liberté en attendant la tenue de son nouveau procès, le juge de première instance n’a commis aucune erreur de droit ni d’erreur manifeste et il a correctement exercé son pouvoir judiciaire.

Intitulé : R. c. Turcotte, 2014 QCCA 2190
Juridiction : Cour d’appel (C.A.), Montréal, 500-10-005723-141
Décision de : Juges France Thibault, Guy Gagnon et Martin Vauclair
Date : 3 décembre 2014

PÉNAL (DROIT) — procédure pénale — procédure fédérale — remise en liberté — tenue d’un nouveau procès — meurtre au premier degré — victimes enfants de l’accusé — verdict de non-responsabilité criminelle en raison de troubles mentaux — confiance du public dans l’administration de la justice — personne raisonnable — revue de presse — interprétation de «public informé» — révision — cour d’appel — article 680 C.Cr. — norme d’intervention.

Requête en révision en vertu de l’article 680 du Code criminel (C.Cr.). Rejetée.

L’intimé a été accusé du meurtre au premier degré de ses deux enfants. En juillet 2011, un jury a prononcé un verdict de non-responsabilité criminelle pour cause de troubles mentaux. Détenu à l’Institut Philippe-Pinel, l’intimé a été libéré le 12 décembre 2012, la commission d’examen ayant conclu que la sécurité du public ne commandait plus qu’il soit gardé dans un établissement hospitalier. Le 13 novembre 2013, la Cour d’appel a ordonné la tenue d’un nouveau procès. Le juge de la Cour supérieure a apprécié les quatre facteurs énumérés à l’alinéa 515 (10) c) C.Cr. et a conclu qu’un public raisonnablement informé ne perdrait pas confiance dans l’administration de la justice si l’intimé était remis en liberté en attendant son procès.

Décision
La jurisprudence canadienne est divisée en ce qui a trait à la norme d’intervention applicable à une cour d’appel appelée à réviser un jugement concernant une remise en liberté en vertu de l’article 680 (1) C.Cr. Au Québec, la Cour a opté pour la norme hybride. Il ressort de R. c. Coates (C.A., 2010-05-11), 2010 QCCA 919, SOQUIJ AZ-50635368, 2010EXP-1713, J.E. 2010-935, que la Cour accorde une grande déférence au juge de première instance en matière de détermination des faits même lorsqu’elle révise sa décision en vertu de l’article 680 C.Cr. C’est à tort que l’appelante prétend que le juge a haussé le standard de la personne raisonnable de façon que celle-ci doive être un juriste. Le juge a défini la «personne raisonnable» en prenant appui sur une abondante jurisprudence, dont St-Cloud c. R. (C.S., 2013-09-26), 2013 QCCS 5021, SOQUIJ AZ-51009868. Ces jugements font référence à un «public informé», c’est-à-dire un public en mesure de se former une opinion éclairée, en pleine connaissance des faits de la cause et du droit applicable, et qui n’est pas mû par la passion, mais par la raison. Le juge a exigé que l’opinion du public soit celle d’un public «informé» autant des circonstances réelles de l’affaire que des grands principes de droit applicables. L’interprétation du juge est sans faille. À cet égard, l’appelante a invité la Cour à considérer que l’opinion du public raisonnable se reflétait dans la revue de presse qu’elle avait déposée au soutien de sa demande de révision. Celle-ci comporte 21 coupures de journaux parus après le jugement de première instance. Or, ce faisant, l’appelante tente de laisser à l’humeur des opinions un rôle que le législateur a confié au juge. En l’espèce, c’est à bon droit que le juge a soupesé les moyens de défense de l’intimé pour décider de la force apparente de l’accusation. Le juge de première instance n’a pas commis d’erreur en considérant que l’intimé avait un moyen de défense valable à faire valoir au jury. Il a rappelé que l’intimé n’avait pas d’antécédents judiciaires et qu’il avait respecté les conditions de remise en liberté. Il s’en est tenu à la norme applicable, celle du public informé. En l’espèce, le public informé sait: que l’intimé bénéficie de la présomption d’innocence; que, pour être déclaré coupable d’un crime, l’intimé doit avoir été capable de former l’intention criminelle de la commettre; qu’il a une défense fondée sur les troubles mentaux à présenter; qu’il jouit de la protection constitutionnelle de ne pas être privé de liberté sans juste cause; tient pour acquis que la détention de l’intimé n’est pas nécessaire pour assurer sa présence à son procès ni pour assurer la protection et la sécurité du public; et que, si l’intimé est déclaré coupable des crimes dont il est accusé ou d’une infraction incluse, il purgera, à ce moment, la peine imposée. Le juge n’a commis aucune erreur de droit ni d’erreur manifeste et il a correctement exercé son pouvoir judiciaire. La requête en révision est mal fondée en fait et en droit.

Le texte intégral de la décision est disponible ici

Summaries Sunday: Maritime Law Book


Summaries of selected recent cases are provided each week to Slaw by Maritime Law Book. Every Sunday we present a precis of the latest summaries, a fuller version of which can be found on MLB-Slaw Selected Case Summaries at cases.slaw.ca.

This week’s summaries concern:
Administrative Law – Aliens – Civil Rights – Crown – Government Programs

Canadian Doctors for Refugee Care et al. v. Canada (Attorney General) et al. 2014 FC 651
Administrative Law – Aliens – Civil Rights – Crown – Government Programs – Practice – Statutes
Summary: The Government of Canada funded comprehensive health insurance coverage for refugee claimants through the Interim Federal Health Program (IFHP). In 2012, the Governor in Council passed two Orders in Council (OICs) which significantly reduced the level of health care coverage available to many such individuals, and all but eliminated it for others pursuing risk-based claims. The applicants asserted that: (1) the OICs were …

MLB Summaries will take a break over the holidays & will resume posting summaries in January. 

Internet Jurisdiction and the Microsoft Warrants

According to a news report, “Earlier this week 28 technology and media companies, 23 trade associations and advocacy groups and 35 professors of computer science filed legal papers in support of Microsoft’s opposition to US court rulings earlier this year which said that US authorities’ search warrant powers apply to customer information held outside of the US.”

I have had difficulty understanding the legal basis for Microsoft’s objection. Is it not clear that either law enforcement authorities or civil courts can require the production of documents in the custody or control of an enterprise that is located in their territory? The information or documents or data in custody need not be physically present in the jurisdiction of the requesting authority, so long as the control is there.

I understand that Microsoft (and its many other supporters) would rather not produce the information. I understand that they may be concerned about production orders from other governments in whose jurisdiction these multinational corporations operate (though there might be an argument about ‘control’ for places not the head office of the corporation.)

I also understand that American companies would like to be able to assure foreign potential customers that their data will not be subject to inspection by American national security or police forces. My impression is that this consideration is mainly what is driving the current dispute. I have heard (without evidence) that US companies have lost business internationally since the Snowden revelations on just this ground. (I wonder if there is any need for the concern … security forces collaborate internationally, so what the Americans want they can probably get from the domestic security agencies of those potential customers.)

Nevertheless, is the assertion of the law enforcement authorities in this case novel in some way?

Is not the request similar in principle to the one that the Canada Revenue Agency made to eBay Canada for its records of power sellers, which the Federal Court required eBay Canada to retrieve from servers outside Canada, because the Canadian company had access to them for its own business purposes – i.e .the records were in its control for that purpose, and thus could be requisitioned for a tax audit?

If Microsoft’s challenge succeeds, would not any company with any kind of transborder ambitions simply keep any sensitive or embarrassing data in some data haven somewhere, out of reach of national authorities – judicial as well as administrative – of countries in which it carries on business, or even has its head office? If not, what is the dividing line or distinguishing principle?

The Friday Fillip: Hues Kidding


Pantone. Pan – tone. All the colours. This is quite a boast and it puts me in mind of the claim by a friend a long, long time ago that his collection of the then new tape cassettes formed, in his words, “the total library of recorded sound.”

How many colours are there?

This is one of those questions that have no answers and far too many answers. On one of its web pages, Pantone, a commercial system for matching colours in printing ink and in paint, claims a measly 2096. “Measly” because logic suggests that there is an infinity of possible colours. Or is there? My head starts to ache at this point, as I hear its forebrain say to me such things as: “A colour is produced by a wavelength of light. Anything that has a length must move from measurement one to measurement two in a discrete fashion. This suggests that we’re not dealing with an immeasurable smear of colour change but rather a finite . . . ” And I give up because it’s bound to turn out to be a case of things too small even to think about, stuff at the sub sub sub atomic level of quanta where analog runs into digital and they both plotz.

