This just in: Effective January 1, 2011, the Small Claims Court Rules will be amended.
There are a few changes coming, and this isn't a comprehensive examination of them, but some of the big ones involve recovery of legal costs, which I've blogged about before.
Some of the more technical rules are being changed. For example, there used to be a minimum of $500 on the claim in order to trigger certain costs provisions, and that will be gone. Also, there used to be a provision for successful parties to recover up to $50 for preparing and filing the pleadings. This is gone, replaced by a provision allowing the successful party to recover up to $100 for disbursements associated with preparing the pleadings.
Minor points. The 15% cap is still there for representation fees, so allowing representation costs on a less-than-$500 claim means that the successful represented party can go for up to a whopping amount of legal fees still under $75, by default. (By contrast to self-represented litigants, who can get up to $500 for inconvenience.)
Here's a big one, though: There is currently a half-costs rule for "agents" (i.e. paralegals) and students-at-law, so the 15% cap gets reduced by half for non-lawyers. That's gone. As of January 1st, 2011, a paralegal or student-at-law will be capped at 15%, same as lawyers.
Of course, it still has to be a "reasonable" representation fee - there's nothing automatic about 15%. That said, even at paralegal or student-at-law rates, it will be the rare case where 15% of the amount claimed at Small Claims Court is much more than a 'reasonable' representation fee.
This amendment is a coup for paralegals - whereas, in many cases before, a successful litigant would have to swallow a larger amount of legal fees by hiring a paralegal than by hiring a lawyer, now it will be quite the opposite, that a successful party will likely have a larger proportion of their legal fees covered by a cost award.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Showing posts with label legal fees. Show all posts
Showing posts with label legal fees. Show all posts
Monday, December 6, 2010
Saturday, September 4, 2010
So you've been canned for discriminatory reasons...now what?
The simple answer is: Get a lawyer. If your employer is asking you to sign a release, you want legal advice before you sign anything. If your employer *isn't* asking you to sign anything, it's likely because you're not getting any more than your statutory minimums, and on most not-for-cause terminations, statutory minimums aren't enough, even where there isn't a breach of the Human Rights Code. (If you have been fired "for cause" and paid nothing...the threshold for just cause is high, and you should get legal advice on that point anyways.)
But the point of this post is to discuss a question that I've been pondering for a while now: Now that you can seek a remedy for a Code breach in Court...should you?
THE HISTORY
For many years, litigants were trying to get the Courts to provide a remedy for Code breaches, or recognize a common law tort of discrimination, etc.
In the Bhadauria case in 1981, the Supreme Court of Canada resolved this question with a firm "No". The Code provided a comprehensive system for remedying Code breaches, leaving no jurisdiction for the Courts.
That wasn't the end of it, of course. For many years, the Human Rights system in Ontario was notoriously broken, and so other avenues were sought. In fact, labour arbitrators were found to have jurisdiction to apply the Code, as were other administrative tribunal adjudicators. However, the Courts always held firmly that the Courts should not be burdened with Human Rights matters.
Every so often, somebody would come back to argue that the Courts should recognize a common law tort, or try to characterize a human rights breach differently so as to get the Courts to award damages for it. Most recently - as in, June 27th, 2010, in Honda v. Keays, the Supreme Court again faced an argument in favour of a common law tort of discrimination, and upheld Bhadauria. The more interesting challenge in that case is the fight for punitive damages.
...by way of legal background, let me explain that breach of contract cases (such as wrongful dismissal cases) were not historically considered appropriate for awards of aggravated or punitive damages. A couple of niche exceptions grew around this doctrine, and in a wrongful dismissal case you would need to show a "separate actionable wrong" in order to be able to claim on that basis. (See Vorvis.) Basically, unless you could show that the employer had done something else beyond the wrongful dismissal itself, you couldn't get aggravated or punitive damages.
However, this wasn't too big of a problem for plaintiffs for many years, as the Courts as a matter of course would award "Wallace damages", being increases to damage awards based on employer breaches of its duty of good faith and fair dealing.
Eventually, in 2006, in the Fidler v. Sun Life case, the Supreme Court removed the "separate actionable wrong" analysis from aggravated damages. In Honda, they essentially scrapped Wallace damages, saying that if you can't prove aggravated damages, you can't get anything. And the test for punitive damages is very high in any event.
For punitive damages, however, the lower Courts in Honda (including the Ontario Court of Appeal) found that breaches of the Human Rights Code, even though they couldn't ground a civil Court claim, nonetheless constituted a separate actionable wrong. They found such a breach and awarded hefty punitive damages. (The doctrine is flexible enough that this actually made sense.) The Supreme Court, however, suggested in obiter that it doubted the correctness of this, that in fact Bhadauria was a complete bar to an award of damages by the Courts for a breach of the Code. However, the Supreme Court found that Honda had actually behaved reasonably towards the employee, and that punitive damages simply weren't warranted.
What's really interesting, though, is that amendments to the Code became effective 4 days later, reversing Bhadauria in Ontario. Now, on the express terms of the statute, the Courts have jurisdiction to hear Human Rights complaints which are ancillary to other claims. It seems built for wrongful dismissal cases.
THE OPTIONS
So a wrongfully dismissed employee with a Code dimension to the claim has at least two options, the two most obvious being a civil suit seeking damages reflecting reasonable notice plus human rights damages (including "injury to feelings, dignity, and self-respect"), or going to the Human Rights Tribunal seeking full compensation for the loss of employment, including lost wages.
At the end of the day, from a principled perspective, the monetary values should end up being the same, if successful. While lost wages for a Code breach should have the potential to run much higher than reasonable notice, one would expect the Court to apply the same analysis to it as the Tribunal. The Court power is still too new to know for certain. On the one hand, awarding speculative loss-of-income is nothing new to the Courts, such as in a personal injury context; whereas administrative tribunals tend to cut off damages as at the date of the hearing (which is awfully arbitrary), we might expect to see Courts anticipating further damages past the trial date, in the right factual circumstance. (In any event, it'll take longer to get to Court.) On the other hand, Courts tend to be relatively constrained when awarding damages. If a plaintiff is showing up in Court three years after being fired, still unemployed, the Court is likely to take a pretty long hard look at mitigation efforts, even though mitigation is traditionally a relatively low threshold for a plaintiff to meet.
There are other differences as well.
Process and Costs
First of all, the Human Rights Tribunal process is easier, more user-friendly, cheaper, and there are free legal resources (namely, the Human Rights Legal Support Centre) available to access it. There is no jurisdiction at the HRTO to award a successful party a contribution to costs (unlike the Courts), but a smart Applicant shouldn't incur much in the way of costs to get there.
That being said, I don't have any data regarding the HRLSC's effectiveness. The Centre is only a little over two years old, and I did see some figures regarding volume of work, etc, after the first year - the numbers suggested a particularly overwhelming volume of service requests in South-Western Ontario - but I don't know how they're faring today. I've sent a few prospective clients their way. I haven't heard any complaints yet, for what that's worth.
And while you've seen me go on about self-represented litigants before, the HRTO process is far easier to navigate than the Courts. If the HRLSC weren't there, I'd instead have told some of those above-noted prospective clients that they might consider handling the matters themselves.
Finally, the HRTO is faster. Their target time to deal with a matter is under 1 year. In my experience, the administrative side of the Tribunal is pretty close to being on top of that. They'll schedule hearings in a pretty timely manner. However, I have found that the adjudicative side of the Tribunal can be slow. The consequence of that is that the expediency of the process can be derailed by Requests for Orders during Proceedings, seeking anything from disclosure of documents to addition or removal of Respondents (or, in one case I worked on, addition of Applicants) or the raising of other jurisdictional or procedural issues...the matter can't proceed substantively until the RFOP is dealt with, and the RFOP can take quite a few months.
(Essentially, you make a Request and the other side gets to respond. After this, the Tribunal has to decide how to handle the Request. On some occasions, it can look at the Request and Response and deal with it summarily. Even in this kind of summary disposal of the request, I've seen it take over three and a half months from the filing of the Request to the release of a decision. In other cases, the Tribunal decides it needs more elaborate written submissions, or needs an in-person hearing. Occasionally, the more elaborate written submissions, once received, make it clear that an in-person hearing of the issue is necessary. A back-and-forth between the adjudicative branch of the Tribunal and the parties can easily lengthen the process.)
Even then, though, it looks like a longer Tribunal process is on par with a shorter Court process.
Differences in Jurisdiction
Both the Tribunal and the Courts can remedy a violation of the Code. However, they do have differences in what they can do. First of all, the Courts can only provide a remedy if the claim based on a Code breach is ancillary to another civil claim. Not too difficult - when dealing with wrongful dismissal, it will be a rare case where you can't make out a civil claim, but can make out a Code breach.
The converse is also true. And this is a bigger issue: The Tribunal can not order a remedy unless a Code breach is established, even if there are other clear civil entitlements.
Suppose I'm wrongfully dismissed, and my reasonable notice period would be 6 months, but I'm unemployed for 12 months. If I go to the Tribunal arguing that my termination was in violation of the Code, and am unsuccessful on that issue, then the Tribunal will give me nothing, even though it is clear that I'm entitled to 6 months' wages.
Being at the Tribunal changes the whole nature of the issues in contention: At Court, discrimination only affects quantum of damages. If a Plaintiff loses on that, he gets less. At the Tribunal, the question of discrimination/harassment is a jurisdictional question. If an Applicant loses on that, she gets nothing.
Other differences include that the Tribunal cannot award punitive damages, and the Courts can...though usually won't.
Unlike the Court, the Tribunal cannot remedy other peripheral non-Code breaches. If an employer didn't pay overtime, as a matter of practice, but should have, then usually you will not be able to tack on an overtime pay claim to an HRTO Application; you'd have to make a separate complaint to the Ministry of Labour. (NB: Do *not* claim termination pay at the Ministry of Labour without first getting legal advice. If you do so, you will lose your entitlement to sue in Court for wrongful dismissal. It may leave open the possibility of an HRTO Application...but you have to be careful on that. Get legal advice first.)
