Can fired employees afford to take their prior employers to court? Are trials too expensive? Are there better ways to secure justice for employees? These are some of the questions a group of lawyers in Ontario, Canada, have been considering.
Earlier this year, the Chief Justice of Ontario expressed concerns that employees can’t afford to “get their day in court.” He said that we should examine how to improve access to justice in employment cases. To that end, the Ontario Bar Association struck a Task Force on Wrongful Dismissal, which is in the process of considering various changes. The following changes are being discussed.
Mandatory mediation for all wrongful dismissal claims.
Currently, wrongful dismissal claims filed in some parts of Ontario must proceed to mandatory mediation shortly after the defense has been filed. Other provinces, such as British Columbia and Alberta, have similar regimes. The task force is considering whether early mediation should be mandatory in all parts of Ontario. Judging from the high success rate of mediation in these cases, it won’t be surprising if mandatory mediation is expanded.
Faster processes to determine termination notice periods.
Except when an employee has been fired for misconduct (or cause), the only issue in dispute may be the length of the reasonable notice period the employer is required to give or pay. Notwithstanding that the issue may be relatively simple to determine (by considering such issues as the employee’s age, length of service, salary, position, and ability to obtain alternate employment), the pretrial procedures and the trial itself can be lengthy. Employees’ lawyers have made three suggestions to make these cases less cumbersome to litigate.The first and least controversial suggestion is to introduce a summary judgment procedure. In this type of procedure, evidence of the factors outlined above would be put before a judge in writing, by way of affidavits. The lawyers would present this written evidence to the judge, along with their legal argument, in one meeting. After hearing the parties’ arguments during the span of a few hours, as opposed to days or weeks, the judge would make his or her decision.
The second option is an interim payment procedure. This system is currently in use in New Brunswick. In a wrongful dismissal case, a judge could award the interim payment of part of the reasonable notice period. For example, when the reasonable notice period is three to six months, the judge could award the interim payment of three months’ pay, leaving the entitlement to the balance to be considered at a trial.
The third and most controversial suggestion is the development of a grid for determining notice of termination. Although this type of grid would eliminate the need for judges to determine notice periods, because it couldn’t take into account the unique factors in each case, it has received an overwhelming negative reaction among lawyers.
Increase monetary limits for small claims court and simplified court procedure.
Perhaps the most popular suggestions for increasing what some perceive to be access to justice issues is to increase the monetary limits for small claims court applications and simplified procedure cases.
Every province has a small claims court. The parties don’t need to be represented by a lawyer. There are very few pretrial proceedings. Trials are conducted in a simple manner and are often very short But there are limits on what a plaintiff can collect if successful: $25,000 in British Columbia, Alberta, and Nova Scotia; $20,000 in Saskatchewan; $10,000 in Ontario and Manitoba; and less than $10,000 in Quebec, New Brunswick, Newfoundland, and Prince Edward Island.
Increasing the small claims court limits will certainly increase the number of wrongful dismissal matters litigated in this less cumbersome, faster regime. However, many are concerned that because decisionmakers in the small claims system aren’t necessarily traditional judges and there is little pretrial discovery, justice won’t be served by increasing the monetary limits.
Perhaps another way to achieve a less expensive result is by increasing the monetary limits for simplified procedure trials. The simplified procedure allows employees to sue in the traditional courts and have their cases decided by traditional judges. But, like the small claims system, there are fewer pretrial proceedings, making litigation less expensive. In cases where a deposition isn’t critical or need not be lengthy, the simplified procedure seems to work well for many parties. For this reason, Ontario is considering increasing its simplified procedure trial monetary limit from $50,000 to $100,000.
What this means for you
What is clear from all of these suggestions is that the system will continue to look for ways to make it easier for fired employees to sue their employers. Whether that is by quicker, less cumbersome trials or by reducing the number of steps it takes to get to trials, it’s clear that it will only become easier for your former employees to litigate. This will increase the cost of mistakes and enhance the value of prudent, legally sound employment practices.
