Increase in appointments could incentivize employees to take legal action against employers
On Feb. 13, 2024, Canada’s Federal Court released its decision in Hameed v. Canada, 2024 FC 242, in which it described the current number of judicial vacancies in our courts as a “crisis” and a “critical situation.”
This decision is important for HR professionals and employers because it signals a shift in our current legal system - where once employers could leverage the sloth-like speed of the justice system as a deterrent to potential employee litigants, the Hameed decision may force a change.
I anticipate that judicial appointments will start coming in rapid succession - I use the term “rapid” loosely when describing our legal system - which will create more capacity for the courts and, as a result, incentivize employees to engage in the justice system to resolve employment disputes.
Why do I sound so sure of this change?
Judicial vacancies
The Hameed decision is scathing. The Federal Court’s criticism of the Prime Minister and the Minister of Justice’s actions in filling judicial vacancies is harsh. For example:
“With the greatest respect, the court finds the Prime Minister and Minister of Justice are simply treading water. They have failed to take the actions requested by the Chief Justice of Canada and the Canadian Judicial Council. And with the greatest respect, they have also failed all those who rely on them for the timely exercise of their powers in relation to filling these vacancies. Also failed are all those who have unsuccessfully sought timely justice in the Superior Courts and Federal Courts across Canada.”
The Federal court continued:
“The level of vacancies is now … at both a crisis and critical level. Other words used by the Chief Justice of Canada and Canadian Judicial Council to describe the impact of the ongoing failure to fill vacancies include ‘appalling’ and ‘untenable.’”
The Federal Court made four declarations, which include the requirement to fill judicial vacancies, with the expectation that the number of vacancies be reduced to the mid-40s (it is currently at 79) within a reasonable time.
Increased risk of employee legal action
The court also provided a warning, saying: “I encourage the parties, and/or the Chief Justice of Canada and/or the Canadian Judicial Council, to seek further direction and relief from this court in the event this court’s Judgment is not satisfied or in issue.”
In other words: get it done or the court will intervene.
With this changing landscape on the horizon, HR professionals and employers should think carefully about ways to reduce the risk of legal action: update your employment contracts, ensure policies are clear, and most importantly, document everything!
Trevor R. Thomas is a co-founder and partner at Ascent Employment Law in Vancouver.
