Many employers will, at least once, face a wrongful dismissal complaint. The economic downturn has resulted in an increase in the number of terminations or material changes to employees’ terms and conditions of employment. These have, in turn, lead to an increased risk of wrongful and constructive dismissal claims. If such claims are unresolved, they can lead to litigation. This economic downturn also means that employers need a way to handle such litigation in an economic and speedy fashion.
At a recent conference, the Honourable Chief Justice Brenner reported the results of a survey that the legal fees for an average three day trial in Supreme Court are now around $60,000. In light of these fees, which are daunting for employers and employees alike, the court and the legal profession regularly attempt to find ways to make the litigation process more economic. Many wrongful dismissal claims are resolved by way of summary trial using affidavit evidence, or by mediation. However, those processes are not always ideal, particularly if there is a credibility issue, which would make a summary trial unsuitable, or if one party will not agree to mediation, which is a voluntary procedure.
In 1998, the courts introduced a “fast-track” process, under Rule 66 of the Rules of Court. The purpose was to provide parties with cheaper and speedier access to judicial determination, where the issues to be resolved are fairly straightforward. Until now, the process has been underutilized. However, given the increased cost of standard litigation, Rule 66 may be worth a second glance, particularly for wrongful dismissal claims where the damages are limited in scope.
Rule 66 applies to actions in which a full trial is estimated to take no more than two days. There is no monetary limit on the amount of the claim, but, because of the time limit, the rule generally requires straightforward factual and legal issues. It may be ideal for wrongful dismissal cases which are relatively straightforward but are not suited for summary trial. Some examples of wrongful dismissal cases which may be useful for fast-track:
- where there is cause, based on one instance of wrongdoing (i.e. theft);
- where there is a dispute over the terms of an oral bonus or commission plan; or
- where there is a dispute over whether changes in the employer’s practices resulted in fundamental changes to an employee’s terms of employment.
Rule 66 provides a code for the entire litigation. It is not an automatic process and must be chosen by one or more of the parties. Rule 66 does not have a provision allowing for parties to move into Rule 66 after the pleadings are filed, however, and once a party makes an election to use the process, it is very difficult to move out of the process. All of this means that the parties must decide whether to use the Rule at the outset of the litigation. This forces both lawyers and clients to think about how best to handle the claim early on.
The key benefits of using Rule 66 are:
- Often a trial date can be obtained within four months from the date applied for, compared to at least a year or more for regular trials.
- The pre-trial discovery procedures are truncated, and therefore cheaper. Lists of documents are delivered with the pleadings, and examinations for discovery are limited to two hours each.
- Rule 66 sets out a strict trial scheduling process, which is designed to ensure that the trial may be completed within two days, and that the parties always keep in mind the time limits.
- For employers, the fast-track proceeding offers the ability to cap awards of costs. If liability is not an issue, employers are generally liable for the former employee’s taxable costs and disbursements. Taxable costs are capped at $5,000 for one day trial, $6,600 for two days, exclusive of disbursements. By contrast, a one day summary trial may result in taxable costs of around $8,000 to $10,000, and full trials upwards of $20,000.
There are limitations to the Rule, however:
- The matter must be capable of resolution in two days or less, as a full trial. If the judge does not agree, the judge may postpone the trial, which in turn leads to delays and expense.
- The election must be made at the outset of the litigation, perhaps before there is a full appreciation of the facts.
- Electing to proceed means foregoing a summary trial, which is not available under Rule 66.
- Opting out is difficult, even where you did not select the process. You may be forced to proceed.
Rule 66 requires clients and lawyers to engage in preparatory work at the outset of the litigation, both in terms of gathering facts and analyzing the case. Questions to ask are: Is the summary trial process (Rule 18A) appropriate? If not, can this be done in two days?
It is crucial for the client to be engaged in the process for a number of reasons. First, the client may be required to forego some claims in exchange for the time and costs savings of the process. Second, the client can carry out a significant portion of the initial document gathering and reviewing. Third, the client must be made aware that there will be sacrifices in preparation to keep costs within a framework.
Within the process, clients and lawyers must always keep an eye on the trial estimate. If it becomes apparent that two days will not be enough, both must deal with that early. The focus should be getting on with the trial as quickly as possible.
The parties must be judicious about examinations for discovery. With a maximum of two hours, counsel must be careful to deal with only the contentious issue: narrow in on finding out the other party’s case and obtaining the necessary admissions.
Rule 66 may be an effective and creative way of bridging the gap between summary trial and full trials where the issues are relatively straightforward and a full trial would be uneconomic. Given the increased opportunity for wrongful dismissal claims, together with the legal cost involved in traditional litigation, we believe that our clients want us to offer creative solutions in how we manage litigation. Accordingly, we invite our clients to consider this rule and other methods of expediting the resolution of employment related disputes when speaking to us about litigation.