The Death of Professional Judgment in the Law

noun: judgement
  1. 1.
    the ability to make considered decisions or come to sensible conclusions.

I was recently in conversation with a senior and respected lawyer and arbitrator.  This individual has been a trial lawyer advocating commercial disputes for over 60 years.  During this conversation I lamented the ever decreasing amount of trial time available at the courts for commercial disputes and the ever-growing duration of the average trial.

My colleague mentioned that for a very long time in the past, the average trial only required a few days to litigate through to judgment.  That a lengthy trial was considered anything approaching 1 week in duration.

Clearly with 2, 3, and 4 week trials now being norm, I was initially taken aback by the apparent efficiency and simplicity of historical commercial litigation matters.

My colleague mentioned that historically most trials proceeded on fairly narrow issues in dispute, generally agreed upon between the lawyers in advance, with only essential documents.  Further there were interventionist judges that made in-trial determinations of what was relevant and what was not and held counsel to these principles.

It became immediately apparent to me that there was at least one main reason why trials have become the bloated and lengthy monsters of present.  Professional judgment.  As has been discussed by other colleagues before me, the current call of the courts for lawyers to seek proportionality in litigating disputes with reference to costs, is really calling on lawyers to exercise professional judgment.

Lawyers have lengthy post-secondary education under their belt.  In addition to some undergraduate education, they are required to attend three (3) years of law school.  Thereafter there is a lengthy bar admission process involving some variation of a training component, apprenticeship, and exams.

The entire process is in place to ensure that every lawyer has a baseline background of education and training prior to entering the profession.  The idea being that the lawyer will be called upon to apply that education and training in the investigation, researching, and resolution of legal problems.

While most of the substantive law can be found in the written record of legislative bodies, and the courts, and now increasingly available on any smartphone, the legal training afforded a lawyer positions them to be able to think differently.  To use logic, reason, and analytical skills to problem solve.

Inherent in this training is the objective of providing lawyers with the ability to exercise reasonably prudent professional judgment.

Increasingly, this last skill set is disappearing or being offloaded by lawyers and judges alike.  In the litigation field, the inability or unwillingness to exercise professional judgment results in court cases proceeding to trial on all manner of both relevant and irrelevant issues, documents, and evidence.  If a lawyer is unwilling to critically examine its client’s case to determine what is a relevant or key issue or piece of evidence, it results in the lawyer presenting their entire brief to a court, or at discovery.  Kitchen sink litigation so to speak.  The litigator that declines to exercise professional judgment accepts everything provided to them by their client and resulting from their legal research and throws it at the trier of fact.  The trier of fact is then left to sort out the relevant from the irrelevant, the threshold issue from the extraneous, the linchpin documents from the insignificant.  The court receives everything and the kitchen sink.

This kitchen sink style of litigation invariably results in longer trials and pretrial procedures, more documents, more witnesses and parties inconvenienced, and in the case of an hourly bill rate, more money for the kitchen sink lawyer.

I regularly encounter this style of litigation in my practice, particularly when dealing with opposing parties and opposing counsel that might enjoy a advantage with respect to the availability of resources (financial or otherwise).

While it may very well be at the client’s direction, or a deliberate litigation strategy to employ those extra resources, I am of the opinion that it does nothing to advance client interests, or the overall objective of adjudication or resolution of disputes.

Further, because judges and masters are appointed from among the ranks of lawyers litigating in the courts, this approach to litigation that fails to exercise professional judgment may find itself sitting on the bench overlooking trials and pretrial procedures.  The effect is masters and judges failing to constrain the presentations of the lawyers before them, or to make rulings to deny evidence, arguments, or documents as irrelevant or unnecessary.  The lack of intervention from the bench then only perpetuates the kitchen sink approach coming back before them.

The motivations for the kitchen sink approach are many, including fear and money.

FEAR – The fear of failing to properly assess what are the key legal elements of the case requiring adjudication and omitting something resulting in failure at trial.  The fear of failing to address a relevant issue, or failing to lead relevant evidence which causes one’s case to fail. The fear of being wrong.

The end result of a fear based approach to litigation is no professional judgment having been exercised, with the litigator throwing everything and the kitchen sink at the court and asking the court to sort it out.  “See what sticks”.  An offloading of the responsibility to exercise professional judgment on the court.

MONEY – in a typical hourly billing retainer, the lawyer stands to make more money by leaving no stone unturned, no evidence untendered, no argument held back, and no concern for the resources required by the increased duration of preparation and attendance at trial.

