Law Times

PAGE 12 FOCUS November 15, 2010 • Law Times procedures and an expanded ju- risdiction for the Small Claims Court has prompted a rise in the number of wrongful dis- missal actions, says a Toronto labour and employment lawyer. Madeleine Loewenberg of Ogilvy Renault LLP says plaintiffs have recently shown a greater willingness to litigate and test novel causes of action. She notes that monetary limits have increased to a maximum of $100,000 for simplified pro- cedures in Ontario's civil courts, which has helped bring more wrongful dismissal actions into the fold. The greater availabil- ity of simpler court rules has meant that litigants who previ- ously were reluctant to advance claims now feel comfortable doing so due to the quicker and New rules pave way for wrongful dismissal claims A BY ROBERT TODD Law Times shift within Ontario's justice system to a greater use of simplified less expensive process. Similarly, the monetary lim- it for the Small Claims Court has jumped to $25,000 from $10,000. This shift has also boosted the number of wrong- ful dismissal claims, says Loe- wenberg, by bringing more actions by individuals whose claims were too large to fit into the Small Claims Court but too small to merit a Superior Court action. "I think because the Small Claims Court is meant to be rel- atively quick and inexpensive, it makes it more attractive for peo- ple to litigate," says Loewenberg. At the same time, however, the shift to more Small Claims Court actions has been dis- ruptive to some employers. Loewenberg suggests unrep- resented litigants in the court — many of them unsure of the procedure and law — will delay matters. That creates increased costs for defendant employers. There are also no discoveries "We've seen it in the area Madeleine Loewenberg in the Small Claims Court, and pleadings can be amended up to 30 days before trial. "Again, that can have a negative impact on the litigation because it be- comes more difficult to narrow the issues and to know the other party's case," says Loewenberg. Meanwhile, defendants have expressed a desire for the courts to define existing first principles and litigate on that basis. In the past few years, Loewenberg notes, courts have parsed a long list of principles relevant to wrongful dismissal litigation. of constructive dismissal: the proper way to quantify damages when someone loses their job. We've seen the courts comment on how torts should be applied to the employment relationship. Sometimes this ends up result- ing in, really, a rethinking of first principles when it comes to wrongful dismissal litigation." The courts' greater consider- ation of these issues has embold- ened litigants and defendants alike, Loewenberg suggests. "They hope to be a part of this redefinition of first prin- ciples. They see that the courts have signalled a willingness to re- examine them, so why shouldn't they test their theories?" While the procedural changes and courts' willing- ness to revisit first principles have thrown the door open to more actions, litigation that does come forward must be more narrowly defined. "They can't just throw spaghetti at the wall and hope that something sticks," says Loewenberg. "The parties really have to define the issues that they want to advance and really have to think about the theory of their case." That's because the rule changes that have come into play since the start of the year have included significant amendments to steer litigation in a quicker direction. That includes the new seven-hour limit on examinations for dis- covery in regular proceedings, which is reduced to two hours under the simplified rules. That has forced litigants to focus their time and energy on areas of most importance to their theory of the case. "They have to define their case at an early stage and they have to think about what really matters to them," says Loewen- berg, who adds that the same thought process must take place when the opposition requests documents due to the new prin- ciple of proportionality. In addition, the economic downturn of the past couple of years may have helped guide many less contentious dismiss- als away from the courts. Miller Thomson LLP part- ner Stuart Rudner says negoti- ated severance packages seem to be lower than they were before the economy began to putter. He notes that while the drop has been as high as 25 per cent, most employees seem willing to take what they can get. "Employers are offering less, and whereas in the past em- ployees may have fought for more, given the economic cir- cumstances and the uncertain- ties, they're taking less just to make sure they get something in their pocket," he says. "There's been a real fear that if you don't accept the offer, you end up fighting for a period of years and at the end of the day the company might go bankrupt." Rudner has also seen a great- er willingness by courts to use the summary judgment process to get to a quicker decision, es- pecially when the only issue is the notice period. "I think that's going to be a real trend going forward; there will be a lot of wrongful dis- missal claims that will be de- cided either in Small Claims Court or at summary judg- ment," he says. LT Marketplace LAW PRACTICE FOR SALE Labour Spectrum is Canada's leading labour law online research service. With expert commentary (including and by Adams) fully integrated with links to Labour Arbitration Cases (LAC's), tribunal decisions, unreported decisions and relevant legislation, it's obvious why labour arbitration and labour law professionals have made Labour Spectrum their number one choice for online research. 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• Cover
• For The Defence
• End Of An Era
• Focus On Labour and Employment Law