Clients and public are at risk of being thrown overboard without precision counsel and more cooperation, writes Ted Flett
Like many lawyers in the employment bar, my practice seems unrecognizable to what it was just one month ago. I may be less recognizable myself, as Lululemon attire has replaced my suiting and my hair resembles that of a final contestant on Survivor. Given the distinct effects of the novel coronavirus (COVID-19) pandemic on workplaces and resulting pressures on an employment lawyer, many friends, family and peers ask, “How are you doing?”
To be an employment lawyer during this coronavirus pandemic is a wild adventure. It seems like a game of whack-a-mole meets ‘choose your own adventure’ meets ‘what’s behind this door?’ Each day is equal parts exhilarating, taxing and demoralizing.
Between grasping the law, staying abreast of new employee and employer support programs, understanding workplace restrictions and navigating limitations to court services and suspensions of limitation periods and procedural deadlines, today’s employment lawyer is uniquely challenged. We are being extraordinarily tested by lawmakers, the courts, and panicked clients seeking solutions.
Changes in the law
On a daily basis, the Prime Minister pops out of his cottage to drip-feed details of the federal government’s Economic Response Plan, including a wage subsidy for employers, extended work-sharing and enhanced employment insurance. In Ontario, an emergency sitting of the legislature was called to amend the Employment Standards Act to provide unpaid leave for employees who, for example, are in isolation due to COVID-19 or who are caring for children. Additionally, Premier Doug Ford continues to trim the list of essential businesses allowed to operate and restricts the size of gatherings. I admit to some angst as I watch each press conference; what surprise will today’s announcement include?
Staying on top of news cycles to capture details of these programs and changes in order to advise clients regarding eligibility and suitability is tricky. In the increasingly competitive world of employment law, many firms are jockeying to be the go-to. Most employment law firms, including mine, have unveiled an online COVID-19 resource, or knowledge centre, featuring Q&As, blogs and links. Fasken Martineau DuMoulin LLP prepares a daily cross-country roundup of government announcements relating to the workplace, and Samfiru Tumarkin LLP has launched an online calculator for users to determine if they qualify for the Canada Emergency Response Benefit (CERB).
Terminations and layoffs in the time of COVID-19
Advice to clients – both employees and employers – on the legality of any particular layoff has sparked a debate within the employment bar.
The more litigious firmly subscribe to the principle that a layoff that is not contemplated within the employment contract amounts to constructive dismissal, a unilateral change of a person’s job. This would possibly give rise to a lawsuit for common law notice, among other damages. They’re ready to sue.
Another set assesses other factors, including the possibility that lawmakers will intervene with legislation to amend or override the restrictions around layoffs given the exceptional nature of the pandemic. Alternatively, judges may consider the current exceptional circumstances faced by employers, to decide that a layoff due to COVID-19 would not amount to constructive dismissal.
And even if a settlement can be achieved in a claim for constructive dismissal because of an unlawful layoff, a prudent plaintiff-side lawyer ought to weigh their client’s interests. Are the employee’s interests truly advanced once unemployed and facing a bleak job market? Or, is he or she better positioned by riding out the layoff, possibly collecting the CERB or other support benefits, and awaiting a return to work once the curve flattens or the economy rebounds? Equally challenging is forecasting when business will return to normal.
And for conventional wrongful dismissal claims, the employment bar is engaging in lively speculation as to what impact the global pandemic and the consequential economic downturn will have in the determination of the reasonable notice period upon termination of employment.
Despite the employee-friendly decision in Michela v. St. Thomas of Villanova Catholic School, which found that the employer’s financial circumstances are not relevant to the calculation of notice period, management-side counsel will surely argue that the “corona factor” be added to the Bardal test.
Defence counsel is likely to pursue a resurrection of Gristey v. Emke Schaab Climatecare Inc., which preceded Michaela and whereby the Court reduced the employee’s notice period after considering economic factors present at the time of termination.
More than most problems in employment law, solving the ‘COVID-19 constructive dismissal by layoff’ puzzle and estimating the reasonable notice period during an economic downturn is teaching me to elucidate difficult concepts to clients while remaining patient in obtaining their clear instructions.
Until further notice, the court is closed
Adding to the dilemma is that any employment claim is presently curtailed by the suspension of the courts, limitation periods and procedural deadlines. This decision and resulting conduct by lawyers expose a hidden wart in the justice system and legal profession.
The courts’ longstanding resistance to technology has, ironically, become no more apparent than in these times of crisis, when access to justice should be fortified, not placed on pause. The impractical and outdated fixation on paper submissions and in-person attendances is under significant scrutiny.
And despite the Ontario Superior Court’s call for parties to cooperate and engage in every effort to resolve matters during this temporary suspension of regular operations, I sadly suspect that some counsel leverage the suspension as a delay tactic.
Though we remain an essential service, I both know of and am experiencing matters in which opposing counsel is disagreeable to meeting a procedural deadline or to conducting discoveries or mediating by videoconference for reasons that are wanting for merit. Such ploys to frustrate opposing counsel will likely come at a higher cost. Clients of the progressive, resolution-minded lawyer are likely to be left bewildered by and suspect of the justice system and its members.
This time of pandemic will surely shape employment lawyers busily riding the competing currents. Regrettably, clients, parties and members of the public are at risk of being thrown overboard unless we firmly grasp the tiller and remember the public whom we serve.
