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PHOTO: Craig Colraine (left), David Vaillancourt (middle) and Mitchell Rose (right)
A recent decision about whether employees can be required to submit to arbitration could have far-reaching implications, say employment lawyers and advocates. A Divisional Court judge dismissed a motion to quash the appeal involving an employment agreement arbitration clause.
Justice Freya Kristjanson found that whether the Arbitration Act excludes the appeal or the provision violates the Employee Standards Act and is unenforceable highlights relevant questions of law. She wrote that she could not conclude that the appeal is devoid of merit, mainly because Parkdale Community Legal Clinic appeared as an intervener. “The Parkdale Clinic has intervened in the interests of vulnerable workers, highlighting the importance of the questions of law to be resolved.”
The outcome of the appeal in Leon v. Dealnet will be significant because the case relates to the interaction between the Arbitration Act and the Employment Standards Act, says Craig Colraine, the lawyer for the appellant.
David Vaillancourt, the lawyer for the respondent, says this will be a significant decision when the full appeal gets argued regardless of the final decision. Vaillancourt says the court has not set a date to hear the case but expects it to be in March or April.
Employers who wish to insert alternative dispute resolution clauses into their employment contracts might have been encouraged by the court’s first ruling, says Mitchell Rose, a lawyer, mediator, arbitrator, and principal of Mitchell Rose PC. However, Rose says employers should be cautious that it may take some time before the law is clear in this area.
Rose says the motion might have been successful without Parkdale’s intervention. “Justice Kristjanson was influenced that the Parkdale Community Legal Clinic was an intervener on this motion, and presumably will be on the appeal.”
Employers should reserve ADR clauses for senior employees and clarify within the ADR clause in the contract that the clause does not preclude them from seeking relief under the ESA or other legislation, Rose says. They should also pay 100 per cent of mediators’ or arbitrators’ fees to address the issue of unconscionability and prevent a hindrance for moderate and lower-income employees.
One of the benefits of ADR is the potential to save legal costs to avoid lengthy proceedings, preserve privacy, and promote finality, Rose says. These benefits make the high costs in this dispute ironic, he says.
In Leon v. Dealnet Capital Corporation, Dealnet brought a motion to quash Leon’s appeal as clearly devoid of merit after the appellant contested Master Barbara McAfee’s decision to stay his motion and go through mediation or arbitration to settle his dispute with Dealnet.
Law Times reported that Leon joined Dealnet as a senior vice president in a 2014 acquisition and signed an employment agreement in 2017, which required any dispute to go through mediation and, if unsuccessful, arbitration. In April 2018, he submitted a letter of resignation and the following year commenced an action, alleging Dealnet owed him $52,000 for a transaction-based bonus, among other claims.
Dealnet moved to stay the proceeding, relying on the arbitration clause in its employment contract. Leon used Heller v. Uber to argue that the arbitration clause stripped his right to complain to the Ministry of Labour about ESA violations, contrary to s. 5(1) of the Act.
Master McAfee said Heller v. Uber was different because the arbitration clause was found unconscionable, and that case held a foreign law provision, which removed the ESA’s jurisdiction entirely. She granted the motion saying she was not satisfied that the clause was invalid or persuaded by Leon’s other arguments about the delay and the arbitrability of the dispute.
Justice Kristjanson, in her decision, wrote that the Court of Appeal in Schmidt v. Toronto-Dominion Bank held that the power to quash an appeal would rarely be applied and that in most cases, it is difficult to conclude that an appeal has no merit without hearing the entire case.
