Canada: When It Comes To Legal Advice, You Get What You Pay For

Last Updated: October 22 2014
Article by Howard Levitt

Where should dismissed employees go for legal advice?

A caller to my CFRB employment law talk show last week said she had found a free severance pay calculation online. After plugging in her age, salary and length of service, she was informed she was entitled to considerably more than her employer had offered and was directed to call the law firm that promoted this service. The firm reinforced that amount and promised to get it for her if she paid money to retain it.

During our discussion, I learned that, rather than being entitled to more, her employer's offer was greater than she could ever receive in court.

Curious, I went to the website, purporting to be a 42-year-old graphic artist, employed for eight years and earning $50,000 a year. Such an individual would likely obtain six months pay, certainly no more than eight. However, this free service, which directs one to its sponsoring law firm at every turn, assured me I could get an absolute minimum of nine months severance and as much as 12.

Next, I inserted the facts from the Ontario Court of Appeal's case in Ahmad vs. Proctor and Gamble. Mr. Ahmad, a sales forecaster with 16 years of service with the company, was awarded only four months severance after trial, an amount reaffirmed on appeal. The court said it would have awarded him 12 months (with which I agree) but for the warning he had received some time earlier of the likelihood of dismissal at some indefinite date as result of technological change. The website declared him entitled to a range of 16 to 20 months.

On the other end is Mr. Shtabsky, who lost his job as manager of Dubeta Interiors, after only two weeks because the owners deemed him a poor fit. The Alberta Court awarded him 12 months. Even this Internet site was not that optimistic.

The Law of Dismissal in Canada, recites approximately 150 factors courts have considered in various cases in determining severance. No online severance formula can possibly replicate the court's approach. Severance calculations are an art — an estimate based on reviewing thousands of other dismissal cases and seeing what factors the courts rely on and how they interrelate with particular facts. Such judgement cannot be recreated in any other fashion.

Don't end up paying for your lawyer's education

As most readers know, the Internet is the regulatory embodiment of the Wild West. You will find lawyers advertising themselves as employment lawyers. But, when you look for car accident lawyers, commercial litigation lawyers, divorce lawyers or any of a host of other specialities, you will find the same lawyers' names. Ensure your lawyer practises nothing but employment law and has done so for long enough to be seasoned.

You get what you pay for

On too many occasions, I have had to clean up after lawyers providing free consultations. In one recent case involving a senior executive who had had just such a consultation, one of my partners found more than $1,000,000 in additional pension and benefit entitlement overlooked by the first lawyer. Free consultations are usually hurried sales jobs, with little actually reviewed. It should raise a red flag when you see a free consultation advertised by any lawyer outside of personal injury (where every injured person has a case).

Trial experience is an important measure

In my field, there are even senior lawyers who have never done a trial in their careers and few have done very many. This problem is compounded by the system that promotes settlement at every turn; compulsory mediation, pre-trial and sometimes a second pre-trial right before the trial — anything the system can do to prevent trials. It is increasingly difficult for junior lawyers to even gain trial experience. You may ask, if there are few trials (more than 99% of dismissal cases settle at some stage), what difference does trial experience make?

Actually, a great deal. When my opponent is a lawyer who avoids trials or lacks litigation skills, my settlement numbers change. If I am acting for an employer, I will offer less; if for an employee, I will insist on more, knowing the lawyer will not want their first case ever to be against me.

Ask your lawyer how much trial experience she or he has and when they were last in court, as well as their record. That will tell you what credibility they will bring to bear for you. Too many lawyers take advantage of their clients' lack of sophistication by settling the case quickly but badly and then telling them what a great settlement they obtained and charging accordingly. Its generally simple to get a little more than most employers offer but getting the full entitlement takes effort and credibility.

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.

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