Thursday, August 20, 2009

Levitt's Lament

Employers' lawyer Howard Levitt breaks the "bad news" to his Financial Post readers - Suing Employers Soon to Get Easier.

On Jan. 1, the most dramatic changes to the rules of court since 1985 will be implemented. These rules will disable three of the most valuable weapons in employers' litigation arsenal-- costs, complexity and delay.

The Small Claims Court jurisdiction will be raised to $25,000 from $10,000. The intent is to make legal rights accessible to workers of every strata. The incentive to pursue perceived rights will escalate in this forum, where self-representation is the norm and the costs of losing negligible.

Lawsuits from $50,000 to $100,000 will also become simpler, faster and cheaper. The Simplified Procedure... will be expanded to include claims to $100,000. Until now, these larger claims were subject to unlimited examination for discovery; the new rules restrict them to two hours.

Any lawyer can conduct a journey-man like mediation because much of the work is done by the mediator. Other than trials, which few dismissal cases reach, a lawyer's relative skill is best shown at discoveries. That is where admissions are obtained that result in settlement or make the result a foregone conclusion. Frequently, I have had employees make admissions at discovery that end their cases.

Being cross-examined for hours or days, employees who are less prepared than at trial, face having substantial doubt cast on the veracity of their facts and their principles put under tortuous scrutiny, and often end up dropping the suit or accepting a minimal settlement to avoid a trial. That ability to weaken the employee's resolve is gone under the new rules: Two hours is seldom sufficiently formidable to concede early defeat.

It is time for a new employers' playbook, apparently. What a stunning commentary and public admission as to defence tactics.

It seems the time-honoured strategy of delay, out-spend, out-maneuver and 'interrogate into submission' will have only a limited future in employment law litigation Ontario.

That kind of casts access to justice amendments in a whole new light, now doesn't it?

- Garry J. Wise, Toronto

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