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Starting an Employment Law practice as a solo - resources and tips?


PhoenixWright
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PhoenixWright
  • Lawyer

As the title states - I'm starting a solo practice in Ontario and one of my main practice areas will be Employment Law. I've been practicing for 5 years and have previously dabbled in Employment Law, although in another province.

I'm looking for recommendations on resources (books, CPD, etc) to expand / refresh my knowledge of substantive employment law in Ontario. Would also love some tips on useful groups to join (employment law list-servs, bar associations, etc)

Thanks for any help you can send my way!

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  • 2 weeks later...
Zarathustra
  • Lawyer

Barry Fisher's employment law blog; he is also very active on LinkedIn as well. CanLII published a etext on Wrongful Dismissal (available online - a bit dated but a good resource nonetheless). Stacey Ball's Canadian Employment Law is excellent. 

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  • 3 weeks later...

Every employer/management side lawyer I have dealt with has been nasty, sociopathic and unethical. They will fabricate pleadings (or as we like to call it, "litigation privilege") to try to embarrasses the complainant in giving up. Get used to that. 

E.g. Rae Christensen Jeffries

Edited by M Vazi
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BlockedQuebecois
  • Lawyer
7 minutes ago, M Vazi said:

Every employer/management side lawyer I have dealt with has been nasty, sociopathic and unethical. They will fabricate pleadings (or as we like to call it, "litigation privilege") to try to embarrasses the complainant in giving up. Get used to that. 

E.g. Rae Christensen Jeffries

Lol paging @Jaggers

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LOL.

The LSO every year does a series called the "6 minute employment lawyer" and "6 minute labour lawyer". Their format is really brief updates on a huge variety of areas over the course of a few hours. You will really learn about a broad variety of issues. You won't learn anything in depth, of course, but you can flag whatever interests you and figure out a way to delve in more deeply, whether it's through textbooks, law firm articles, etc. They have a "Human Rights Summit" every year too, which has good breadth of topics. You just missed them for this year, though. They happen in the spring. The Human Rights Summit is near the end of the year - good for picking up that last bit of CPD credit.

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realpseudonym
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31 minutes ago, M Vazi said:

Every employer/management side lawyer I have dealt with has been nasty, sociopathic and unethical. They will fabricate pleadings (or as we like to call it, "litigation privilege") to try to embarrasses the complainant in giving up. Get used to that. 

22 minutes ago, BlockedQuebecois said:

Lol paging @Jaggers

@JaggersI knew it 😂

 

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t3ctonics
  • Lawyer
On 8/11/2021 at 10:44 AM, M Vazi said:

Every employer/management side lawyer I have dealt with has been nasty, sociopathic and unethical. They will fabricate pleadings (or as we like to call it, "litigation privilege") to try to embarrasses the complainant in giving up. Get used to that. 

E.g. Rae Christensen Jeffries

It can get nasty sometimes. I regularly deal with one union side lawyer that always has surprise evidence on the eve (or day of) arbitration, tries to lead witnesses by the nose through direct, makes bad faith allegations with no evidence whatsoever, makes baseless objections just to try to throw off opposing counsel, attempts to physically intimidate witnesses by standing over them, cherrypicks cases from 30+ years ago while ignoring recent cases on point, sometimes says cases say things they just don't, and takes personal jabs at opposing counsel both during recesses and in argument. Arbitrators tend to give him the benefit of the doubt just because he's been at it for a few decades and he hires them regularly.

But that's just one. I've dealt with others that were quite professional.

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8 minutes ago, t3ctonics said:

It can get nasty sometimes. I regularly deal with one union side lawyer that always has surprise evidence on the eve (or day of) arbitration, tries to lead witnesses by the nose through direct, makes bad faith allegations with no evidence whatsoever, makes baseless objections just to try to throw off opposing counsel, attempts to physically intimidate witnesses by standing over them, cherrypicks cases from 30+ years ago while ignoring recent cases on point, sometimes says cases say things they just don't, and takes personal jabs at opposing counsel both during recesses and in argument. Arbitrators tend to give him the benefit of the doubt just because he's been at it for a few decades and he hires them regularly.

In my last job, I did 50-60 arbitrations a year, and some of the old union-side guys were like that. I didn't really find the arbitrators gave them the benefit of the doubt. The arbitrators are very professional always, but when we got out of the hearing room into mediation mode, it was clear those people had little credibility with the arbitrators.

In my first year, it was really hard to adjust to that dynamic because I constantly thought I was being taken for a laugh by the other side, but it didn't take long to learn what was actually happening.

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GreyDude
  • Applicant

I'm suddenly wondering about arbitrators. How to they get there? Out of curiosity, can anyone ( @Jaggersor @t3ctonics, perhaps) describe a "normal" path to becoming an arbitrator? Is there one?  Who are these folks?

