In Episode 18, our hosts demystify employment law litigation – a.k.a going through a dispute. Rest assured, It’s not as scary as it sounds! Jill and Dana explain the road map that leads to litigation in the context of employment law, while also fulfilling their lawyerly of declaring Legally Blonde the ultimate resource of legal knowledge.
Full episode transcript below:
Announcer: This podcast is produced by Nelligan Law.
Dana DuPerron: Welcome to All Worked Up, the podcast where two employment lawyers break down real life workplace issues that affect real people. I’m Dani DuPerron.
Jill Lewis: I’m Jill Lewis and we’re senior associates at Nelligan Law. And we’re super excited to bring you this podcast aimed at making employment issues interesting, accessible for employees and employers.
Dana DuPerron: Welcome to All Worked Up. I’m Dana.
Jill Lewis: I’m Jill.
Dana DuPerron: And what’s got you all worked up today Jill?
Jill Lewis: OK, we’re worked up about litigation. The like really scary topic.
Dana DuPerron: Yeah. Not to us.
Jill Lewis: We are going to do…
Dana DuPerron: Not to us, no because we do this all the time. But I can see how it would be intimidating.
Jill Lewis: To other people so we want to break this down. I want to demystify this whole litigation process OK? Because like the whole purpose of this podcast is to make this information really accessible to people because we were seeing the same people often come through our doors right? Like I’m just going to throw that out. And I want individuals who either like don’t have experience with the law, or are intimidated about litigation, and mediations and that type of thing.
Yeah I just want to make this a little bit easier to understand, and the steps and like forget what you’ve seen on TV. We’re not as exciting as Suits. This is not Suits. This is not the Good Wife.
Dana DuPerron: Nowhere near as exciting.
Jill Lewis: Yeah, yeah except for Legally Blond, you know what that movie – OK, sorry I got totally off topic. All right so we’re going…
Dana DuPerron: We’re not as exciting as Elle.
Jill Lewis: Oh, no but she – I mean she gives like a master class in cross-examination.
Dana DuPerron: Well she does.
Jill Lewis: I mean absolutely she does.
Dana DuPerron: You want to learn from the best.
Jill Lewis: Forget about making employment law more accessible. You know what you want to do. Just go pop in Legally Blond and you’ll learn everything you need to know.
Dana DuPerron: And if you want a refresher course, Red, White, and Blond also…
Jill Lewis: If you can check the musical out it’s supposed to be so good. OK, all right enough. We’re going to give – so this is part of the series. We’re going to do a whole like litigation series about all of the steps. Today we’re going to do like a roadmap. So if you come to see us because you’ve got a legal issues, you’ve been fired. We’re going to just go through the steps. And when I think roadmap I’m picturing like Dora the Explorer. I’m sorry, my four-year-old will not stop watching Dora. And so every time we go somewhere and we need a map, where’s the map?
Dana DuPerron: Well that’s good, no. That’s your set.
Jill Lewis: Backpack, backpack.
Dana DuPerron: Yeah, I’m picturing a treasure map with like a big X marks the spot. There is it at the end when you get your order.
Jill Lewis: Yeah, yeah it’s a big bag of money.
Dana DuPerron: Yeah, I’m just hoping.
Jill Lewis: All right, so I’ve been fired. And you know they gave me like two months. I’ve been there for 30 years. Dana, I’m coming to see you for the first time what do I do?
Dana DuPerron: OK, so we’re going to go over your entitlements right? You don’t have a contract let’s say. I think you can get probably – I think you’re entitled to way more. Subject to the duty to mitigate.
Jill Lewis: Oh, which is an exciting episode you’re going to want to listen to.
Dana DuPerron: Yeah, go check that out. But, so you are entitled to more. So usually the first step, usually what we do first is send a demand letter. Setting out our position, here’s why this person has a greater entitlement than what they were given. And here’s what we suggest we settle for now. OK, when you send a demand letter three things could happen.
One, they could pull the offer that’s already on the table. Chances of that happening are like…
Jill Lewis: Never seen it happen.
