Category Archives: employment law

The End of the Suspension of Legal Deadlines in Ontario

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In response to the COVID-19 pandemic, the Government of Ontario temporarily suspended most statutory and regulatory limitation periods.  This applied to a lot of legal deadlines, chief among them Ontario’s “basic” limitation period which states that most lawsuits have to be started within two (2) years. 

The suspension of most limitation periods went into effect on 16 March 2020.  The Government of Ontario ended the suspension last month, and the suspended time periods resumed running on 14 September 2020.  If we say that 13 September 2020 (which was a Sunday) was the last day of the suspension period, that means the suspension period ended up being 182 days long. 

(I keep saying “most” limitation periods, because there were some legal deadlines which were not suspended by the government, such as deadlines created by a court order.  Other deadlines were suspended for less than the entire duration of the suspension, such as deadlines under the Construction Act, which were suspended for only 31 days.)

Protect Your Legal Interests

If you are sitting on a possible legal claim, do not fall into the trap of thinking you have an extra 182 days beginning on 14 September 2020 within which to commence it.  If your limitation period would have expired after 16 March 2020 but before 14 September 2020, then you only have as much time after 14 September 2020 as you would have had after 16 March 2020. 

So if your limitation period would have, but for the suspension, expired on 29 May 2020 (seventy-four days after the beginning of the suspension), the limitation period will now expire on 27 November 2020 (seventy-four days after the end of the suspension).  I expect this will be an easy mistake for litigants and their counsel to make, so please be alive to this issue.  There will be people who think that they have 182 days from 14 September 2020 when they do not.  It is easy to anticipate that, over the next six months or so, some folks are going to miss deadlines. 

Also bear in mind that not all legal claims in Ontario are subject to the “basic” limitation period of two years.  There are exceptions to the basic limitation period.  In some situations, the deadline to start a lawsuit is shortened by the terms of a contract (such as most insurance contracts), or by a statutory requirement to give notice (such as in the Municipal Act or in the Libel and Slander Act, for certain types of claims).  Some types of legal proceedings are not statute-barred at all. 

If you think you might have a legal claim, protect your interests.  DO NOT rely on this blog, which is simply an informative summary and does not constitute legal advice.  Consult with a lawyer. 

Déjà Vu all Over Again

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It was déjà vu all over again at the Court of Appeal on the issue of punitive damages. 

Punitive damages are already a bit weird in the realm of civil litigation, because the purpose of the civil law is to compensate.  It is not to punish: that is a purpose of the criminal law.  Yet punitive damages can be awarded in a civil proceeding to (as their name implies) punish the defendant when his, her, or its conduct has been so malicious, oppressive, and high-handed that it offends the court’s sense of decency. 

The Supreme Court of Canada has said that punitive damages should be rare and modest, and they usually are.  I’ve only ever argued one case in which punitive damages were awarded and, even then, the punitive damages were only $25,000.00.

But sometimes, a showstopper of a case will come along where the jury makes an enormous award of punitive damages.  Two Ontario cases, about twelve years apart, both featured jury awards of $1,000,000.00 for punitive damages.  And yes, one of the cases involved Wal-Mart.

The first case was Whiten v Pilot Insurance.  A homeowner’s house burned down.  Her insurance company took the unreasonably hard-headed position of denying her claim on the basis that she had burned the house down herself, even though Pilot Insurance had no evidence of arson whatsoever.  The homeowner had to sue her insurance company, and take it all the way to trial, just to get her house rebuilt.  The jury was incensed by Pilot Insurance’s intransigent stance and, in addition to the compensatory damages, ordered the defendant to pay punitive damages of $1,000,000.00. 

Pilot Insurance appealed and the Court of Appeal reduced the punitive damages from $1,000,000.00 to $100,000.00.

On appeal to the Supreme Court of Canada, though, the Supreme Court overturned the Court of Appeal’s ruling on punitive damages and reinstated the jury award of $1,000,000.00.

The second case was Boucher v Wal-Mart Canada Corp.  Ms. Boucher, an employee at a Windsor Wal-Mart, had been really viciously bullied by her immediate supervisor.  This supervisor yelled at Ms. Boucher, singled her out, screamed at her, and swore both to and about her, both in front of and behind her back.  (This manager, a one Jason Pinnock, had a propensity for workplace use of the F-word which was nothing short of pathological.) 

