Suing employers soon to get easier

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. That means that in four months, suing your employer will become 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. 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 less than $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 journey-man 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. Frequently, I have had employees make admissions at discovery that end their cases.

Being cross-examined for hours or days, employees who are less prepared than at trial, face having substantial doubt cast on the veracity of their facts and their principles put under tortuous scrutiny, and often end up dropping the suit or accepting a minimal settlement to avoid a 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 will be the limits placed on the amount of documentation that must be disclosed and the associated costs. 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.

Proportionality, borrowed from the English legal system, was summed up by Lord Woolf: “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 incurred, courts will honour only those that are reasonable in relation to the amount in issue. Inevitably, conservative cost awards will become the norm making the costs of losing less prohibitive. Under the new rules, courts will not financially burden an employee who reasonably pursues a claim.

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

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada, soon to be released.