"Reforming" civil justice?

Date: 2009
Author: Daniel A. Lublin
Publication: Metro
Our civil justice system is one of workplace law’s greatest flaws. Corporations, with expensive lawyers and deeper pockets, are permitted to make the costs of litigation too excessive for the average employee. By introducing new rules for January 1, 2010, however, the Ontario government figured that would all change. Sweeping amendments to Ontario’s civil procedure were designed to make lawsuits more accessible and cost-effective. The Attorney General’s press release boasts that the reforms will make it less expensive to access justice and easier to use the courts to quickly resolve disputes.
But not so fast. In redesigning the rules, the government may have simply traded one set of problems for another. Ironically, many of the new rules may actually end up costing litigants more money and taking their cases longer to resolve. Here are some of those problems:

  • Small Claims Court jurisdiction. The previous cap of $10,000 on all small claims will be raised to $25,000. While, at first blush, this appears to favour employees, who can now pursue more substantial claims without the necessity of retaining counsel, I have various concerns. The Small Claims court is already flooded with lawsuits and a roster of “deputy judges” that seldom have the time or training to resolve disputes without a trial. It is not unusual to wait up to a year for a trial or to appear on your court date only to have the matter rescheduled. Once the caseload increases, by proceeding in this forum, litigants will inevitably end up waiting even longer.
  • Timelines for mandatory mediation will be extended. This will simply be used as a tool for defendants to postpone dealing with employee lawsuits. Currently, mandatory mediation sessions, where a majority of employment cases settle, must occur within a few months from when the claim began. Often, it is the only tool employees have to force matters to proceed swiftly. This will soon be gone and with it, employees will spend more time and money before settling their cases or arguing them before a judge.
  • Claims from $25,000 to $100,000 will now be “simplified claims.” In an employment lawsuit, employees’ cases don’t get better over time – they get worse. With a premium on speedy resolutions, many employment lawyers opted to proceed with simplified claims which provided a more streamlined procedure for trying cases, through prohibiting employers’ typical strategies of delay. However, employers will now be permitted to engage in examinations for discovery, which were previously forbidden, under this rule. Scheduling the examination and obtaining “undertakings,” which are answers to questions that were avoided under oath, will now be an important element of all simplified cases, which renders them no longer simple at all. The result is that these claims will cost employees more and take longer to resolve under this rule than before and, as most claims fall within this monetary jurisdiction, few employees will be able to avoid it.
  • The cost award for winning a trial or motion will be reduced to what was “reasonable” – not the costs of what were actually incurred. In a lawsuit, the losing party is usually compelled to pay a component of the successful party’s legal fees. The new civil rules contain a general principle of “proportionality” requiring judges to award costs based on the total value of the claim and how long it ought to have taken to get to trial, rather than based on the actual counsel fee involved. Employees whose legitimate claims were drawn out and forced to go to trial will ultimately end up paying a greater component of their lawyers’ bills from their own pockets, not their ex-employers’.