Let’s retreat to unity, before all this regression makes you mean. There is a single colour, one colour: the colour of the year. Pantone declares it . . . well, annually, a few weeks before the inauguration. Next year, 2015, the colour is Marsala (Pantone 18-1438):

 

According to the director of Pantone’s Color Institute:

Marsala enriches our mind, body and soul, exuding confidence and stability. Marsala is a subtly seductive shade, one that draws us in to its embracing warmth.

(This sounds like the colour the legal profession should adopt posthaste. No?)

Or, if one is too lonely a number, I’ve another way to get you calmed and yet contemplating a great variety of colours — that is, if you’re game. And I know you are because you’ve got skin in the game. Angélica Dass has a glorious “work in progress” on her Tumblr Humanæ. Her aim is to document all the skin colours in her native Brazil, and indeed elsewhere I think, giving each human hue its proper Pantone number. Here’s a mere strip of the many beautiful people who have volunteered to be exemplars in her taxonomy, each placed against a background that is the colour of their skin:

Click on image to enlarge.

Click on image to enlarge.

(What a pleasure it is to scroll through the gathering of faces, to see oneself reflected again and again and again.)

Now, Pantone is a commercial enterprise. You have to pay to get the best out of their colour matching service. But the web has thrown up other systems, free systems for identifying and reproducing colour. There’s one that you don’t have to be specially tech-adept to use. It’s fun to play with and a whole lot neater than klarting about in paints (though rather less viscerally satisfying). Putting aside the problem of how making colours by mixing light isn’t the same thing as making colours by mixing inks, you might find it useful, among other things, for carrying an ideal colour via your cellphone all the way from your wall to the paint store. The system uses base 16. Everybody on board with that?

You don’t need to do the math. You just need to know that the count starts at 0 and once it gets to nine it then goes on to A, B, C, D and E. This is hexadecimal counting, or simply “hex.” Each colour is represented as an amalgam of a particular shade of red, green, and blue; and each shade of each “primary” colours is identified by a pair of hex numbers — 55 or 5F or DD, for example. Marsala — remember the colour of next year? — is most closely reproduced as AD655F, for instance. This system yields something like more than sixteen million possible colours, or so I’m told, though your computer might only be able to display a mere eight million plus. Which is enough to be going on with, I’ve found.

Okay, so how do you operate this “Freetone” system? The simplest way for most of us is to use one of the smart web pages set up to render colour from our inputs. I recommend the W3 Color Picker. It lets you fashion a colour by putting in the hex number or by working your way down the spectrum after having plumped for a starting hue on the colour map. Just to be helpful, I’ve landed you on Marsala with the link above.

I’ve taken up enough of your time, even for a fillip. And if money is time, so is colour. Now that you know about the RGB hex system, you can appreciate the strange clock that tells you the colour. Double digit hour, double digit minute, double digit second = colour. Sadly, only the base ten portion of the hex range is useful in this exercise — and the clock will never strike AD:65:5F for more than one reason. So, thankfully perhaps, your screen will never glow Marsala using this web app.

Creating the Conditions for Justice Innovation: How (NOT) to Solve Complex Problems


‘…now is not a good time for control freaks” – Eric Young

In my last post for Slaw I wrote about the importance of creating the conditions for justice innovation by building the skills needed to work in multidisciplinary teams and collaborate rather than “consult” with justice system users. In this post I want to focus on another important part of creating the conditions for justice innovation, in particular how we might support innovators by rethinking our problem solving approaches and the methods we use to evaluate justice innovation initiatives.

How we evaluate the success (or failure) of a project is intimately tied to our understanding of how problems should be solved.

In his recent book, Social Lab Revolution, Zaid Hassan argues that our current models of problem solving and evaluation support a linear and expert-planning approach. This approach typically looks something like this: 1) identify the problem, 2) develop a plan to deal with the problem, 3) implement the plan exactly as conceived 4) evaluate the results. Referred to by Hassan as the “business as usual” approach, this approach is guided by three key assumptions (and here I am paraphrasing Hassan):

  • That the problem solvers (i.e. experts) don’t have or don’t need “skin in the game”. Experts solve problems they don’t experience them.
  • That a plan to solve the problem can be put together in advance. Once execution has begun, the plan does. not. change.
  • That only those elements of the problem that can be measured and expressed on paper can be taken into consideration.

This model also makes particular assumptions about the problem itself, mainly that,

  • The problem is well understood.
  • The problem is bounded (either conceptually, geographically – or both).
  • There are limited solutions to the problem and one solution will be better than the others.
  • The problem is static and will remain unchanged as the solution is implemented.

In short, this linear problem solving method is neat, tidy and logical. But, it is also inflexible, unresponsive and unsuitable for tackling complex or “wicked” social problems – like those plaguing the justice system.

Complex problems laugh in the face of all of these assumptions because of one simple fact: they are unpredictable (yes, I said it!). Complex problems are not linear or bounded; they are dynamic, emergent, slippery and constantly in flux. They are the result of the continuous interactions between multiple independent actors and factors that are repeatedly pushing and pulling on the system in different ways.

The problems we face in the justice system – namely access to justice problems – are complex. This was made clear by both the Final Report of the Action Committee on Access to Justice in Civil and Family Matters, and the Equal Justice report by the Canadian Bar Association. As both reports highlight, access to justice is a complex problem that involves multiple actors, is interwoven with personal, social and political issues, and cannot be solved without working collaboratively. People’s legal issues are shaped by social and economic factors like poverty, marginalization, mental health issues, and familial relationships, among others, all of which contribute to the complexity of the problem. This means that business as usual problem-solving approaches that are linear and inflexible simply will not work.

Enter innovation. To tackle complex problems we need to rethink our approach to problem solving. Methods like design thinking, social innovation labs and change labs, emergent strategy planning are all tools that are increasingly being experimented with and used by justice innovators – whether they are individuals or organizations (e.g. Hiil, Stanford, Winkler Institute, etc.). Innovation approaches don’t fit neatly into our current problem-solving paradigm. For example, many of these approaches rely on “strategic learning”, which means that as a project unfolds, the “plan” is constantly being adapted in response to real-time feedback the innovators are receiving; innovators are frequently changing their plans as they learn “what works”. Innovation processes also rely heavily on creativity, ideation, problem definition and prototyping, all of which sit uncomfortably within more traditional planning models that ask project leaders to predict in advance what both the problem and the solution are.

Yet, even as we recognize that the work of justice innovation is typically very different than what we’ve done before, our evaluation methods – which often determine the “success” or “failure” of a project, and the potential for securing future funding – continue to align with business as usual problem solving approaches. We often ask innovators to predict, from the outset, what the outcome of their innovation process will be. We also ask them to provide a detailed plan of what they are going to do and how they are going to do it.

This can be frustrating for those working with innovation methods and techniques that don’t lend themselves to linear based approaches to problem solving or typical methods of evaluation. Often to receive funding innovators spend too much time trying to get their “round” projects to fit in the “square” holes of funding applications that use a planning based approach.

That said, traditional-based problem solving approaches can be as equally frustrating for funders who want to fund innovative projects but also need reliable ways to make sure that their limited funding resources are supporting projects that are making a difference.

My apologies if you are hoping that I am going to end this post with an answer – I don’t have one. What I do know is that, put simply, our heavy focus on past, linear, outcomes-based, business-as-usual approaches have not produced meaningful change. A shift in focus from outcomes to process – innovative process (including how we fund, execute and evaluate) – is required.

The good news: there are evaluation methods and strategies out there, which have helped me to start thinking differently about innovation, which are well suited to innovation.

The better news: many of these methods not only produce reliable data – they can actually improve the results of the innovation process. Enjoy!

  • “Strategic Philanthropy for a Complex World”. In this article, published in the Stanford Review of Social Innovation, the authors discuss why the predictive model of strategy planning traditionally used by funders needs to give way to a model of emergent strategy that “better aligns with the complex nature of social progress”.
  • “A Developmental Evaluation Primer”. This great resource by Jamie A.A. Gamble not only provides a guide on how to carry out developmental evaluation – an evaluation model that helps innovators continually improve their process – it also addresses many of the myths around developmental evaluation, including the myth that developmental evaluation is a “soft method”.
  • “Evaluating Collective Impact: Five Simple Rules”. Aside from providing “five simple rules” that practitioners, funders, and evaluators should consider in their own evaluation efforts, this article provides a great comparison of the principles that guide traditional evaluation models and complexity-based models.
  • Finally, for those who may have missed this gem when it was published in 2007– your next read should be “Getting to Maybe” an extremely readable and inspiring account of how to tackle complex problems in an increasing complex world. You will have no trouble seeing how it applies to justice innovation! For a specific look at evaluation see pages, 46-54.

