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Making justice more accessible – the changing face of employment law litigation

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Chief Justice Beverley McLachlin is well known for her outspoken views about access to justice.  Chief Justice McLachlin has for many years written and spoken about the unaffordability of our legal system. She has been critical of our system, noting that trials have become the norm and that delay is rampant, making it impossible for most Canadians to have their matters heard.  (See “Remarks of the Right Honourable Beverley McLachlin”, Empire Club of Canada, Toronto, March 8, 2007), “Access to Justice Colloquium” (February 10, 2011, Faculty of Law, University of Toronto).

Two recent employment law cases, Wellman v. The Herjavec Group Inc., 2014 ONSC 2039 and Schalk v. Sitel, 2014 ONSCSM 10385, offer a welcome respite from the constraints of traditional litigation. These two cases — one decided by summary judgment and the other in small claims court — reflect what is hopefully a growing trend towards less costly and more efficient forms for dispute resolution.

In Wellman, the Court granted summary judgment in favour of the employee. The dispute concerned the determination of reasonable notice. The parties agreed that the calculation of the reasonable notice period could be considered on a motion for summary judgment. The evidence was set out in affidavits and in various documentary exhibits. The Court observed that “On the summary judgment motion, counsel have the opportunity to fully argue the legal issues. All that remains is to apply the law to the facts. In this case, the motion for summary judgment is a more proportionate, more expeditious, and less expensive means than a trial to achieve a just result”.

In Schalk, the plaintiff was a former employee who had been terminated, allegedly for cause, after almost ten years of service. This matter was heard over a two-day period in small claims court. The judge found in favour of the employee and awarded her damages. The employer was convinced it had cause, and was prepared to roll the dice and take the matter to trial.

Reduced cost consequences are one of the main advantages of small claims court proceedings, making dispute resolution more accessible and less risky for most litigants. Small claims court judges are also used to dealing with unrepresented parties and are often forced to be more interventionist. Cases tend to get to trial more quickly and trials are usually shorter than in Superior Court. In Schalk, the employee was terminated in September 2012. The trial was commenced by November 2013.

Let’s be clear.  As employment lawyers, whether we are acting for employees or employers, many of our cases settle. In Ontario, we have a strong culture of dispute resolution within our civil court system. Mediation is mandatory in some regions and is often encouraged prior to commencing formal actions. Settlement prior to trial is a hallmark of our court system. In most cases it does not make economic sense for matters to go to trial — especially for individuals who have lost their jobs or for small business owners. In purely economic terms, taking a case to trial is very risky. This is true not just in employment law. The cost of going to trial can be a substantial proportion of what is at stake.

But some cases need to go to court, either because the parties simply cannot agree, or because there are important legal issues which require adjudication. Not all cases settle, nor should they. We do need the law to develop and judges to hear cases.

But what is new and interesting about Wellman and Schalk is that the parties were able to have their cases heard in a more abbreviated and economically viable fashion.  Access to justice was achieved. I think that our Chief Justice would be pleased to know that with some creative and realistic lawyering, cases can be heard in a less expensive and more accessible way.

Marie-Helene Mayer