Dana DuPerron: Like so teeny. That’s a 0.1 in case you couldn’t – but I mean, I can’t put a percentage on it. But it’s like so teeny. Like most of the time they know they owe you something. If you have this big entitlement anyway, like what’s the benefit yeah.
Jill Lewis: Why would they pull? And a lot of times they’ve already set that money aside know what I mean?
Dana DuPerron: Exactly, like mentally if not actually physically in this account. Like mentally. So possibility number one. Low chances, but possible. Possibility number two is that they reiterate the offer they’ve already made and then you have to decide what you think.
Jill Lewis: Yeah, I’ve seen that one. Thanks so much for your letter, but heck no here it is – here was an extension on the signing of the original offering.
Dana DuPerron: Yeah, exactly so that’s like you know bad outcome. That’s more likely than the first one and then option number three or outcome number three is that they do negotiate. Now we often go through that negotiation process and sometimes that’s still not going to get us there. Sometimes we’re just too far apart. So then what do we do?
Jill Lewis: All right, well then we initiate litigation. Sometimes we suggest mediation before. I don’t know if we want to get in there, but the next step would be OK so if you disagree with your employer then your next option is to start the lawsuit. [Unintelligible [00:05:01]
Dana DuPerron: Yeah, if you’re not going to take whatever their last offer is on the table yeah.
Jill Lewis: OK, that’s your option. You know that’s kind of the whole deal on why we’re trying to settle, and why we’re trying to compromise is nobody wants to go through the litigation process. Let’s try and just settle this now. Everyone tries to compromise if you can’t get there, OK.
So we draft the claim. Your lawyer drafts your claim, and the claim is going to claim all of your legal entitlements and the reasons why you are entitled.
Dana DuPerron: Yeah, sets out your story.
Jill Lewis: Yeah, sets out the story, the facts, the parties, the claim and you know we don’t get into the legal arguments in the claim. But you set it all out. You send it on down to the courthouse.
We still sending things by oh my gosh, that…
Dana DuPerron: I don’t think so.
Jill Lewis: That was ancient. That was an ancient practice.
Dana DuPerron: I mean I think you can, but COVID’s changed a lot. There’s a portal on the web like yeah.
Jill Lewis: Like you would send it by, like…
Dana DuPerron: An articling student. Like I remember as an articling student you’re like waiting there to like get stuff down to the courthouse.
Jill Lewis: Or like a courier that rode a bike and he would…
Dana DuPerron: Yeah, OK anyways so.
Jill Lewis: So yeah you send it on down to the courthouse. It gets issued and then you have to send it to the other – you send it to the other side.
Dana DuPerron: Yeah, yeah. And you have, so usually it’s either one or two years that you have to start a claim depending on what time. You can sit and wait. Like if you don’t negotiate you can sit and kind of see what happens and think about it. A lot of times people don’t want to do that because the litigation process is pretty slow anyway, so you kind of want to get it started. Because if you wait you know almost two years and then start then it’s still years down the road before you actually get anything.
So you file your claim, send it on over to the other side. If you have six months that you have to do it by, they do their defense. Which is their answer to everything, you look at it. You decide if you need to do a reply.
Jill Lewis: On anything new.
Dana DuPerron: If they raise anything new. Not always required. More often than not probably isn’t required. Really depends. And then that’s it, those are the pleadings. So those are done. You said before that sometimes before litigation we can do mediation.
Jill Lewis: Yeah, Ok so the next step, so in Ottawa we have mandatory mediation. So I don’t know off the top of my head. It’s like Ottawa, Toronto…
Dana DuPerron: Windsor.
Jill Lewis: Windsor?
Dana DuPerron: Yeah.
Jill Lewis: OK, where we have to have mediation and the purpose is to try and settle these claims before you get like sort of bogged down in that litigation process.
Dana DuPerron: Throw a ton of money into the lawyers yeah.
Jill Lewis: It’s a ton of money and so we have to do mediation and you sort of have to have that box checked off before you can go to the next state. So mediation, discoveries you’re going to have to have those boxes checked off.
Now what we’ve kind of been doing in Ottawa, because we’ve got a pretty good bar here. And when I say the Bar I mean the like employment, lawyers like in Ottawa. Where sometimes we’ll propose to go to mediation before we’ve exchanged pleadings. And that’s just again like a cost savings. Cost and time savings.
