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.
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.
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.
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.
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.
The firm was recently successful in restraining the conduct of a senior consultant to Ron’s client in the global security business by misusing confidential and proprietary information as a springboard to the success of the consultant’s new firm in direct competition with the firm which had employed him as a consultant for over 20 years.
The firm has recently been engaged in a matter involving the early termination of a lease where the status of the lease itself was unclear given that the tenant had stopped payment on the deposit to secure the lease, but where the parties had nonetheless acted as if the lease was in force and the tenant had embarked on leasehold improvements. If the lease was valid and the early termination carried out in accordance with the provisions of the lease, the legal result would be determined in accordance with written provisions of the lease, in particular, with respect to leasehold improvements and the rights thereto on termination. On the other hand, if the lease was not valid, the parties’ rights would stand or fall by the law of restitution or unjust enrichment. The lease was not a work of art. This is not uncommon when a lease goes through several drafts as a result of ongoing negotiations with the parties.
In the recent case of 1079268 Ontario Inc., the Goodlife Fitness, the Ontario Court of Appeal considered a written lease replete with ambiguities and contradictions, in light of all the surrounding facts and negotiations. The Court found that the trial judge had committed an error of law by failing to interpret the lease in regard to the circumstances as a whole, including all the correspondence between the parties’ lawyers, so as to ascertain the intentions of the parties. In other words, while the proper approach is not to ignore the explicit wording of the lease, the lease must nevertheless be given commercial efficacy consistent with the apparent intentions of the parties as expressed in correspondence and by conduct of the parties while the lease was extant (or considered to be so by them).
Defence of corporation which fired employee for cause after theft of company property. Termination for cause is risky business, the onus being on the employer to prove just cause; the failure to so prove can result in higher damages payable to the employee in the form of longer notice periods, aggravated and punitive damages and the now popular “moral damages” which sometime exceed the amount which the employer could have paid in lieu of notice just to rid itself of a troublesome employee.
In a recent matter involving the sale of a business to a large public company, the vendor was required to sign an agreement with typical confidentiality, non-competition and non-solicitation clauses.
The acquisition was not a business success. The purchaser succeeded in its goal of acquiring the clients, but managed the new business in a way that financial targets were not met, resulting in a significant downward adjustment in the purchase price. The vendor was unhappy and negotiated an agreement whereby he resigned on the basis of certain fixed amounts payable over time.
The public corporation was unhappy with what it considered to be subsequent competitive activity on the part of the vendor/employee who resigned, and retained Ron to advise on the strategy to resolve the matter, on a basis that maximized the scope of permissible business activity on his part as well as the collection of money owed to him. Issues included the past and present conduct of the corporation that gave rise to the dispute, analysis and characterization of the impugned conduct of the now departed employee who was owed money by the corporation, the construction of the resignation agreement with its provisions for confidentiality, non-solicitation and non-competition for a limited period of time, the range of remedies (on both sides) from damages to injunctive relief, and the scope and effect of a release where there had been an arguable failure of consideration.
As in most such matters, successful resolution depended on the appropriate combination of the threat of a lawsuit, the issues of cost, delay and adverse publicity, all considered in light of the overall legal merits and equities that would be brought to bear by a judge. Successful resolution was achieved, both parties recognizing that litigation in many commercial disputes can be a scorched earth policy.
Ron routinely advises partners of law and accounting firms on the strategic management of their withdrawal from professional partnerships. He has done so recently for four separate clients. In the consideration of goals, strategy and tactics, the factors to take into account include whether the partner is leaving voluntarily, or might be expelled, or is being otherwise forced out through the mechanics of reduced compensation, harassment or oppressive conduct. As a general guideline, both the firm and the partner wish to avoid litigation. However, unless managed properly, departures can give rise to lawsuits around transition, the approach to clients, solicitation, competition and the appropriate or unfair use of confidential information. Success must be considered in light of the setting of appropriate goals and getting there without destructive litigation. Litigation itself is the easy part, although more fun for the litigator than the client.