Perhaps the most disturbing part of this case of workplace bullying was the fact that Wal-Mart took Mr. Pinnock’s side and backed him up.  The jury was not impressed, and ordered Wal-Mart to pay Ms. Boucher punitive damages in the amount of $1,000,000.00. 

History repeated itself at the Court of Appeal.  When faced with an appeal of a $1,000,000.00 jury award for punitive damages, the Ontario Court of Appeal reduced it to—you guessed it—$100,000.00. 

Obviously it was not the same panel of judges at the Court of Appeal who heard Boucher as heard Whiten.  Still, it seems strange that the Boucher panel did not say, “Hey, last time we slashed a jury’s $1,000,000.00 punitive damages award by 90% the Supreme Court reinstated it – maybe we shouldn’t do that again?” 

In Whiten, the Supreme Court of Canada did not go so far as to say ‘the jury is always right’.  They said that juries should be given enough leeway to do their job and their awards should not be overturned on appeal unless they are “irrational”.  The Supreme Court went on to hold that, in that case, the jury award of $1,000,000.00, was not irrational and it should not have been overturned. 

In Boucher, the Court of Appeal held that $100,000.00 was all that was rationally required to punish Wal-Mart and to denounce and deter its conduct.  Which, allow me to say, is bonkers.  This is Wal-Mart we are talking about.  If $1,000,000.00 was not an “irrational” amount to punish, denounce, and deter a small Canadian insurance company which acted in an oppressive and high-handed manner, then how is the same amount of money, awarded for the same purpose, against one of planet earth’s largest corporations “irrational”? 

The facts of the two (2) cases were different but the respective juries’ decisions on the issue of punitive damages were the same.  If it was incorrect for the Court of Appeal to have reduced the first award by 90%, then I would have argued that it was similarly incorrect for the Court of Appeal to have reduced the second award by 90%. 

Might history have been repeated at the Supreme Court?  Would the Supreme Court have reinstated the million-dollar damages award in the Boucher case, just like it reinstated the million-dollar damages award in the Whiten case?  We will never know, because Ms. Boucher did not seek leave to appeal to Canada’s top court.

Quick, Good, Cheap – Pick Two

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Her Honour Madam Rosalie Abella, a Justice of the Supreme Court of Canada, recently penned an opinion column in The Globe and Mail titled, “Our Civil Justice System needs to be Brought into the 21st Century” (subscription required). 

While I came to agree with Justice Abella’s conclusion, she actually made two arguments in order to get there.  And while I agree with her second argument, I cannot bring myself to agree with her first.

Her first argument is basically just “Change for change’s sake.”  She notes that the adversarial system of civil litigation we use today is pretty similar to the one used at the turn of the (last) century.  She then goes on to argue that, since the airplane and the Internet have been invented in that time, we should similarly change the way we resolve civil disputes. 

The flip side to the sentiment that “we should change with the times” is “if it ain’t broke, don’t fix it.”  And of course, our adversarial system of civil litigation has a lot of things to commend it.  It is a system which has been honed and refined over centuries and it does a fairly good job of serving its objectives.  While other systems of dispute resolution have been conceived and tried our adversarial system remains, to paraphrase Churchill, the worst system except for all the others which have been tried from time to time.  So I would disagree with the suggestion that we ought to make any substantial changes to our civil litigation system solely on the basis that it is an old system.  We should not tear down a fence unless we know why it was put up in the first place. 

That being said, Justice Abella’s second argument really lays bare the biggest shortcoming of our “least bad” system.  She persuasively argues that the system is just too inaccessible for regular people, for the dual reasons that (i) it is too expensive and (ii) it takes too long.  One cannot really disagree with her assertion that it should not take litigants “forever and thousands of dollars to decide where their children live, whether their employer should have fired them, or whether their accident was compensable.” 

The gap between reality and expectation for participants in the civil litigation system can be profound.  I blogged last week about an employment case in Ontario which took eleven (11) years to go from start to completion at the Court of Appeal.  By comparison, a few years ago I represented an employee in an employment case that was decided by the Court of Appeal eleven months after the employee was fired.  And do you know what they told me after it was over?  They said, “If I knew it would have taken this long, I never would have done it.”  And that was in a case which, by the usual standards, was resolved quickly.