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There are a few common paths:

  • Practice labour until you get appointed to the labour board (or WSIAT, OHRT, whatever). Do that for a few years, then offer your services privately.
  • Build a bit of a reputation as a labour/employment lawyer, then hang your own shingle. Usually this is paired with finding yourself a busy, experienced mentor who will feed you some referrals. 
  • Hang up a shingle as a mediator. Get cases off the roster or referrals while you build your reputation. Then start doing arbitrations.
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tortstortstorts
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On 8/12/2021 at 7:58 PM, Jaggers said:

In my last job, I did 50-60 arbitrations a year, and some of the old union-side guys were like that. I didn't really find the arbitrators gave them the benefit of the doubt. The arbitrators are very professional always, but when we got out of the hearing room into mediation mode, it was clear those people had little credibility with the arbitrators.

In my first year, it was really hard to adjust to that dynamic because I constantly thought I was being taken for a laugh by the other side, but it didn't take long to learn what was actually happening.

In general it's a problem with established partners on both sides of the bar. 

And while you are generally right that these sorts have little credibility with the best arbitrators, my experience is that this is not universal.  Especially if you expand the field to arbitrators who are more in need of future appointments.

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5 hours ago, tortstortstorts said:

In general it's a problem with established partners on both sides of the bar. 

And while you are generally right that these sorts have little credibility with the best arbitrators, my experience is that this is not universal.  Especially if you expand the field to arbitrators who are more in need of future appointments.

I'm not sure I can say that. Certainly the senior partners who mentored me when I was starting did not do it. Since then, I haven't really been exposed to other senior members of the management side bar through litigation, but I have been exposed to many union side senior lawyers who I've been opposite to in files. I also had a balancing advantage in that the arbitrators wanted to keep me happy too, since I controlled the assignment of 50-60 arbitrations a year.

The lawyers I hire for my cases don't act like that, or I wouldn't keep giving them work. It is self-defeating.

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GreyDude
  • Applicant
On 8/14/2021 at 8:26 PM, Jaggers said:

I also had a balancing advantage in that the arbitrators wanted to keep me happy too, since I controlled the assignment of 50-60 arbitrations a year.

This caught my eye. Do you think arbitrators are sometimes  biased in their decisions based on who gets them assigned? 

In Quebec, where I have had some experience in public-sector grievance arbitration (not as a lawyer but an elected union officer—so an observer or a witness, not the one in charge), the list of approved arbitrators is often found in the collective agreement (it’s in ours at least, and a couple of others I have seen). Do other provinces have pre-approved lists of this type, particularly in collective agreements?

I suppose that the idea of it is to eliminate bias and prevent disputes over the choice of arbitrators, though I am told (but do not know) that the employer has much more influence on the content of the list than do the unions. We do note that unions tend to win less frequently in arbitration, and sometimes one hears muttering about this being due to bias, even though I have never heard that idea (directly) asserted by one of our lawyers.

Anyway, I’m interested in any thoughts you might have. A creation of bias, even implicitly, through the way work is assigned would seem to be a serious flaw in the system. But I am likely missing something (or several somethings). 

Edited by GreyDude
Grammar and punctuation will affect the final grade.
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I controlled 50-60 assignments a year, but tons of union lawyers and union reps control similar numbers of cases, so I don't think there's a built-in bias there. We also had a list in the collective agreements, but we didn't tend to follow the list because you only put really good arbitrators on the list, and they are always really busy so it's hard to get prompt dates. The origin of the list was lost in the mists of time, and everyone on it was pretty ancient, so I can't say who may have had more influence in its creation. I doubt either side could legitimately say they had more influence.

I wouldn't be surprised if unions "win" less in arbitration, if your measure is decided cases. But that's not because of bias, but because the employer tends to be in the driver's seat in terms of settling cases that they don't want to litigate. They obviously have way more financial resources, and both reputational and precedential concerns that could lead you to overpay to make certain cases go away. Plus unions need to get employees to sign off on settlements, and employees are inherently irrational 🙂

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GreyDude
  • Applicant
10 hours ago, Jaggers said:

I wouldn't be surprised if unions "win" less in arbitration, if your measure is decided cases. But that's not because of bias, but because the employer tends to be in the driver's seat in terms of settling cases that they don't want to litigate. They obviously have way more financial resources, and both reputational and precedential concerns that could lead you to overpay to make certain cases go away. Plus unions need to get employees to sign off on settlements, and employees are inherently irrational 🙂

Yeah, darned employees, not doing what they’re told.

… This all makes a great deal of sense and corresponds so closely to my experience and observations (12 or 13 years either as a contract negotiator or union executive) that I’m a bit embarrassed not to have connected those particular dots in this way. You’re absolutely right that settlement is what we always prefer, and employers like to use it as the primary carrot offered against the stick of arbitration. And, of course, the settlement happens with minimal involvement of the labour lawyer, who mostly looks over the agreement and improves wording or points out red flags (things that shouldn’t be in there—or that should), and my executive has a policy of never grieving without getting her advice (legal and strategic), so most of our grievances end up in settlements we like. And of course, then there are the grievances that don’t have to even get filed: just pointing out that one is coming fixes things. 
 

So… counting all that in the tally of wins and losses, well, who’s irrational now?  😇  Thanks. 

