Monday, April 18, 2011

A Word on Finality

In most of my recent posts, I've commented on recent decisions from lower courts or tribunals, which may or may not be subject to appeal or judicial review.

In my recent post discussing Oosterbosch v. FAG Aerospace Inc., for example, I noted that I am watching for an appeal. If the Courts continue to recognize the distinction between common law "just cause" and wilful misconduct within the meaning of the Employment Standards Act, 2000, there will be several other major consequences on the law of wrongful dismissal. (For example, there is a doctrine dating back to a 1965 Ontario Court of Appeal decision, Tracey v. Swansea Construction Co. Ltd., which holds that an employer cannot terminate on minimal notice and then later take the position that the termination was for "just cause". This has had a lasting impact on employer practices in termination and on wrongful dismissal law in general.) Yet, while employment lawyers cannot ignore the Oosterbosch decision, it is possible that it will be appealed to the Ontario Court of Appeal, or that subsequent Superior Court decisions could hold that it was wrongly decided.

Similarly, my commentary on Brito v. Canac Kitchens noted that Justice Echlin is highly respected in the employment law arena, yet his award of what appear to be punitive damages for paying only the statutory minimum entitlements is novel, and probably in conflict with existing jurisprudence on punitive damages. It may be that this is a new evolution in the law which will hold. Or it may be that this decision will be overturned by future decisions.

Or my most recent post, in which I was critical of a dismissal of a Human Rights Application as out of time in the Deane v. Ford Motor case. The Human Rights Tribunal has reconsideration mechanisms, and is subject to judicial review at the Divisional Court.

In law, we tend to look at judicial decisions as having a certain amount of finality in most cases. Occasionally, we know when an issue is big enough that it will be appealed, but most decisions are not, or at least are settled before the appeal is decided. So the initial level decisions are important.

The structure of our Courts in Ontario - as far as labour and employment law is concerned - goes something like this: We have the Superior Court of Justice, which is the normal 'civil' Court. In general, if you're suing somebody, that's where you go. But the SCJ has different branches, including the Small Claims Court and the Divisional Court.

The Small Claims Court, now with a jurisdiction of $25,000.00, uses Deputy Judges - practicing lawyers brought in to decide cases, paid on a per diem basis. The Divisional Court is largely an appellate level Court. It hears appeals from the Small Claims Court and from some other Superior Court matters. In other words, if you get a decision at the Small Claims Court, and you want to appeal, it goes to the Divisional Court.

Then there's the Court of Appeal, with is Ontario's highest Court, hearing appeals from some Superior Court decisions and also from the Divisional Court. So if you've been to the Divisional Court, and you want to appeal, you go to the Ontario Court of Appeal.

The only Canadian Court above the Ontario Court of Appeal is the Supreme Court of Canada. Any civil appeals must seek 'leave' of the Court to appeal. So if you're not happy with what the Ontario Court of Appeal held, you have to ask the SCC to hear your case. They don't hear many.

But not all employment or labour matters go to Court at the first instance. We have other adjudicative processes, including arbitration (which is used for most disputes involving unions) and administrative tribunals created by statutes (the HRTO, OLRB, WSIB/WSIAT). If somebody isn't happy with how these processes have resolved, and have exhausted their procedural remedies under the statutes creating the processes, then they can seek "judicial review" of the decision at the Divisional Court. This sounds a lot like an appeal, and it has its similarities, but the important thing to note is that the Divisional Court tends to grant a lot of deference to the administrative tribunals.


This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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