When courts are involved, the costs of litigation, though they
preclude some meritorious cases, concomitantly discourage those
with no merit. That's not the case with tribunals, where there
are generally no cost consequences, and therefore no disincentive
The opening paragraph of my mediation brief in a case last week
— which was settled with no money being paid to the employee
— went as follows: "The plaintiff's (ie.
employee's) case is not one of manufacturing a lawsuit from
thin gruel. That is a lawyer's occasional burden. It is one of
fabricating one from thin air."
In that case, the employee was represented by a young lawyer who
appeared to replicate all of the potential claims he had learned in
law school into this ill-fitting case. The mediator disabused him
of his misapprehensions, to his client's distress. My client,
with no realistic prospect of recovering any of the costs spent
over the previous months to defend this action, was happy to accept
Increasingly, though, I am encountering unrepresented litigants
who move through the system thinking themselves great advocates
until the end. And while many believe their cases are meritorious,
sometimes they are designed for revenge and other times, to extort
money from their former employers.
In another recent case of mine before the Ontario Human Rights
Tribunal, a client was accused of sexual harassment. The claim was
not brought until the employee was laid off as part of a
restructuring, months after the harassment was alleged to have
taken place. Needless to say, such allegations can affect the
reputation and family life of the accused.
An investigation revealed that other employees who were present
at the time insisted no harassment had occurred. But with only to
choices — either settle or continue with the case over
several days of hearing, spending significant legal fees and have
this allegation potentially bandied about in the press and among
his workforce and customers — he settled at mediation, for a
few thousand dollars.
It did not matter that the claim seemed meritless, engineered to
accomplish just such a result. If the case had proceeded, the
employee might have had a lawyer provided through Ontarians'
tax dollars, from the Human Rights Legal Support Centre, whereas
the employer would have to fund its own defence, even if it was a
small, impecunious employer, with no ability to pay for
Increasingly in the courts, as well as in Canada's labour
code adjudications, human rights and other tribunals, employees are
bringing cases that have no substance. Once one employee is
successful in obtaining a settlement, others from the same
workforce invariably follow.
A confidentiality agreement buys little protection since
employees claim that the "settlement was so high, the employer
required them not to disclose it." For that reason, I suggest
employers not sign confidentiality agreements when the amount is
What is the solution? Unless there are reputational issues,
regardless of the result, these cases should be fought and the
outcome be made known internally. Also, the legislatures should
consider cost remedies when cases are found to be frivolous. And
employers should pursue their costs when awarded. Content just to
have won, they seldom do.
This article originally appeared in the Financial
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).