Notwithstanding all of this, I venture that there is a better way.  An approach that recognizes that with extensive training and experience, those with legal training are best positioned to assess a legal problem and bring forward only those positions, arguments, and evidence that are required to meet the burden of proof for that particular case.  Tendering only necessary witnesses, necessary documents, and a focused presentation.

The lawyer that exercises professional judgment provides indispensable service to the client (reduced costs, and higher likelihood of success in court), but also the lawyer meets its professional oath to the court and the profession.  No longer acting as blind secretaries to our clients or their cases by bringing forward every document or argument to court, rather the lawyer becomes a critically important client advisor and a professional looked upon for the value of their judgment and not simply their ability to publish legal briefs or examine witnesses.

The toolkit of the lawyer exercising professional judgment to achieve positive outcomes includes the following:

  • early and intensive investigation of the facts, evidence, and law related to a legal issue;
  • advising and reporting to the client with respect to the facts, evidence, and law that is being considered;
  • review of options and strategies for the trial and litigation generally that address the key issues only;
  • Courtesy and civility in dealings with opposing parties to establish the necessary rapport to allow free exchange of strategies and ideas for moving the matter through to adjudication efficiently and on key issues only;
  • Informal agreements on admissibility, relevance, and joint statements of fact and joint briefs to be filed with the court;
  • Requests to Admit to narrow those issues or documents in dispute.

While we all strive for success in our work, I feel it is incumbent on the legal profession as a whole to re-examine our role in the legal process.  We should all want to remain highly competent professional advisors to our clients, valued for our considered judgment along with the nuts and bolts skill set we deploy in our daily practice.

Posted by: D. Jared Brown, Lead Counsel, Brown Litigation

Can settlement negotiations be binding?

Settlement is an integral aspect of most litigation.  The majority of court claims commenced in Ontario are settled by the parties at some point.

When negotiating a settlement agreement with another party, be very careful what you say.  Parties can be unpleasantly surprised when what they thought were simply part of ongoing negotiations have been found by the courts to be a binding component of a concluded settlement agreement.

Situations in which negotiations can be elevated to the level of a concluded settlement agreement include when the parties are negotiating by correspondence, email, or telephone, or where there is no single document which defines all of the terms of the alleged settlement.  In these situations, the courts will look at all of the documents and evidence of negotiations to determine whether the parties have reached consensus.

The end result is that you could be locked into a binding agreement which was not your intended bargain or final outcome, and may not be in your best interests.  This is true even if you have not executed settlement documentation.

In Olivieri v. Sherman (2007 ONCA 491), the Ontario Court of Appeal found that in order to determine whether a binding contract exists, the court must consider whether the words and action actions of the parties show that they had a mutual intention to create a legally binding contract, and reached an agreement on all of the essential terms.

You can protect yourself in these situations.  Retaining a lawyer can ensure your interests are protected, that negotiations remain non-binding, and that concluded settlements are representative of your interests and intentions.  If you don’t have a lawyer, it is recommended that you ensure both parties work from one master settlement document during discussions and that any amendments in the context of negotiations are clearly identified as such (including marking them “without prejudice” as required).   Restrict any statements, either verbally or in writing, outside of the master document to ensure that they are not inadvertently relied upon by the other party.

The commercial litigators at Brown Litigation tenaciously represent the interests of our litigation clients, and can assist you with negotiating resolutions of all manner of disputes.

Posted by D. Jared Brown – Lead Counsel Continue reading


The Ontario government recently proposed a new piece of legislation, titled the Employment Standards Act (Leaves to Help Families).   If passed, the three new leaves would be:

Family Care Leave

Under this leave, an employee would be entitled to a maximum of 8 weeks of unpaid leave in a given year.  The aim of the leave is to allow an employee the opportunity to provide care and support to a family member with a serious medical condition.  To be eligible, the employee would be required to produce a doctor’s note certifying that the applicable family member of the employee has a serious medical condition.

 Critically Ill Child Care Leave

Under this proposed leave, an employee may be entitled for up to 37 weeks of unpaid leave to provide care or support to a child who is critically ill.  This could be in addition to any Family Care Leave which the employee might have taken.  However, to qualify, the worker must have been employed by his or her employer for at least six consecutive months in order to be entitled.

Crime-Related Child Death and Disappearance Leave

Here, an employee may be entitled to up to 52 weeks leave of absence without pay, where the employee’s child has disappeared, as a result of a crime.  Where the child had died as a result of a crime, the employee would be entitled to up to 104 weeks of leave without pay.  One notable qualification in this section is that the employee would not be entitled to the leave if he or she is charged with the crime.  The leave would also not be available where it has been determined that the child was a party to a crime.  Also, like the Critically Ill Child Care Leave, the employee must have been employed with the employer for at least six consecutive months.

