September 14, 2020: Save the Date

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Ontario Limitation Periods Suspended A Few More Days

The Ontario Government announced on August 20, 2020, that the restart date for limitation periods and deadlines in proceedings will be pushed a few days later than the previous date of September 11, 2020.

September 14, 2020 is the new date that the Regulation suspending Ontario limitation periods and timelines for steps in any Ontario proceeding, Limitation Periods, O Reg 73/20, will be revoked (subject to the discretion of the court or tribunal responsible for the proceeding).

The limitation period is retroactive to March 16, 2020. This short extension of only a few days will make the duration of the limitation period suspension a round number of 26 weeks. Consequently, it may be easier for jurists, lawyers and paralegals (who are traditionally not great at math) to calculate limitation periods in the coming months and years.

The stakes are high when dealing with limitation periods. One should not gamble with such deadlines because, if a claim is commenced too late, it may be dismissed outright.

Further, not all limitation periods are the same length or triggered the same way. It is important to seek legal advice from an employment lawyer to determine the applicable limitation period or deadline in the particular circumstances of your employment issue. Contact Zubas + Associates at 416-593-5844 or by email at info@employment-lawyers.ca with your questions regarding limitation periods.

Zubas + Associates in the news “ONCA Employment decision in Waksdale potentially voids thousands of termination provisions” in Canadian Lawyers Magazine

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Recently, Zubas + Associates Lawyer, Dan Hassell, was published in Canadian Lawyers Magazine. The opinion piece, which discussed the ONCA employment decision in Waksdale and its impact on termination provisions, is available to read on the Canadian Lawyers Magazine website here and below.

ONCA Employment decision in Waksdale potentially voids thousands of termination provisions

Terminated employees should get a boost from the ruling, says Daniel Hassell

The past few months have been distressing for both employers and employees. First, COVID-19 swept across the world and across Canada, resulting in business closures, layoffs and terminations. Courts then reduced operations and suspended procedural deadlines, leaving most wrongfully dismissed plaintiffs on standby, with limited access to justice.

A glimmer of hope for the prospects of employees who require more than the bare minimum protections of the Employment Standards Act, 2000 (ESA) came from the Ontario Court of Appeal in the recent decision in Waksdale v. Swegon North America Inc., 2020 ONCA 391. The case represents a significant judicial development in the ongoing efforts by employers to limit their liability when terminating employment relationships.

Waksdale boils down to a discrete technical issue regarding the legal effect of a written employment contract and, more specifically, the enforceability of a termination provision that attempts to limit an employee’s entitlements to slightly more than the minimum under the ESA. At issue was whether an unenforceable “for cause” termination provision would render the operative “without cause” termination provision unenforceable as well.

If a termination clause violates the ESA, then the clause is void and the more generous (and nuanced) common law applies.

The principles of the leading case of Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 SCR 986, summarized in the oft-cited Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 (CanLII), include the following:

  • Courts should … favour an interpretation of the ESA that “encourages employers to comply with the minimum requirements of the Act” and “extends its protections to as many employees as possible”…
  • Termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the ESA. …

The court will scrutinize restrictive termination clauses for potential, and often minor, breaches of the ESA. Since Machtinger, the analysis has become increasingly technical.

The Ontario Court of Appeal clarified in Waksdale that the correct approach is to determine whether the termination provisions, read as a whole, violate the ESA. It declined to apply a “severability” clause to separate the “for cause” and “without cause” termination provisions.

Waksdale represents a significant and far-reaching departure in the application of the widely accepted principles used to determine if a termination provision is void for breach of the ESA.

“For cause” termination provisions are often in breach of the ESA, but this violation has been largely inconsequential. Counsel for dismissed employees will now be able to use such breaches to more effectively poke holes in the language of restrictive termination provisions to access typically greater common law entitlements.

A common drafting flaw is to overlook a narrow distinction between the ESA and the common doctrine of just cause. Pursuant to the ESA, “An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial … ” is not entitled to statutory notice of termination/termination pay, or severance pay. The common law standard of just cause is a somewhat broader.

