Monthly Archives: April 2018

Litigation advice and artificial intelligence

There is much talk in the news about artificial intelligence and the coming loss of jobs, in the legal profession as elsewhere. Without doubt, there are traditional legal tasks that have been successfully transferred to paralegals and will be further transferred to robots or some form of artificial intelligence.

However, one aspect of a lawyer’s role that will likely be immune to the impact of computers or artificial intelligence, at least for the foreseeable future, is that with respect to litigation advice and the conduct of a trial.

The most important quality that a client has a right to expect from a lawyer giving advice in a litigation matter is judgment. A client is buying that judgment, most importantly the judgment that comes from not just knowledge of book law, but from experience that enables the lawyer to predict the most likely outcome of a lawsuit and to bring about the desired result.

The outcome of a case often depends on seemingly innocuous facts, little details that can colour a case and have an impact on the reasoning of a judge when assessing the justice of a case. Judges are human beings and generally want to do the right thing, to see that justice is done. In weighing the merits of a case, taking account of the winding course a litigious matter can take and determining strategy and tactics in how to proceed, a litigation lawyer must assess the impact that small details might have in the outcome as this is crucial in the decision when to hold fast or fold.

Having exercised the judgment as to the most predictable outcome, having determined the strategy and tactics, the lawyer must then be prepared to and capable of executing. This means ability to form the narrative, shape the record, manoeuvre within the rules of court, compile and elicit the evidence, concentrate on the nub of the case that aspect which tilts the balance of justice in his or her client’s favour, to cross-examine with that end in view, and to advocate successfully to persuade a judge to find in the client’s favour. And all this must be done in a cost-effective basis for the client.

I am not aware of a computer or robot that can do that. I am not aware of a computer that can assess justice.

Post-employment earnings and mitigation

As frequently happens when the Superior Courts attempt to develop well-established common law principles in a way to do justice to the facts of a particular case, the creation of confusion rather than clarity among lawyers is the consequence.

It is an entrenched principle of course contract law that a plaintiff alleging breach of contract has a duty to mitigate damages. In employment law, this means that an employee suing for wrongful dismissal has a duty to seek out alternative employment. The general rule is that any income by an employee from alternative employment during the notional notice period is deducted from an award of damages.

Last year the SCC held that earnings by an employee suing for wrongful dismissal do not count towards mitigation and are not deducted if the employee would have made those earnings anyway, as where the employee had been holding down two jobs at the time of her termination and continued to earn income from the other job. This was held not to be replacement income. This decision does not otherwise affect the general principle. For example, as the BC Court of Appeal recently confirmed, extra earnings, earnings that the employee would not have made but for the termination by the employee during the notice period were indeed to be deducted from the damage award.

Human Rights Tribunal awards damages of $200,000 for injury to dignity, feelings and self-respect

All employers should be aware of this case, A.B. v. Joe Singer Shoes Limited, in which the Human Rights Tribunal of Ontario awarded $200,000 to the complainant who was a retail worker subject to egregious sexual harassment and assault over many years by her employer. This is higher than most cases but illustrates that the HRTO has teeth and can bite employers in a given fact situation. Employers must ensure that they have appropriate policies, that they enforce them and that they fairly and impartially investigate complaints, failing which the financial consequences can be significant.

Workplace Investigations

In an age in which equality, diversity and inclusion are the buzzwords, and employees are encouraged by an entire industry of advisors, supported institutionally and legally by human rights advocates and administrators of the Human Rights Code, to complain of workplace conduct such as discrimination and harassment, Ron is often asked to advise on workplace investigations.

The key to an effective investigation is that it must be, and be seen to be, fair, objective and impartial. There is nothing wrong with an internal investigation, provided it meets the above criteria. To be impartial, the investigator must genuinely not have a stake in the matter whatever the outcome. The investigator must not be beholden in any away to the parties, to the accuser or the accused. The investigators must be complete in their investigation and refrain from any judgment until all the facts are in, ensuring that the accuser and the accused each have an opportunity to respond to any allegations made against them. Only in this way can the investigation be considered impartial and respected by all involved. If an investigation is not impartial, an employer runs financial risk, including increased damages in the event of litigation.

Constructive Dismissal and Resignation

When an employer, typically for good business reasons, unilaterally changes the terms of an employee’s work conditions, such as duties or title, the employer runs the risk of a complaint by the employee that the change constitutes a constructive dismissal. On the advice of his or her own lawyer the employee may refuse to go along with the change, treat the change as tantamount to an actual dismissal (which is what the law calls constructive dismissal) quit and make a claim for damages. The legal issue for the employer then becomes whether the employee has resigned, in which case the employer owes nothing by way of severance compensation, or whether in fact the employee is correct and will likely be successful in the claim for damages for wrongful dismissal. The damage claim will be based primarily on the total compensation that the employee would have received over a period of reasonable notice had notice of termination been given. These days it is not uncommon for employers to also face claims for damages for alleged discrimination on some basis under the Human Rights Code as well as additional claims for moral damages, depending on the overall conduct of the employer.

There are risks for both sides, not least of which is the significant cost of litigation, the inevitable delay due to the court system and the inherent uncertainty of any litigation, even on the strongest set of facts, because a judge may just get it wrong. The cost factor is aggravated by the general rule that the party which loses if the case ever gets to trial will also be ordered to pay a portion of the costs of the successful party.

These cases are also complicated by issues such as the employee’s duty to mitigate damage by seeking out alternative employment, a duty which may, depending on all the circumstances, require the employee to stay in the job and accept the change if the change is not objectively considered humiliating, an issue that cannot effectively be determined unless the case is actually determined at a trial. This issue creates a risk for an employee because a court could after months or more likely years of litigation and expense decide that the employee should have accepted the change as part of the duty to mitigate.

These cases often raise questions of principle. However, our court system is not always the best place to rest on principle. Both the employer and employee are often better advised to try to reach a cost-effective resolution, involving a degree of compromise that will save both a lot of money in legal expense and potential damages. The basis of that compromise will be informed by an objective and experienced judgment as to the likely characterization of events by a court and the most probable outcome if the matter is litigated. In addition, both sides try to manoeuvre to create the record and to position themselves on issues in a way that supports and highlights their version of the relevant facts.