The Tribunal has an express power to order public interest remedies - ordering future compliance with the Code. This is actually a potent threat in some circumstances which encourages settlement; no business wants the Tribunal looking over its shoulder on a moving-forward basis. The Courts do not have this jurisdiction (though in some narrow circumstances they might be able to draw similar powers from their equitable jurisdiction...never mind - legal abstraction).
Now this is important: You can not do both. If you make a claim based on a Code breach at Court, you cannot subsequently make an Application to the HRTO based on the same allegations. The converse is also true. It's one or the other.
...well, sort of. It is possible to have your cake and eat it too, but extremely tricky, and you wouldn't want to do it without a skilled employment lawyer at the helm.
Essentially, if you can bifurcate the issues in the dispute between human rights-related and non-human rights-related, it's possible to claim relief for the Code breaches at the HRTO, and seek relief for other civil wrongs at Court. So I could sue for wrongful dismissal without raising the allegations of Code breaches, and go on to make the Code-based allegations at the Tribunal.
There are a few difficulties with this:
(1) If I'm suing, I want to throw everything including the kitchen sink at my employer. To not raise the Code breaches and accuse my employer of misconduct takes restraint...and for good reason: If the allegations are well-founded, it's good ammunition, and makes the Court less sympathetic to the employer.
(2) If the employer has breached its duty of good faith and fair dealing in other non-Code-related ways, for which I suffered mental health type injuries, I can't really claim for those in Court under this circumstance. Trouble is that, if I frame it to avoid depriving either body of jurisdiction, it will create a causation problem: I'm telling the Tribunal that my injuries are the consequence of the human rights abuses, and I'm telling the Court that my injuries are the consequences of non-Code-based matters. So I can't claim for aggravated damages on that basis at Court, so if I don't prove the Code breaches...well, I lose out. (Also, there's the possibility of a bold employer going to the Tribunal saying "The injuries weren't the consequence of Code breaches; they were the consequence of this myriad other ways in which we treated the employee unfairly.")
(3) The natural sequence would be to go first at the HRTO, and second at Court. Under most circumstances, an HRTO win in this scenario would make most of the Court issues moot. By contrast, a Court win likely wouldn't have the same effect of making the Human Rights Application moot. However, the Courts don't really have a deferral process, and after a certain degree of delay litigants have to start jumping through hoops to start justifying why the litigation isn't moving forward. By contrast, the Tribunal does tend to defer where necessary to avoid inconsistent adjudicated decisions. There's a good argument to be made that, if the pleadings have been carefully drafted, deferral would be inappropriate...but there's also a good chance that the argument would have to be made, which brings us to the next point...
(4) This approach is just asking for motions and Requests for Orders seeking dismissal or deferral of one or the other proceeding. This compromises the expediency advantage of going to the Tribunal...and given that I'd be loathe to advise a client to use two separate lawyers for the separate proceedings, and the HRLSC would not help with a civil wrongful dismissal action, it undermines the cost advantage (and actually backfires in that regard).
CONCLUSION
Going back to the original question: Now that you can seek a human rights remedy at Court, should you? The answer is that it depends. Weaker human rights complaints should definitely be built into a civil claim: You don't want to risk your whole civil remedy by going to the Tribunal for a tenuous discrimination argument. (Whether that will colour how the Courts deal with it, that they end up seeing the weaker discrimination arguments, should be interesting to watch.)
But where there's a stronger discrimination argument, and/or a relatively limited standalone civil remedy, the HRTO might be the way to go. It's a tricky and risky question to be asked on a case-by-case basis.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
But the point of this post is to discuss a question that I've been pondering for a while now: Now that you can seek a remedy for a Code breach in Court...should you?
THE HISTORY
For many years, litigants were trying to get the Courts to provide a remedy for Code breaches, or recognize a common law tort of discrimination, etc.
In the Bhadauria case in 1981, the Supreme Court of Canada resolved this question with a firm "No". The Code provided a comprehensive system for remedying Code breaches, leaving no jurisdiction for the Courts.
That wasn't the end of it, of course. For many years, the Human Rights system in Ontario was notoriously broken, and so other avenues were sought. In fact, labour arbitrators were found to have jurisdiction to apply the Code, as were other administrative tribunal adjudicators. However, the Courts always held firmly that the Courts should not be burdened with Human Rights matters.
Every so often, somebody would come back to argue that the Courts should recognize a common law tort, or try to characterize a human rights breach differently so as to get the Courts to award damages for it. Most recently - as in, June 27th, 2010, in Honda v. Keays, the Supreme Court again faced an argument in favour of a common law tort of discrimination, and upheld Bhadauria. The more interesting challenge in that case is the fight for punitive damages.
...by way of legal background, let me explain that breach of contract cases (such as wrongful dismissal cases) were not historically considered appropriate for awards of aggravated or punitive damages. A couple of niche exceptions grew around this doctrine, and in a wrongful dismissal case you would need to show a "separate actionable wrong" in order to be able to claim on that basis. (See Vorvis.) Basically, unless you could show that the employer had done something else beyond the wrongful dismissal itself, you couldn't get aggravated or punitive damages.
However, this wasn't too big of a problem for plaintiffs for many years, as the Courts as a matter of course would award "Wallace damages", being increases to damage awards based on employer breaches of its duty of good faith and fair dealing.
Eventually, in 2006, in the Fidler v. Sun Life case, the Supreme Court removed the "separate actionable wrong" analysis from aggravated damages. In Honda, they essentially scrapped Wallace damages, saying that if you can't prove aggravated damages, you can't get anything. And the test for punitive damages is very high in any event.
For punitive damages, however, the lower Courts in Honda (including the Ontario Court of Appeal) found that breaches of the Human Rights Code, even though they couldn't ground a civil Court claim, nonetheless constituted a separate actionable wrong. They found such a breach and awarded hefty punitive damages. (The doctrine is flexible enough that this actually made sense.) The Supreme Court, however, suggested in obiter that it doubted the correctness of this, that in fact Bhadauria was a complete bar to an award of damages by the Courts for a breach of the Code. However, the Supreme Court found that Honda had actually behaved reasonably towards the employee, and that punitive damages simply weren't warranted.
What's really interesting, though, is that amendments to the Code became effective 4 days later, reversing Bhadauria in Ontario. Now, on the express terms of the statute, the Courts have jurisdiction to hear Human Rights complaints which are ancillary to other claims. It seems built for wrongful dismissal cases.
THE OPTIONS
So a wrongfully dismissed employee with a Code dimension to the claim has at least two options, the two most obvious being a civil suit seeking damages reflecting reasonable notice plus human rights damages (including "injury to feelings, dignity, and self-respect"), or going to the Human Rights Tribunal seeking full compensation for the loss of employment, including lost wages.
At the end of the day, from a principled perspective, the monetary values should end up being the same, if successful. While lost wages for a Code breach should have the potential to run much higher than reasonable notice, one would expect the Court to apply the same analysis to it as the Tribunal. The Court power is still too new to know for certain. On the one hand, awarding speculative loss-of-income is nothing new to the Courts, such as in a personal injury context; whereas administrative tribunals tend to cut off damages as at the date of the hearing (which is awfully arbitrary), we might expect to see Courts anticipating further damages past the trial date, in the right factual circumstance. (In any event, it'll take longer to get to Court.) On the other hand, Courts tend to be relatively constrained when awarding damages. If a plaintiff is showing up in Court three years after being fired, still unemployed, the Court is likely to take a pretty long hard look at mitigation efforts, even though mitigation is traditionally a relatively low threshold for a plaintiff to meet.
There are other differences as well.
Process and Costs
First of all, the Human Rights Tribunal process is easier, more user-friendly, cheaper, and there are free legal resources (namely, the Human Rights Legal Support Centre) available to access it. There is no jurisdiction at the HRTO to award a successful party a contribution to costs (unlike the Courts), but a smart Applicant shouldn't incur much in the way of costs to get there.
That being said, I don't have any data regarding the HRLSC's effectiveness. The Centre is only a little over two years old, and I did see some figures regarding volume of work, etc, after the first year - the numbers suggested a particularly overwhelming volume of service requests in South-Western Ontario - but I don't know how they're faring today. I've sent a few prospective clients their way. I haven't heard any complaints yet, for what that's worth.
And while you've seen me go on about self-represented litigants before, the HRTO process is far easier to navigate than the Courts. If the HRLSC weren't there, I'd instead have told some of those above-noted prospective clients that they might consider handling the matters themselves.
Finally, the HRTO is faster. Their target time to deal with a matter is under 1 year. In my experience, the administrative side of the Tribunal is pretty close to being on top of that. They'll schedule hearings in a pretty timely manner. However, I have found that the adjudicative side of the Tribunal can be slow. The consequence of that is that the expediency of the process can be derailed by Requests for Orders during Proceedings, seeking anything from disclosure of documents to addition or removal of Respondents (or, in one case I worked on, addition of Applicants) or the raising of other jurisdictional or procedural issues...the matter can't proceed substantively until the RFOP is dealt with, and the RFOP can take quite a few months.
(Essentially, you make a Request and the other side gets to respond. After this, the Tribunal has to decide how to handle the Request. On some occasions, it can look at the Request and Response and deal with it summarily. Even in this kind of summary disposal of the request, I've seen it take over three and a half months from the filing of the Request to the release of a decision. In other cases, the Tribunal decides it needs more elaborate written submissions, or needs an in-person hearing. Occasionally, the more elaborate written submissions, once received, make it clear that an in-person hearing of the issue is necessary. A back-and-forth between the adjudicative branch of the Tribunal and the parties can easily lengthen the process.)
Even then, though, it looks like a longer Tribunal process is on par with a shorter Court process.
Differences in Jurisdiction
Both the Tribunal and the Courts can remedy a violation of the Code. However, they do have differences in what they can do. First of all, the Courts can only provide a remedy if the claim based on a Code breach is ancillary to another civil claim. Not too difficult - when dealing with wrongful dismissal, it will be a rare case where you can't make out a civil claim, but can make out a Code breach.
The converse is also true. And this is a bigger issue: The Tribunal can not order a remedy unless a Code breach is established, even if there are other clear civil entitlements.