The passage of the proposed amendments to the Employment Standards Act would provide workers with increased job security.  Employees would have the assurance that their absence from work, due to family emergencies, could not be used by an employer to justify their termination.  Employers who violate these provisions would be liable for sanctions under the Employment Standards Act, as well as a civil claim for damages based on wrongful termination.

If you have any questions regarding your rights as an employee, or employer, feel free to contact one of the employment lawyers at Brown Litigation.

Posted by D. Jared Brown Lead Counsel

Does the duty to mitigate apply to all dismissed employees?

While the application of common law reasonable notice remains central to the determination of damages in wrongful termination cases, written employment agreements, with termination clauses fixing notice entitlement in the event of termination, are becoming more common.

Employers, no doubt, resort to written agreements with the aim of limiting their exposure to damages upon an employee’s without cause termination.  Such written contracts may be attractive to the employer as they create a degree of certainty and predictability in terms of the employer’s liability in the event the employer ends the employment relationship.  However, unless carefully drafted, a written agreement might not necessarily limit an employer’s exposure to the extent desired.

For example, in Bowes v. Goss Power Products Ltd., 2012 ONCA 425 (CanLII),  the Ontario Court of Appeal recently considered the issue of an employee’s duty to mitigate in the face of a written employment agreement where the parties had agreed to fix the amount of notice payable upon termination.

Mr. Bowes worked for Goss Power for just over 42 months.  There was a written employment agreement, prepared by Goss Power.  The employee’s entitlement upon termination, without cause, was set out at paragraph 30(c) which provides that:

30. The Employee’s employment may be terminated in the following manner and in the following circumstances:

(c) By the Employer at any time without cause by providing the Employee with the following period of notice, or pay in lieu thereof:

Six (6) months if the Employee’s employment is terminated prior to the completion of forty-eight (48) months of service;

Following his dismissal, and in accordance with paragraph 30(c), Goss Power initially confirmed that Mr. Bowes would be paid his salary for a period of six months.  The employer also advised Mr. Bowes that he had a duty to seek alternate employment during the notice period, and to keep Goss Power updated on his mitigation efforts.  However, the employment agreement itself made no reference to mitigation.

About 12 days after his termination, Mr. Bowes found a new job paying him a salary equivalent to that which he was being paid at Goss Power.  Goss Power then ceased further payments on the basis that the employee had fully mitigated his losses.

The employee commenced an application under rule 14.5 of the Rules of Civil Procedures, R.R.O, 1990, Reg. 194, seeking a determination of his rights under his employment contract.  In support of his application, Mr. Bowes argued that, given that the notice period was fixed by terms of the contract, there was no accompanying duty to mitigate.  He argued, therefore, that he should be entitled to the full 6 months’ pay in lieu of notice, despite having found replacement employment.

However, the lower court agreed with the employer in finding that the Mr. Bowes was not entitled to any further payments, as he had fully mitigated his damages with his new employment.  The court found that this was consistent with the case law, and that absent an agreement to the contrary, a dismissed employee has a duty to mitigate.

In setting aside the lower court’s decision, the Court of Appeal states at paragraph 34 that:

An employment agreement that stipulates a fixed term of notice or payment in lieu should be treated as fixing liquidated damages or a contractual amount. It follows that, in such cases, there is no obligation on the employee to mitigate his or her damages.

The Court of Appeal points out that it was an error to consider employment contracts with fixed notice periods as being akin to damages in lieu of notice at common law.  According to the Court, the correct approach is that the fixed notice should be regarded as liquidated damages or a contractual sum, which is not subject to mitigation.  The Court also rejected the lower court’s view that a duty to mitigate applies unless the contract provides otherwise.  Instead, the Court of Appeal holds that where the employment agreement is silent on mitigation, the common law duty to mitigate will not be applicable.

Brown Litigation regularly advises and assists both employers and employees with respect to contracts of employment, and has traditionally recommended that the contracting parties specifically stipulate if any notice period is subject to mitigation or setoff.  The Court of Appeal has now confirmed the importance of proper planning and contract review.

Posted by D. Jared Brown – Lead Counsel

A new standard for punitive damages in wrongful dismissal?

