Wrongful Dismissal Lawsuits in Ontario: Changes are Coming

In an effort to improve access to justice, the Ontario government through the Ministry of General has amended the court rules[1] with a view to streamlining the court process and reducing costs associated with a lawsuit.

These changes go into effect on January 1, 2020, affecting lawsuits involving claims between $35,000 and $200,000. These changes are expected to impact many wrongful dismissal lawsuits going forward. Some of the key changes are as follows:

  1. 5-day trial limit. Trials will now be capped at 5 days. This sounds promising from a cost perspective to avoid prolonged and expensive trials, although parties will have to potentially limit the number of witnesses for trial and choose their witnesses carefully and wisely.
  2. Evidence in Chief by Written Affidavit. Instead of taking the witness stand, your evidence in chief must be presented by written affidavit. This approach allows a witness to plan and present their evidence in a way that is the most compelling. Witnesses are less likely to forget or miss important pieces of their evidence, and they will be able to review their evidence before trial. Witnesses will nevertheless have to take the witness stand for cross-examination by the opposing party’s lawyer. The change may be benefit to some, particularly those who are extremely nervous about taking the witness stand. However, some individuals present a more compelling story by verbally recounting their evidence in chief in a way that does not present as well through a written statement.
  3. No jury trials. For most wrongful dismissal actions, trial by jury is no longer an option (there are limited exceptions, for example, for cases involving a claim for slander, libel, among others).
  4. Oral discovery Time Limit. Parties will have up to 3 hours to conduct their examination for discovery (the testimony of a Plaintiff or Defendant taken under oath before trial).
  5. Cap on cost recovery. If you win at trial, recovery for legal fees is generally capped at $50,000 plus HST and $20,000 plus HST for disbursements plus HST. Costs are not capped if your lawsuit started before January 1, 2020.
  6. 3 experts maximum. At trial, parties will not be able to call more than 3 expert witnesses and expert evidence in chief is presented by affidavit. [2]

Conclusion

What are some takeaways from these changes? They have been designed to improve access to justice for individuals and businesses so they can potentially resolve cases in a more cost-efficient and expedient manner. On the other hand, it remains to be seen how these measures will impact more complex litigation.

If the stated purpose of these changes is to help achieve early and cost-effective resolution of a matter, the changes do not go far enough. In our view, mediation should be made mandatory province-wide. In our experience, mediation has proven to be a very effective opportunity for parties to resolve employment law disputes, saving parties time and costs.

If you are an employee or an employer thinking of starting a lawsuit, contact us at Pak Smith Employment Lawyers today. We are expert employment lawyers and litigators.

[1] Through O. Reg. 194 under the Courts of Justice Acthttps://www.ontario.ca/laws/regulation/r19344

[2] You will still have to comply with Rule 53.03 though regarding expert reports and you will also need to attach an affidavit sworn by your effort.

By |2020-09-03T03:56:36-04:00November 20th, 2019|Article-All|0 Comments

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