A recent Ontario Court of Appeal decision that has the employment law bar abuzz is a lesson for all lawyers about the limits to both our knowledge and our powers of prediction.
“It's tough to make predictions, especially about the future.”
– Yogi Berra (and, apparently, others)
We lawyers are in the prediction and persuasion business. We advise clients about what we believe will happen to them in the future based, in part, on our interpretation of past decisions of courts and tribunals. We attempt to persuade our colleagues and decision-makers that our interpretations and predictions are accurate and that theirs are not; failing that, we attempt to persuade the ultimate decision-maker. We are also in the risk management business, since our powers of interpretation, prediction and persuasion are (dare I say it) limited and we cannot be both counsel and arbiter in any event.
However, our confidence in our ability to make reasonably accurate predictions and persuasive arguments, and to carefully manage risk, can be shattered when our highest local court suddenly rules on a critical and already controversial issue and we cannot agree about what the ruling means.
Since its release in June, the (barely) four-page decision of the Ontario Court of Appeal in Oudin v. Centre Francophone de Toronto, 2016 CarswellOnt 10299, 2016 ONCA 514 has the employment law bar abuzz. Our brightest legal minds have produced thoughtful commentary and analysis of Talmudic quality on the implication and impact of the court’s reasoning in Oudin.
Does Oudin stand for the proposition that judges no longer require precise and exhaustive technical language in employment contracts in order to oust an employee’s common law rights upon termination?
Or is Oudin just an appeal court giving deference to the reasoning of the judge of first instance and nothing more?
Is it a missed opportunity to finally settle an issue that has been plaguing employers for years?
Or is it business as usual?
The controversy continues each day in the e-mails, letters, phone calls and boardrooms of the nation. Eventually, it will reach the motions courtrooms and — since I have learned that the plaintiff seeks leave to appeal — possibly the Supreme Court of Canada. However, whether leave is denied or allowed, I doubt that the controversy will suddenly end.
Meanwhile, I am left scrambling over what to tell my employer clients, my employee clients and my mediation clients on both sides when they ask: “So, is this termination clause valid?”
I’m not going to tell you what I think Oudin means — although I, too, have my theories. The fact is that, at this time, none of us knows how it will be interpreted by the courts in the future.
Frankly, I, and most of my English-speaking colleagues, probably don’t even know how to properly pronounce the plaintiff-appellant’s name, much less the implications of the (possibly) earth-shattering jurisprudence that bears his name.
However, if you ask around, you will find that, currently or at some point in the past, every bar has or has had its Oudin: a cryptic case that teases your mind while pulling the rug out from under your feet.
And that’s just fine. Decisions like Oudin, which at first seem to undermine our abilities to know, to predict and to persuade, betray the fact that we usually delude ourselves about those abilities in any event. They are what some people call “teachable moments.”
Empirical research shows that lawyers are overconfident about their ability to predict the outcomes of cases (see, for example, Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes.
In an earlier article on this site, entitled The Art of Litigating Clearly, I referred to how “we systematically overestimate our knowledge and our ability to make predictions.”
Perhaps, one day, a robot will do a better job.
Of course, I don’t know.
A case like Oudin humbles us and reminds us that we are human — and that is its real lesson. Yet once we accept our limitations — especially our lack of knowledge — our wisdom increases. We can then give better (and more careful) advice, improve our arguments and gain the ability to accommodate other viewpoints and scenarios. When we accept our own limitations, and remind our clients there are no “slam dunks” and all litigation is risky and costly, we and our clients are empowered. Decision-making becomes easier.
Acceptance of our lack of control paradoxically increases our control.
Finally, I am reminded of a favourite scene from Oscar Wilde’s play The Importance of Being Earnest:
Lady Bracknell: “ . . . A man who desires to get married should know everything or nothing. Which do you know?”
Jack: “ . . . I know nothing, Lady Bracknell.”
Lady Bracknell: “I am pleased to hear it.”
Spoiler alert: It should now come as no surprise that the play ends with everyone living happily ever after.
Mitchell Rose is a lawyer, chartered mediator and settlement counsel with Stancer Gossin Rose LLP in Toronto. He can be reached at firstname.lastname@example.org.