The Toronto Star is reporting on a recent decision of a jury trial in B.C. which awarded a long service (34 years) electrical manager significant punitive damages at trial ($573k).–jury-awards-809-000-in-record-wrongful-dismissal-case

The decision is unique not only because of the size of the award, but also because the employee elected to try the case by jury, rather than judge alone.

The article identifies that the case was uniquely suited to a jury trial on account of the fact that the business in question was the largest single employer in a small town, and it was thought a jury of the employee’s peers would better understand the undercurrents that resulted in the termination (the power imbalance between employer and employee).

While it is hard to imagine that this decision on its own will be representative of a new standard for punitive damages, it is noteworthy for the fact that a jury felt the employer’s actions warranted such severe condemnation.

Brown Litigation regularly assists employers and employees in employment disputes through strategies aimed at mitigating risk, minimizing cost, and ensuring favourable outcomes.

Posted by D. Jared Brown – Lead Counsel


Employer assistance for the terminated employee (Mitigation)

Mitigation is a two-way street.  While we have discussed in a previous blog post the employee’s duty to mitigate when terminated, the duty to mitigate is a concept that should resonate with employers as well.

While most employers want to use an employee’s apparent failure to take reasonable steps to find alternative employment post-termination as a defence to a wrongful dismissal claim, prudent employers recognize that assisting employees to mitigate can reduce the overall risks associated with wrongful dismissal claims.

When representing employers who have made the decision to terminate an individual, we typically recommend offering post-employment support and outreach to the employee to assist the employee in their mitigation efforts.  Offering services such as outplacement counseling to the departed employee ensures that the employee begins the job search in a timely way, and further has all necessary tools and skills to ensure a successful job search.      As mitigation earnings can set off against entitlements to reasonable notice, timely re-employment (particularly during any period of reasonable notice) ensures cost and risk containment for the employer.

Further, offering post-employment assistance to transitioning employees evidences an employer acting in good faith during the termination process, with due regard to the sensitivities and issues inherent in an employee termination.

In certain situations, it may be appropriate for the employer to offer a new position in the organization to the departing employee either in a different department or geographic region.  In some court cases, the employee’s failure to accept a reasonable offer of alternative employment from the same employer, was ruled to be an unreasonable rejection of an opportunity to mitigate by the departing employee thereby reducing the employee’s entitlement to reasonable notice.

Whether these employer strategies (and the myriad of others available) are appropriate depend upon the circumstances in each case, including the employee in question, the personal relationships at stake, and the anticipated duration of the notice entitlement.

Posted by D. Jared Brown – Lead Counsel

I Don’t Want to Close My Real Estate Deal – Second Thoughts…

A real estate purchase and sale is one of the most significant decisions and transactions undertaken by the average individual in their everyday life. Typically the financial implications of the transaction are significant and accordingly the decision-making process can be fraught with stress and anxiety.

In some situations, the result is a sudden desire on the part of either the purchaser or seller to not close the transaction for which they have already signed a binding agreement of purchase and sale.

We have received inquiry from parties who are the subject of binding agreements of purchase and sale seeking to explore their options to avoid closing the transaction in question.  In the course of these conversations, we are generally asked about the effect if conditions contained in the agreement (i.e. home inspection) are not waived or satisfied, and the opportunity that may provide for the transaction to be avoided.

The short answer is that a party cannot utilize or rely upon the failure to satisfy a condition as justification to avoid the closing of a real estate transaction if the reliance is done in bad faith. In the Supreme Court of Canada case of Dynamic Transport v. OK Detailing, the court implied that each party is under an obligation to do all that is necessary on their part to secure performance of the contract.

Essentially a condition precedent to the closing of a real estate transaction can only be relied upon by a party acting in good faith. In cases involving conditions precedent, a party cannot take advantage of the condition unless is it acting in good faith and has made reasonable efforts to satisfy the condition. Focal Properties Limited. v. George Wimpy (Canada) Ltd. Marlo v. Savage.

Further, conditions such as a home inspection may not rise to the level of a condition precedent, and accordingly may not be relied upon even in good faith to avoid closing a transaction unless the outcome of the inspections reveals fundamental, significant, and unforeseen issues going to the heart of the deal.

Accordingly if you have entered into a binding agreement of purchase and sale that includes conditions that must be satisfied or waived by the closing, you are  under an obligation to act in good faith to take reasonable steps to ensure that those conditions are satisfied.  Any indication that a party is not acting in good faith resulting in a failure to satisfy or waive a condition could be grounds for a claim for breach of contract seeking full performance and closing of the transaction in question, or alternatively a claim for damages arising from the failure to close including forfeiture of deposits.