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t3ctonics
  • Lawyer
On 8/14/2021 at 8:36 AM, GreyDude said:

I'm suddenly wondering about arbitrators. How to they get there? Out of curiosity, can anyone ( @Jaggersor @t3ctonics, perhaps) describe a "normal" path to becoming an arbitrator? Is there one?  Who are these folks?

Out west, a decent number of the more popular arbitrators are (or were) law professors. The three other paths mentioned by @Jaggers certainly apply out here too.

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Bob Jones
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If you're still reading this - 

subscribe to https://www.wrongfuldismissaldatabase.com for an easy and straightforward database to calculate notice periods in your files. It's a great resource but it isn't updated as frequently as I'd like. 

Check out the resources/texts on Westlaw from Stacey Ball or Howard Levitt. They're great and summarize virtually all facets of practice with references to the case law and statutes. 

Barry Fisher's blog on LinkedIn - agreed it's great. 

I would also subscribe to notifications on CanLii for any decisions which cite Bardal and Globe and Mail (virtually every employment law decision does), as you will be kept up to date on employment matters. 

You should also get familiar with the Canada Labour Code - basic entitlements owing upon termination and the Unjust Dismissal Remedies. Make sure you are familiar with the ESA inside and backwards (in particular, the reprisal provisions and s.97). 

Make sure you are up to date on the case law on termination provisions - read Waksdale, Sewell, and the decisions which have started as an example, as well as the case law on IDEL & layoffs (Taylor, Coutinho), and Dependent Contractors (the Canac Kitchens cases as an example). 

Get to know the practice direction for the regions you will be servicing - for example, if in Toronto and you want to proceed via Summary Judgment, you first have to make an appearance at Civil Practice Court at 393 University to try and set the matter down for an MSJ. 

Basically, try and shadow an employment lawyer if you can while you build your practice because there is a lot to know and get to hang of, but when you will I am sure you will be great at. 

Make sure you are comfortable with the various procedures and timelines set out in the Rules of Civil Procedure. Lastly, be kind, accommodating, but firm; the employment bar is small and you will likely be working on opposite sides of a familiar face on more than on occasion. 

Good luck!

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tortstortstorts
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On 8/14/2021 at 5:26 PM, Jaggers said:

I'm not sure I can say that. Certainly the senior partners who mentored me when I was starting did not do it. Since then, I haven't really been exposed to other senior members of the management side bar through litigation, but I have been exposed to many union side senior lawyers who I've been opposite to in files. I also had a balancing advantage in that the arbitrators wanted to keep me happy too, since I controlled the assignment of 50-60 arbitrations a year.

The lawyers I hire for my cases don't act like that, or I wouldn't keep giving them work. It is self-defeating.

I've worked both sides.   I can certainly name several employer side counsel in my jurisdiction who regularly engage in what you're describing.  If I asked colleagues, they'd give me many of the same names.  And while the practice may appear self-defeating to an in-house counsel retaining firms and lawyers, it does not always appear the same to clients who are not lawyers.

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EmplawmentLaw
  • Law Student
3 minutes ago, Bob Jones said:

If you're still reading this - 

subscribe to https://www.wrongfuldismissaldatabase.com for an easy and straightforward database to calculate notice periods in your files. It's a great resource but it isn't updated as frequently as I'd like. 

Check out the resources/texts on Westlaw from Stacey Ball or Howard Levitt. They're great and summarize virtually all facets of practice with references to the case law and statutes. 

Barry Fisher's blog on LinkedIn - agreed it's great. 

I would also subscribe to notifications on CanLii for any decisions which cite Bardal and Globe and Mail (virtually every employment law decision does), as you will be kept up to date on employment matters. 

You should also get familiar with the Canada Labour Code - basic entitlements owing upon termination and the Unjust Dismissal Remedies. Make sure you are familiar with the ESA inside and backwards (in particular, the reprisal provisions and s.97). 

Make sure you are up to date on the case law on termination provisions - read Waksdale, Sewell, and the decisions which have started as an example, as well as the case law on IDEL & layoffs (Taylor, Coutinho), and Dependent Contractors (the Canac Kitchens cases as an example). 

Get to know the practice direction for the regions you will be servicing - for example, if in Toronto and you want to proceed via Summary Judgment, you first have to make an appearance at Civil Practice Court at 393 University to try and set the matter down for an MSJ. 

Basically, try and shadow an employment lawyer if you can while you build your practice because there is a lot to know and get to hang of, but when you will I am sure you will be great at. 

Make sure you are comfortable with the various procedures and timelines set out in the Rules of Civil Procedure. Lastly, be kind, accommodating, but firm; the employment bar is small and you will likely be working on opposite sides of a familiar face on more than on occasion. 

Good luck!

This is one of the most helpful things I've read in the past week.

Thank you so much!

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Last time I saw Stacey Ball, he gave me a copy of his textbook with a highlighted part he said I should read. Or actually, he got his assistant to bring it to me. Then he spilled his coffee all over me.

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