Canadian Lawyer

July/August 2020

The most widely read magazine for Canadian lawyers

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Page 29 of 35

28 LEGAL REPORT ALTHOUGH THE COVID-19 pandemic is a matter of epidemiology, it's in the economic sphere the crisis has been most widely felt. In April alone, Canada shed two million jobs, the largest monthly decline ever, according to the Conference Board of Canada. For those still employed, many are subject to hour and salary reductions or temporary layoffs, and the speed at which businesses had to react means lawyers are expecting a flood of claims from employees. But as the economic wreckage often didn't spare the employer either, seeking damages may be LABOUR & EMPLOYMENT The COVID-19 litigation wave to come Employment lawyers predict a surge in litigation after COVID-19 cost cutting, but many employees won't have a 'pocket to pick' akin to drawing blood from a stone. The latter half of March was "the wild west," says Daniel Lublin, a partner at Whitten & Lublin, a labour and employment firm in Toronto. The abrupt economic halt meant, for employers, that circumstances required immediate cost cutting and it was "shoot first, ask questions later," he says. "They were stopped dead in their tracks," says Lublin. "They absolutely had to pivot and take what we would refer to as 'draco- nian measures,' like either reducing wages or layoffs." And, initially, he says, employees complied because better options were not readily apparent. "When the dust settles and when we see that the world's not going to end and people are going to slowly start coming back to work, you're going to see a ton of people challenging what happened," says Lublin. Lublin's colleague David Whitten likens it to a tsunami. "We've seen the water pull out. The wave hasn't hit yet. We see that things — at least in our office — have slowed down a little bit in the last week or so. But we anticipate that there will be a massive wave of work in the future when people either start challenging these temporary layoffs or reductions in their compensation when the dust settles or when employers don't recall people or don't restore people's wages," he says. "The water is out now, but the wave's off in the distance." At the time of writing, Canada's unemploy- ment rate was at 13 per cent. That's a radical change from pre-pandemic, where Canada was sitting at full employment, says Howard Levitt, a senior partner at Levitt LLP. The reversal of fortune will change the dynamics Levitt saw trending in employment disputes before the pandemic struck. Employers were "flush with capital" and "short on employees" and eager to settle quickly to avoid costly liti- gation, he says. Now, because of the recession, that's going to change, he says, and the gloves are coming off. "Employers won't be able to afford to write cheques like they're handing out toilet paper,"

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