Dana DuPerron: Cost saving things sometimes, you know those mediators can like bang our heads together and get you to a point that you couldn’t get to on your own. We have some fantastic mediators.
Jill Lewis: Oh my gosh yeah.
Dana DuPerron: And you know they can work wonders sometimes when parties just feel too entrenched and you need a little extra push, a little extra help. Even just the process of like preparing for mediation, going to mediation, being at mediation often puts people in a resolution mindset. That’s what it’s for.
Jill Lewis: Yeah, well everyone’s focused yeah. I think we’ll go through that in more detail in another episode, like what to expect in mediation, but it’s incredibly successful. Especially in employment law. I just think like employment law is just tailored well for that process because it’s emotional, but it’s not. Like we’re not arguing over kids here. We’re not – we’re also not arguing over like multi-million dollar like head injuries here.
Like we’ve got – there’s like a certain amount of money usually. And we’re all just kind of at one end of it, and you can –- yeah and we’re trying to inch our way in. So like mediation is a really great way to do that. And so because we know we’re going to have to go to mediation if we litigate then we will propose OK can we do this? Can we go earlier?
Dana DuPerron: Yeah, in certain situations it might be successful.
Jill Lewis: Yeah, and so we’ll sometimes float that over to the other side, and if they say yes great. If they say no then fine, so now you’ve got the pleadings. Your next two big steps are going to be mediation, and then the discovery process.
Dana DuPerron: Yeah, sometimes one has to happen before like sometimes the – either party won’t agree to an early mediation. They think it’s premature. They think you know we’ve talked about mitigation before in another episode. Sometimes you know an employer’s just like I need to see what this person’s going to do. I can’t do it yet.
Jill Lewis: Yeah, play it out a little longer.
Dana DuPerron: So sometimes you do discoveries first, sometimes you do mediation first. If you do mediation it’s basically – and we will talk about this in more detail, but it’s like everybody’s together. Maybe not physically, but in the same like virtual space or something with a mediator. Maybe in separate rooms there. And you’re shuttling offers back and forth. Seeing what you can do, what you can get done. If you’re going to discovery route first, or if it’s after mediation you have to get together all the documents you have that are at all relevant to your case.
The other side has to go through all of their documents. You have to produce everything, even if it is not favourable to you. Which is if you go ahead and listen to that mitigation podcast where we talk about what you might not want to include in messages where you’re looking for jobs terrible things about you know your boss and like the wife’s personal information and whatever. Like because you know you don’t always want to produce that.
And when they’re all tangled up in one email, and you have to it’s not the easiest. So you know all your records that you’ve kept on your jobs search. If you have any kind of you know bad faith causing you injury or something like causing you like distress, anxiety you know you might have to produce medical records. There’s…
Jill Lewis: Yeah, medical that’s another tough one too. You may have to go back a far way. But anyways, yeah you produce certain things.
Dana DuPerron: Everything. Everything, everything, everything goes in from both sides. Questioned on it.
Jill Lewis: and then you get to get questioned on it. So we’ll go through like really break down the discovery process. It can be – it’s a difficult, it is long.
Dana DuPerron: Yeah, it’s exhausting.
Jill Lewis: It is exhausting, and it is expensive. Get your chequebook out if you’re headed to discovery it’s going to be expensive. It’s an incredibly – it’s long and the lawyers have to go –
Dana DuPerron: Very involved, time consuming.
Jill Lewis: – through every single document. So that’s the discovery process. The exchange of documents, and then we’ll have…
Jill Lewis: Examinations, so you get questioned on those documents for hours. Like between either like three or seven hours depending on you know how much your claim is worth. Then you have to like produce any documents, or like answer any questions that come out of those. That’s called Answering Undertakings. And again we’ll talk about each of these steps in more detail. This is just the roadmap. So you answer these undertakings.
If there’s any motions those get peppered throughout. So if you think that someone didn’t…
Jill Lewis: What would be a motion for? A motion for what?