Suppose I'm wrongfully dismissed, and my reasonable notice period would be 6 months, but I'm unemployed for 12 months. If I go to the Tribunal arguing that my termination was in violation of the Code, and am unsuccessful on that issue, then the Tribunal will give me nothing, even though it is clear that I'm entitled to 6 months' wages.
Being at the Tribunal changes the whole nature of the issues in contention: At Court, discrimination only affects quantum of damages. If a Plaintiff loses on that, he gets less. At the Tribunal, the question of discrimination/harassment is a jurisdictional question. If an Applicant loses on that, she gets nothing.
Other differences include that the Tribunal cannot award punitive damages, and the Courts can...though usually won't.
Unlike the Court, the Tribunal cannot remedy other peripheral non-Code breaches. If an employer didn't pay overtime, as a matter of practice, but should have, then usually you will not be able to tack on an overtime pay claim to an HRTO Application; you'd have to make a separate complaint to the Ministry of Labour. (NB: Do *not* claim termination pay at the Ministry of Labour without first getting legal advice. If you do so, you will lose your entitlement to sue in Court for wrongful dismissal. It may leave open the possibility of an HRTO Application...but you have to be careful on that. Get legal advice first.)
The Tribunal has an express power to order public interest remedies - ordering future compliance with the Code. This is actually a potent threat in some circumstances which encourages settlement; no business wants the Tribunal looking over its shoulder on a moving-forward basis. The Courts do not have this jurisdiction (though in some narrow circumstances they might be able to draw similar powers from their equitable jurisdiction...never mind - legal abstraction).
Now this is important: You can not do both. If you make a claim based on a Code breach at Court, you cannot subsequently make an Application to the HRTO based on the same allegations. The converse is also true. It's one or the other.
...well, sort of. It is possible to have your cake and eat it too, but extremely tricky, and you wouldn't want to do it without a skilled employment lawyer at the helm.
Essentially, if you can bifurcate the issues in the dispute between human rights-related and non-human rights-related, it's possible to claim relief for the Code breaches at the HRTO, and seek relief for other civil wrongs at Court. So I could sue for wrongful dismissal without raising the allegations of Code breaches, and go on to make the Code-based allegations at the Tribunal.
There are a few difficulties with this:
(1) If I'm suing, I want to throw everything including the kitchen sink at my employer. To not raise the Code breaches and accuse my employer of misconduct takes restraint...and for good reason: If the allegations are well-founded, it's good ammunition, and makes the Court less sympathetic to the employer.
(2) If the employer has breached its duty of good faith and fair dealing in other non-Code-related ways, for which I suffered mental health type injuries, I can't really claim for those in Court under this circumstance. Trouble is that, if I frame it to avoid depriving either body of jurisdiction, it will create a causation problem: I'm telling the Tribunal that my injuries are the consequence of the human rights abuses, and I'm telling the Court that my injuries are the consequences of non-Code-based matters. So I can't claim for aggravated damages on that basis at Court, so if I don't prove the Code breaches...well, I lose out. (Also, there's the possibility of a bold employer going to the Tribunal saying "The injuries weren't the consequence of Code breaches; they were the consequence of this myriad other ways in which we treated the employee unfairly.")
(3) The natural sequence would be to go first at the HRTO, and second at Court. Under most circumstances, an HRTO win in this scenario would make most of the Court issues moot. By contrast, a Court win likely wouldn't have the same effect of making the Human Rights Application moot. However, the Courts don't really have a deferral process, and after a certain degree of delay litigants have to start jumping through hoops to start justifying why the litigation isn't moving forward. By contrast, the Tribunal does tend to defer where necessary to avoid inconsistent adjudicated decisions. There's a good argument to be made that, if the pleadings have been carefully drafted, deferral would be inappropriate...but there's also a good chance that the argument would have to be made, which brings us to the next point...
(4) This approach is just asking for motions and Requests for Orders seeking dismissal or deferral of one or the other proceeding. This compromises the expediency advantage of going to the Tribunal...and given that I'd be loathe to advise a client to use two separate lawyers for the separate proceedings, and the HRLSC would not help with a civil wrongful dismissal action, it undermines the cost advantage (and actually backfires in that regard).
CONCLUSION
Going back to the original question: Now that you can seek a human rights remedy at Court, should you? The answer is that it depends. Weaker human rights complaints should definitely be built into a civil claim: You don't want to risk your whole civil remedy by going to the Tribunal for a tenuous discrimination argument. (Whether that will colour how the Courts deal with it, that they end up seeing the weaker discrimination arguments, should be interesting to watch.)
But where there's a stronger discrimination argument, and/or a relatively limited standalone civil remedy, the HRTO might be the way to go. It's a tricky and risky question to be asked on a case-by-case basis.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Wednesday, May 26, 2010
Double Costs at the Small Claims Court
Landmark decision by the Divisional Court. But first, some background.
Small Claims Court has always had a limited ability to award costs. s.29 of the Courts of Justice Act limits the costs to be recovered to 15% of the amount claimed, unless the Court thinks it necessary to punish a litigant for unreasonable behaviour in the course of the litigation. This has not been changed.
Note that it's the amount claimed, not the amount recovered. If a plaintiff claims $25,000, and only recovers $5000, then the s.29 cap is still 15% of the $25,000. (No guarantee on getting that full amount, but still useful. If you've got a strong case, it can be a good idea to inflate the amount of the claim to increase the Court's costs jurisdiction.) Also, if there's a counterclaim, that amount is considered cumulatively. If I sue you for $25,000, and you counterclaim for $25,000, then the maximum costs awardable is 15% of $50,000.
The Old Rules
Until July 2006, however, the Rules of the Small Claims Court set a dollar-figure cap for costs. If you retained a lawyer to represent you from start to finish, and you were completely successful in your claim after a full-day trial, then - aside from your disbursements (some of which will be awarded fully and some orders which you would find woefully inadequate) - you might have recovered $50 for preparing and filing the pleadings, and you might have recovered up to $300 as a representation fee. For paralegals or articling students the representation fee cap for your recovery was reduced to $150.
Let's do some hypothetical math here: Suppose your lawyer bills $200 per hour, and the trial took 4 hours. You're already $450 in the hole on your legal fees if you get that maximum, without even considering the many hours your lawyer spent prior to the trial preparing the case, preparing the pleadings, meeting with you, reviewing and preparing documents, etc. Thousands of dollars easily. At a time when the jurisdiction of the Small Claims Court was $10,000, a lawyer would often cost more than what you would get at the end of the day if successful.
But then there's Rule 14, which deals with Offers to Settle. If you make an offer to settle (which meets certain criteria) which the other party doesn't accept, then you do better at trial, you can get "double costs". So the above-noted $300 representation fee becomes $600. Nice, but still doesn't make much of a dent in the actual legal fees.
And everything was considered to be subject to the 15% provision from the CJA. After all, that's what s.29 meant, that despite the dollar amounts listed in the Rules, it couldn't exceed 15%.
The New Rules
The $300 costs maximum was replaced by "a reasonable representation fee". The $150 costs maximum for paralegals/students was replaced by "half of the maximum costs that may be awarded under section 29 of the Courts of Justice Act."
The double costs provisions from Rule 14 remained unchanged, however, as did s.29 itself (the 15%).
So the question becomes this: If, in the ordinary course, I can obtain a costs award for 15% of the claim amount, and I make a Rule 14 offer which is not accepted, then I do better at trial...what is the consequence of Rule 14? Can I get double the 15%? Or does the 15% cap 'trump' the double cost provision?
I was at a conference last year where this was discussed. Some Deputy Judges have found that the 15% cap is doubled by Rule 14. Some Deputy Judges have found that Rule 14 is subject to s.29, so 15% can not be exceeded.
At least one judge, in a clever bit of sophistry, held that the refusal to accept an offer that's better for you that what you eventually get at trial is inherently unreasonable conduct worthy of punishment, thus getting into the s.29 exemption for the 15% cap.
Thus, it wasn't established law.
More Recent Developments
As of January 1, 2010, the Small Claims Court has jurisdictions over claims of up to $25,000. Before, it was $10,000. When cost caps are determined by percentage of the claim amount, suddenly costs are looking a lot more significant.
The Landmark Case
Barrie Trim v. Heath et al., 2010 ONSC 2598 (CanLII)
BTM was sued in Small Claims Court for $10,000. In November 2007 they formally offered to settle the matter on the basis of a dismissal of the action without costs. The offer was not accepted, and the matter went to trial. The plaintiffs were successful at trial, but BTM appealed to the Divisional Court and the judgment was set aside. This decision by the Divisional Court regarded costs, both on the appeal and at the Small Claims Court.
BTM sought $3000 for its representation fee at the Small Claims Court - 30% of the amount claimed - and therefore the question became the effect of the November '07 offer. Ultimately, obtaining a dismissal of the action was clearly a more favourable result than was obtained in the offer, so the Divisional Court finally had to wrestle with the question of whether or not the current Rule 14 could relieve against the limit in s.29.
The Divisional Court looked at a persuasive Small Claims Court decision: "if the 15% “cap” could not be doubled under Rule 14.07 without offending s.29, then the effectiveness of the cost consequences aspect of Rule 14 is undermined and in many cases would be drained of any real meaning." The Court found this reasoning persuasive, and held that Rule 14 can relieve against the s.29 limit.
Food for Thought
I sue you for $25,000. You counterclaim for $25,000. I serve an offer to settle that involves you paying me $20,000, and you refuse to take it. At trial, I win the full amount of my claim and your counterclaim is dismissed.
I can be awarded a representation fee of up to ([$25,000 + $25000] * 15%) * 2, or $15,000.
That's not bad, actually. Considering that the Small Claims Court process is relatively brief and expedient, and considering that even at the Superior Court you're usually only looking at getting a contribution towards legal fees, we're starting to get into numbers in Small Claims Court that could actually reflect reasonable legal expenses - certainly a stark contrast to the $300 cap of four years ago.
With the expansion of the Small Claims Court jurisdiction, more and more claims for significant amounts of money will be made in the Small Claims Court venue. If a client comes to me with a $25,000 claim, I can now tell her that, with a good offer to settle, and if successful at trial, she might recover up to $7500 in legal fees, which could be a significant portion of the total fees. In the past, retaining a lawyer for Small Claims Court was a problem because, even if you win, you still lose after paying legal fees. Nowadays that is not necessarily the case.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Small Claims Court has always had a limited ability to award costs. s.29 of the Courts of Justice Act limits the costs to be recovered to 15% of the amount claimed, unless the Court thinks it necessary to punish a litigant for unreasonable behaviour in the course of the litigation. This has not been changed.
