Just over 5% of employment law cases get to trial (click here for some stats).
But if you’re heading into an employment law pre-trial conference, the odds of you getting to trial are approximately 50-50.
Trial may be a mere few weeks to a couple of months after the pre-trial conference, so if you’ve got a pre-trial coming up, you better kick things into high gear.
As a starting point, we suggest you review the Ontario Civil Trial Manual, which covers key aspects to preparation.
For employment law trials, counsel should be able to agree on a large number of non-contentious facts that can be passed up to the Trial Judge as an agreed statement of facts. Age, title, length of service, pay, benefits, etc. should not be contentious. If they are, that may explain why there is a trial.
The contentious part of the story is what is interesting, what needs to be addressed by the witnesses, what requires cross-examination and what the Judge wants to hear about from the witnesses.
While it’s important to plead that “the plaintiff’s employment was terminated or in the alternative the plaintiff was constructively dismissed”, by the time you get to trial you ought to be able to pick one version or the other and run with it.
Trial isn’t going to be for a couple of years after a termination, so it is important that your client and any key witnesses prepare a written statement. The best format for the statement is an affidavit, followed by a signed and dated statement, followed by an email. Contemporaneous notes may be used to refresh memories. Lawyer’s notes of an interview are useful for gathering information, but cannot be used at trial to refresh a client’s memory.
Experts may be called to comment on the job market, to value benefits, to value pensions, comment on disability insurance or give medical evidence. When opinion evidence is required, bear in mind that the expert reports and an acknowledgement of expert’s duty must be served 90 days before the pre-trial conference (60 days prior for the responding party).
To assist with witness preparation, you might want to give witnesses a supporting memo. Summons any witness you need to ensure they are there and get out of work. Or get the other side to commit to making arrangements for a witness to attend.
Documents and Things
If you’re acting for the employee and there is a hint of termination in the air, get a copy of all documents immediately. If you’re acting for the employer and they have hinted about a termination, be ready to change all passwords immediately. Videos at the workplace tend to only be available for 30 days. A preservation letter early on is helpful.
Just as an agreed statement of facts is helpful, a joint trial document brief will streamline trial. You don’t need to bring a volume of pay cheques and pay stubs if pay is described in the agreed statement of facts. Therefore think about how agreeing on facts can eliminate documents from the trial.
Because mitigation is often contested, there should be a volume of mitigation paperwork with a chronological index of job postings, applications and responses. From the plaintiff’s perspective, the thicker the better.
Maintaining an exhibit list during trial will assist and make it easier to bring together an appeal record if you’ve got a trial with a hot topic.
Law of Evidence
The admissibility of documents should be sorted out to determine what documents will be admitted on consent and what needs to be proven by a witness.
Employers will find that Evidence Act notices are important for the eventual admissibility of business records such as payroll, benefit and human resources documents.
A great way to demonstrate one’s knowledge of employment law is with a trial factum. Some Judges presiding at pre-trial conferences are ordering “concise statements of law and case briefs”. This is just jargon for a trial factum and book of authorities.
Included should be a copy of any statutory references and a few leading cases. Less is more.
Also included in the trial factum should be a detailed calculation of how the damages sought are arrived at. Mitigation is a huge issue affecting damages. Make sure to lead evidence that backs up the damages calculation in addition to the liability issue. To prove special damages for out of pocket expenses, ensure you have the backup outlined in this article on calculating damages.
Employment Counsel & Trial Counsel
We enjoy working with employment lawyers to combine their employment law expertise with our trial advocacy. If you have an employment law pre-trial conference or employment law trial on the horizon, we offer a host of trial services from trial consulting to co-counsel arrangements to full-blown trial representation. Please take a look at our trial counsel services.