In the present economy, many employers are seeking to downsize as quickly and inexpensively as possible. In an effort to navigate through this difficult period, some employers are offering dismissed employees separation packages that approach the Employment Standards Act minimums, regardless of employee age, position, or years of service.

While prioritizing business integrity is understandable in the present economic climate, employers who terminate employees should be wary of fundamental changes that are anticipated to make lawsuits, including wrongful dismissal actions, more accessible and more efficient. The Ministry of the Attorney General has announced a number of changes to the Rules of Civil Procedure that are expected to have a significant impact in civil litigation, including employment litigation. All of the changes come into force January 1, 2010, and include as follows:

Small Claims Court

• The limit on damages in Small Claims actions will be raised from $10,000.00 to $25,000.00.

Simplified Procedure

• The limit on damages in actions under the Simplified Procedure will be raised from $50,000.00 to $100,000.00.
• Parties will now be permitted up to two hours of Examination for Discovery in advance of Trial. Under the old Rules, Discovery was limited to exchanging Affidavits of Documents, and depending upon the documents produced, the parties’ respective understanding of the case often remained quite limited even up to the eve of trial.
• We anticipate that a far greater proportion of actions for wrongful dismissal will now proceed under the Simplified Procedure, by virtue of the higher limit on damages and the availability of examination for discovery.

Summary Judgment

• Under the old Rules, a party seeking a quick resolution to an action, had the option of bringing a Motion for Summary Judgment. However, if the moving party was unsuccessful, it was liable to pay the costs of the successful party. This was a major disincentive to plaintiffs with limited funds, who were generally unwilling to risk losing such a motion, even if advised that they had a strong case.
• The costs disincentive has now been partially addressed. Under the new Rules, the Motions Judge will now have discretion to determine whether the Motion was brought properly (i.e. it was reasonable on the facts of the case to bring such a Motion) and what costs, if any, should be payable.
• In the employment context, the new Rules provide dismissed employees with the option to pursue litigation more aggressively, and press for a quicker resolution through a motion for summary judgment.

Discovery

• Parties will now be required to agree at an early stage to a plan for Discovery (i.e. the disclosure of all facts or documents relevant to a particular action).
• Each party will now be limited to a total of seven hours for Examination for Discovery unless the parties consent to additional Discovery or the Court orders otherwise.

Motion and Trial Scheduling

• Earlier deadlines for serving and filing motion and application materials are expected to be identified under the Rules; however, these new deadlines have not yet been identified.

Should you have employment law questions arising from the foregoing changes, we would be pleased to assist you.

George A. Leibbrandt
Labour & Employment Counsel
Tel: 905.276.0433
E-mail: gleibbrandt@kmblaw.com

The comments in this newsletter are of a general nature and are not designed to replace professional advice in specific situations. If you would like extra copies of this newsletter, or you know of anyone who would be interested in joining our mailing list, please contact Cheryl Woolcott at (905) 276-9111.