Note that it's the amount claimed, not the amount recovered. If a plaintiff claims $25,000, and only recovers $5000, then the s.29 cap is still 15% of the $25,000. (No guarantee on getting that full amount, but still useful. If you've got a strong case, it can be a good idea to inflate the amount of the claim to increase the Court's costs jurisdiction.) Also, if there's a counterclaim, that amount is considered cumulatively. If I sue you for $25,000, and you counterclaim for $25,000, then the maximum costs awardable is 15% of $50,000.
The Old Rules
Until July 2006, however, the Rules of the Small Claims Court set a dollar-figure cap for costs. If you retained a lawyer to represent you from start to finish, and you were completely successful in your claim after a full-day trial, then - aside from your disbursements (some of which will be awarded fully and some orders which you would find woefully inadequate) - you might have recovered $50 for preparing and filing the pleadings, and you might have recovered up to $300 as a representation fee. For paralegals or articling students the representation fee cap for your recovery was reduced to $150.
Let's do some hypothetical math here: Suppose your lawyer bills $200 per hour, and the trial took 4 hours. You're already $450 in the hole on your legal fees if you get that maximum, without even considering the many hours your lawyer spent prior to the trial preparing the case, preparing the pleadings, meeting with you, reviewing and preparing documents, etc. Thousands of dollars easily. At a time when the jurisdiction of the Small Claims Court was $10,000, a lawyer would often cost more than what you would get at the end of the day if successful.
But then there's Rule 14, which deals with Offers to Settle. If you make an offer to settle (which meets certain criteria) which the other party doesn't accept, then you do better at trial, you can get "double costs". So the above-noted $300 representation fee becomes $600. Nice, but still doesn't make much of a dent in the actual legal fees.
And everything was considered to be subject to the 15% provision from the CJA. After all, that's what s.29 meant, that despite the dollar amounts listed in the Rules, it couldn't exceed 15%.
The New Rules
The $300 costs maximum was replaced by "a reasonable representation fee". The $150 costs maximum for paralegals/students was replaced by "half of the maximum costs that may be awarded under section 29 of the Courts of Justice Act."
The double costs provisions from Rule 14 remained unchanged, however, as did s.29 itself (the 15%).
So the question becomes this: If, in the ordinary course, I can obtain a costs award for 15% of the claim amount, and I make a Rule 14 offer which is not accepted, then I do better at trial...what is the consequence of Rule 14? Can I get double the 15%? Or does the 15% cap 'trump' the double cost provision?
I was at a conference last year where this was discussed. Some Deputy Judges have found that the 15% cap is doubled by Rule 14. Some Deputy Judges have found that Rule 14 is subject to s.29, so 15% can not be exceeded.
At least one judge, in a clever bit of sophistry, held that the refusal to accept an offer that's better for you that what you eventually get at trial is inherently unreasonable conduct worthy of punishment, thus getting into the s.29 exemption for the 15% cap.
Thus, it wasn't established law.
More Recent Developments
As of January 1, 2010, the Small Claims Court has jurisdictions over claims of up to $25,000. Before, it was $10,000. When cost caps are determined by percentage of the claim amount, suddenly costs are looking a lot more significant.
The Landmark Case
Barrie Trim v. Heath et al., 2010 ONSC 2598 (CanLII)
BTM was sued in Small Claims Court for $10,000. In November 2007 they formally offered to settle the matter on the basis of a dismissal of the action without costs. The offer was not accepted, and the matter went to trial. The plaintiffs were successful at trial, but BTM appealed to the Divisional Court and the judgment was set aside. This decision by the Divisional Court regarded costs, both on the appeal and at the Small Claims Court.
BTM sought $3000 for its representation fee at the Small Claims Court - 30% of the amount claimed - and therefore the question became the effect of the November '07 offer. Ultimately, obtaining a dismissal of the action was clearly a more favourable result than was obtained in the offer, so the Divisional Court finally had to wrestle with the question of whether or not the current Rule 14 could relieve against the limit in s.29.
The Divisional Court looked at a persuasive Small Claims Court decision: "if the 15% “cap” could not be doubled under Rule 14.07 without offending s.29, then the effectiveness of the cost consequences aspect of Rule 14 is undermined and in many cases would be drained of any real meaning." The Court found this reasoning persuasive, and held that Rule 14 can relieve against the s.29 limit.
Food for Thought
I sue you for $25,000. You counterclaim for $25,000. I serve an offer to settle that involves you paying me $20,000, and you refuse to take it. At trial, I win the full amount of my claim and your counterclaim is dismissed.
I can be awarded a representation fee of up to ([$25,000 + $25000] * 15%) * 2, or $15,000.
That's not bad, actually. Considering that the Small Claims Court process is relatively brief and expedient, and considering that even at the Superior Court you're usually only looking at getting a contribution towards legal fees, we're starting to get into numbers in Small Claims Court that could actually reflect reasonable legal expenses - certainly a stark contrast to the $300 cap of four years ago.
With the expansion of the Small Claims Court jurisdiction, more and more claims for significant amounts of money will be made in the Small Claims Court venue. If a client comes to me with a $25,000 claim, I can now tell her that, with a good offer to settle, and if successful at trial, she might recover up to $7500 in legal fees, which could be a significant portion of the total fees. In the past, retaining a lawyer for Small Claims Court was a problem because, even if you win, you still lose after paying legal fees. Nowadays that is not necessarily the case.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Wednesday, May 5, 2010
Family Feuds
Most litigation settles. The vast majority. While it would be oversimplifying things to say that it's all about the bottom line in most cases, it is mostly about the bottom line in most cases.
Truthfully, most litigation involves some level of personal emotion. We're all people, and even with corporations there are still people involved. People feel wronged. A plaintiff feels wronged and wants to go to Court to have that wrong righted. A defendant feels wronged and wants to avoid paying out anything to the plaintiff simply on principle.
Occasionally, there's merit to fighting on principle. When you deal with large numbers of people in similar capacities, you fight individual cases to send the message to everyone else. An employer who dismisses a bad actor wants to fight the wrongful dismissal claim because it doesn't want other employees thinking that acting up and getting themselves fired is an easy way to a big payout. An insurer fights wherever it can so that people don't start getting the impression that it's easy meat. Or sometimes there is simply enough money at stake to make it worth fighting regardless of legal fees.
But for most folks, it's simply a matter of moral outrage. And in most cases, that moral outrage can be quelled pretty quickly by a couple of interim accounts from lawyers. I like to give interim accounts before getting settlement instructions for exactly that reason: I want my client to have a full understanding of exactly how much the litigation has cost to date, so that they may also get a sense of how much more is riding on the line in terms of legal fees. Makes them ponder just how much their moral outrage is worth to them. Matters settle because litigants finally realize that it's too expensive to move forward for the value of the litigation.
Of the cases that actually need to go before a Court, however, it is astonishing just how many of them are family cases. Separation or divorce situations, support and equalization, custody and access. Or alternatively estate litigation as between family members. You get into estate matters with several law firms involved, and suddenly you have 4 lawyers charging $250 an hour each, spending half a day fighting over a chattel worth three hundred bucks. In what universe is that rational?
Perhaps the worse part is that it all comes out of the same pot at the end of the day. In family law, you deplete your resources and your spouse's resources: Bye bye kids' college fund. In estate litigation, it's quite common for the costs of litigation to be paid out of the estate. So you have an estate worth $250,000, and you have four people trying to split it more favourably for them...legal fees may well eat up the whole estate.
A dose of rational "bottom line thinking" would do these folks a world of wonder. But sometimes there's just too much animosity between the family members, that they'd rather divide up the whole pot between the lawyers rather than amongst themselves. It's really quite tragic.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Truthfully, most litigation involves some level of personal emotion. We're all people, and even with corporations there are still people involved. People feel wronged. A plaintiff feels wronged and wants to go to Court to have that wrong righted. A defendant feels wronged and wants to avoid paying out anything to the plaintiff simply on principle.
Occasionally, there's merit to fighting on principle. When you deal with large numbers of people in similar capacities, you fight individual cases to send the message to everyone else. An employer who dismisses a bad actor wants to fight the wrongful dismissal claim because it doesn't want other employees thinking that acting up and getting themselves fired is an easy way to a big payout. An insurer fights wherever it can so that people don't start getting the impression that it's easy meat. Or sometimes there is simply enough money at stake to make it worth fighting regardless of legal fees.
But for most folks, it's simply a matter of moral outrage. And in most cases, that moral outrage can be quelled pretty quickly by a couple of interim accounts from lawyers. I like to give interim accounts before getting settlement instructions for exactly that reason: I want my client to have a full understanding of exactly how much the litigation has cost to date, so that they may also get a sense of how much more is riding on the line in terms of legal fees. Makes them ponder just how much their moral outrage is worth to them. Matters settle because litigants finally realize that it's too expensive to move forward for the value of the litigation.
Of the cases that actually need to go before a Court, however, it is astonishing just how many of them are family cases. Separation or divorce situations, support and equalization, custody and access. Or alternatively estate litigation as between family members. You get into estate matters with several law firms involved, and suddenly you have 4 lawyers charging $250 an hour each, spending half a day fighting over a chattel worth three hundred bucks. In what universe is that rational?
Perhaps the worse part is that it all comes out of the same pot at the end of the day. In family law, you deplete your resources and your spouse's resources: Bye bye kids' college fund. In estate litigation, it's quite common for the costs of litigation to be paid out of the estate. So you have an estate worth $250,000, and you have four people trying to split it more favourably for them...legal fees may well eat up the whole estate.
A dose of rational "bottom line thinking" would do these folks a world of wonder. But sometimes there's just too much animosity between the family members, that they'd rather divide up the whole pot between the lawyers rather than amongst themselves. It's really quite tragic.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Thursday, April 29, 2010
He who acts as his own lawyer has a fool for a client
My last entry having been about the things you can do without a lawyer, it seemed prudent to talk about some things that you really should get a lawyer for, though you might feel like you can do it yourself.