 — Nicole Aylwin

Ontario Employment and Labour Law Amendments Protect Vulnerable Workers

On November 20, 2014, the Stronger Workplaces for a Stronger Economy Act, 2014 (formerly Bill 18), became law (received royal assent) in Ontario. The Act makes a number of significant changes to employment law that will come into force over the following months.

Employment standards

Minimum wage

The minimum wage will now be tied to the Consumer Price Index (i.e., inflation) and will take effect on October 1 of each year, starting in 2015. The Ministry of Labour must announce and publish the new minimum wage before April 1. Notwithstanding negative changes to the CPI, the minimum wage cannot be decreased as a result of the indexing calculation set out in the legislation.

In addition, before October 1, 2020, and every five years thereafter, the minister must cause a review of the minimum wage and the process for adjusting the minimum wage.

New Employment Standards Act poster requirement

Effective May 20, 2015 (six months after royal assent), employers will be required to provide individual copies of the Ministry of Labour informational poster to each employee. The poster must be provided within 30 days of the day the employee becomes an employee of the employer. If the employee is already employed when the law comes into force, the employer must provide his or her employees with a copy of the poster within 30 days of that day.

The current requirement to post the most recent version of the poster in the workplace remains in place.

Additionally, when an employer requests the poster in a different language, must make enquiries as to whether the minister has prepared a translation of the poster into that language, and if the minister has done so, the employer shall provide the employee with a copy of the translation.

This requirement ensures employees know and understand their rights and entitlements under the ESA at the beginning of the employment relationship.

New ESA enforcement tool: self-audits

New self-audit provisions in the Employment Standards Act (ESA) will also come into effect six months after the date of royal assent (May 20, 2015).

Under the new section 91.1 of the ESA, an employment standards officer may, by giving written notice, require an employer to conduct an examination of the employer’s records, practices or both to determine whether the employer is in compliance with one or more provisions of the Act or the regulations. The section sets out the rules that govern these employer self-audits. These include the following.

  • If an employer is required to conduct a self-audit, the employer will conduct the examination and report the results of the examination to the employment standards officer in accordance with the notice and the requirements of this section.
  • If an employer’s report includes an assessment that the employer owes wages to one or more employees, or that the employer has otherwise not complied with the ESA or the regulations, and the employment standards officer determines that the employer’s assessment is correct, the officer may issue an order as the officer determines is appropriate.
  • No employer will provide a report required under this section that contains information that the employer knows to be false or misleading.
  • This provision provides officers with wide power to customize the self-audit and may delineate the scope of records, types of contraventions, method of investigation and format of the report.
  • Nothing in this section precludes an employment standards officer from conducting an investigation or inspection, and from taking any other enforcement action under the ESA as the officer considers appropriate.

This requirement will ensure employers have familiarized themselves with the law and are complying with it.

New ESA maximum cap on orders and limitation periods

Amendments to erase the previous $10,000 maximum cap on orders for unpaid wages to an employee under the ESA became law November 20, 2014. There is no longer a monetary limit on employment standards officers’ orders for wages, and employees will no longer be forced to pursue larger claims through the courts, saving both workers and businesses time and money.

Additionally, amendments increase the time limits on when an employee can file a complaint to recover unpaid wages to two years from six months. The time limit within which vacation pay can be recovered under the Act is now 12 months, rather than six months.

These new provisions will come into effect three months after royal assent (February 20, 2015, but include a two-year transition period based on claims arising before the provisions take effect.

It is expected employees will choose to file more ESA complaints for unpaid wages then go to court.

Employment protection for foreign persons expanded

The amendments extend employment protection for foreign persons working in Ontario under the Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009 (EPFNA).

The newly amended EPFNA will come into force one year from the date of assent (November 20, 2015) and will apply to all foreign nationals working in Ontario pursuant to an immigration or foreign temporary employee program, not just live-in caregivers and some others.

There will also be expanded obligations on the Director of Employment Standards to publish, and on employers to make available, information pertaining to the rights of a foreign temporary worker.

Specifically:

  • The title of the Act is repealed and replaced with Employment Protection for Foreign Nationals Act, 2009.
  • The Act is amended to expand its application from foreign nationals employed in Ontario as live-in caregivers to foreign nationals employed in Ontario or attempting to find employment in Ontario. Several provisions are amended to reflect this change.
  • Section 12 of the Act is amended to provide for the preparation and publication by the Director of Employment Standards of different categories of documents for different categories of foreign nationals and their employers. In addition, the director will prepare and publish a document providing such information about the rights and obligations of employees and employers under the ESA as the director considers of particular relevance to foreign nationals and their employers, and such other information as the director considers appropriate.
  • Subsection 50(1) of the Act is amended to allow the lieutenant-governor-in-council to make regulations providing that an employer may recover certain prescribed costs and requiring that an employer of a foreign national give notice of the beginning and end of the foreign national’s employment in a written or electronic form approved by the person or body, and to provide such other information as is required by the Regulation.
  • A person who employs or has employed a foreign national must give him or her a copy of the most recent documents published by the Director of Employment Standards under section 12 before the employment commences if the employer did not use the services of a recruiter in connection with the employment. If the employee is already employed, the documents must be given as soon as practicable.
  • If a recruiter contacts or is contacted by a foreign national in connection with employment, the recruiter must give the foreign national a copy of the most recent documents published by the director under section 12 as soon as is practicable after first making contact with him or her.
  • Employers are prohibited from charging fees and seizing personal documents like passports from temporary foreign workers.

New ESA temporary help agencies provisions

Bill 18 makes a number of significant changes to the ESA regarding temporary help agencies and assignment employees. These amendments will come into force November 20, 2015.

Specifically:

  • The new sections 74.4.1 and 74.4.2 of the Act require temporary help agencies and their clients to record the number of hours worked by each assignment employee for each client of the agency in each day and each week in addition to all other information that an employer is required to record under Part VI of the Act. The records are required to be kept for three years after the day or week to which the information relates. The temporary help agency will ensure that the records required to be retained are readily available for inspection as required by an employment standards officer, even if the agency has arranged for another person to retain them.
  • A client of a temporary help agency must record the number of hours worked by each assignment employee assigned to perform work for the client in each day and each week. The client will retain or arrange for some other person to retain the hours of work records for three years after the day or week to which the information relates. The client will ensure that the records required to be retained are readily available for inspection as required by an employment standards officer, even if the agency has arranged for another person to retain them.
  • The new section 74.18 of the Act makes a temporary help agency and its client jointly and severally liable for unpaid wages owing to an assignment employee. Wages for which a client may be liable include: 1) regular wages that were earned during the relevant pay period, and 2) overtime pay that was earned during the relevant pay period. Amendments were made and approved to Bill 18 to include public holiday pay and premium pay in the list of wages for which a client of a temporary help agency may be jointly and severally liable under the proposed new section 74.18 of the Employment Standards Act in addition to regular wages and overtime pay.
  • If an assignment employee was assigned to perform work for more than one client of a temporary help agency during a pay period, and the agency fails to pay the employee some or all of the wages described above that are owing to the employee for that pay period, each client is jointly and severally liable with the agency for a share of the total wages owed to the employee that is in proportion to the number of hours the employee worked for that client during the pay period relative to the total number of hours the employee worked for all clients during the pay period.
  • Despite the above requirements, the temporary help agency is primarily responsible for an assignment employee’s wages, but proceedings against the agency under this Act do not have to be exhausted before proceedings may be commenced to collect wages from the client of the agency.
  • For the purposes of enforcing the liability of a client of a temporary help agency under the Act, the client is deemed to be an employer of the assignment employee.

Labour relations

The Stronger Workplaces for a Stronger Economy Act will amend the Labour Relations Act (LRA) by decreasing the open period for decertification or displacement application in the construction sector to two months. The previous open period was three months in length. This change will take effect May 20, 2015.

