Legal system weighs in for employees

By Howard Levitt, The Financial Post August 21, 2009
Justice delayed is justice denied. – Sir William Gladstone (1809-1898)

While management continues to battle the financial crisis and with the other provinces intently watching, the Ontario government is resolving another crisis: "access to justice." With litigation the preserve of the well-financed, government has sought to expand its availability to the average citizen.

This means that, in four months, suing your employer will get much easier.

On Jan. 1, the most dramatic changes to the rules of court since 1985 will be implemented. These rules will disable three of the most valuable weapons in employers’ litigation arsenal — costs, complexity and delay.

The Small Claims Court jurisdiction will be raised to $25,000 from $10,000, transforming it into an employee’s court. The intent is to make legal rights accessible to workers of every strata. The incentive to pursue perceived rights will escalate in this forum, where self-representation is the norm and the costs of losing negligible.

Lawsuits from $50,000 to $100,000 will also become simpler, faster and cheaper.

The Simplified Procedure, which provides a streamlined and expeditious route for medium-sized claims — previously reserved for damages under $50,000 — will be expanded to include claims to $100,000. Until now, these larger claims were subject to unlimited examination for discovery; the new rules restrict them to two hours.

Any lawyer can conduct a journeyman-like mediation because much of the work is done by the mediator. Other than trials, which few dismissal cases reach, a lawyer’s relative skill is best shown at discoveries. That is where admissions are obtained that result in settlement or make the result a foregone conclusion.

More often than not, I have had employees make admissions at discovery that effectively end their cases.

With the prospect of being cross-examined for hours or days, the employee who is often less prepared than at trial faces having substantial doubt cast on the veracity of their facts and having their principles yield to tortuous scrutiny, and often ends up dropping the suit or accepting a minimal settlement to avoid a repeat at trial.

That ability to weaken the employee’s resolve is gone under the new rules: Two hours is seldom sufficiently formidable to concede early defeat.

The most significant change to be introduced on Jan. 1 is the reduction in costs throughout the process. Limits will be placed on the amount of documentation that must be disclosed. Mini trials, on isolated issues, will be allowed.

Mandatory mediation is being introduced for all cases.

All actions taken and any cost-recovery related to such actions will be assessed on the basis of the principle of proportionality.

Borrowing from the English legal system, proportionality was summed up by Lord Woolf thus: "The achievement of the right result needs to be balanced against the expenditure of the time and money needed to achieve that result." Regardless of the costs actually incurred, courts will honour only those that reflect what is reasonable in relation to the amount in issue. Inevitably for employment law cases, conservative cost awards will become the norm. For the employee, the costs of losing were previously prohibitive. Under this new legislation, courts will not generally financially burden an employee who reasonably pursues his claim. Claims that previously would have been abandoned will now be galvanized.

A new judicial landscape is about to emerge where employees will be emboldened as never before.

- Howard Levitt, counsel to Lang Michener LLP, is an employment lawyer who practises in eight provinces and is author of several texts — including The Law of Dismissal for Human Resources Professionals, recently released.
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