The Supreme Court just refused leave to appeal a decision from the Alberta Court of Appeal. Briefly, Mr. Rejzek was busted by a police officer posing as a prostitute. He represented himself at trial and was convicted. He then appealed on the basis that the trial never advised him of his right to be represented at trial.
This would be a rarity. Let me explain a few things about self-reps.
Self-reps are a nuisance to the Court. They don't understand the process, the rules, the appropriate and usual ways that things are done in Court. And most of them have watched way too much TV. They'll lead large amounts of evidence completely unrelated to the matters at issue, because they don't have the legal training to understand the importance of legal principles like 'relevance'. (Of course, I'm speaking in generalities here.)
Worst of all, they sometimes take unreasonable and untenable positions, and waste everyone's time and everyone else's money. I've done a number of cases against self-reps; the cases are usually relatively easy, and I seldom have to worry about them making sophisticated legal arguments, but they're situations where my client shouldn't have to pay for me to go to Court, because the 'right' and 'wrong' of the cases, legally speaking, is quite straightforward. Lawyers only need the Court's assistance when the right answer isn't reasonably clear to both of them. Self-reps think that everybody should get his day in Court, and then wonder why they end up with costs awards made against them.
But on top of that, they can be unpredictable. In one case, I served a Notice of Application on a person, and the supporting affidavits. She didn't serve a Notice of Appearance (which is technically necessary to have a right to respond at all to an Application) or any other supporting materials...but showed up on the Court date wanting to argue her case, and bringing a sheaf of documents with her (which were not relevant to the case...but anyways). I wasn't surprised by this, of course. I could have taken the position that she should not even be allowed to address the Court...but the problem is that the Court will bend over backwards for self-reps, knowing how inaccessible and arcane the procedural requirements are. So had I argued for her complete exclusion, I would have just looked like an overly aggressive lawyer. So instead I took a position that was quite reasonable, and easy for the Court to agree with: "She hasn't filed a Notice of Appearance or any supporting materials. It isn't surprising that she would want to make submissions, but I would object to her attempting to lead any evidence." The judge allowed her to make submissions, and while she did attempt to raise new issues, I flagged in my response that those matters weren't in evidence (though I did state my client's positions on the issues), and the judge appears not to have considered them in his final decision. Then, after I made my costs submissions, the judge asked her if she had any submissions on the point, and appeared a little frustrated by her roundabout answers. (Not surprising, of course, that she wouldn't understand the points to argue when discussing costs.)
Anyways, the point is that, especially in complicated matters, the Court wants the assistance of competent counsel on all sides, and doesn't want to have to babysit a self-rep who doesn't understand the process. So normally, especially in a criminal matter, the judge will try hard to convince the accused to retain counsel.
Digression ended.
The Court of Queen's Bench overturned the conviction and entered an acquittal. The Alberta Court of Appeal restored the conviction. Basically, the finding is that the trial was fair nonetheless. Self-representation isn't grounds for appeal.
But I think most of us know that, when fighting criminal charges, hiring a lawyer is a good idea.
A couple days ago I blogged about civil remedies that you might pursue yourself - not necessarily because a lawyer wouldn't help, but because the lawyer's help is more expensive than what it's worth. It's easy to see the value of a lawyer in adversarial proceedings, but what about when everyone's getting along?
When to seek proactive legal advice is challenging to determine for even the most sophisticated laypeople. Employers can get themselves into pretty deep trouble pretty easily, acting without good legal advice. I took a call from an employer who had an employee in charge of a remote operation simultaneously put in her notice of resignation (of several weeks!) and make an accusation of human rights offences. How does an employer respond to that? Well, I can list off about 50 potential wrong answers. Don't fire the employee. Don't breach any of the employee's contractual entitlements. (She was contractually entitled to a performance evaluation a couple weeks out, with a raise depending on certain factors, which under the circumstances would have weighed in favour of a raise. I recommended offering to carry through with the performance evaluation and providing a raise.) Don't fail to discipline for any bona fide performance concerns, but do so carefully, and bear in mind that you may have to justify your actions to an adjudicator. If you must waive her notice, make sure to pay her through the whole thing. Etc.
The 'right' answer is "very carefully". I helped the employer craft his response to the employee. It isn't cheap; I ended up charging a fee in the high 3 digits for my time. But it reduces the probability of facing a Human Rights Application at the end of the day (the defence of which would run in the 4 to 5 digit range), and significantly reduces the probability of having a successful Human Rights Application made against them (the liability for which could easily run well into the 5 digit range). Many employers working without legal advice in that situation could have easily made some very expensive missteps. Even assuming that there hadn't been any inappropriate conduct to date (and of course in my client's situation there hadn't been...no, seriously, I've worked with some questionable fact patterns, but I believe that this client was pretty clean), it's still really easy to run awry of the Human Rights Code by taking actions that might be seen as reprisal for her standing on her rights.
So was my service expensive? Yes, absolutely. Especially considering that it primarily consisted of a few phone conversations and emails going back and forth. But that client certainly got good value for that money.
Contracts. Another time when getting proactive legal advice can be important. As a general rule, the question is: "What's the worst that could happen?" You can have a binding contract written on a napkin, or based in a handshake, or less, but if it's not written by a lawyer, there's a real risk that you won't get what you think you're contracting for. The question you have to ask is whether or not that's a risk you're willing to bear.
If the contract is a repayment plan on a $500 loan to your cousin, then your worst case scenario is that you're out $500. Paying a lawyer for a few hours' work to (a) meet with you about it, (b) draft and/or review the contract, and (c) advise you on the terms and possible amendments...well, it's a no brainer: It ain't worth it. But if you're making a $500,000 loan to your cousin, which you want to be secured by a mortgage...then paying a grand or two to a lawyer to help you protect your investment is a no-brainer.
Parties to a commercial lease should generally get legal advice. Parties to a matrimonial agreement or separation agreement should (and often must) get legal advice.
What about employment contracts? For the employer, yes, absolutely, in all cases. An employer need not consult a lawyer before making any hiring decision, but the contract template should be drafted or at least reviewed by a lawyer, and an employment lawyer should explain to you how to make the terms enforceable.
Let's say you're gainfully employed and have been working for your employer for 10 years, but you're looking for greener pastures...you apply for an opening that I'm offering, I bring you in for an interview, and it seems like a good fit. I call you to offer you a job, you put in your two weeks notice, then you report for work. With all the orientation materials, I also put in front of you your employment contract. It says that you're on a 3-month probationary period, limits your entitlements on termination, and has a non-competition clause. There's a real risk that none of these clauses will be enforceable. The key problem is this: You already have the job. You're not getting anything else out of the contract but what you already have, and therefore the contract may not be binding.
There are a lot of ways of challenging the terms of an employment contract upon termination, and the only way to really protect against that and reduce the risk of litigation upon termination (which, again, is really expensive) is to get good legal advice at the inception of the employment relationship.
What about an employee? Should an employee get legal advice on an employment contract? Well, employees looking to be hired seldom have much bargaining power. If you're in a position to really negotiate your substantive terms, then maybe. If you're not in a position to negotiate, then the only real question for you will be whether or not a term is legal. But if it's not legal, then it isn't usually going to be enforceable, so you can leave that question until later.
When dealing with severance packages at the end of employment, both sides should always get legal advice. An employer needs to know its obligations to a dismissed employee up front. An employee shouldn't sign off on the package until they know their rights, too.
Here's the rub: If an employee hasn't had an opportunity to get legal advice on the package, it may not be enforceable. Or it may be. So an employee wants legal advice because the agreement might hold up either way; an employer wants the employee to get legal advice because of the risk that it won't hold up otherwise. It's common practice for an employer to offer a contribution to the cost of obtaining legal advice, as part of the package.
Bottom line: Proactive advice is often worth the expense. A stitch in time saves nine.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
The Supreme Court just refused leave to appeal a decision from the Alberta Court of Appeal. Briefly, Mr. Rejzek was busted by a police officer posing as a prostitute. He represented himself at trial and was convicted. He then appealed on the basis that the trial never advised him of his right to be represented at trial.
This would be a rarity. Let me explain a few things about self-reps.
Self-reps are a nuisance to the Court. They don't understand the process, the rules, the appropriate and usual ways that things are done in Court. And most of them have watched way too much TV. They'll lead large amounts of evidence completely unrelated to the matters at issue, because they don't have the legal training to understand the importance of legal principles like 'relevance'. (Of course, I'm speaking in generalities here.)
Worst of all, they sometimes take unreasonable and untenable positions, and waste everyone's time and everyone else's money. I've done a number of cases against self-reps; the cases are usually relatively easy, and I seldom have to worry about them making sophisticated legal arguments, but they're situations where my client shouldn't have to pay for me to go to Court, because the 'right' and 'wrong' of the cases, legally speaking, is quite straightforward. Lawyers only need the Court's assistance when the right answer isn't reasonably clear to both of them. Self-reps think that everybody should get his day in Court, and then wonder why they end up with costs awards made against them.
But on top of that, they can be unpredictable. In one case, I served a Notice of Application on a person, and the supporting affidavits. She didn't serve a Notice of Appearance (which is technically necessary to have a right to respond at all to an Application) or any other supporting materials...but showed up on the Court date wanting to argue her case, and bringing a sheaf of documents with her (which were not relevant to the case...but anyways). I wasn't surprised by this, of course. I could have taken the position that she should not even be allowed to address the Court...but the problem is that the Court will bend over backwards for self-reps, knowing how inaccessible and arcane the procedural requirements are. So had I argued for her complete exclusion, I would have just looked like an overly aggressive lawyer. So instead I took a position that was quite reasonable, and easy for the Court to agree with: "She hasn't filed a Notice of Appearance or any supporting materials. It isn't surprising that she would want to make submissions, but I would object to her attempting to lead any evidence." The judge allowed her to make submissions, and while she did attempt to raise new issues, I flagged in my response that those matters weren't in evidence (though I did state my client's positions on the issues), and the judge appears not to have considered them in his final decision. Then, after I made my costs submissions, the judge asked her if she had any submissions on the point, and appeared a little frustrated by her roundabout answers. (Not surprising, of course, that she wouldn't understand the points to argue when discussing costs.)
