Reaching a verdict on the jury (Editor’s Notes)

If juries like to punish employers for firing workers, why aren't more workers opting for them?
By Todd Humber
|Canadian HR Reporter|Last Updated: 09/10/2012

Juries, by their nature, love David. They’re not big fans of Goliath. In almost every employment law case, employers will be cast as 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 discusses the case in depth on page five 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 a jury decides.

The B.C. jury isn’t alone in awarding out-of-whack damages. In 2005, a Nova Scotia jury tacked on 48 months’ notice in a wrongful dismissal case because of the way 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 at 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.”

That ruling was appealed and overturned, with the Nova Scotia Court of Appeal reducing the 48 months to nine.

So, why aren’t terminated workers opting for a jury 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 at 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. Having covered employment law issues as a journalist for almost a decade, I couldn’t begin to understand one-half of the nuances. It’s a tricky realm, so a jurist fresh off the street wouldn’t have much hope. And that’s precisely why a fired employee might find juries appealing.

Perhaps cost is the driving factor for employees — 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. Fees are $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 — who don’t seem particularly fond of jury trials when it comes to civil cases — are doing a good job of dissuading their clients as well. In 2006, Saskatchewan lawyer Heather Laing 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 there are not many employees playing 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 that a trial judge would have awarded in the first place if no jury had been present.

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