Dana DuPerron: Well a motion for if you think that coming out of discoveries there are often, like if someone denies that they have to produce something. You could bring emotion to try to force that. If there’s something that you want struck from the pleadings because it’s improper. So like you know if there’s something in there that you think is completely irrelevant. Like if they’ve plead maybe a settlement offer that you don’t think should be in there and you want to have that struck you can have a motion to strike that.
The lawyers can sometimes work these issues out between themselves. Like you can and you say listen, I’m going to bring a motion unless you do this. And they may do it. Most employment cases don’t have a ton of these motions. Honestly, the biggest – I mean it’s a big tool in an employment lawyer’s tool belt too. But – what toolkit?
Jill Lewis: Toolkit.
Dana DuPerron: Our summary judgment motions which can decide the whole case. So if you have a straightforward wrongful dismissal claim, like you were fired, you don’t have a contract. You’re this many years old. No one’s alleging cause. You have this much service, you made this much money. And the question just is how many months’ notice do you get? We can bring those by way of motion. If you don’t have any other sort of…
Jill Lewis: Factual, and like…
Dana DuPerron: Where there’s nothing yeah in dispute. No real factual issues in dispute and you’re not claiming like you know human rights damages or things that can make it really difficult, more default to prove, and you can do it all on paper. So those things are kind of peppered throughout. After undertakings are answered if there’s no motions, there’s no like expert reports or anything that you have to get in. Which we don’t often. Like sometimes we might need business valuations, or like expert reports on like a pension value in employment law.
We don’t have like tons of area where you’d need an expert report. Then you file like a trial readiness form. You go to pre-trial.
Jill Lewis: You get a trial date. You have a pre-trial brief. You got…
Dana DuPerron: Yeah, you go before a judge. Not the judge who will hear your case. And you know I said those mediators can bang your heads together. The judge like tries real hard.
Jill Lewis: The judge will do it again. At every step, like nobody wants you to go through that whole – nobody wants you to get to the trial.
Dana DuPerron: Well as you said like when it’s the same as not being like multi-million dollar head injuries, like the money at stake sometimes just doesn’t mean for both parties that it’s worth it to go all the way to the end. And sometimes you have to. Sometimes you have to, but most things that – like the amount of cases that exist along this sort of continuum. It falls off at like every step right?
Jill Lewis: Well like and I feel sometimes that’s why we have fewer employment – like the employment case law that comes out is so important because it’s really hard for a lot of employment cases to get to a stage where there’s an actual decision made. Because they just can’t handle the cost of going forward. So yeah, the pre-trial again the judge is going to try and see if there’s a settlement. Or maybe just a settlement on some of the issues. Maybe an issue that’s…
Dana DuPerron: Try to narrow it so that trial’s not so huge.
Jill Lewis: And then after that I mean there’s case conferences if at any point you feel yeah.
Dana DuPerron: Throughout the procedure yeah.
Jill Lewis: The need for a case conference, and…
Dana DuPerron: Usually like a case conference if the lawyers can’t agree on scheduling.
Jill Lewis: Yeah, yeah the scheduling is a nightmare.
Dana DuPerron: Case conference is actually a pretty good tool.
Jill Lewis: Yeah, yeah. Another tool in your toolkit there Dana?
Dana DuPerron: A tool in your toolkit. Bob the Builder over here just building your litigation. But – and then the last step is the trial.
Jill Lewis: Is the trial.
Dana DuPerron: And that’s where you have like you know the whole – that’s where you said we’re not as exciting as Suits and Legally Blond, but that’s where all the you know excitement where sparks can fly and stuff yeah.
Jill Lewis: Yes, it can be exciting. Like, but…
Dana DuPerron: Yeah, but hardly anything goes to trial you know, at a trial you would have – I mean your lawyer should totally brief you on this because I mean by the time you got there you need all the details right? But you have like opening statements. And then you get in all your evidence, you make your legal arguments and your closing. And you get in all the evidence usually by questioning, and cross-examining people. So your lawyer asks you direct questions. Tell me about this blah, blah, blah you know open-ended questions that let you go. And the other side tries to pin you down.
