Tuesday, March 19, 2013

Employer Checklist for Avoiding Punitive Damages

     It used to be that punitive damage awards in employment related cases was something that only happened in the U.S.  However, decisions such as Pate and MacNeil from the Court of Appeal for Ontario established that employers must be mindfull of the potential for such claims.  Here is a simple checklist of things to avoid.

1.     Avoid reporting criminal conduct to the police based on speculation or bad faith;

       Many employers are of the mistaken belief that simply reporting a crime to the police will not lead to potential civil liability.  This is not entirely correct.  An employer can be found to have initiated criminal proceedings even thought they did did swear the information charging the employee with a crime.  The question as to whether the employer can be found to have "initiated criminal proceedings" as that term is used in the malicious prosecution jurisprudence depends on whether the crime is of the type where the facts can be said to be pecuiliarly within the knowlede of the party seeking police assistance.  Courts have concluded that employers did not "initiate criminal proceedings" by mere reporting in cases involving complicated frauds requiring complex investigation in order to acertain the facts (Mahon   v.  Rahn [2000] 4 All E.R. 42).   

2.     Avoid asserting cause based on sexual or other forms of harassment in the absence of a fair and thorough investigation supporting the allegation - especially where your own polices call for such;

3.     Obtain legal advice touching on the strenght of the allegations of cause and the potential costs associated with an action from the employee prior to dismissal.  Where the allegations of cause involve criminal conduct you will want to consult with a lawyer with knowledge of criminal and tort law.

Tuesday, March 12, 2013

Civil Action vs. Human Rights Tribunal - Get a Legal Opinion

     Many dismissed employees are ofen faced with the question of whether to proceed with a human rights complaint to the Human Rights Tribunal of Ontario (HRTO) or to bring a civil action seeking redress for the violation of their human rights and the wrongful termination of their cmployment.  The recent amendments which now allow plaintiffs to litigate Ontario Human Rights Code violations in the courts has given them a choice of forum for the adjudication of such claims.  The decision is a very serious one and can have profound influence on the type of remedy which one can obtain.  Accordingly, it is a decision which ought not to be approached lightly.  In this post I aim to draw attention to some of the points which  one should consider when faced with this decision.

Limited jurisdiction of HRTO:

     The HRTO is not statutorily empowered to deal with wrongfull dismissals per se.  Their power to deal with dismissals focusses only on those dismissals that flow from a Code violation.  What this means is that the fact that one was wrongly dismissed will not vest the HRTO with jurisdiction to fashion a remedy unless the dismissal or an aspect of it flowed from a breach of the Code.  In Clennon  v.  Toronto East General Hosptital HRTO 1242 the HRTO held that the failure of the employer to follow their performance improvement policy was a violation of the Code but their decision to dismiss was not.  The HRTO found that the employer's production of a series of critical memos purporedly written by emplyees who were not called as witnesses established a non-discriminatory motive for the dismissal. 

     The courts on the other hand have jurisdiction to deal with both aspects of these claims.  In this forum the range of outcomes is increased for the employee. For example, the fact that an employee was fired on account of her sex has been held to be no cause at law and to constitute a wrongful dismissal at common law.  However, the fact that a claim of a Code violation is not successfull is not necessarily fatal to a finding of wrongfull dismissal.   This is so because in the civil action forum there is a high onus on  the employer to establish cause for dismissal.

Right to Examination for Discovery:

     One of the most glaring differences between a court action and a proceeding before the Human Rights Tribunal is the abense of discovery of witnesess in the latter.  In a typical court action the Rules of Civil Procedure provide the parties with a right to question each other under oath on their claims. These examinations can be done by written questions and responses or in person and  recorded by an Examiner who prepares a transcript of the session which can be used at trial to establish admissions or for impeachment. 

     The examination for discovery is where the parties get to truly test the strength or weakness of a case or defence. A meritless claim or defence will often be exposed at the discovery stage.  Indeed, most claims involving wrongful terminations and human rights issues tend to settle post discovery.  This fundamental step is lacking in the HRTO process.  As a result, the parties do not have a forum within which to test the strenght of their case before proceeding to a full hearing on the merits. 


     Administrative tribunals like the HRTO were originally implemented in order to provide a quick and inexpensive forum for the adjudications of human rights claims.  Unlike the civil action forum the HRTO forum does not provide for the awarding of costs to the successfull party.  Human rights claims - especially those involving employment terminations - involve counsel on both sides of the dispute.  The inability to be indemnified for the cost of paying one's lawyer along with the absence of a right to conduct examination of parties and or witnesses makes the civil action a much more effective forum for seeking redress.  While the rationale for prohibiting costs in the HRTO forum was to open up the access to redress for the violation of such rights to everyone regardless of means it does not appear to be working.  In many instances the cost of advancing the litigation exceeds or comes very close to exceeding the recovery.  Indeed, if one was to do a cursory reveiw of the HRTO awards for 2012  I strongly suspect that the numbers would reveal awards that can not reasonable sustain the costs associated with having counsel.