Under the new LRA subsection 132(3), applications to the Labour Relations Board for a declaration that a trade union no longer represents the employees in a bargaining unit may occur under these conditions:

(a) In the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(b) In the case of a collective agreement for a term of more than three years, only after the commencement of the 35th month of its operation and before the commencement of the 37th month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be; and

(c) In the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.

Other changes apply if a trade union and an employer have entered into a collective agreement:

  • The new section 127.3 of the LRA applies to the construction industry and establishes two-month open periods during which a trade union may apply to the Labour Relations Board for certification as bargaining agent of any employees in a bargaining unit. Where the collective agreement is for a term of not more than three years, another trade union may apply to the board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.
  • Where the collective agreement is for a term of more than three years, another trade union may apply to the board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the 35th month of its operation and before the commencement of the 37th month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter, or after the commencement of the last two months of its operation, as the case may be.
  • Where a collective agreement referred to in subsection (2) or (3) provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to renewal, with or without modifications, of the agreement or to the making of a new agreement, another trade union may apply to the board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement during the further term or successive terms only during the last two months of each year that it so continues to operate, or after the commencement of the last two months of its operation, as the case may be.

Health and safety

Occupational health and safety changes

Effective November 20, 2014, schedule 4 of the Stronger Workplaces for a Stronger Economy Act amends the Occupational Health and Safety Act (OHSA) by changing the definition of “worker” in subsection 1(1) as follows:

“Worker” means any of the following, but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program:

  • A person who performs work or supplies services for monetary compensation
  • A secondary school student who performs work or supplies services for no monetary compensation under a work experience program authorized by the school board that operates the school in which the student is enrolled
  • A person who performs work or supplies services for no monetary compensation under a program approved by a college of applied arts and technology, university or other post-secondary institution
  • A person who receives training from an employer, but who, under the Employment Standards Act, 2000, is not an employee for the purposes of that Act because the conditions set out in subsection 1(2) of that Act have been met
  • Such other persons as may be prescribed who perform work or supply services to an employer for no monetary compensation

This change makes it clear that those individuals who are not paid for work done for, or services provided to, the employer (i.e., interns, co-op students, trainees etc.) are covered under the OHSA. The Ministry of Labour has indicated that volunteers are not covered by this new definition of worker.

Consequently, unpaid workers have the same rights and duties as paid workers under the OHSA, including the right to know about workplace hazards and to refuse unsafe work. This also means unpaid workers must comply with health and safety legislation and regulations regarding operating equipment safely and reporting workplace hazards, accidents or contraventions to their employer or supervisor. As an additional result, if they are injured in the workplace, they may receive Workplace Safety and Insurance Board (WSIB) benefits.

Workplace safety and insurance

The Stronger Workplaces for a Stronger Economy Act will introduce several changes to the Workplace Safety and Insurance Act (WSIA). However, these changes will only come in effect on a day to be named by proclamation of the lieutenant-governor.

Changes include adding a definition of “temporary help agency” which includes businesses that primarily lend or hire out the services of their workers to other employers on a temporary basis for a fee.

Section 83 of the WSIA is amended so that if, in certain circumstances, a temporary help agency lends or hires out the services of a worker to another employer and the worker sustains an injury while performing work for the other employer, the other employer is responsible for the injury.

For the purposes of this section the WSIB will:

a) Deem the total wages that are paid in the current year to the worker by the temporary help agency for work performed for the other employer to be paid by the other employer;

b) Attribute the injury and the accident costs arising from the injury to the other employer; and

c) Increase or decrease the amount of the other employer’s premiums based upon the frequency of work injuries or the accident costs or both.

Currently, if a temporary help agency worker is injured, the injury and related accident costs do not affect the client employer’s premium or WSIB experience rating programs, but rather they negatively affect the temporary help agency’s premium. The legislation will encourage client employers to provide and maintain safe and healthy working conditions for all workers in their workplaces, including temporary help agency workers.

The current situation creates a potential incentive for client employers to “contract out” unsafe work to temporary help agencies. The amendment will place the experience rating costs on the client employer and eliminate the incentive for contracting out unsafe work.

The WSIA will also allow the lieutenant-governor-in-council to make certain regulations respecting the attribution of injury costs and reporting requirements to temporary help agencies and the employers who use their services.

What needs to be done?

Employer should inform their employees, supervisors and managers about the changes and the impact of those changes on their business and human resources management. Lawyers and in-house counsel should advise clients how the above provisions will affect the way their clients do business and manage personnel and ensure that they remain compliant with affected employment related legislation.

Employers should prepare for the changes and reassess their policies, practices and procedures including conducting a self-audit to ensure they are already complying with the law, and make the required adjustments due to the changes. Self-audits should become a regular practice at the workplace regardless of the Ministry of Labour possible request for one. This will ensure that management understands their obligations under the law, know of changes they need to apply and prepare them for a Ministry of Labour inspection or request for a self-audit.

If the employer is in the habit of using temporary help agencies to find employees, documentations between the temp agency and the employer-client should be reviewed with respect to the upcoming changes and increased liability. For example, employer-clients should consider amending contracts to include an indemnity clause in case the employer-client is sued for unpaid wages arising out of the temp agency failing to pay the assignment employee’s wages. They should also ensure that the temp agency is maintaining the required records regarding hours of work among others; these records should also be kept by the employer.

Employers should ensure that managers/supervisors provide the most current version of the ESA poster within 30 days of hire, and that it is part of their orientation and training period.

This is my last post before the holidays. Happy Hanukkah! I also wish everybody a very Merry Christmas. If you do not celebrate the Jewish or Christian holidays, I hope you enjoy your time off! Furthermore, have a very Happy New Year! See you in 2015!

Thursday Thinkpiece: Gotthelf On, Um, Lawyers’ Verbal Fillers


Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

The Lawyer’s Guide to Um

Barbara Gotthelf
Legal Communication &Rhetoric: JALWD Fall 2014/Volume 11

Excerpt: Introduction and Parts I through III

In 2006, my son came home from his first day of eighth grade and reported that his Language Arts teacher, whom I will call Mr. Sweeney, had made a dire announcement: He planned to charge students a nickel each time they used uh or um in class. I was pleased that Mr. Sweeney wanted his students to become better speakers, but I questioned his methods. Given my son’s pained reaction, I suspected it was going to be a quiet year in Language Arts.

Intrigued, I sent an e-mail describing Mr. Sweeney’s strategy to Elizabeth Shriberg, a psycholinguist at SRI International in California. She quickly responded and said that using uh and um was not only “perfectly normal,” but also helpful in furthering effective communication.1 As for Mr. Sweeney, she said, “Unless your language arts teacher wants to have people speak only when they’ve completely ‘rehearsed’ what to say (as in a play), he will need to allow the children to pause within their turns.”2 And if they pause, she said, the appropriate thing to do is to fill that pause with uh or um.3

Having had my maternal instincts confirmed by a psycholinguist, I filed away Dr. Shriberg’s e-mail, and the issue of uh and um receded to the background where, as it turns out, it rightfully belongs. But some years later, uh and um reappeared. In 2012, while judging a moot court competition, I heard a seasoned legal writing professor suggest to a student advocate that she had used perhaps a few too many uhs and ums. The blushing student apologized profusely. Recalling Mr. Sweeney’s methods and Dr. Shriberg’s e-mail, I silently questioned whether the professor’s criticism was useful. I began consulting books on public speaking, including texts written specifically for lawyers, and they all gave the impression that using uh and um might be the single worst thing any speaker could do. This advice seemed to be at odds with Dr. Shriberg’s email. Digging further, I discovered a body of scientific literature that supports Dr. Shriberg’s views and demonstrates that, contrary to public perception, uh and um are not only inevitable, but actually useful bits of communication.

Here, then, is my formal response—albeit delayed—to Mr. Sweeney, and a plea to speakers and listeners everywhere to give up the um fixation and focus again on the substance of our spoken communication.

