Howard Levitt: Employment law courts can deliver justice at a rapid pace — even during the pandemic

By pushing the matter aggressively, a hearing can be held within a few months.

Access to justice during COVID-19 is not as illusory as many have claimed and is readily available for employment law disputes. Despite the fact that litigation can take years in other areas, employment law is an exception, and most litigation can be completed in months with proper counsel.

The most common legal wrongful dismissal action is where an employee is terminated and the dispute surrounds the amount of severance paid. Even if an employer were to rely on an employment contract seeking to limit the employee’s entitlements, the case can be litigated at an expedited pace.

Let’s take an example. An employee is terminated today on a without-cause basis and the employer relies on a termination provision in the employee’s contract, seeking to only pay their minimum entitlements. However, upon reviewing the employment contract, it becomes clear that the termination provision is unenforceable. As I have noted previously, over 90 per cent of such contracts are presently unenforceable.

If I am counsel for the employee, knowing the employer’s position, I advise my client to commence a claim for wrongful dismissal. The issue is whether the termination provision is legally enforceable. And if it’s unenforceable, how much severance is my client owed? Finally, did my client make adequate efforts to look for new work? That’s it.

After both parties have formally put their position on the record in a statement of claim and defence, my client could either bring a motion for summary judgment or move the matter to a hybrid trial to ensure the case reaches its conclusion in four to six months. The key component of both is evidence submitted by written affidavit, subject to cross-examination. Because of this, the time that’s actually spent in court is much less.

The parties can also agree to mediation where a plethora of wrongful dismissal litigation cases are settled. If the claim is commenced in Ottawa, Toronto, or Windsor, mediation must be held within 180 days after the close of pleadings, unless judgment is obtained earlier.

The courts have now adapted to having more motions in writing and efficient virtual hearings via Zoom, so there is less time dealing with the logistics that comes with in-person court appearances. If the employer is trying to delay the matter or acting unreasonably in agreeing to a timetable leading up to a hearing, judges have made themselves readily available for virtual case conferences i.e. meetings to ensure that litigation runs efficiently through to its conclusion.

By pushing the matter aggressively, which my firm always does, a hearing can be held within a few months. This often leads to a resolution either at or before mediation as it places enormous pressure on the employer to come up with a reasonable offer or leave the case to the courts, which historically have been generous toward terminated employees.

Some may question how a court can logically award an employee damages for a period of time that has yet to expire? Courts have recognized the circumstances that apply to someone who has lost their job and imposed different approaches to account for the fact that an employee may obtain employment some time in the near future. The logic being that there is no reason for an employee who is entitled to 24 months of severance to wait 24 months for justice.

What about the employer who terminates an employee for cause but clearly has not acquired it? Could that employer delay the case indefinitely because they have alleged cause? Again, no. Courts have provided a number of summary judgment decisions in favour of employees where it was quite clear that the employer had not actually acquired cause for termination.

Employers need not completely fret as not all employment disputes move at lightning speed. For example, if an employee is going to claim human rights damages on the basis of alleged discrimination or damages for mental distress, the employer will have every right to cross-examine the employee’s evidence and put forth their own.

While courts want to assist matters in being litigated efficiently, they are also unwilling to allow exorbitant and complex claims for damages to be judged swiftly. Too many employment counsel routinely make frivolous human rights and bad faith claims in every case which the courts quickly see through and punish their clients in response. I respond to such cases by making that allegation front and centre in the case to deprive the employee of any costs or even have costs awarded against them.No employer should face such allegations on the public record without basis or consequence.

However, an employee who was terminated through no fault of their own should not be deterred from litigating. Courts have encouraged, not dissuaded, such employees from seeking justice. Judgment can easily be obtained in a matter of months, not years. Litigation should not dissuade these individuals from obtaining their full legal entitlements, even, arguably — and particularly — during the pandemic.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com. Questions are edited for clarity and space.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.