Anyways, the point is that, especially in complicated matters, the Court wants the assistance of competent counsel on all sides, and doesn't want to have to babysit a self-rep who doesn't understand the process. So normally, especially in a criminal matter, the judge will try hard to convince the accused to retain counsel.
Digression ended.
The Court of Queen's Bench overturned the conviction and entered an acquittal. The Alberta Court of Appeal restored the conviction. Basically, the finding is that the trial was fair nonetheless. Self-representation isn't grounds for appeal.
But I think most of us know that, when fighting criminal charges, hiring a lawyer is a good idea.
A couple days ago I blogged about civil remedies that you might pursue yourself - not necessarily because a lawyer wouldn't help, but because the lawyer's help is more expensive than what it's worth. It's easy to see the value of a lawyer in adversarial proceedings, but what about when everyone's getting along?
When to seek proactive legal advice is challenging to determine for even the most sophisticated laypeople. Employers can get themselves into pretty deep trouble pretty easily, acting without good legal advice. I took a call from an employer who had an employee in charge of a remote operation simultaneously put in her notice of resignation (of several weeks!) and make an accusation of human rights offences. How does an employer respond to that? Well, I can list off about 50 potential wrong answers. Don't fire the employee. Don't breach any of the employee's contractual entitlements. (She was contractually entitled to a performance evaluation a couple weeks out, with a raise depending on certain factors, which under the circumstances would have weighed in favour of a raise. I recommended offering to carry through with the performance evaluation and providing a raise.) Don't fail to discipline for any bona fide performance concerns, but do so carefully, and bear in mind that you may have to justify your actions to an adjudicator. If you must waive her notice, make sure to pay her through the whole thing. Etc.
The 'right' answer is "very carefully". I helped the employer craft his response to the employee. It isn't cheap; I ended up charging a fee in the high 3 digits for my time. But it reduces the probability of facing a Human Rights Application at the end of the day (the defence of which would run in the 4 to 5 digit range), and significantly reduces the probability of having a successful Human Rights Application made against them (the liability for which could easily run well into the 5 digit range). Many employers working without legal advice in that situation could have easily made some very expensive missteps. Even assuming that there hadn't been any inappropriate conduct to date (and of course in my client's situation there hadn't been...no, seriously, I've worked with some questionable fact patterns, but I believe that this client was pretty clean), it's still really easy to run awry of the Human Rights Code by taking actions that might be seen as reprisal for her standing on her rights.
So was my service expensive? Yes, absolutely. Especially considering that it primarily consisted of a few phone conversations and emails going back and forth. But that client certainly got good value for that money.
Contracts. Another time when getting proactive legal advice can be important. As a general rule, the question is: "What's the worst that could happen?" You can have a binding contract written on a napkin, or based in a handshake, or less, but if it's not written by a lawyer, there's a real risk that you won't get what you think you're contracting for. The question you have to ask is whether or not that's a risk you're willing to bear.
If the contract is a repayment plan on a $500 loan to your cousin, then your worst case scenario is that you're out $500. Paying a lawyer for a few hours' work to (a) meet with you about it, (b) draft and/or review the contract, and (c) advise you on the terms and possible amendments...well, it's a no brainer: It ain't worth it. But if you're making a $500,000 loan to your cousin, which you want to be secured by a mortgage...then paying a grand or two to a lawyer to help you protect your investment is a no-brainer.
Parties to a commercial lease should generally get legal advice. Parties to a matrimonial agreement or separation agreement should (and often must) get legal advice.
What about employment contracts? For the employer, yes, absolutely, in all cases. An employer need not consult a lawyer before making any hiring decision, but the contract template should be drafted or at least reviewed by a lawyer, and an employment lawyer should explain to you how to make the terms enforceable.
Let's say you're gainfully employed and have been working for your employer for 10 years, but you're looking for greener pastures...you apply for an opening that I'm offering, I bring you in for an interview, and it seems like a good fit. I call you to offer you a job, you put in your two weeks notice, then you report for work. With all the orientation materials, I also put in front of you your employment contract. It says that you're on a 3-month probationary period, limits your entitlements on termination, and has a non-competition clause. There's a real risk that none of these clauses will be enforceable. The key problem is this: You already have the job. You're not getting anything else out of the contract but what you already have, and therefore the contract may not be binding.
There are a lot of ways of challenging the terms of an employment contract upon termination, and the only way to really protect against that and reduce the risk of litigation upon termination (which, again, is really expensive) is to get good legal advice at the inception of the employment relationship.
What about an employee? Should an employee get legal advice on an employment contract? Well, employees looking to be hired seldom have much bargaining power. If you're in a position to really negotiate your substantive terms, then maybe. If you're not in a position to negotiate, then the only real question for you will be whether or not a term is legal. But if it's not legal, then it isn't usually going to be enforceable, so you can leave that question until later.
When dealing with severance packages at the end of employment, both sides should always get legal advice. An employer needs to know its obligations to a dismissed employee up front. An employee shouldn't sign off on the package until they know their rights, too.
Here's the rub: If an employee hasn't had an opportunity to get legal advice on the package, it may not be enforceable. Or it may be. So an employee wants legal advice because the agreement might hold up either way; an employer wants the employee to get legal advice because of the risk that it won't hold up otherwise. It's common practice for an employer to offer a contribution to the cost of obtaining legal advice, as part of the package.
Bottom line: Proactive advice is often worth the expense. A stitch in time saves nine.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Tuesday, April 27, 2010
Legal DIY
I find that I'm ending almost every entry with "consult a lawyer". It's not designed to be shameless self-promotion. I mean, I'll freely admit that marketing is one objective of this blog, but the primary purpose is to inform, not to sell. To prove it, this entry is about the things for which you shouldn't necessarily consult a lawyer.
A lot of the calls I take are from people who just...need help. Advice, guidance, not necessarily legal expertise. I like to help people; at the same time, there's something a little distasteful about billing my hourly rate to do something that doesn't utilize my significant education, license, or even professional insurance. Sometimes it's common sense. Sometimes the answers to questions are easily found in a fairly brief Google search. Sometimes it's a matter of just picking up the phone to call whatever institution the person is dealing with, and navigating their bureaucratic phone system.
Lawyers serve a purpose. A very important purpose, in fact. But we don't work magic. I absolutely understand the frustration of having to maneouver a company's bureaucracy to get a straight answer, but a lawyer is unlikely to do it with much more ease than the client. (In fact, the representational problem is one more hurdle. Many institutions resist dealing with anybody other than the named individual, or might legitimately need information not immediately available to the lawyer. This makes the interaction even more difficult.) So, rather than sitting on hold with various call centre reps for three hours yourself, your lawyer will do it and charge you several hundred dollars for the privilege.
I once took a call from a person who had successfully navigated the Small Claims Court system up to the point of obtaining a judgment, and had taken several steps to try to enforce the judgment, but found that she wasn't having any success. She wondered if it would be worthwhile to retain me. My answer was simply No. Not a chance. Even assuming that I was ultimately able to help her collect on the judgment, I'd be charging her a lot more money than was at stake in that matter in order to do so. Moreover, it sounded to me like she was handling the system pretty competently herself. So I told her that there's nothing magic that we lawyers can do.
There is a great deal that lay people can do on their own without legal assistance in many circumstances.
(1) Early Stage Conflict Resolution
Talk to the other side. If you feel that you have been wronged, then talk to the responsible party yourself first. Be reasonable, be calm, don't threaten, don't bluster, and don't make any concessions you're not prepared to be held to. (In some circumstances you can argue that such concessions shouldn't be used against you later, but not always.) The limitation here is that, if you're operating without legal advice, you may not know what your rights and remedies are. But in many cases, it doesn't take a legal expert to know what needs to be fixed.
Often, folks will call me just to engage in the negotiation stage on basic disputes like a bill being too high, etc. They want me to do it because they think a letter from a lawyer will have more impact. People expect others to be intimidated by lawyers. Sometimes this is true. I don't consider myself to be necessarily intimidating. As a matter of style, I think I'm more effective in resolving conflict by trying to get the other side to be reasonable than trying to get them to be afraid. The only really intimidating thing about being contacted by a lawyer is that it shows how seriously the client is taking the problem, in that they're prepared to pay the lawyer a whole lot of money to handle it.
Sometimes it may help. In my estimation, it's rare that the resolution achieved that way is so much better as to make the legal help worthwhile.
Of course, when dealing with more complicated legal questions, like "What's a dismissed employee entitled to?" or "What are the scale of damages on this breach of contract?", that's a different matter. Maybe you need a lawyer to put together a demand letter...but that's because the lawyer knows better than you what to ask for, as opposed to knowing how to ask.
(2) Google is Your Friend
Not that Google is the only search engine, but this is Blogspot, and Google is my usual first line of searching. Many times, where there's a problem to be solved, the answer is on the internet. Even quasi-legal questions have abundant resources on the internet. A question about your statutory employment rights? Look at the Ministry of Labour web site. (A caution: That only deals with statutory rights; sometimes, an employee will have additional rights, and can actually lose those rights in some cases by going to the Ministry.) A question about crossing the border? Check out the CBSA web site.
When I was in high school, I took a job in which I wasn't getting paid for "training" or various other activities. Training was on-the-job, being shown how to do the job and being supervised while you did it. Well, not even that, sometimes. On one occasion, when I was still an unpaid trainee, I ended up closing my section of the store myself; everyone else had gone home.
Ridiculous. I knew that this was wrong. I knew that I had entitlements that weren't being met. Trouble is that I didn't know what the recourse was, what could be done about them. This was in the early days of the internet, when there wasn't a great deal of information online. Now, it's easy for any tech-savvy lay person to find abundant information on how to respond to this sort of thing. Don't spend money on a lawyer when you can do it yourself.
(3) User-Friendly Venues
Part of my job is to help people navigate elaborate legal processes. The Rules of Civil Procedure are not exactly accessible to your average lay person, and it usually takes experience to turn the contents of that rather lengthy document into the real tangible steps of a legal proceeding.