Jill Lewis: Yeah, and you can go back and use that discovery process. You can use those transcripts. That is all evidence that you can use at trial, so…
Dana DuPerron: Yeah, so it matters every step of the way, but probably like, it really is probably like I don’t know a pyramid. And it’s like you know there’s all these cases right? So many cases, we send demand letters. A lot of cases settle that way. And then it’s like either we do pre-litigation mediation, and a lot of cases settle there. Or we do pleadings and then shortly thereafter at mediation cases settle.
And then you know sometimes you have to exchange documents. You’ll see the other side’s documents. Ugh, this isn’t great for us. Or they’ll see yours and be ugh this isn’t great for us. You settle there. Even just having those steps along the way, like ugh we’ve got discoveries coming up. I don’t want to pay my lawyer. I’m thinking you know the employer, I’d rather pay you know my former employee an extra $30,000 than pay my lawyer so you know?
Jill Lewis: I know, and a lot of times you get like out of mediation and you’re all angry and you’re like let’s go. I’m going to go all the way. I don’t care how much it costs and then OK well like four months later once you get to that stage and you see like all the time, and the money that’s spending and sometimes it’s yeah, you see it in a different light yeah.
Dana DuPerron: Yeah, and you can – and those things work towards a resolution. You know throughout here, throughout that whole process then so you’ve got Discoveries, Answers to Undertakings, Pre-Trial, Trial, throughout you’ve got the Motions. You’ve got case conferences. You can exchange offers even after mediation. If things fail at mediation and there’s offers that we do to try to protect your cost consequences.
But that’s sort of the general roadmap.
Jill Lewis: You know, when I went to law school, back in the day I always like imagined being up in front of a judge right? I felt like I like talking. I’m pretty full of myself. I can stand up and chat away and I think this’ll really work for me. And then you realise that’s not what being a lawyer is about. It’s about – it is actually about trying to avoid that situation in the best interests of your client, for the best interests of your client. And all these little steps, talking to the other side, and negotiating, and just working with what you’ve got. And like those are when those skills come out. Because you are…
Dana DuPerron: You get to use that advocacy yeah.
Jill Lewis: Yeah, that advocacy piece. Like yeah, like I always you know I thought as an advocate it meant standing in front of a judge, but really it is sometimes sitting on the other side of the phone and like…
Dana DuPerron: Probably more often than not.
Jill Lewis: Oh my gosh, and just talking out numbers and explaining to the other side why this and that works. And explaining to your client. And so it’s yeah, that is the trial roadmap, litigation roadmap. But I guess what I really want, like the takeaway for people is that when we say like OK, it’s time to start litigation, we do not walk into the courthouse the next day. Like this is you know, there are so many steps in this process. And very often you are settling at some of the earlier stages.
So don’t get too intimidated. Don’t think that you can’t right? Just because you are not like a $1 million company. Just because you, you know maybe you don’t have a ton of money that you can put up. But it doesn’t mean that maybe you can’t get to that exchanging pleadings place.
Dana DuPerron: Yeah, and just because you exchange pleadings doesn’t mean you’re going to a three-week trial.
Jill Lewis: Exactly, exactly.
Dana DuPerron: Like that is still…
Jill Lewis: Yeah, yeah, I don’t want people to get scared off because sometimes we can do a lot, and mediation is so…
Dana DuPerron: Is such a…
Jill Lewis: Is such a great tool.
Dana DuPerron: That’s just what I was going to say.
Jill Lewis: I know.
Dana DuPerron: You know, [laughs].
Jill Lewis: I know.
Dana DuPerron: OK, you’re making fun of me and my expressions, but boy…
Jill Lewis: Anyways, but boy oh boy.
Dana DuPerron: Yeah.
Jill Lewis: All right, well like stay tuned for our series on the litigation process. We’re going to jump into – do a little deep-dive on each one of these stages that we have referenced. And yeah it’s going to be exciting.
Dana DuPerron: It’s going to be riveting stuff.
Jill Lewis: Oh yeah I’m picturing pirates now. Grab your map. We’re going to grab your shovels.
Dana DuPerron: Get your map, you’re going to get your tools.
Jill Lewis: You’re going to get your tool belt on.
Dana DuPerron: And away we go.
Jill Lewis: And we’re oh right see you, bye. [Laughing]