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Reaching a verdict on the jury

If juries like to punish employers for firing workers, why aren't more workers opting for them?

By Todd Humber

Juries, by their nature, love David. They’re not big fans of Goliath. In almost every employment law case, employers — like it or not — will be cast in the role of the big, bad giant.

So, when it comes to wrongful dismissal cases, employers should avoid jury trials like the plague, as a recent ruling in British Columbia shows. Ron Minken will be discussing the case in depth in the Sept. 10 issue of Canadian HR Reporter, but the fact a jury saw fit to award more than $800,000 — $236,000 for wrongful dismissal and $573,000 in punitive damages — shows what can happen when the decision is left in the hands of a jury.

The B.C. jury isn’t alone in awarding damages out of whack with previous precedents. In 2005, a Nova Scotia jury tacked on 48 months’ notice in a wrongful dismissal case because of the way the employer — CHC Helicopters — terminated the employment of Wendy Jessen. She had only been on the job for two-and-a-half years.

At the time, Grant Machum, a senior partner with Stewart McKelvey in Halifax, said the ruling “shows that juries don’t tolerate terminations of employees to the same extent judges do. Juries seem inclined to award higher damages.”

He fully expected that ruling to be appealed and overturned — and he was right on both counts. The Nova Scotia Court of Appeal overturned the jury’s ruling in 2006, reducing the 48 months to nine.

So if jury trials strike fear into the hearts of employers, why aren’t terminated employees opting for them in every case? Either side can certainly request one.

“In most civil litigation cases, either party is entitled to serve a jury notice before pleadings are closed requiring that the issues be decided by a jury as opposed to a judge,” said Stuart Rudner, a partner with Miller Thomson in Toronto. “However, jury trials are not particularly common in civil matters — as opposed to criminal trials — and particularly rare in wrongful dismissal cases.”

Juries, as Minken points out in his article, don’t understand the nuances of employment law the way judges do. I’ve been covering employment law issues as a journalist for the better part of a decade, and I wouldn’t begin to claim to understand one-half of the nuances. It’s a tricky realm, so a jurist fresh off the street wouldn’t have much hope.

But that’s precisely why a sympathetic fired employee might find juries appealing. Perhaps cost is the driving factor — jury trials certainly seem like they would take longer, and there can be additional fees above and beyond the lawyer’s bill.

In B.C., any party that wants a jury trial has to cough up cash in advance of the trial — and the fees aren’t a pittance. Jury fees must be paid to the sheriff at least 30 days before trial, according to Colin Gibson, a partner with Harris & Company in Vancouver. Fees are currently $1,500 for the first day; $800 per day for days two to 10; $900 per day for days 11 to 49 and $1,200 per day for days 50 and beyond.

Perhaps lawyers are doing a good job of dissuading their clients as well.  Lawyers, after all, don’t seem particularly fond of jury trials when it comes to civil cases. In 2006, Heather Laing, a Saskatchewan lawyer, wrote a commentary in the Canadian Bar Association – Saskatchewan Branch’s Bar Notes newsletter where she said: “I have been co-counsel on only one civil jury trial, for which I consider myself fortunate… jury trials are a challenge, both for lawyers and the court.”

And, of course, asking for a jury in a civil case doesn’t simply make it so. There are plenty of rules around when jury trials are appropriate.

We should probably all be thankful not many employees are choosing to grab a seat at the table for this high stakes game of poker. Because, in reality, it’s just a waste of everyone’s time. Sure, a jury trial can result in an eye-popping, headline grabbing award. But it’s just as likely to be quashed on appeal and substituted with a ruling a trial judge would have awarded in the first place if no jury had been present.

Todd Humber is the managing editor of Canadian HR Reporter, the national journal of human resource management. He can be reached at todd.humber@thomsonreuters.com.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Todd Humber

Todd Humber is the publisher and editor-in-chief of Canadian HR Reporter, the national journal of human resource management. Follow him on Twitter @ToddHumber
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