I. Disfluency

A. Definition

Read a page from any deposition or trial transcript and your eyes will tell you what your ears may not: spoken English is vastly imperfect. Not only do our sentences lack the thoughtful syntax and grammar of our written work, but our speech is rife with what linguists call “discourse markers” and “disfluencies.” Discourse markers, which are viewed as actual words with distinct meanings and include like, well, you know, oh, now, I mean, mind you, everything, sort of, kind of, and so, are used in different contexts and do not appear to be interchangeable.4 Oh, for example, alerts listeners that the speaker has remembered specific information. Well indicates that a seemingly irrelevant interpretation is actually relevant, and the despised like suggests that the speaker is deliberately using vague or informal language.5 Disfluencies, in contrast, are not distinct words, but instead consist of hesitations, repeated words or phrases, false starts and restarts, and the use of uh and um. Many linguists refer to uh and um specifically as “verbal fillers” or “filled pauses.” These verbal fillers typically operate under the radar and may be missed or, more often, excised by the conscientious court reporter. The full range of disfluencies can account for up to six percent of what we utter, and the verbal fillers uh and um make up a third to more than half of all disfluencies.6

While they keep company with other disfluencies, the verbal fillers uh and um march to their own linguistic drumbeat. For example, while most disfluencies consistently increase with the speaker’s anxiety, uhs and ums generally do not.7 Longer sentences contain more disfluencies overall, but uh and um remain relatively constant.8 And, while men use uh and um more often than women, both genders demonstrate similar levels of other disfluencies. 9

These differences in usage have led linguists to study the verbal fillers uh and um as unique phenomena. For lawyers, understanding verbal fillers provides a lesson in how to approach these pesky utterances, which for most of us have come with a lifetime of stern admonishments to avoid using them at all costs. On a broader scale, the study of verbal fillers provides a glimpse into a larger world of actual spoken communication. For years, linguists resisted this world, choosing instead to define disfluencies as “errors” that needed to be eliminated from the study of pure language.10 More recently, linguists have acknowledged—and at times even embraced—disfluency as an integral part of how we communicate.

Starting with uh and um, lawyers can gain a better appreciation of what disfluency means for oral advocacy, and whether, or how, we need to address the messy reality of our spoken language.

 B. The Ubiquitous Uh and Um

Ironically, while lawyers are expected to be eloquent and well spoken, they also match the profile of the frequent ummer. Well-educated and conscious of their speech, lawyers are faced with the cognitive and social demands that almost guarantee the appearance of uh and um in their spoken communication.

The verbal fillers uh and um are defined as “verbal interruptions that do not relate to the proposition of the main message.”11 As described by psychologist Herbert Clark, speech proceeds along two parallel paths. The primary track is the “official business, or topics of discourse”—the substance of what we want to say.12 A secondary, or collateral, track refers to the act of speaking itself: “to timing, delays, re-phrasings, mistakes, repairs, intentions to speak, and the like.”13 Uh and um move along this collateral track, allowing speakers “in effect, to manage [their] on-going performance.”14

Verbal fillers appear in all languages and are typically monosyllabic with a schwa core vowel sound.15 Speakers of English use uh and um. The British spell these fillers er and um, but pronounce them the same as in North American English. Germans use äh and ähm; the French use eu, euh, em, eh, and oh, and Spanish-speaking people use eh, em, este, and pues.16 There is even a sign for um in American Sign Language.17

Virtually everyone uses verbal fillers, though the frequency can vary greatly from person to person.18 A study of one language database showed that speakers produced between 1.2 and 88.5 uhs and ums for every thousand words, with a median filler rate of 17.3 per thousand words.19 Other databases show anywhere from three to twenty uhs and ums for every thousand words, placing uh and um thirty-first in a ranking of most commonly used utterances, just ahead of or and just after not.20 A British study showed that, contrary to popular expectations, the use of verbal fillers does not indicate a lack of education or manners; instead, the use of uh and um increases with education and socioeconomic status, a finding with particular implications for the legal profession.21 Older people use more uhs and ums than younger people, and, curiously, men consistently use verbal fillers more often than women—a finding that has been replicated across several studies.22 Women, for their part, appear to use a higher ratio of ums to uhs than their male counterparts.23

For those who believe that they have eliminated uh and um from their speech—and many people hold this view—studies show that people are notoriously unable to accurately assess who is saying uh or um, or how often these fillers are being used.24 The question, then, isn’t whether we use uh and um, but why we use them.

II. The Forensics of Verbal Fillers

Broadly stated, speakers tend to use the verbal fillers uh and um when something has interrupted the enormously complicated task of speech production. That interruption can come from the difficulty of the subject matter that is being discussed, or it can come from the speaker’s selfconsciousness about the act of speaking. Researchers refer to these forms of interruption as “task complexity” and “task concern,” and both are highly relevant for lawyers, who are required to speak about difficult and abstract concepts in a stressful, and often very public, setting.

 A. Task Complexity

The theory of task complexity proposes that the use of uh and um increases along with the complexity of the subject matter the speaker is addressing. The more challenging and varied the options are for the speaker, the more verbal fillers he will use.

Linguists adhere to the widely held view that speakers use verbal fillers when they are, in effect, searching their brains for information, essentially in the same manner that a computer scans a hard drive for data.

The speaker may be looking for the next word, phrase, or idea, or making a decision about the next thought.25 Accordingly, the rate of uhs and ums increases when the topic is more abstract, as well as when the speaker is choosing from a larger vocabulary.26 As the range of options increases, so does the task complexity and the likelihood that the speaker will fill the delay imposed by the process with uh or um. This was the conclusion reached in an oft-cited study at Columbia University, where researchers counted the number of verbal fillers used by professors during lectures given to undergraduate students in three separate academic divisions: the natural sciences, the social sciences, and the humanities.27 The natural-sciences professors used the fewest verbal fillers, with a mean rate of 1.39 uhs per minute.28 The social-science professors had a mean rate of 3.84uhs per minute, and the rate for humanities professors was 6.46 uhs per minute. Yet these same professors, when interviewed on the same topic (one unrelated to their disciplines), used about the same number of fillers per minute.29 Thus it appeared that the academic disciplines, and not the speakers, drove the frequency of fillers.

The Columbia researchers concluded that lectures about natural sciences produced fewer fillers simply because the speakers had fewer options to choose from in deciding what to say. As the authors explained, there are no synonyms for molecule or atom or ion. But humanities professors—much like lawyers—have many alternatives for the words found in their discipline. A humanities professor may discuss abstract and subjective concepts like affection, class structure, prejudice, beauty, or style.30 Lawyers may discuss concepts like duty, consideration, mutuality, scienter, or malice. And, whereas concepts like E=mc2 are fixed, the options for interpreting a passage from King Lear (or Roe v. Wade) seem limitless.31 Such options increase the complexity of the task and, concurrently, the rate of verbal fillers.32

Researchers have tested the task-complexity theory in other ways, with similar results. Study subjects asked to “talk” their way through mazes used more verbal fillers when confronted with mazes that could be navigated using multiple routes.33 Conversely, mazes with a single path (and fewer choices) produced fewer fillers.34 But the maze study produced another interesting result: When study subjects were told they could use only four words to talk their way through the maze (left, right, up, down), they began to use more verbal fillers, even when describing simple mazes.35 Researchers posited that the “lexical suppression” created by limiting speakers to four words triggered a stopping and starting of the speech apparatus that prevented speakers from developing a normal speech rhythm.36 Thus, while verbal fillers are a mark of task complexity, they also appear where, “for some other reason, the flow of speech is disrupted.”37 That “other reason” may be the speaker’s self-consciousness about the act of speaking itself, or “task concern.”

B. Task Concern

While the theory of task complexity attributes the use of uh and um to the difficulty of the topic being discussed, the theory of task concern proposes that people say uh and um when something has shifted their attention away from what they are saying and moved it toward how they are saying it. In other words, the task-concern theory holds that uh and um are not so much a product of how difficult the subject matter is, but an indication of how preoccupied the speaker is with how he sounds to his audience.

The theory of task concern developed when researchers looked at word repairs, where, for example, a speaker might say, “Today is Mon–uh–Tuesday.” Researchers theorized that when a speaker detects a word error, the normal flow of speech is interrupted and the speaker becomes focused, if just for an instant, on the act of speaking.38 In that moment, the speaker produces an uh or um. This finding raised the question of whether conscious attention to the act of speaking on a broader scale, not just at the word-repair level, might make speakers use more uhs and ums throughout their speech. Two psychologists at the University of California, San Diego—Nicholas Christenfeld and Beth Creager—took a novel approach to answering this question by studying a topic of relevance to all speakers, including lawyers: anxiety.39 The researchers found that anxiety makes speakers use more uhs and ums only when the anxiety shifts the speaker’s focus to the act of speaking.