Posted by D. Jared Brown – Team Lead

Fired? Get a Job!

If you have been dismissed from your job, there is a duty in contract law which states that you have an obligation to mitigate your damages.  This doctrine means that a dismissed employee must take steps to minimize the losses they suffered as a result of losing their job.  Basically, this means that you need to take steps to look for another job.

The leading case on the duty to mitigate is the Supreme Court of Canada decision of Red Deer College v. Michaels.  In this case, the Supreme Court explained the duty to mitigate as follows:

The primary rule in breach of contract cases, that a wronged plaintiff is entitled to be put in as good a position as he would have been in if there had been proper performance by the defendant, is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff.  There reference in the case law to a “duty” to mitigate should be understood in this sense.

The Court held that the burden is on the defendant to provide proof that the plaintiff failed to mitigate her/her damages:

It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by contract.

The Court went on to emphasize that the onus on the employer is heavy, citing a previous decision, because “the burden which lies on the defendant of proving that the plaintiff has failed in his duty of mitigation is by no means a light one, for this is a case where a party already in breach of a contract demands positive action from one who is often innocent of blame.”

Despite the burden being on the defendant to show that efforts were made, plaintiffs have been criticized by the courts for not making enough of an effort. In Chambers v. Axia Netmedia Corp., it was held:

Clearly, the efforts of Mr. Chambers [the plaintiff] were to a large extent confined to reading the local newspaper and forwarding his resume to employers. Although commendable, I am satisfied, by restricting his search to this one vehicle, the effort was too limited. Although there is no evidence as to whether these other efforts would necessarily have produced a positive result, earlier than he was able to find the employment he did, I am satisfied there was, to some extent at least, a failure to take all reasonable steps to mitigate

There are simple steps that a plaintiff can take to demonstrate that they attempted to mitigate their damages in an attempt to avoid an adverse decision like the one in Chambers.  We counsel our clients to keep a running log or mitigation journal outlining all the key events, dates, and information related to their job search post-termination including identifying job search efforts, networking, applications, and other career building steps.  This is typically done in the form of a diary or a calendar.  Second, retain copies of the letters, emails, or any other correspondence you sent in an attempt to secure a position.  Third, diversify your search.  You don’t need to limit to just one means.  You could add yourself to the social networking site LinkedIn, search on websites such as Workopolis, scan the newspapers and attend local networking events in your city.  Further, Human Resources Development Canada (“HRDC”) offers a range of free networking, job search, and outplacement services for qualifying dismissed individuals.  All of these steps will assist you in demonstrating that a genuine effort was made to secure new employment.

Posted by D. Jared Brown – Lead Counsel

The Aggressive Commercial Landlord

The relationship between a tenant and a landlord is typically the most important relationship for any commercial tenant.  Preserving a positive relationship with the commercial landlord is not only of utmost importance to the tenant’s business but should be a primary priority.  Failure to maintain a positive relationship exposes the tenant’s business to the frailties and nuance of commercial landlord and tenant law in the Commercial Tenancies Act R.S.O. 1990.  This area of law entails much risk and potential for harm to all parties.

We regularly receive contact from businesses that are on the receiving end of an overly aggressive landlord. Typically the aggressive landlord arises from a general breakdown in the relationship between the tenant business and the landlord.  When the relationship is strained, the landlord’s primary motivation aside from collecting rent and enforcement of other covenants is typically a desire to see an end to the tenancy at whatever cost. These objectives on the part of the landlord can manifest themselves in many ways, however, we primarily observe interference with the tenant’s business or the tenancy generally.

When these actions on part of the landlord rise above mere nuisance to a level that actually causes harm and material interference with the tenant’s business, the tenant is afforded very few options to prevent further harm and to realize any damages suffered.  In these situations it is possible for a commercial tenant to explore obtaining a civil restraining order.  Civil restraining orders are very similar to their criminal cousins in that they are judicial declarations meant to restrain or prohibit behavior on the part of one party which is deemed to be offensive to the court, and the potential to cause irreparable harm to another party.

We have been successful in protecting tenant business by obtaining civil restraining orders as against aggressive commercial landlords in situations where a landlord is acting in bad faith, and resulting in a breach of the tenant’s right to quiet enjoyment of the leased property.  While a civil restraining order is not ideal in all situations and in fact should be explored only as an option of last resort, it can have the effect of preserving the battle lines in place, preventing further irreparable harm while the parties explore their objectives moving forward.

Posted by D. Jared Brown – Lead Counsel