CHAUDHRI: Workers wronged amid COVID crisis can now seek justice virtually
Lady Justice has returned to Ontario; reopening the courts and ready to serve the public by screen. But with the advent of virtual courtrooms, will we be able to recognize her?
When COVID-19 left many employees without work, some took the plunge, resisted their lay-offs and sued for wrongful dismissal damages. There was great reluctance though, by many employees, to take any legal action; in part, fearful that the legal system had ground to a halt. Even if armed with a good case, some employees worried it would be years before their employers would be ordered to pay the piper.
Following the Superior Court suspending all court operations on March 17, 2020, the courts are now in full swing and up and running. In fact, just this week, the Superior Court advised that it is booking motions scheduled for the end of the year. Small claims court actions are proceeding, facilitating mediations by Zoom (much like every other case in Ontario).
Even during the suspension, lawyers were still moving cases ahead with little delay. I have never been so busy.
Employers that were hoping to take advantage of the inherent delays Covid-19 introduced now have nowhere to hide. Notably, the courts are adamant that parties must move their cases forward and be prepared to explain any COVID-related delay parties may rely on.
I doubt a Judge will be as sympathetic to employers that have dragged their feet at a time when our country is in crisis from unprecedented job loss.
No one (aside from certain criminal, family and urgent matters) has physically attended at the courthouses. Judges are hearing cases virtually. That means lawyers like me will be making submissions through a screen from the comfort of my office. Parties will also have to acclimatize to attending mediations and examinations for discovery via Zoom and other virtual platforms and will not have the benefit of the in-person court process.
The drawback to litigating by screen is, frankly, the complete absence of the physical toll litigation takes on a party. Having to book off days at a time to attend a mediation, court reporting office or courthouse can make an employer think twice about litigating, figuring it is a better business decision to settle and settle early.
Virtual litigation is less disruptive to a person’s life, costs less and more can be done in a day. Not having to slog bankers’ boxes to the courthouse is another happy, personal benefit. Any drawback to virtual litigation pales in comparisons to the efficiencies virtual litigation brings. Litigation might even get faster.
In fact, Justice Meyers in Arconte v. Smith, 2020 O.N.S.C. 2782, on whether plaintiffs ought to be required to conduct an examination via video conference rather than in person ruled, “In my view, the simplest answer to this issue is ‘it’s 2020.’”
Justice Meyers also noted, “We no longer record evidence using quill and ink,” emphasizing, “We now have the technological ability to communicate remotely effectively,” and adding, “We should not be going back.”
This decision is a foretelling of what is to come for the legal system in Ontario and beyond. Whether or not we will ever be arguing cases in courts again en masse is up for debate. But for the time being, the courts have responded with resounding force and with a strong message, COVID-19 will not slow down the legal system in Ontario and plaintiffs will receive their day in court … or on screen.
On to your weekly questions:
I have been working at a company for over 25 years. I have been on salary for the past 15 years. My employer says that in order for me to return to work, I have to accept a reduced wage until COVID-19 is over. Can they do this? They say they can because of the new law that has been passed in Ontario and they can pay me hourly now, and at an hourly rate that is less than I was being paid before they laid me off for COVID-19. Can you advise me if this is right?
You do not have to accept a reduced wage until COVID-19 is over. However, if the reduced wage is low (i.e below 15%), it may not be considered a fundamental change so as to decline work. If a reduction is implemented, get legal advice. Ask your employer what the contemplated reduction is so that you have all the information you need before you get advice.
I was laid off due to COVID-19 on March 20 and called back on April 27 at a reduced wage of 85%. They cancelled all of the employee group benefits and insurance on April 30. They are now saying that once the wage subsidy is cancelled I will have to take a 20% reduction in salary and we will not be getting our benefits or insurance back. What are my rights?
The cancellation of benefits, insurance and the reduction in your salary may be a constructive dismissal of your employment. You should resist these changes in writing and perhaps with the help of a lawyer. If your employer proceeds with these reductions, you should seek legal advice. If this situation results in a “permanent” layoff, you are entitled to severance, termination pay under the Employment Standards Act and wrongful dismissal damages.
Write me at schaudhri@levittllp.com with your workplace issue and your question may be featured in a future article. Until then, stay safe.
— Sunira Chaudhri is a partner at Levitt LLP, Labour & Employment Lawyers