But not everything needs to go to the Superior Court. The Small Claims Court in Ontario now has a monetary jurisdiction of up to $25,000, and it is designed to be accessed by self-represented litigants. Again, lots of resources online to help with this. That's not to say that it's an easy process, and you're still limited in that you don't have a lawyer to help you understand and address the strengths and weaknesses of your case, but if you have a claim worth a few thousand dollars, you're still usually going to be better off going to Small Claims yourself than to pay a lawyer to do it.
Likewise, you don't necessarily need a lawyer to make a complaint to the Ministry of Labour. The paperwork for making an Application to the Human Rights Tribunal of Ontario is fairly straightforward, and all their jurisprudence is published online for free. (Though free legal assistance is available to Applicants in that kind of process.)
(4) Paralegals
Less expensive, sometimes even more experienced in some venues. As noted earlier, make sure they're licensed.
(5) Letting it slide
Sometimes, the cost of fixing a problem simply isn't worth getting it fixed. When you have a car worth $500 that needs $1500 worth of work put into it...you get rid of the car, right? Same thing with law. If you have a claim worth $1000, why on earth would you pay a lawyer $10,000 to make it for you? If you can't pursue it yourself, it isn't likely to be worth pursuing at all.
As a professional I aim to deliver value for money. If my services are more expensive than they're worth, then not only will you not be happy at the end of the day, but neither will I.
My job isn't to intimidate, nor to put on a show. My job is to provide expert advice and representation on legal issues. And this is important. If you want an assessment of whether or not you have a case, you need a lawyer. If you need an opinion as to what kind of damages you might be able to seek, talk to a lawyer. If the case is worth the cost of having it presented in an expert fashion, retain a lawyer. But when deciding to consult a lawyer, you need to understand the limitations of the role of a lawyer, the purpose of a lawyer, and the cost of a lawyer.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
A lot of the calls I take are from people who just...need help. Advice, guidance, not necessarily legal expertise. I like to help people; at the same time, there's something a little distasteful about billing my hourly rate to do something that doesn't utilize my significant education, license, or even professional insurance. Sometimes it's common sense. Sometimes the answers to questions are easily found in a fairly brief Google search. Sometimes it's a matter of just picking up the phone to call whatever institution the person is dealing with, and navigating their bureaucratic phone system.
Lawyers serve a purpose. A very important purpose, in fact. But we don't work magic. I absolutely understand the frustration of having to maneouver a company's bureaucracy to get a straight answer, but a lawyer is unlikely to do it with much more ease than the client. (In fact, the representational problem is one more hurdle. Many institutions resist dealing with anybody other than the named individual, or might legitimately need information not immediately available to the lawyer. This makes the interaction even more difficult.) So, rather than sitting on hold with various call centre reps for three hours yourself, your lawyer will do it and charge you several hundred dollars for the privilege.
I once took a call from a person who had successfully navigated the Small Claims Court system up to the point of obtaining a judgment, and had taken several steps to try to enforce the judgment, but found that she wasn't having any success. She wondered if it would be worthwhile to retain me. My answer was simply No. Not a chance. Even assuming that I was ultimately able to help her collect on the judgment, I'd be charging her a lot more money than was at stake in that matter in order to do so. Moreover, it sounded to me like she was handling the system pretty competently herself. So I told her that there's nothing magic that we lawyers can do.
There is a great deal that lay people can do on their own without legal assistance in many circumstances.
(1) Early Stage Conflict Resolution
Talk to the other side. If you feel that you have been wronged, then talk to the responsible party yourself first. Be reasonable, be calm, don't threaten, don't bluster, and don't make any concessions you're not prepared to be held to. (In some circumstances you can argue that such concessions shouldn't be used against you later, but not always.) The limitation here is that, if you're operating without legal advice, you may not know what your rights and remedies are. But in many cases, it doesn't take a legal expert to know what needs to be fixed.
Often, folks will call me just to engage in the negotiation stage on basic disputes like a bill being too high, etc. They want me to do it because they think a letter from a lawyer will have more impact. People expect others to be intimidated by lawyers. Sometimes this is true. I don't consider myself to be necessarily intimidating. As a matter of style, I think I'm more effective in resolving conflict by trying to get the other side to be reasonable than trying to get them to be afraid. The only really intimidating thing about being contacted by a lawyer is that it shows how seriously the client is taking the problem, in that they're prepared to pay the lawyer a whole lot of money to handle it.
Sometimes it may help. In my estimation, it's rare that the resolution achieved that way is so much better as to make the legal help worthwhile.
Of course, when dealing with more complicated legal questions, like "What's a dismissed employee entitled to?" or "What are the scale of damages on this breach of contract?", that's a different matter. Maybe you need a lawyer to put together a demand letter...but that's because the lawyer knows better than you what to ask for, as opposed to knowing how to ask.
(2) Google is Your Friend
Not that Google is the only search engine, but this is Blogspot, and Google is my usual first line of searching. Many times, where there's a problem to be solved, the answer is on the internet. Even quasi-legal questions have abundant resources on the internet. A question about your statutory employment rights? Look at the Ministry of Labour web site. (A caution: That only deals with statutory rights; sometimes, an employee will have additional rights, and can actually lose those rights in some cases by going to the Ministry.) A question about crossing the border? Check out the CBSA web site.
When I was in high school, I took a job in which I wasn't getting paid for "training" or various other activities. Training was on-the-job, being shown how to do the job and being supervised while you did it. Well, not even that, sometimes. On one occasion, when I was still an unpaid trainee, I ended up closing my section of the store myself; everyone else had gone home.
Ridiculous. I knew that this was wrong. I knew that I had entitlements that weren't being met. Trouble is that I didn't know what the recourse was, what could be done about them. This was in the early days of the internet, when there wasn't a great deal of information online. Now, it's easy for any tech-savvy lay person to find abundant information on how to respond to this sort of thing. Don't spend money on a lawyer when you can do it yourself.
(3) User-Friendly Venues
Part of my job is to help people navigate elaborate legal processes. The Rules of Civil Procedure are not exactly accessible to your average lay person, and it usually takes experience to turn the contents of that rather lengthy document into the real tangible steps of a legal proceeding.
But not everything needs to go to the Superior Court. The Small Claims Court in Ontario now has a monetary jurisdiction of up to $25,000, and it is designed to be accessed by self-represented litigants. Again, lots of resources online to help with this. That's not to say that it's an easy process, and you're still limited in that you don't have a lawyer to help you understand and address the strengths and weaknesses of your case, but if you have a claim worth a few thousand dollars, you're still usually going to be better off going to Small Claims yourself than to pay a lawyer to do it.
Likewise, you don't necessarily need a lawyer to make a complaint to the Ministry of Labour. The paperwork for making an Application to the Human Rights Tribunal of Ontario is fairly straightforward, and all their jurisprudence is published online for free. (Though free legal assistance is available to Applicants in that kind of process.)
(4) Paralegals
Less expensive, sometimes even more experienced in some venues. As noted earlier, make sure they're licensed.
(5) Letting it slide
Sometimes, the cost of fixing a problem simply isn't worth getting it fixed. When you have a car worth $500 that needs $1500 worth of work put into it...you get rid of the car, right? Same thing with law. If you have a claim worth $1000, why on earth would you pay a lawyer $10,000 to make it for you? If you can't pursue it yourself, it isn't likely to be worth pursuing at all.
As a professional I aim to deliver value for money. If my services are more expensive than they're worth, then not only will you not be happy at the end of the day, but neither will I.
My job isn't to intimidate, nor to put on a show. My job is to provide expert advice and representation on legal issues. And this is important. If you want an assessment of whether or not you have a case, you need a lawyer. If you need an opinion as to what kind of damages you might be able to seek, talk to a lawyer. If the case is worth the cost of having it presented in an expert fashion, retain a lawyer. But when deciding to consult a lawyer, you need to understand the limitations of the role of a lawyer, the purpose of a lawyer, and the cost of a lawyer.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Sunday, April 25, 2010
Human Rights Tribunal awards over $65,000 to a disabled employee
Recently, the HRTO heard a case arising from an Admissions Representative's termination of employment at a college.
Mr. Vetricek was hired in December 2007 for a one-year contract. In Spring 2008 he suffered a shoulder injury while boxing. In May 2008, he asked his employer to provide a headset, which was denied because his phone had a hands-free mode already. (There's some disagreement as to whether or not he advised the employer that the reason he needed the headset was because his shoulder bothered him when using the phone.)
He wore a clavicle splint to work into the summer, and while he may have mentioned pain on occasion, it didn't interfere with his ability to do his job generally.
At the end of June 2008, he had a bad reaction to acupuncture, and suffered severe pain throughout much of his body. He was slated to go on vacation, but instead he stayed at home throughout his holidays. He was still in pain upon his return to work, which pain caused significant anxiety, and sought medical attention. He needed to take some time off. Eventually, on August 11, 2008, he received a medical note stating that he should work reduced hours until the end of September, but did not provide it to his employer right away.
In mid-August, the employer advised him that his position would be eliminated due to "restructuring". He produced the medical note, and the employer decided to offer him part-time employment until the end of September, but without benefits coverage (which had been on the initial contract), and no guarantee of continued employment past the end of September.
In October, they entered into another 1-year contract, again with benefits coverage. In the end of October, Mr. Vetricek still hadn't received his benefits card, and was concerned because he had physiotherapy bills that needed to be paid. He enquired of his employer about the card. (The employer's position is no card was required to make insurance claims, and that Mr. Vetricek knew where the insurance claims forms were.)
In late November, Mr. Vetricek received a CD-ROM with X-Rays his doctor had ordered. He showed these to his employer. On December 1, 2008, Mr. Vetricek showed up to work in the morning and found that his computer login didn't work, and when he asked his employer about was told that his employment was being terminated due to "restructuring".
In a nutshell, the allegation was that Mr. Vetricek was terminated because his employer was concerned about possible absenteeism as a result of his disability.
Despite reasonable attempts to find replacement employment, Mr. Vetricek remained unemployed as of the date of the hearing - December 15, 2009.
The Tribunal found that the termination of Mr. Vetricek's employment had been at least partially motivated by his disability; this breached the Code. The employer attempted to rely on a clause in the contracts allowing for termination without cause at any time, but the Tribunal noted that "a respondent cannot 'contract out' of the Application of the Code".
