In, Nicola Lao and St. John Ambulance Council for Ontario 2024 HRTO 347, Szymon Rodomar of FCL LLP successfully represented St. John Ambulance Council for Ontario (the “Respondent”) at a recent a preliminary hearing before the Human Rights Tribunal (“HRTO”).

In this Application, the Applicant alleged that she was discriminated against based on sex and family status by her former employer, St. John Ambulance Council for Ontario (the “Respondent”). The Applicant first initiated a Claim before the Ministry of Labour (the “MOL”) against the Respondent and, shortly thereafter, filed her Application with the HRTO; the Applicant made identical factual allegations relating to sex-based and family status discrimination in both proceedings. After her MOL Claim was dismissed, the Applicant still sought to proceed further with her HRTO Application.

In noting the strong similarities between the MOL Claim and the HRTO Application, the Respondent brought a preliminary hearing to dismiss the Application under Section 45.1 of the Code or, alternatively, because the Application was an abuse of process.

Section 45.1 of the Code states that the Tribunal may dismiss an application, in whole or in part, if another proceeding has appropriately dealt with the substance of the application. The provision is meant to prevent duplication of proceedings and re-litigation of issues already determined in another forum. An Applicant dissatisfied with the outcome of a proceeding before another administrative tribunal may not seek to appeal that outcome via the HRTO.

The Respondent detailed the four factors referenced by the HRTO in the context of decisions under Section 45.1 of the Code, which are derived from the Supreme Court’s decisions in British Columbia (Workers Compensation Board) v. Figliola, 2011 SCC 51 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19. In doing so, the HRTO accepted the Respondent’s submissions that the MOL had jurisdiction to consider allegations of discrimination contrary to the Code, the issues considered by the MOL were the same as the issues that the Applicant sought to litigate before the HRTO, the Applicant knew the case to be met before the MOL and that it would not be unfair to dismiss the Application under Section 45.1.

The Respondent’s Submissions centered heavily on third and fourth factors which focus, respectively, on the Applicant’s opportunity to know the case to be met before the other tribunal and fairness.

In this regard, the HRTO agreed with the Respondent’s argument that, if the Applicant took issue with the MOL’s procedures or with its substantive reasoning, she should have sought a review of the MOL’s decision by the Ontario Labour Relations Board pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41.

The HRTO further expressed agreement with the Respondent’s position that proceeding to a merits hearing in respect of the Application would necessarily entail a re-hearing of the issues raised before and decided by the MOL, which is precisely the situation Section 45.1 was enacted to prevent.

Ultimately, the HRTO found in favour of the Respondent and dismissed the Application.

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In the Absence of Force Majeure Clauses, Frustration Pays Off

Last week we examined force majeure clauses within contracts that may relieve a party’s contractual obligations during unforeseen emergencies, often referred to as “Acts of God”. In this article, we will discuss what happens when a force majeure clause is not expressly provided in the contract.

Canadian courts have not implied a force majeure provision in the absence of one, despite the occurrence of a force majeure event. In such circumstances, the doctrine of frustration also known as the doctrine of discharge, may be relied upon to vacate a contract altogether. This equitable remedy accounts for unforeseen events which have irreparably altered the basis of the contract. The doctrine of frustration can be applied broadly to all types of contracts including commercial or employment disputes. The standard to prove frustration is higher than force majeure, and the implications are also different: a force majeure clause will freeze the contractual obligation as it relates to the unforeseen event, whereas, a finding of frustration will effectively end the contract.

Doctrine of Frustration

The Supreme Court of Canada in Naylor Group Inc. v Ellis-Don Construction Ltd., 2001 SCC 58, describes the appropriate use of frustration where: “a situation has arisen for which the parties made no provision in the contract and the performance of the contract becomes ‘a thing radically different from that which was undertaken by the contract.’”

To establish frustration, the relying party must prove that an unforeseen event has radically changed or interrupted the performance of the agreement, making it impossible, or impractical to execute the contract as originally intended. The new event must have been beyond the reasonable contemplation of the parties when they were contracting, and therefore it would be unjust to hold the parties to the agreement under these altered circumstances.

Considerations when applying the doctrine of frustration

• Is there a Force Majeure clause in the contract?
  The doctrine of frustration operates as a last resort, only to be utilized in the absence of a force majeure clause. In other words, parties cannot double dip to rely on both a force majeure clause and the doctrine of frustration, it must be one or the other.

• Was there a supervening event that occurred?
  The event must not have been foreseeable or within the contemplation of either party when the contract was executed. There may also be cases where the non-performance of an integral party to the contract, frustrates the entirety of the agreement.
• Did the event cause a radically different performance of the contract?
  The event must have rendered the performance of the contract substantially different than what the parties initially anticipated. Courts will consider events: that have rendered the performance of the contract impossible; where performance is possible but the purpose of the contract has been undermined; or, where the temporary impossibility has frustrated the contract itself. The courts have established a threshold of a minimum level of radical difference, for example, a task that has simply become more onerous or expensive since it was originally contemplated will not activate the doctrine of frustration.

Successfully establishing frustration terminates the contract from the date of the supervening event. Additionally, Ontario’s Frustrated Contracts Act, R.S.O. 1990, c. F.34 provides for other recourses such as the recovery of past benefits conferred after a contract has been frustrated. The doctrine of frustration is particularly topical in these days of uncertainty when clients are confronting situations that were beyond their contemplation when finalizing their contracts. At this time, it is incumbent on lawyers to be well versed in these contractual defences so damages are well mitigated.

