Why do most human rights cases settle?

Mar 29, 2017

It may seem grim, but of the more than 3,000 Applications filed with the Human Rights Tribunal of Ontario each year, only 100-150 end with a final decision on the merits. That’s less than 5 percent.

But behind that statistic is some potentially good news. The truth is that many, many human rights cases settle. A settlement is a negotiated deal between the parties, which resolves the complaint in a manner both parties can live with.

Some cases settle without help from the Tribunal, but the Tribunal also does a lot of work to actively encourage settlement. For example, the Tribunal offers a free, half-day mediation session. At mediation, a vice chair of the Tribunal will sit down with the parties and try to broker a deal. A startling 60 percent of cases which go to mediation settle at mediation.

So why do so many human rights cases settle?

First and foremost, the old maxim that a bird in the hand is worth two in the bush applies. For Applicants, a settlement means a guaranteed outcome. For Respondents, a settlement amounts to risk management. For both parties, it avoids rolling the dice.

Secondly, if you’re represented by a private lawyer, taking a case to a hearing before the Tribunal can easily cost $15,000-$40,000 for each party. Unlike in civil cases, both parties must always eat their own legal bills. The prospect of these mounting legal costs can act as a strong incentive for both parties to reach a resolution.  And, for some applicants, the total value of their claim could end up being less than the legal costs of going to a full hearing. Thus, there is an incentive on both sides to seriously consider an early settlement

There is no doubt that settlement leaves some people feeling queasy. After all, behind every human rights complaint is an important legal, ethical and moral issue. This is just as true for Respondents as for Applicants.

But the truth is, a settlement is not a loss. It doesn’t mean you’ve given up. It’s nothing to be ashamed of. Quite the opposite: it’s a normal and healthy part of the Human Rights Tribunal process.

Symes Street & Millard specializes in employment and human rights law and has represented parties in many cases before the Tribunal, in court, and in negotiations.

By Marcus McCann; photo courtesy of ABC

My boss says I quit, but I didn’t!

Mar 06, 2017

We might think that it would be obvious when someone quits, but disputes about resignations are actually quite common. Typically what we see is a boss who says that an employee quit and an employee who denies it. A lot rides on who’s right – an employee who quits may not receive termination pay.

When an employee seeks our advice on this issue, we ask for details about what was said and done. We’re looking to see whether it was reasonable for the employer to have concluded that the employee quit. As a result, we need to know if you gave your boss a resignation letter or simply stormed off after a disagreement.

We also need to know what you did following the alleged resignation. Did you miss work for a week or immediately tell your boss that it was a mistake? The more that it looks like an employee’s comments were a response to a tense situation rather than a well-thought out plan, the more sympathetic courts will be.

For instance, in the recent decision, Johal v Simmons da Silva LLP, the Court concluded that the employee didn’t quit even though she handed in her security pass, collected her personal belongings and went home early. In siding with the employee, the court considered, amongst other things, the employee’s age (62), length of service (27 years), and seniority. These factors all suggested that she wouldn’t have up and quit. In addition, the employee never actually said that she was quitting and only left after receiving unexpected news of significant restructuring.

In coming to its conclusion, the Court cautioned employers against jumping at a possible resignation to avoid liability. An employer is required to do more than “let sleeping dogs lie” and must actually make inquiries about “the Plaintiff’s true and unequivocal intention”.

If your boss says you resigned and you’d like an assessment of your case, contact us. Symes Street & Millard has extensive experience representing employees in all types of employment disputes.

By Mika Imai; photo by rocketace with modifications, used under creative commons commercial license.

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