Mr. Vetricek was awarded lost wages up to the date of the hearing, totaling $52,814.37, and $15,000 for "violation of his inherent right to be free from discrimination, and for injury to his dignity", plus interest.
In addition, the Tribunal ordered that the employer develop and distribute a Human Rights policy.
Points to Consider
Had Mr. Vetricek's employment simply been terminated without cause, but without prohibited intentions under the Code, he would have had little chance of recovering any lost wages beyond the contract end-date (October 2, 2009). Had he not been on a fixed-term contract in the first place, his potential for recovering damages could have been significantly lower still. The violation of his Human Rights causes the accumulation of damages to continue.
The date of the hearing is an arbitrary cut-off for the end of accumulation of damages. Had the hearing been adjourned another six months, and Mr. Vetricek remained unemployed as of that date, one has to wonder if his entitlement would have increased substantially.
The employer was represented by a lawyer. (So was Mr. Vetricek, though I suspect that he availed himself of the free services available through the Human Rights Legal Support Centre.) In addition to the significant liabilities incurred in this process, the employer also likely incurred substantial legal fees.
The employer may need to incur further professional fees in developing the Human Rights policy.
So is there a lesson to be learned here for employers? I would say so: When dealing adversely with an employee where there are Human Rights issues involved, tread carefully. If there's even the most distant prospect of any perception that adverse treatment was the result of a disability, pregnancy, race, gender, religion, or other Code grounds, or in response to the employee's assertion of rights under the Code, then you need to get good professional advice first. Proactive legal advice is almost always cheaper than reactive legal representation.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Mr. Vetricek was hired in December 2007 for a one-year contract. In Spring 2008 he suffered a shoulder injury while boxing. In May 2008, he asked his employer to provide a headset, which was denied because his phone had a hands-free mode already. (There's some disagreement as to whether or not he advised the employer that the reason he needed the headset was because his shoulder bothered him when using the phone.)
He wore a clavicle splint to work into the summer, and while he may have mentioned pain on occasion, it didn't interfere with his ability to do his job generally.
At the end of June 2008, he had a bad reaction to acupuncture, and suffered severe pain throughout much of his body. He was slated to go on vacation, but instead he stayed at home throughout his holidays. He was still in pain upon his return to work, which pain caused significant anxiety, and sought medical attention. He needed to take some time off. Eventually, on August 11, 2008, he received a medical note stating that he should work reduced hours until the end of September, but did not provide it to his employer right away.
In mid-August, the employer advised him that his position would be eliminated due to "restructuring". He produced the medical note, and the employer decided to offer him part-time employment until the end of September, but without benefits coverage (which had been on the initial contract), and no guarantee of continued employment past the end of September.
In October, they entered into another 1-year contract, again with benefits coverage. In the end of October, Mr. Vetricek still hadn't received his benefits card, and was concerned because he had physiotherapy bills that needed to be paid. He enquired of his employer about the card. (The employer's position is no card was required to make insurance claims, and that Mr. Vetricek knew where the insurance claims forms were.)
In late November, Mr. Vetricek received a CD-ROM with X-Rays his doctor had ordered. He showed these to his employer. On December 1, 2008, Mr. Vetricek showed up to work in the morning and found that his computer login didn't work, and when he asked his employer about was told that his employment was being terminated due to "restructuring".
In a nutshell, the allegation was that Mr. Vetricek was terminated because his employer was concerned about possible absenteeism as a result of his disability.
Despite reasonable attempts to find replacement employment, Mr. Vetricek remained unemployed as of the date of the hearing - December 15, 2009.
The Tribunal found that the termination of Mr. Vetricek's employment had been at least partially motivated by his disability; this breached the Code. The employer attempted to rely on a clause in the contracts allowing for termination without cause at any time, but the Tribunal noted that "a respondent cannot 'contract out' of the Application of the Code".
Mr. Vetricek was awarded lost wages up to the date of the hearing, totaling $52,814.37, and $15,000 for "violation of his inherent right to be free from discrimination, and for injury to his dignity", plus interest.
In addition, the Tribunal ordered that the employer develop and distribute a Human Rights policy.
Points to Consider
Had Mr. Vetricek's employment simply been terminated without cause, but without prohibited intentions under the Code, he would have had little chance of recovering any lost wages beyond the contract end-date (October 2, 2009). Had he not been on a fixed-term contract in the first place, his potential for recovering damages could have been significantly lower still. The violation of his Human Rights causes the accumulation of damages to continue.
The date of the hearing is an arbitrary cut-off for the end of accumulation of damages. Had the hearing been adjourned another six months, and Mr. Vetricek remained unemployed as of that date, one has to wonder if his entitlement would have increased substantially.
The employer was represented by a lawyer. (So was Mr. Vetricek, though I suspect that he availed himself of the free services available through the Human Rights Legal Support Centre.) In addition to the significant liabilities incurred in this process, the employer also likely incurred substantial legal fees.
The employer may need to incur further professional fees in developing the Human Rights policy.
So is there a lesson to be learned here for employers? I would say so: When dealing adversely with an employee where there are Human Rights issues involved, tread carefully. If there's even the most distant prospect of any perception that adverse treatment was the result of a disability, pregnancy, race, gender, religion, or other Code grounds, or in response to the employee's assertion of rights under the Code, then you need to get good professional advice first. Proactive legal advice is almost always cheaper than reactive legal representation.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Is Your Representative Licensed?
In 1985, former police officer Brian Lawrie was charged under the Law Society Act with unlawfully acting as a barrister and solicitor, because he offered a commercial service defending people charged with traffic violations. Lawrie defended the charge and won. The charge went to the Provincial Court in 1985, and Judge Kerr found that this activity was legal. In 1986, that decision was upheld by District Court Judge Moore.
Thus were paralegals in Ontario born.
Since then, until 2007, anyone could provide certain types of legal services in Ontario: Small Claims Court proceedings, Ontario Court of Justice proceedings under the Provincial Offences Act (i.e. traffic tickets, among others), summary conviction offences under the Criminal Code of Canada (generally speaking, less serious criminal matters), and matters before administrative tribunals - the Landlord Tenant Board (and its predecessors), the Human Rights Tribunal, the Ontario Labour Relations Board, and others.
Fairly wide scope of activities, actually. And because there was no licensing requirement at all, you could be rather hit-and-miss in terms of having good representatives. I once read the transcript of a meeting about the plan to regulate paralegals, and it included an anecdote by a Judge who had a very professional-looking paralegal appear before him, with his name engraved on his briefcase followed by the letters "HSD". Same on his letterhead. So at the end of the proceeding, the Judge asked the paralegal "So what does HSD stand for?" The paralegal replied "Almost nobody ever asks me that." The Judge didn't accept the evasion, and the paralegal grinned and answered "High School Dropout".
Effective 2007, the Law Society Act was changed so that paralegals now need to be licensed.
There's a grandfathering provision allowing the licensing of paralegals who had already been acting as paralegals (mind you, the date for grandfather-type applications is long past), but the process isn't without it's casualties. Some lawyers who had been disbarred had resorted to practice as paralegals. They have found it ...difficult... to get a paralegal license. Other paralegals with certain types of disreputable pasts have also had their challenges.
Some paralegals haven't been licensed, and have continued practice nonetheless. The creates risks to the people they represent. Even aside from the unreliability and unregulated nature of the services provided, there will be issues if and when the Forum they're appearing before realizes that they aren't entitled to be there. The client's case could well be prejudiced, and at a minimum significantly delayed.
Note that there remain a few exemptions to the need for a license. You can always represent yourself, as an individual. A friend or relative "not in the business of providing legal services" who does it for no fee can assist with matters that a paralegal would be able to help you with. Members of the HRPA can perform their necessary functions, subject to restrictions. And there are others.
If you're going to a lawyer or paralegal, it's worth taking a minute to check the Law Society's Lawyer and Paralegal Directory to make sure that they're listed there.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
Thus were paralegals in Ontario born.
Since then, until 2007, anyone could provide certain types of legal services in Ontario: Small Claims Court proceedings, Ontario Court of Justice proceedings under the Provincial Offences Act (i.e. traffic tickets, among others), summary conviction offences under the Criminal Code of Canada (generally speaking, less serious criminal matters), and matters before administrative tribunals - the Landlord Tenant Board (and its predecessors), the Human Rights Tribunal, the Ontario Labour Relations Board, and others.
Fairly wide scope of activities, actually. And because there was no licensing requirement at all, you could be rather hit-and-miss in terms of having good representatives. I once read the transcript of a meeting about the plan to regulate paralegals, and it included an anecdote by a Judge who had a very professional-looking paralegal appear before him, with his name engraved on his briefcase followed by the letters "HSD". Same on his letterhead. So at the end of the proceeding, the Judge asked the paralegal "So what does HSD stand for?" The paralegal replied "Almost nobody ever asks me that." The Judge didn't accept the evasion, and the paralegal grinned and answered "High School Dropout".
Effective 2007, the Law Society Act was changed so that paralegals now need to be licensed.
There's a grandfathering provision allowing the licensing of paralegals who had already been acting as paralegals (mind you, the date for grandfather-type applications is long past), but the process isn't without it's casualties. Some lawyers who had been disbarred had resorted to practice as paralegals. They have found it ...difficult... to get a paralegal license. Other paralegals with certain types of disreputable pasts have also had their challenges.
Some paralegals haven't been licensed, and have continued practice nonetheless. The creates risks to the people they represent. Even aside from the unreliability and unregulated nature of the services provided, there will be issues if and when the Forum they're appearing before realizes that they aren't entitled to be there. The client's case could well be prejudiced, and at a minimum significantly delayed.
Note that there remain a few exemptions to the need for a license. You can always represent yourself, as an individual. A friend or relative "not in the business of providing legal services" who does it for no fee can assist with matters that a paralegal would be able to help you with. Members of the HRPA can perform their necessary functions, subject to restrictions. And there are others.
If you're going to a lawyer or paralegal, it's worth taking a minute to check the Law Society's Lawyer and Paralegal Directory to make sure that they're listed there.
*****
This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
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