Employment lawyers are frequently presented with the following scenario:

  • An employee is dismissed for reasons beyond their control, such as restructuring, changing business needs, and more recently the impact of COVID-19.
  • The dismissal is therefore “without cause,” meaning the employer is not taking the position that the employee engaged in egregious misconduct and ought to have been ‘fired on the spot.’
  • On legal review it is determined that:
    • the “without cause” termination provision is technically sound and on its own would probably be enforceable;
    • the “for cause” termination provision (which is not being relied on) is technically in breach of the ESA and probably unenforceable; and
    • the two clauses are not entangled.
  • Assuming there was no other basis to invalidate the employment contract, prior to Waksdale, the “without cause” provision would probably be enforceable.

Now the likely outcome will be the exact opposite. The court will declare the entire termination provision void, and not just the “for cause” provision.

Waksdale is ground-breaking because of the sheer volume of employment agreements likely impacted, especially given the unprecedented number of terminations due to COVID-19. Statistics Canada reported that unemployment rates in May 2020 reached a record high of 13.7 per cent.

The decision in Waksdale represents some respite for wrongfully dismissed employees, many of whom may now have significantly greater entitlements.

Employers may want to have their employment contracts updated with enforceable termination provisions that are reasonable and not overly restrictive.

Employees would be prudent to have their termination provisions reviewed by an employment lawyer.

Ontario Government Attempts to Help Employers by Bolstering Lay Offs

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New Regulation Has Hang Ups: Infectious Disease Emergency Leave, O Reg 228/20

In the midst of the novel Coronavirus disease (COVID-19) pandemic, employers have been raising concerns that the temporary layoff and termination provisions of the Employment Standards Act, 2000 (the “ESA”) are ill suited to address the circumstances they are facing. Meanwhile, many employees have been laid off from work and forced to elect to agree, acquiesce or object to temporary layoffs and assert that they have, in effect, been constructively dismissed from their jobs. Constructive dismissal is a unilateral change to an employment contract by the employer.

As the Ontario state of emergency is repeatedly extended – most recently until June 30, 2020 – employers continue to struggle to manage their workforce while enduring significant revenue losses. Meanwhile, employees continue grapple with difficult decisions about their livelihood and volatile job security.

The provincial government has attempted to respond to these concerns.

New Regulation

On May 29, 2020, the Government of Ontario introduced the Infectious Disease Emergency Leave, O Reg 228/20 (the “Regulation”). The Regulation replaces the previous Infectious Disease Emergency Leave Regulation (O Reg 66/20) and amends the ESA provisions regarding the recently introduced infectious disease emergency leave, layoffs, constructive dismissals and automatic terminations. The Regulation applies mainly to non-unionized employees.

“The Ontario government is taking steps to help ensure that as the economy gradually and safely reopens workers will have jobs to return to and businesses will be protected from incurring unsustainable termination costs,” the government stated in a press release.

The COVID-19 Period

Firstly, the Regulation creates a “COVID-19 period” from March 1, 2020 to six weeks after the current declaration of emergency in Ontario ends. Given the province’s announcement on June 2, 2020 to extend the declaration of emergency to June 30, 2020, the COVID-19 period will expire on August 11, 2020 at the earliest.

Infectious Disease Emergency Leave

The Regulation deems non-unionized employees, whose hours of work or wages were temporarily reduced or eliminated during the COVID-19 period for reasons related to COVID-19, to be on infectious disease emergency leave (“IDEL”) retroactively from March 1, 2020 onwards. The IDEL, which was introduced on March 19, 2020 through an expansion of the emergency leave provisions of the ESA, entitles an employee to an unpaid leave of absence in instances where the employee is unable to work for a broad range of COVID-19 related reasons.

Protections to employees on IDEL such as the right to reinstatement, will apply during the COVID-19 period with some exceptions.

Temporary layoffs not deemed a termination or constructive dismissal

The Regulation provides that a temporary reduction or elimination of hours or a reduction of wages during the COVID-19 period for reasons relating to COVID-19 does not amount to a termination, severance or constructive dismissal for the purposes of the ESA.

The Regulation also allows for temporary layoff to exceed the prescribed length of 13 weeks or 35 weeks under the ESA during the COVID-19 period without amounting to termination, subject to some exceptions.

Employees who were already given written notice of termination during the COVID-19 period will not be considered to be on IDEL unless both the employer and employee agree to withdraw the notice of termination.