Christenfeld and Creager began by examining the popular perception that people produce more uhs and ums when they are generally anxious or nervous. If that perception is true, this situation would create a dilemma for public speakers, including lawyers, who believe that the only way to improve their performance is by finding a magic cure for their jitters. For a time, the literature on anxiety and verbal fillers was hopelessly mixed, with some studies showing that anxiety does increase filler rates, one study showing that it does not, and many studies showing no effect at all.40 Christenfeld and Creager suggested that researchers had missed the mark by failing to distinguish between the sources and the effects of anxiety. Their hypothesis was that anxiety will increase verbal filler rates only if it interrupts the automatic flow of speech by making speakers self-conscious about how they sound.41 In other words, thinking about speaking might make people “choke,” in much the same way that any conscious attention to a skilled performance can disrupt, and limit, that performance.42 Choking, in turn, would make people use more uhs and ums. Christenfeld and Creager’s hypothesis also predicted that a more generalized anxiety that is unrelated to the act of speaking would not increase filler rates.43

To test their hypothesis, Christenfeld and Creager devised a number of experiments that manipulated anxiety and self-consciousness. They consistently found that generalized anxiety did not increase filler rates, but anxiety that created self-consciousness about speaking did. In one experiment, speakers who were told that their recorded speech would be evaluated to see how creative they were—a condition designed to increase self-consciousness—produced significantly more verbal fillers than speakers who were told that their speech would be used only for routine grammatical coding.44 Another experiment compared filler rates between speakers who wore headphones that amplified their own voices and speakers who were asked to dance by themselves in front of a camera while talking.45 This study was designed to make members of the headphone-wearing group self-conscious about their speech, while making people in the dancing group anxious about an act unrelated to speech. The results showed that the speech-conscious group used more than twice the number of fillers per minute (5.61 per minute) as the anxious dancers (2.07 per minute).46 Moreover, the speech-conscious group also used more fillers than a third group that had been asked to speak on a more complex topic (3.85 per minute), reinforcing the notion that self-consciousness—or “task concern”—may create even more fillers than task complexity.47

Christenfeld and Creager confirmed their conclusions about task concern and task complexity by measuring verbal filler rates in a unique set of study subjects: people who have been drinking. Interviewing patrons at eight bars in the San Diego area, the authors accurately predicted that as people become more intoxicated, they use fewer verbal fillers.48 This observation ran counter to the notion that uh and um are markers of careless or lax speech. To the contrary, the more awareness people had of their speech, the more fillers they used. As levels of intoxication increased and people became less concerned with how they sounded, their filler rates dropped, even as the act of speaking became more difficult. In other words, task concern—the province of the sober— rather than task complexity determined filler rates.49

This work convincingly limits the idea that garden-variety anxiety increases filler rates, while also proposing a theory of ums that “moves away from the cognitive complexity notions” advanced by studies like the one done at Columbia.50 According to Christenfeld and Creager, “rather than indicating when a tough decision is being made by the normal speech production apparatus, ums may indicate when the speaker changes modes and gives deliberate attention to some aspect of the speech.”51 That deliberate attention, or self-consciousness, removes the act of speaking from its “fluid automatic mode” and triggers the use of verbal fillers.52

Christenfeld and Creager acknowledge that the theory of task concern is not incompatible with the theory of task complexity.53 A difficult cognitive task—finding the right word, thought, or idea—can make the speaker more self-conscious about the act of speech production. But they maintain that a speaker’s use of verbal fillers is more likely related to the “social context of the utterance” than to the complexity of the task.54 For this reason, Christenfeld and Creager believe that the nature of the speaker’s audience should have a profound effect on filler rates.55 Consequently, “[t]elling a story to one’s best friend may lead to fewer filled pauses than telling the same story to a parole officer.”56

III. From Symptoms to Signals

Although the production of verbal fillers may not be deliberate, research has shown that fillers may serve distinct communicative functions. Lawyers who speak before courts, clients, and other discerning audiences should know how fillers function to communicate information; they should understand that the actual effects of fillers on listeners may be less dire than imagined and may even be beneficial under some circumstances.

For many years, linguists adhered to the view that verbal fillers were merely symptoms of a breakdown in the speech process. They viewed uh and um as “errors” that fell outside the proper study of language.57 Accordingly, linguistic study was focused exclusively on the “fluent, idealized utterances” that form “an uninterrupted sequence of words that follows the rules of English syntax.” 58 But as any lawyer knows, even the most polished advocate rarely speaks in perfect prose.

Gradually, linguists began to consider that verbal fillers might not be symptoms of a problem, but actual signals used by speakers to communicate information. What were once “errors” became “verbal fillers” or “filled pauses.” Some linguists rejected even these terms as misnomers. A pause is silent by definition, making the term “filled pause” anomalous.59 As described by psycholinguists Daniel C. O’Connell and Sabine Kowal, “fillers are neither pauses nor are they used necessarily where there would otherwise be a silence; they are not a sort of putty used to fill the cracks in window frames—to stuff something into a silence. They are simply legitimate hesitations.”60 Linguists who rejected “filler” as an “uninformative default term” instead began to describe uh and um as “planners”61 or “speech management phenomena.”62 Serious study of verbal fillers produced a wealth of scientific data, and while linguists disagree on the details, a consensus emerged in which uh and um are viewed as signals that perform communicative functions.

 A. Defining Filler Functions

The study of verbal fillers began with the threshold question of whether listeners even hear them. The good news is, unless they are specifically focused on a speaker’s use of verbal fillers, listeners—including judges—will naturally ignore most uhs and ums, at least on a conscious level.63 As explained by Susan E. Brennan, a cognitive scientist at the State University of New York at Stony Brook, and her colleague Michael Schober, “much of the time, listeners don’t experience disfluencies as disruptive, and when they do detect disfluencies, they have trouble categorizing or locating them precisely.”64 In fact, listeners are notoriously unable to estimate the number or location of verbal fillers in a spoken message.65 Nicholas Christenfeld found that when study subjects listened to speech both with and without verbal fillers, their estimates of the frequency of uhs and ums were “profoundly skewed.”66 Not only did the subjects overestimate the frequency of fillers in speech where fillers actually occurred, but they guessed that they had heard an average of 22.1 ums during a three-minute tape that did not contain a single filler.67

While listeners may not be aware of most verbal fillers on a conscious level, there is strong evidence that fillers are not being filtered out to create a “sanitized,” or fluent, version of the message.68 Instead, verbal fillers are processed by listeners and used as information.69 Studies of verbal fillers demonstrate that they perform certain defined functions, which can, and often will, overlap.70 Filler functions can be divided into five categories:

  1. Signal of delay: At their core, uh and um are used to signal delay, and this is their chief use as well as their “stock dictionary characterization.” 71 By using a verbal filler, the speaker is telling the listener that, for however brief a time, “I am unable to proceed.”72 The delay may be caused by task complexity or task concern, which in turn can have a number of underlying causes, as discussed above.73
  1. Conversational signposting: Verbal fillers can be seen as signposts for people engaged in the complex give and take of conversation, which may be particularly relevant for lawyers in the context of oral argument.74 Here, uh and um can serve multiple, sometimes contradictory, purposes. Speakers use uh and um for turn-taking—to indicate that they are taking their turn to speak; for turn-holding —to indicate that they are not finished speaking and wish to hold the floor; and for turn-yielding—to give up the floor.75 Speakers help listeners distinguish between these signals by the manner in which they vocalize uh and um. For example, an uh or um that trails off can signal that the speaker has finished speaking. 76 Uh and um spoken with a rising intonation suggest that the speaker has run into trouble and is looking for help from the listener to complete a thought.77
  1. Attracting attention: At perhaps their simplest level, uh and um can be used to attract attention to the speaker and to establish contact, as in “Uh, hello?78
  1. Highlighting: Speakers can use uh and um to focus the listener’s attention on whatever comes after the filler.79 In this sense, uh and um are “a sort of verbal italics” or “semantic booster.”80 A verbal filler that precedes a word or phrase “highlights the following element, suggests that it is being chosen circumspectly and focuses the listener’s attention on it.”81
  1. Correction: Verbal fillers can be used to signal that the speaker has gotten off on the wrong track, perhaps by choosing the wrong word or phrase or by mispronouncing a word. Here, the speaker is indicating that “a more correct or suitable word or phrase than the one(s) just said will follow.”82 On a broader level, using uh or um can signal a change, or correction, in the topic being addressed. Either way, verbal fillers signal that the speaker intends to revise the message, and the listener should take note of the change.83 As University of Edinburgh researcher Martin Corley explains, uh and um in this context tell the listener, “‘pay attention, the speaker’s in trouble and the next part of the message might not be what you predicted.’”84

B. Filler Utility

Significantly for lawyers conveying complex information, these filler functions, either individually or in combination, demonstrably increase listeners’ memory and comprehension. The mechanisms by which this happens are complex. But simply put, verbal fillers make listeners pay attention, though often (and ideally) on an unconscious level. Because of our shared knowledge about communication, a listener who hears a speaker use a verbal filler knows that the speaker has encountered a disruption in the speech-planning process. That information causes the listener to be more attentive. That heightened attentiveness, in turn, can help the listener to better predict, understand, and remember the information that follows uh or um.