In my own practice, I have seen a fair number of clients walk away from good, promising cases—cases worth tens or even hundreds of thousands of dollars—because they are not willing to wait 1, 2, or 3 years before seeing the inside of a courtroom, or because they are no longer willing to continue funding litigation which will go on for another 1, 2, or 3 years. 

The people who are most likely to be caught on the outside are those who can’t or won’t sink thousands of dollars, and years of their lives, into fighting a legal dispute – even though their case may be just.  Justice Abella perspicaciously identifies this problem when she says, “They want their day in court, not their years.”

Normally, this is where I would criticize the author for identifying the problem but not identifying any solutions.  But I can’t criticize Justice Abella here, because I don’t have any answers at the moment either.  The civil justice system serves multiple goals, among them efficiency, truth-seeking, and justice.  Major reforms to improve the outcomes in one area are almost certain to be at the expense of the other goals of the justice system.  The legal system finds itself stuck in the classic consumer quandary of “Quick, cheap, good – pick two”. 

What should we do?  Eliminate or severely curtail pre-trial discovery?  That would certainly get us to trial more efficiently.  It would also bring back the old days of “trial by ambush”, which the profession definitely wants to avoid.  Getting rid of “trial by ambush” was a major reason for the significant expansion of pre-trial discovery in the first place.  We can make our civil litigation system quicker and cheaper, but it won’t be as good.

While I can’t say what we should do, I can make a suggestion about what we should not do.  We should not do mandatory mediation.

In my opinion, the experiment of mandatory mediation is a failure and should be abandoned.  For a number of years now, any civil lawsuit in Ottawa, Toronto, or Windsor has been required to go to mandatory mediation as a necessary pre-condition to going to trial.  And why is this such a bad a idea?  Simply put, if you want to make the process of a lawsuit quicker and cheaper, you should not add additional procedural hurdles to the lawsuit.  Mandatory mediation adds both time and expense and makes the overall lawsuit take even longer.  I cannot understand why anyone thought that the system would be made more efficient by adding an extra step to civil lawsuits: it is impossible to make a journey quicker by adding pit stops.  If we want to make the process of civil lawsuit a little bit quicker and a little bit less expensive without sacrificing quality, we can start by eliminating the costly and time-consuming step of mandatory mediation.

An 11-Year Long Employment Case

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Civil litigation clients often ask, “How long will this case take?” People who have never been involved in a civil court proceeding may be surprised to learn that civil matters are usually measured in years, not weeks. But how long can a lawsuit go on for? An employment law case released by the Ontario Court of Appeal this past year shows just how long a lawsuit in Ontario could take.

On January 31st, 2019, the Court of Appeal heard an appeal of a case which had been argued in 2016 and decided in 2017. The Court of Appeal was remarkably efficient, releasing its decision just six (6) weeks after the appeal was argued.

The interesting date in this case, however, is not the date on which the judgment at first instance was handed down, or the date on which the case was argued, but the date on which the case was commenced – 2008.

Most people understand that even after you go to court there is a right of appeal, and they understand that an appeal will add some time to the length of your legal matter. In this case, the time between judgment and appeal (less than two (2) years) was a drop in the bucket compared to the time between the commencement of the lawsuit and the argument at first instance, which took a staggering eight (8) years.

What we do not learn from the reported decision is whether or not there were valid reasons for the eight (8) years which transpired between the employment law case being commenced and it being argued at court. Extraordinary delays sometimes happen in civil litigation, but there are usually extraordinary events behind those delays, such as one of the lawyers being removed from the case due to illness, retirement, or death, for example.

A new rule came into effect in Ontario in 2012 with the goal of trying to prevent these sorts of extraordinary delays. Rule 48.14 of the Rules of Civil Procedure now requires the Registrar of the court to automatically dismiss every lawsuit which has not been set down for trial after the five-year anniversary of it having been commenced. This rule does not mean that a lawsuit has to go to trial within five (5) years, only that it has to be ready to go to trial within five (5) years. It seeks to strike a balance between giving parties and their lawyers enough time to prepare their lawsuit, while at the same time eliminating totally unreasonable delays.

And of course, this particular case is an outlier. Rarely will a relatively uncomplicated employment law case drag on for years, let alone eleven (11) years. But this case nevertheless stands as a marker of just how long, in some circumstances, a civil lawsuit can actually take.