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The Buy-In: Legal Innovation as a Firm Strategy
By Samah Rahman

There are certain tried and tested traditions in law which have come to characterize the practice: the late nights in board rooms closing deals; the glossy-eyed hours in document review; the painstaking calculations measuring each word to craft the most erudite factum; the infinite rabbit-hole of research to uncover the most poignant legal loophole, all the while trying to strike the perfect balance of rate to hour ratio that appeases the client and bolsters the firm’s bottom line. And like all traditions, there is a sense of comfort in resorting to these familiar rituals; but the reality is, while times have changed, the practice of law has not. But if it ain’t broke, why innovate? Because clients demand efficiency; and, the competitive business of law demands that firms stay ahead of the tech-curve.

To discuss these ideas, the Canadian Legal Innovation Forum congregated on March 5, 2020, bringing together professionals working at the intersection of law and technology. This year’s forum focused on how to harness legal innovation to respond to the increasing client expectations and competition in the field. The core objectives of the forum were:

• To provide legal practitioners with context, information and guidance on how to define and evolve their innovation strategies;
• To encourage collaboration in the legal sector to tackle the toughest challenges it and the businesses they support are facing. And leveraging opportunities linked to these challenges; and,
• To build a national network of innovators focused on invoking change in the legal sector and aligning with business trends in the Canadian economy.

A running theme that emerged from the eight panel discussions was the idea of top-down resistance towards product-driven or process-driven innovation. Another obstacle identified was the conflict between target billings and the investment in innovation that may undercut billable hours. Finally, the panel identified the lack of time allocated to learning and innovating as another impediment to change.

The solutions proposed by leading innovators in the field, unanimously began with the concept of the buy-in. Talent driven innovation is possible and necessary when an individual or group champions the push to innovate, sells the idea, and induces the buy-in to make innovation a team strategy. It typically goes like this: these internal champions introduce the process or product, create transparent channels to educate and monitor the progress, and the firm sees results, believes in the innovation and adopts it in their practice. There has to be complete buy-in of the innovator mentality by the firm and its people so it can permeate through all levels to create a leaner practice.

Key takeaways from the forum to implement innovation as strategy are:

• To honestly identify the pain-points in practice, and take a flexible approach in locating vendors who can create solutions;
• To procure technology that benefits the entire organization at all levels;
• To ensure vendors are able to customize the technology to cater specifically to the practice;
• To vet the technology, and then to test the technology beyond demos to ensure suitability of integration within the firm fabric.

Legal innovation is talent driven. The forum affirmed that the onus is on the entire team to identify areas of improvement, but specifically challenged students and new lawyers to apply their fresh eyes to call out the inefficiencies in practice, and canvas the market for solutions. The dialogues to innovate are beginning now – streamlining practice may reduce billable hours, but leaves space to build volume and improve client satisfaction. It is imperative for both the practice and business of law to recognize the traditional models of practice need not be venerated. It’s a new day; and we should implement innovation as a team strategy to revamp the tired practices of law.

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Lawyer Spotlight: Nicole McAuley

1. What is your first memory of wanting to be a lawyer?

When I was 12, I decided that I was going to be a lawyer, even though I did not fully appreciate what that entailed at the time. Although the area of law I wanted to focus on changed a number of times since then, my core goal never wavered.

2. Where did you study law and how did you find that experience?

I studied at the University of Manitoba – Robson Hall. In my third year, I had the opportunity to take an advanced advocacy course taught by a Judge of the Court of the Queen’s Bench. There were only ten students, and every class included a practical opportunity for us to develop our advocacy skills. That course gave me a lot of confidence as I started litigating, and I still use many of the principles that I learnt there in my practice today.

3. How did you begin working at Forbes Chochla Leon?

I began my legal career at FCL LLP (then Forbes Chochla LLP) in 2011 as an articling student. When I was looking for an articling position, I knew I wanted to work at a firm where the lawyers are dedicated to advocacy and I could gain as much litigation experience as possible. I loved the work, the people, and the overall environment from the start and have been proud to call FCL my home ever since.

4. Is there a certain case you worked on that stands out to you? If yes, why?

My first trial stands out the most. I had just been called to the bar, while the plaintiff was represented by a senior lawyer. The trust placed in me by my firm and my client was inspiring and affirmed my many hours of preparation. I benefitted greatly from the mentorship here at FCL, especially from one of our founding partners, Stuart Forbes, as I still do today.

During my cross-examinations of the plaintiff’s witnesses, I was able to obtain evidence that directly contradicted the plaintiff’s version of events. This undermined the plaintiff’s credibility and exposed fatal flaws to the plaintiff’s claim. Consequently, we were successful in defeating the claim and received a great result for our client, including an award of significant damages in our favour.

5. What’s your favourite thing about being a lawyer?

I love the challenge of taking on a fresh case and applying my legal skills to help solve problems. I may spend my morning working on a professional liability file involving a mortgage broker and the afternoon defending an employer in a human rights claim. The variety in my practice constantly keeps me on my toes.

I also really enjoy the employment litigation and directors’ and officers’ claims files, where I often represent not-for-profit agencies. Providing legal support for these organizations allows them to focus on their goals and mandates, and that is very rewarding to me.

6. What’s the best part about working at Forbes Chochla Leon?

The people are the best part of our firm. Our team is exceptional. From the partners to the support staff, we have an exemplary group of dedicated professionals who work together to support each other in service of our clients. FCL is more than just a group of colleagues; we are a family and are each other’s biggest cheerleaders.

7. What do you like to get up to in your spare time?

The majority of my “spare time” is spent with my one year old daughter and one year old puppy, who are both lots of fun. When I have time to myself, I really enjoy running, playing tennis and skiing. I have completed the Chicago Marathon and eight half-marathons, including one just seven months after my daughter was born.

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