A customer (who explicitly asked not to be identified) recently asked us some really good questions. I wanted to expand on one of the answers to a question asked. The paraphrased question was, “All of the cases on www.CANLII.com seem to involve an employee who had real issues. I’ve got a pretty good work history. Would the cases still apply?” The short answer is yes!
Recall that www.canlii.org is the free website offered by an association of courts, law societies, and legal libraries across Canada to publish case reports online. Whenever someone sues another person and that lawsuit is decided by a judge (rather than settled out of court), the judge’s decision is published as a document with the judge’s reasons for coming to that decision. In the pre-internet days, these decisions were published on paper and made availble to the general public at the courthouse. With the advent of the internet, courts are now publishing their decisions directly online. www.FiredWithoutCause.com refers to those electronic cases.
As I stated earlier, many (in fact most) cases settle before they go to trial and are heard by the judge. In plain vanilla type cases, when a dismissal does not involve some allegation of employee misconduct, incompetence, or otherwise known as “cause” to lawyers, most of these cases settle since the only real issue is how much notice is fair. Most often, lawyers will use commercial services similar to FiredWithoutCause.com to get previous cases of wrongful dismissal to know what courts have determiend as “fair” notice periods.
The cases that do go to trial generally involve cases where the employer alleges some form of cause, such as some form of dishonesty, fraud, theft, or gross incompetence. Employees may allege that the employer treated them particularly badly to justify a claim for what lawyers call Bad Faith Dismissal, emotional or aggravated damages, or punitive damages. Sometimes, either the employer or employee will allege that the nature of the employment contract changed over time, therefore justifying some different kind of obligation. In all of these cases (there are others, but these are among the more common cases), the employer and employee disagree over these facts and will fight quite hard over them. These cases are more difficult to settle out-of-court and are therefore more likely to be decided by a judge. Therefore, these cases tend to be over-represented in court decisions, giving the casual observer the impression that cases in CANLII tend to involve employees with “issues”.
Even in plain vanilla type cases, lawyers can and will rely on these difficult cases. First, not all wrongful dismissal cases that reach the courts involve such dramatic facts. Many of them involve fairly straightforward facts to determine a notice period. Second, in many cases that involve fairly dramatic facts, courts will still state what a fair notice period under normal circumstances would be absent the aggravating facts and then discuss how the notice period is shortened or lengthened depending on the aggravating facts. Consider the leading Supreme Court of Canada case in Wallace v. United Grain Growers: http://scc.lexum.umontreal.ca/en/1997/1997rcs3-701/1997rcs3-701.html in which the Supreme Court of Canada agreed that in limited circumstances, an employer that dismisses an employee in a particularly disrespectful, not consistent with an employer’s duty to act in good faith to its employee, way may cause a court to award a notice period that is on the longer end of the scale. Using this principle, a court must still review previous cases of wrongful dismissal with similar objective facts (age, length of service, etc) to see what that range would be before picking an appropriate notice period on the longer end of the scale.
So, even if the cases may seem dramatic, courts must still decide cases using established legal principles and precedent. To ensure that everyone is treated fairly, courts tend to create decision rules that enable them to make consistent decisions over time and between people. This exercise inexorably causes them to develop decision processes that decreases the influence of facts that are idiosyncratic to an individual case (such as those more dramatic facts) and gives greater weight to objective facts that similar litigants can share, like age and length of service.