Presumption of expertise:

     The HRTO is presumed by our courts to have expertise in the adjudication of human rights matters.  What this means is that their decisions are shielded from judicial scrutiny except in a very narrow set of circumstances.  For the dismissed employee who proceeds in this forum it inevitably means a trip to the Divisional Court - where the chance of success is very low and often costly.


     An employee who has been dismissed and the dismissal has elements of human rights violations in it is better served by proceeding with a civil action where they can conduct pre-trial examination for discovery of the other party and key witnesses and have all of the facts in their case adjudicated in accordance with law by a Superior Court Judge sitting alone or a judge and jury.  If they have an arguable case the fact that the Rules of Civil Procedure provide for costs means that they will be better able to retain counsel to represent them.  The reality is that the cost of litigating a termination with human rights issues before the HRTO is not only very costly but perhaps more importantly it is a very limited legal issue before a body shieled by great deference in that limited legal area but with otherwise no jurisdiction to deal wih the broader and more subsantive issue - the wrongful dismissal.  The civil action on the other hand covers both issues.

Available for consultation:

   If you have been dismissed from your employment or are experiencing harassment and discrimination on the job Ernest J. Guiste is available for consultation.  Tel. (416) 364-8908
or by E mail - ejguiste@yahoo.com


Thursday, March 7, 2013

Most Serious Mistake Dismissed Employees Make

     The importance of getting legal advice following the termination of one's employment and prior to signing-off on a settlement can not be stressed enough.  All too often dismissed employees end up being bound by post-termination settlements which they often wish they had never pursued.  All too often it is too late to correct their error.  Sometimes this failure on the part of employees stems from their fear of the cost associated with getting legal advice.  In an effort to tackle this fear I thought it helpful to set out in plain language my fees for such consultation along with the service I provide for it.  I hope it is helpful.


     $1,000 plus HST = $1,130 - payable at the visit.  In my experience it is common practice for bigger employers to indemnify employees for this cost.

Service provided:

Work history:

      I probe the client's work history in order to ascertain the reason for the termination of employment.  The reason is not always the reason stated by the employer.  If cause is
alleged I seek to ascertain in a preliminary way the strength of this cause.  Anyone can
assert cause but cause for dismissal requires cogent proof from the employer.  Have
there been warnings, performance appraisals, etc.  Does the company have an Employee
Handbook or similar document which sets out company policies on termination and
discipline ?  Was this policy followed ?  Does the nature of the cause alleged raise issues
of impairing your future employment opportunities?

Employment Standards Act:

     I probe compliance with the Employment Standards Act - termination pay, vacation pay and overtime pay.

Human Rights Codes:

     I also probe the possibility of the dismissal being motivated by a prohibited ground of discrimination - such as race, sex or age.


     For employees covered by the Canada Labour Code - Part III - I inform them of the Unjust Dismissal provisions of that legislation.  It provides employees with a right similar to unionized workers in that they can be reinstated following a hearing before a Canada Labour Code Adjudicator.

Employment Insurance:

     Employees whose employment is terminated on account of "misconduct" are typically denied coverage.  I explain the process to employees in terms of what to expect and how to protect their right to benefits by communicating their version of the facts to the E.I. agent.  The agent is obligated to hear both sides of the dispute.  It is critical that the employee provides their side to the agent. If your claim is denied you have a right to an appeal hearing before a Board of Referees and be represented by a lawyer. I have often represented clients in these proceedings.

Disability Insurance etc.:

     For employees suffering with illness or disability at the time of the dismissal issues of coverage and medical treatment become paramount concerns.  I probe the cause of the disability and illness and provide advice on protecting what ever rights the employee may have.      


      I am available for consultation and would be pleased to assist you.  Here is my contact info:

Ernest J. Guiste, Trial & Appeal Lawyer, 2 County Court Blvd., Suite 494, Brampton, ON, L6W 3W8
Tel. (416) 364-8908

Tuesday, March 5, 2013


       My office is now located at:


Telephone and Fax numbers remain the same.

Tel.(416) 364-8908   - Fax (416) 364-0973

E Mail: ejguiste@yahoo.com

I will continue to represent clients in the following areas of practice:

- Criminal (LAO accepted)
- Employment - Human Rights
- Administrative law
- Personal Injury - and
- Insurance

Saturday, March 2, 2013

Justice Kofi Barnes Elevated to Superior Court

      On Thursday, February 28th, 2013 Justice Kofi Barnes was sworn in as a Justice of the Superior Court of Ontario in a ceremony held at the Superior Court of Justice in Brampton.  Justice Barnes who was originally appointed to the Ontario Court of Justice in 2004 brings a wealth of knowledge in criminal law to the Superior Court in Brampton.