CANADA Law and Practice Contributed by: Christopher Pigott, Rachel Younan, Jacob Wagner and Felisha Jagiah, Fasken
9. Dispute Resolution 9.1 Litigation
be determined at first instance by the arbitrator. The courts will be more inclined to scrutinise pre-dispute arbitration agreements where there is an obvious ine - quality in bargaining positions or where the invocation of the arbitration agreement would be oppressive or amount to an illegal contracting out of an employment standard. In the unionised setting, disputes between a union and the employer are almost always dealt with through arbitration. Collective bargaining agreements typi - cally specify the arbitral procedure to be engaged in between the parties. 9.3 Costs The general rule across Canada is that the success - ful party in a civil lawsuit will be entitled to at least a portion of their costs or attorney’s fees to compensate for the time and expense of bringing or defending a legal proceeding. It is rare that any successful party, whether an employer or employee, will be entitled to the full amount of legal fees incurred in a proceeding. Costs awards, which can include both legal fees and general expenses associated with litigation in some jurisdictions, may typically represent between 40% and 50% of the actual amount of money expended by the successful party. However, a greater proportion (or the entirety) of legal fees may infrequently be awarded in cases where the conduct of the opposing party in the legal proceeding is considered to be egregious or reprehensible. Some Canadian jurisdictions have special rules regarding costs to encourage settlement between par - ties. In Ontario and British Columbia, if an employee rejects an employer’s written offer to settle a wrongful dismissal claim and the employee receives a judgment at trial that is no more favourable than the terms of the employer’s rejected offer to settle, the employer may be entitled to recover their legal costs at a significantly higher rate than would typically be awarded. In contrast, most tribunals that deal with employment matters do not have the authority to award the suc - cessful party costs.
Many employment disputes in Canada are dealt with by the numerous federal and provincial tribunals established to deal with specific employment issues. As an example, human rights complaints initiated by an employee against their employer are typically dealt with by the human rights tribunal or commission in the province where the employment relationship exists. It is possible for an employee or employer to apply to the superior court in each jurisdiction for a judicial review of a tribunal decision. The provincial superior court in each province also has jurisdiction over wrongful dismissal claims and other employment-related disputes that relate to a breach of a common law (or, in Quebec, civil law) right, such as the requirement to provide reasonable notice of termination. Class actions in the employment law context are per - missible in Canada. Indeed, during the course of the past decade, there has been a significant increase in the use of class actions as a means of reducing the individual costs of employment litigation. Class actions in the employment context have included mass wrongful dismissal claims, retirement benefits claims, employment discrimination claims and – per - haps most frequently – claims related to the breach of employment standards legislation. Recently, a growing number of wrongful dismissal cases have been decided by way of a summary judg - ment motion. Those cases have typically involved straightforward facts that are in dispute and have cen - tred around notice entitlements and the enforceability of termination provisions. 9.2 Alternative Dispute Resolution In the non-unionised context, Canadian courts are generally willing to uphold the terms of a pre-dispute arbitration agreement. In most cases, a court will engage in a deferential approach to the jurisdiction of arbitrators, including by finding that a challenge to the validity of a pre-dispute arbitration clause should
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