Law Times

Page 12 April 9, 2018 • lAw Times www.lawtimesnews.com that can understand and appre- ciate the unique dynamic. Grant says that while On- tario's recent changes to the Oc- cupational Health and Safety Act require an investigation in a case of harassment, this has been interpreted to mean that, where a workplace has a policy that al- lows for informal resolution, it can try that first. "That's still a way of dealing with the complaint," says Grant. "I think the reason why the Occupational Health and Safe- ty Act was strengthened was to ensure that these weren't swept under the rug. By doing a medi- ation, you can also fulfil this obligation." Grant says that one of the challenges in the workplace is that, in the age of Jian Ghomeshi and Harvey Weinstein, there has been an incorrect perception planted in the minds of the pub- lic that anyone can come forward with a complaint and powerful people will lose their positions with no investigation or due pro- cess. "In Ontario, there is a very strong requirement for due pro- cess," says Grant. "This is one of the reasons why the Occupa- tional Health and Safety Act was amended — to confirm that em- ployers deal with it and need to apprise parties of the outcome of the investigation." Grant says the other issue with due process is the prohibi- tion against reprisal. She says she is amazed at the number of times in which com- plaints may be unsubstantiated but it's the reprisal that brings down the respondent. "It's a type of due process — to show people that they're protect- ed," says Grant. Gaon says that if an investi- gator changes roles to a mediator partway through the process, that may work, but they should not go back to an investigator role if mediation fails, as it would impart a sense of bias through the process. Palayew adds that the per- ception is that if the investigator was part of the mediation, they may have heard something that will affect the outcome of the investigation, which is why it makes sense to keep them sep- arate. LT that they should. A final offer is really dangerous, because when is anything really final?" Tomasich says that if the mediation fails and it reaches pretrial, that final offer could no longer be valid because of the added costs of reaching that stage, which would add to the reluctance of telling the pretrial judge of the previous offer. "Things will have changed between a mediation and when you're at pretrial," says Toma- sich. "If mediation happens at a point where there isn't as much information as you have when you're at pretrial, your position may be totally different, so you don't want the pretrial judge to use your former position to le- verage a settlement when that's not what your client's intention is." Michael Schaf ler, partner with Dentons Canada LLP in Toronto, says pretrial nego- tiations are also expected to be confidential in order to main- tain settlement privilege, and he doesn't think that such a "chill" really exists. "I have never gone to a me- diation that a client where we are representing has said that we're only going to 80 per cent or 'I don't want you to put my final number on the table,'" says Schaf ler. He says a good settlement is for both sides to understand that if they're well represented and that if there's a settlement num- ber that is acceptable to every- one, it's one where both sides are uncomfortable. Schaf ler notes that, as a commercial dispute lawyer, he doesn't like to go to mediation early because there is an infor- mation imbalance. "You don't know what the other side knows and vice versa," says Schaf ler. FOCUS Continued from page 10 Continued from page 11 Good settlement is when both sides well represented "There's not a lot of motiva- tion to have a good, honest dis- cussion about settlement. By the time you do get to mediation in that scenario, you will have done discoveries." Schaf ler says that because of the cost of discovery, if a me- diation doesn't succeed, there should not be a jump in costs between mediation and pretrial in most cases. Schaf ler adds that there's also no reason why plaintiff 's coun- sel can't put out a Rule 49 offer when they file their statement of claim in order to keep pressure on the defence side. Morrow suggests that one way to combat the "chill" may be to have parties consciously and formally agree that all final offers will expire within a finite period of time following media- tion to address that expectation at pretrial. That, however, may be diffi- cult to enact in practice. "It's very tough to tell a pre- trial judge, 'I'm sorry, your honour, but I'm not at liberty to disclose that information,'" says Morrow. LT 'It's a type of due process' Bernard Morrow says the purpose behind a confidentiality commitment in mediation is to create an environment that allows those participating in mediation do so openly. JOIN US FOR THE Powered by FULL DAY IN-CLASS & LIVE ONLINE ACCESS This annual conference gives executives and Corporate Commercial & Technology lawyers an opportunity to network and learn about the most recent and significant developments in Canadian and international Technology Law - all provided by leading practitioners. To inquire about registrations and group rates contact us at 416-609-5868 | Toll Free: 1-877-298-5868 Email: cpd.centre@thomsonreuters.com Please mention Tech Law Conference in the subject line. 2018 TECHNOLOGY LAW SPRING FORUM MAY 28-29, 2018 CHAIRED BY Donald B. Johnston, Aird & Berlis LLP Natasha Ell Saunders, Vice President, Legal Affairs, TekSavvy Solutions Inc. Vantage Venues 150 King Street West, 16th Floor, Toronto ON, M5H 1J9 REGISTER NOW Save 10% before April 16, 2018 WWW.TECHLAW-CONFERENCE.CA Untitled-7 1 2018-04-03 1:45 PM

• Cover