Apparent purpose of the Regulation

The government appears to have tried to ‘hit the pause button’ on various ESA layoff, termination and severance provisions in response to the COVID-19 emergency, but it may have missed the mark. By placing many employees on deemed IDEL, some of whom will continue to work on a reduced basis, the Regulation appears to have created confusion and uncertainty.

Manner in which the Regulation was introduced

That the Regulation may have been introduced hurriedly without warning or consultation is no surprise, given present circumstances and given that 13 weeks from the start of the COVID-19 emergency was about to elapse in mid-June. Again, the 13-week mark is significant because the general ESA rule is that a temporary layoff will automatically crystalize into a termination after 13 weeks of layoff in any consecutive 20-week period.

Scope of the Regulation

It is clear that the Regulation limits certain employment standards complaints based on termination due to layoff and constructive dismissal. In fact, complaints already filed with the Ministry of Labour arising from temporary reduction or elimination of an employee’s hours of work or a temporary reduction in an employee’s wages by an employer are “deemed not to have been filed”, provided that the reductions occurred in the COVID-19 period for reasons relating to COVID-19.

Common law constructive dismissal or breach of contract law suits decided by the courts are probably still viable, as the ESA generally does not affect civil remedies of employees against their employers. In other words, an employee’s minimum statutory entitlements to termination and severance pay may be limited, but overlapping and often greater entitlements may be awarded by the courts.

Uncertainty surrounding the end of the COVID-19 period

Again, the Regulation is primarily temporary in nature. The bulk of the provisions last only until six weeks after the COVID-19 state of emergency is lifted in Ontario. After that time, the standard protections of the ESA will re-engage. Employees placed on deemed IDEL will also be afforded the additional protections applicable to ESA leaves. More specifically, employees on an ESA leave, such as the IDEL, are entitled to be reinstated to the position they most recently held, if it exists, or to a comparable position, if it does not. The obligation to reinstate an employee does not apply, however, if the employment relationship was ended solely for reasons unrelated to the leave. It remains to be seen what dismissals may now be in breach of the protections of the ESA for a deemed IDEL.

The lack of clarity is not likely to be resolved in the near future. Presently, court procedural deadlines are effectively on hold and, in the pre-COVID-19 circumstances, it often took years to get to trial. Prior to partial court closures, summary judgment decisions usually took several months to be issued and those are limited to cases where the facts are straightforward enough to be decided without a full trial.

It appears that there will be upheaval and litigation arising from layoffs, constructive dismissals and outright terminations following the COVID-19 period, but those will occur no sooner than August 11, 2020.

In the meantime, employees and employers will need to pay close attention to the dates of layoffs, reductions in working hours/wages and dismissals etc., as there are now a host of triggering dates under the Regulation with various consequences.

Analysis by an employment lawyer of each specific set of events will be necessary to determine what an employee’s entitlements may be. If you have questions about layoffs, constructive dismissals or the changes to the new Infectious Disease Emergency Leave, contact Zubas + Associates. Call us at 416-593-5844 or send an email to info@employment-lawyers.ca.

The COVID BUMP: Will Wrongfully Dismissed Employees Score “Coronavirus Damages”?

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Michela v St. Thomas of Villanova Catholic School may give parties a glimpse into the Court’s position

While Canadians focus on flattening the curve of new cases of Coronavirus (COVID-19) cases, wrongful dismissal plaintiffs and their counsel are hoping for a “bump” of sorts. The millions of Canadians now unemployed probably as a result of the COVID-19 global pandemic declared by the World Health Organization on March 11, 2020 and subsequent recession are hopeful that judges award additional notice period damages.

During this time, employers are terminating their workers’ employment at an alarming rate. According to Statistics Canada, the unemployment rate has risen from 7.8% in March, to 13% in April, 2020. While job loss may be inevitable, employers must ensure that they adhere to Federal or Provincial employment standards legislation as well as the common law, where applicable. Otherwise, employers will risk exposure to potential damages for breach of statute and wrongful dismissal.

The common law (or judge-made law) presumes that employees hired for an indefinite period are entitled to reasonable notice of the termination of their employment by their employer. Notice periods are given in order for the employee to continue to obtain their pay while attempting to find alternative employment. As the Court stated in Lin v Ontario Teachers’ Pension Plan, 2016 ONCA 619 (CanLII).