This view of verbal fillers has been demonstrated in a variety of ways. Martin Corley, Lucy J. MacGregor, and David I. Donaldson, at the Universities of Edinburgh and Stirling, measured the neural activity of listeners and found a “profound” difference in the speed at which they processed words that were preceded by a verbal filler.85 This effect persisted over time. Even after a delay of up to fifty-five minutes, listeners were better able to remember words preceded by a verbal filler.86 Jean E. Fox Tree, a professor of psychology at the University of California, Santa Cruz, obtained similar results with uh, which helped listeners recognize words in upcoming speech.87 Fox Tree asked listeners to press a buzzer when they heard a specific “target” word, which they had committed to memory. Listeners responded faster when the target word was preceded by uh than when the uh had been excised.88 A team of linguists at the University of Rochester demonstrated that disfluency overall is a cue to listeners that the speaker is referring to new information.89When used as a correction, verbal fillers have been shown to help listeners process and understand word repairs more quickly.90

Studies show that these benefits in comprehension apply not only to words, but to entire narratives—an important consideration for lawyers conveying their clients’ stories. In a study conducted by Scott H. Fraundorf and Duane G. Watson at the University of Illinois, groups of listeners heard stories paraphrased from Lewis Carroll’s Alice in Wonderland. 91 Some of the stories were told fluently—that is, without verbal fillers or pauses—and other stories were marked by uhs and ums. After hearing different versions of the stories—some told fluently, some spliced with verbal fillers, and some interrupted by coughing—listeners were asked to verbally recall the stories in as much detail as possible.92 Listeners were consistently better able to remember the stories with the fillers.93 This effect occurred regardless of whether fillers were inserted at key plot points, where they might naturally appear, or randomly sprinkled throughout the story.94

Some researchers suggest that, in addition to increasing comprehension by sharpening the listener’s attention, the placement of verbal fillers before new thoughts or ideas also helps to organize spoken language for listeners and give it a type of structure.95 Some linguists go even further and argue that verbal fillers are necessary elements in spoken discourse and that removing them for the sake of an ideal of fluency actually shortchanges listeners.96 In support of this theory, linguists point to the comprehension problems listeners encounter when written work is read aloud. As the late linguist Göran Kjellmer explained, “A lecture that is read aloud from the written page is often difficult to take in when its delivery lacks the verbal guides and signposts that we more or less subconsciously expect to find in speech.”97 Consequently, listeners who hear text read aloud “are in danger of missing the point of the argument.”98 Citing the essayist Louis Menand, O’Connell and Kowal go so far as to describe writing as an inferior form of communication, precisely because it lacks the disfluencies that mark our speech.99 To them, writing is a hieroglyph, while speaking is “a symphony.”100

If the forensics of verbal fillers were the whole story, it would end here. We know that most, if not all, speakers use verbal fillers. There is strong evidence that listeners are better able to understand and remember messages that include verbal fillers. Yet, from the time we are able to speak, it seems, we are exhorted to eliminate uhs and ums from our speech. Why are verbal fillers so despised, and what should speakers do about them?

____________________

1 E-mail from Elizabeth Shriberg to Barbara Gotthelf (Sept. 27, 2006) (copy on file with the author).

2 Id.

3 Id.

4 Jean E. Fox Tree, Discourse Markers across Speakers and Settings, 4 Lang. & Linguistics Compass 269, 272 (May 2010); Susan E. Brennan and Maurice Williams, The Feeling of Another’s Knowing: Prosody and Filled Pauses as Cues to Listeners about the Metacognitive States of Speakers, 34 J. Memory & Lang. 383, 391 (1995).

5 Fox Tree, supra n. 4, at 276–77.

6 Scott H. Fraundorf & Duane G. Watson, The Disfluent Discourse: Effects of Filled Pauses on Recall, 65 J. Memory and Lang. 161, 161 (2011).

7 Nicholas Christenfeld & Beth Creager, Anxiety, Alcohol, Aphasia, and Ums, 70 J. Personality & Soc. Psychol. 451, 454 (1996).

8 Heather Bortfeld, Silvia D. Leon, Jonathan E. Bloom, Michael F. Schober & Susan E. Brennan, Disfluency Rates in Conversation: Effects of Age, Relationship, Topic, Role, and Gender, 44 Lang. & Speech, 123, 125 (2001) (citing Elizabeth Shriberg, Disfluenices in Switchboard, Proc. Intl. Conf. on Spoken Lang. Processing, Addendum, 11 (1996)).

9 Bortfeld et al., supra n. 8 at 128, 141–42. Overall, men used 3.04 verbal fillers per 100 words compared to a rate of 2.07 for women. Men also had more word repeats (e.g., just on the left left side), at 1.74 to 1.21 per 100 words. Id. at 141.

10 Herbert H. Clark & Jean E. Fox Tree, Using Uh and Um in Spontaneous Speaking, 84 Cognition 73, 74 (2002).

11 Fraundorf & Watson, supra n. 6, at 161.

12 Clark & Fox Tree, supra n. 10, at 74.

13 Id.

14 Id. at 78 (emphasis in original).

15 Daniel C. O’Connell & Sabine Kowal, Communicating with One Another: Toward a Psychology of Spontaneous Spoken Discourse 128 (2008). The schwa sound is the a sound initializing and ending America. Merriam Webster’s Collegiate Dictionary 1111 (11th ed. 2005).

16 Clark & Fox Tree, supra n. 10, at 92.

17 Michael Erard, Um . . . : Slips, Stumbles, and Verbal Blunders, and What They Mean 142 (2008). The sign for um is an open palm, with five fingers slightly apart, and a repeated circling of the forearm away from and toward the speaker. Id.

18 Clark & Fox Tree, supra n. 10, at 97.

19 Id.

20 Göran Kjellmer, Hesitation. In Defence of Er and Erm, 84 English Stud. 170, 172 (2003).

21 See Gunnel Tottie, Uh and Um as Sociolinguistic Markers in British English, 16 Intl. J. of Corpus Linguistics 173, 192 (2011). Michael Erard cautions that such conclusions should not be viewed as a measure of intelligence, but instead reflect the norms of one’s community. Erard, supra n. 17, at 100.

22 See Tottie, supra n. 21, at 192; see also Bortfeld, et al., supra n. 8, at 139.

23 Tottie, supra n. 21, at 192.

24 See e.g. Nicholas Christenfeld, Does it Hurt to Say Um?,19 J. Nonverbal Behavior 171, 178–80 (1995).

25 Stanley Schachter, Nicholas Christenfeld, Bernard Ravina & Frances Bilous, Speech Disfluency and the Structure of Knowledge, 60 J. Personality & Soc. Psychol. 362, 362 (1991); see also Clark & Fox Tree, supra n. 10, at 87–88.

26 Christenfeld, supra n. 24, at 172.

27 Schachter et al., supra n. 25.

28 Id. at 364.

29 Id. at 365.

30 Id. at 362.

31 See id.

32 Id. at 365.

33 Nicholas Christenfeld, Options and Ums, 13 J. Lang. & Soc. Psychol. 192, 197 (1994).

34 Id.

35 Id. at 197–98.

36 Id. at 198.

37 Id.

38 Christenfeld & Creager, supra n. 7, at 451–52.

39 Id.

40 Id. at 451.

41 Id. at 452.

42 Id.

43 Id.

44 Id. at 453. The “creative” speakers used an average of 7.03 ums per minute, compared to 4.07 ums per minute in the grammatical coding group.

45 Id. at 454–55.

46 Id. at 456.

47 Id.

48 Id. at 457–58.

49 Id. at 458–59. The study authors warn, “Before suggesting intoxication as a strategy to concerned public speakers, it should be noted that, to eliminate the average speaker’s ums, about 19 drinks in the course of an evening are required.” Id. at 457.

50 Id. at 458

51 Id. at 459.

52 Id. at 452; 458 –59.

53 Id. at 459.

54 Id.

55 Id.

56 Id.

57 Clark & Fox Tree, supra n. 10, at 74.

58 Bortfeld et al., supra n. 8, at 124.

59 O’Connell & Kowal, supra n. 15, at 126.

60 Id.

61 Tottie, supra n. 21, at 193.

62 O’Connell & Kowal, supra n. 15, at 128.

63 See Erard, supra n. 17, at 134.

64 Susan Brennan & Michael F. Schober, How Listeners Compensate for Disfluencies in Spontaneous Speech, 44 J. Memory & Lang. 274, 275 (2001).

65 See O’Connell & Kowal, supra n. 15, at 130–31; see also Karl G.D. Bailey and Fernanda Ferreira, Disfluencies Affect the Parsing of Garden-Path Sentences, 49 J. Memory & Lang. 183, 184 (2003).

66 Christenfeld, supra n. 24, at 178.

67 Id. at 180.

68 See Bailey & Ferreira, supra n. 66, at 184.

69 Id. at 184–85.

70 Kjellmer, supra n. 20, at 182–90.

71 Id. at 183.

72 Clark & Fox Tree, supra n. 10, at 90.

73 See discussion supra at sec. II (A, B). Surveying the literature, Clark and Fox Tree identify the following bases for delay: (1) The speaker is experiencing a planning problem; (2) the speaker is searching memory for a word; (3) the speaker is hesitating about something; (4) the speaker is in doubt or uncertain about something; (5) the speaker is engaged in “speech-productive labor,” such as deciding what to say or how to say it. Clark & Fox Tree, supra n. 10, at 90.

74 See Kjellmer, supra n. 20, at 183.

75 Id. at 183–86; see also Clark, Fox Tree, supra n. 10, at 89–90.

76 Kjellmer, supra n. 20, at 185. Kjeller notes that in some instances, “One can almost hear the voice of the speaker trailing off at the end, hoping to be relieved,” as in the sentence, “I don’t know, I mean er[,] er . . . . ” Id. at 185–86.

77 Clark & Fox Tree, supra n. 10, at 89–90. Clark and Fox Tree cite to the following exchange, in which the speaker (Sam) repeatedly invites the listener (William) to interject. William does so only after the third uh:

 Sam: [B]ut the whole object of this, is to talk about, . . . first, naturally the department, . . . but but also if anybody wants to raise anything else about the college, . . . uh, do please do so, . . . I mean it’s abs- total free for all, . . . um . . . how about things generally, I mean have you uh let’s start with the accommodation, . . . obviously this is a problem, . . . uh . . .

William: I think it’s a problem . . . . Id. at 90 (ellipses substituted for marks designating internal pauses of different lengths). Here, “Sam uses uh and um not to hold the floor, but to signal his willingness to give it up.” Id.

78 Kjellmer, supra n. 20, at 186.

79 Id. at 187.

80 Id.

81 Id.

82 Id. at 188.

83 Id. at 189.

84 Martin Corley & Oliver W. Stewart, Hesitation Disfluencies in Spontaneous Speech: The Meaning of um, 2 Lang. & Linguistics Compass 589, 602 (2008).

85 Martin Corley, Lucy J. McGregor & David I. Donaldson, It’s the Way That You, Er, Say It: Hesitations in Speech Affect Language Comprehension, 105 Cognition 658, 667 (2007).

86 Id.

87 Jean E. Fox Tree, Listeners’ Uses of Uh and Um in Speech Comprehension, 29 Memory & Cognition 320, 324 (2001).

88 Id. Interestingly, Fox Tree found an increase in recognition of words preceded by uh, but not um.

89 Jennifer E. Arnold, Michael K. Tanenhaus, Rebecca J. Altmann & Maria Fagnano, The Old and Thee, uh, New: Disfluency and Reference Resolution, 15 Psychol. Sci. 578, 581 (2004).

90 Brennan & Schober, supra n. 64, at 293. Brennan & Schober caution that listeners are better able to understand fluent speech. Where, however, a word interruption or repair occurred, a correction that included a filler enhanced comprehension. Id. at 293, 295.

91 Fraundorf & Watson, supra n. 4.

92 Id. at 165.

93 Id. at 166.

94 Id. at 170.

95 See Kjellmer, supra n. 20, at 190.

96 Id.

97 Id.

98 Id.

99 O’Connell & Kowal, supra n. 15, at 222.

100 Id.

Be Clear and Know Your Audience


I have spent the last few months presenting to colleagues all over Canada about marketing professional services and the benefits of clear communication. After the sessions there is always a lot of conversation where I do a lot more listening than speaking.

One story that was shared resonated so clearly with me that I have been sharing it ever since.

A client told my colleague that he needed a dictionary to figure out what he was trying to say in an email. This got a good chuckle out our group but it showed that by trying to impress a client with his vocabulary the message actually failed to be delivered. The client has a similar background and training so you can imagine if the message had been forwarded to someone with a different skill set they would have been completely lost.

I have heard the average person receives 1,800 messages a day (I suggest this is a conservative number). If this is true, than most of us do not have time to use a dictionary to figure out a message.

Communication is fairly easy when broken down – be clear, concise and understand your audience.

“Brian Sinclair Did Not Have to Die”

Brian Lloyd Sinclair died in September 2008 in the emergency department waiting room of Winnipeg’s Health Sciences Centre at the age of 45. He was pronounced dead in the early hours of September 21, 2008 after he had spent some 34 hours in the emergency room awaiting attention for what was initially a relatively minor health concern.

Brian Sinclair was an Aboriginal man who lived his early years on the Fort Alexander First Nation and went on to live in Powerview, Manitoba and ultimately, in Winnipeg. He faced a number of health challenges and as well as some cognitive impairment. In 2007, both of his legs were amputated above the knee and after that time he relied on a wheelchair. Soon afterward, the Public Trustee of Manitoba was appointed as his Committee. Though widely reported to be homeless at the time of his death, Brian Sinclair in fact resided in an assisted-care home in downtown Winnipeg.

An inquest was called in early 2009 under the provisions of The Fatality Inquiries Act:

1. To determine the circumstances under which Mr. Sinclair’s death occurred;
2. To determine what, if anything, can be done to prevent similar deaths from occurring in the future with regard to, but not limited to, the following:
(a) reasons for delays in treating patients presenting in Emergency Departments of the Winnipeg Regional Health Authority (hereinafter referred to as “WRHA”) hospitals; and
(b) measures necessary to reduce the delays in treating patients in Emergency Departments.

The inquest report was issued to the public late last week. As expected, inquest Judge Timothy Preston found that Brian Sinclair was never assessed or triaged by a nurse during his 34 hours at the hospital. He found that Brian Sinclair died of natural causes but that his death was avoidable.

Judge Preston pointed to a number of incorrect assumptions that were made with respect to Brian Sinclair’s continued presence in that emergency room, including:

  • He was sleeping off his intoxication
  • He was homeless or seeking shelter
  • He was waiting for a bed in another area
  • He was waiting for medical attention after being assessed/attended to

While Judge Preston noted that some of these assumptions were framed as racial stereotyping by counsel for Mr. Sinclair’s family and the intervenor, Aboriginal Legal Services of Toronto, he also noted this view was countered by the Chief Medical Officer:

Dr. Balachandra, CME, was of the strong opinion that no doctor or nurse would lower their standard of care based on a patient’s ethnicity….The CME has never encountered discrimination by doctors or nurses. He claimed that “Snow White” would have died in these circumstances.

Not surprisingly, the report has been criticized for failing to address the underlying reasons for the assumptions that were made. Christa Big Canoe, Legal Advocacy Director of Aboriginal Legal Services of Toronto commented to The Winnipeg Free Press:

“Brian Sinclair was a victim of those stereotypes because staff assumed he was homeless or intoxicated, instead of treating him as someone who needed medical care. Aboriginal patients continue to face these stereotypes every day when they access health care services and this issue was largely ignored in the report.”

The report concludes that “Brian Sinclair did not have to die, but he did not die in vain” pointing to the changes implemented in the emergency room system since his death and the 63 recommendations for changes to prevent similar deaths from occurring in the future.