At its foundation, reasonable notice is the period of time it should reasonably take the terminated employee to find comparable employment.

Commonly, employers will provide “pay in lieu of notice,” where the former employee will receive a lump sum compensation of their pay, or a salary continuation, as if they continued working normally.

When an employee commences a dispute over a notice period, today’s judges still follow the 1960s case of Bardal v Globe & Mail Ltd., 1960 CanLII 294 (ON SC) The Bardalfactors are considered by the Court to determine the length of time of a reasonable notice period. They include:  

  1. Age of the employee;
  2. Length of service;
  3. Character of the employment; and
  4. Availability or job market of similar employment taking into consideration of the experience, training and qualifications of the employee.

This list is not exhaustive. A broad range of other factors, such as health issues, manner of dismissal and language comprehension, can also be considered.

Each wrongfully dismissed employee’s circumstances are particular, and the appropriate notice period will be determined on a subjective basis rather than an objective one. In Paquette v TeraGo Networks Inc., 2015 ONSC 4189 (CanLII), rev’d on other grounds 2016 ONCA 618 (CanLII), the Court stated: “The determination of a reasonable notice period is a principled art and not a mathematical science.”

Notice Period in Times of COVID-19

During these extraordinary times of COVID-19, neither employees nor employers are immune from the pandemic’s impact. Dismissed employees will struggle to find alternate employment, much less comparable employment.  Standard notice periods may be insufficient to bridge an employee to a new position.

Both employers and employees will most likely be in a position of financial difficulty, and it is presently unclear as to which party will bear the burden. Will employers be ordered to “bump up” employee notice periods in order to ensure that employees receive pay during a prolonged period of unemployment? Or will employees have to make do with the notice period given to them by their financially-strapped employers?

Employers may take the position that no notice period should be awarded based on the concept known as frustration of contract in common law and pursuant to the statutory exception in Termination and Severance of Employment, O Reg 288/01 s 2.

Though judges and decision makers may not have case law dealing specifically with termination of employment during a global pandemic to which they can refer, jurisprudence of a similar nature is insightful. Cases in which employers were in financial distress and have had to fire staff may be analogous.

One of the leading cases which addressed this situation is Michela v St. Thomas of Villanova Catholic School, 2015 ONCA 801 (CanLII). In that decision,the Ontario Court of Appeal addressed the question of whether an employer’s financial circumstances are relevant in determining a wrongfully dismissed employee’s reasonable notice period entitlement, and stated:

It is important to emphasize, then, that an employer’s poor economic circumstances do not justify a reduction of the notice period to which an employee is otherwise entitled having regard to the Bardal factors.

Notice Periods in Difficult Economic Circumstances

In many decisions, both pre-and post-Michela, the Court has asserted that a poor economy may increase a plaintiff’s reasonable notice period entitlement. For example:

Case Name Position Tenure Salary Age Notice Period Judge’s Reasons
Deacon v MacMillan Bloedel Ltd., 1982 CarswellOnt 717   Manager 9 years, 11 months – 38 7 months “Another factor, one upon which I place reliance, is that this man was laid off from his employment in a period of economic downturn, which surely made it more difficult to obtain alternate employment. In times other than hard economic times, I would say that a person in the position of Mr. Deacon, and in the circumstances herein, should have received a notice of six months, but the economic factor, in my view, justifiably adds a period of one month.”
McBride v W. P. London & Associates Ltd., 1984 CanLII 1903 (ON SC) Senior Drafts-man 8 years – 51 4 months “I accept the evidence of the plaintiff that because of the state of the economy during the period October, 1982 to February, 1984, it was ‘nigh impossible for a senior draftsman to find employment’. Indeed, it was only after the plaintiff took an eight-week computer drafting course that he found employment as a draftsman again.”
Lim v Delrina (Canada) Corp., 1995 CanLII 7271 (ON SC) Corporate Controller 6 months $50,000 42 5 months “…I conclude that the following factors are to be considered when ascertaining an appropriate notice period: (1) The depressed economic conditions of the employer. (2) The lack of available employment opportunities due to depressed economic conditions in a particular industry. (3) That factors 1 and 2 can be considered so as to increase notice but not to decrease it. (4) That economic factors are not to be given undue influence.” “…I find that, given the well known depressed economic conditions of the time, particularly as it affected the plaintiff’s profession, an additional 1/3 (one month) should be added to the notice period.” [Emphasis added]
Leduc v Canadian Erectors Ltd., 1996 CanLII 8132 (ON SC)   Project Engineer 6 years $55,800 34 7 months “In the case at bar, the plaintiff, Compton and Dion were of one voice in describing the economic conditions in their industry; generally, as being slow, if not depressed, in 1994. That was the economic climate to be weathered by the plaintiff when his employment was terminated on July 7, 1994 (and the defendant knew it at the time). That was why it took nine months of diligent effort by the plaintiff to secure new employment. Accordingly, I find this to be an appropriate case for the period of notice to be enlarged beyond what otherwise might be appropriate.”
Castelino v Richard Ellis (Canada) Inc, [1997] OJ No 6268   Vice President of Property Management 3 years $77,000 52 8 months “With respect to the availability of similar employment, having regard to the experience, training and qualifications of the employee, I find that this factor also favours the plaintiff somewhat. The evidence is clear that his termination came at a very difficult time in the real estate industry. There was clearly a recession. There were many bankruptcies and receiverships, and the environment was highly competitive. The defendant suggests that this meant that there were lots of jobs available, but equally, I accept the plaintiff’s evidence that there were a lot of people chasing those jobs as a result of the turmoil in the market. The situation was highly competitive and it was a rather difficult climate in which to find employment.”
Sifton v Wheaton Pontiac Buick GMC (Nanaimo) Ltd., 2010 BCSC 353  Shop Manager 16 years $78,000 51 14 months “…that unfavourable economic circumstances may serve to extend the reasonable period of notice if, as a result, the employee is unlikely to find equivalent employment readily and his or her loss is thereby increased, but they will not serve to reduce the reasonable period of notice.”
Zoldowski v Strongco Corporation, 2015 ONSC 5485   Parts Administr-ator 17 years $48,000 39 14 months “As part of this determination the court may consider the economic climate the employee is put into when terminated.  If there is an economic downturn, then that may make it more difficult to find a job and may justify a longer notice period…”
Nielsen v Sheridan Chevrolet Cadillac Ltd., 2016 ONSC 1843 Service Advisor 1 year $56,000 27 28 weeks “… in determining reasonable notice, economic circumstances of an employer are not a proper consideration in determining the length of notice to which an employee is entitled upon termination…”
Hampton Securities Limited v Dean, 2018 ONSC 101 (CanLII), aff’d 2018 ONCA 901 (CanLII), leave to appeal dismissed 2019 CanLII 45256 (SCC) Broker 1 year  $117,000 – 6 months “I find that the ordinary notice period for someone in Ms. Dean’s position would be three to four months. I would tend towards the higher end of that scale given the depressed circumstances in the securities industry at the time of termination and fix the initial notice at four months. I extend the notice period by a further two months to compensate her for the additional time it would take to find employment given Hampton’s unjustified allegations of unauthorized trading in the NOT.”

While the court points to economic factors as impacting the reasonable notice period, unlike Laforme J in Lim, judges do not often specify how much of an impact a particular factor had on the determination of the length of the reasonable notice period. As such, it is difficult to pinpoint a substantial increase in the notice periods awarded as a result of economic or financial challenges. Even the precedent in Lim is somewhat unclear – could it be followed to increase notice periods by one month or one third? In the case of a long notice period an increase by one third could amount to several additional months.

Although these decisions and Michela elucidate the Court’s position to date, the global pandemic in which we find ourselves, which is not localized to one region or industry, may render a different decision from the Court.

Zubas + Associates in the News: “The Turbulent Life of an Employment Lawyer during COVID-19” in Canadian Lawyer Magazine

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Today, Zubas + Associates Lawyer, Ted Flett, was published in Canadian Lawyer Magazine. The opinion piece, which discussed the various pressures on an Employment Lawyer during COVID and tensions within the employment bar, is available to read here and below.

The Turbulent Life of an Employment Lawyer during COVID-19

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.