It would be remiss not to open this discussion with a tried-and-true then-Chief Justice Dickson's quote from the 1987 Alberta Reference case: 

“Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being”. Reference re Public Service Employee Relations Act (Alberta) [Alberta Reference], [1987] 1 S.C.R. 313 at para 368.

The law of work as we had known it before the pandemic has changed. This change has affected all of us: workers, employers, labour and employment lawyers, and law students. As a result, there is no doubt that the practice of labour and employment law has changed in nuanced ways. However, the question remains whether the employment law practice has changed over time or overnight. With this and other questions that surprise us, I turn to Sunira Chaudhri, founder and partner at Workly Law, and Tahir Khorasanee, associate lawyer at Loopstra Nixon LLP, who earlier in their careers worked together at a downtown Toronto boutique employment law firm. Below they provide their perspectives on the issue.  

OR: Sunira, what is your take on where we are headed in terms of employment law matters in the post-pandemic world?

SC: In the post-pandemic world, reputation and references are going to be a more valued currency for both employers and employees, especially as employees who work remotely will be relying on their online brand to sell themselves to their potential employers. Employers, too, have already been navigating the new perks and benefits of flexibility they must offer to attract and retain talent. I think we will be surprised at how many people would actually want to return to the brick-and-mortar, given the toll remote work has had on mental health over the last two years.

OR: Tahir, you started practicing employment law the year before the pandemic arrived on Canadian shores. What were these last three years like for you? 

TK: Before the pandemic, employment law was pretty monotonous, even though it was very lucrative. The pandemic changed that very quickly, making employment law incredibly exciting. You had to deal with mass layoffs; remote and hybrid work; health and safety considerations; and novel employee and employer concerns. Like the rest of the country, 2020 was a very uncertain time for employment lawyers. Many of the issues our clients were facing were novel. For me, personally, it was a very difficult year. My father contracted COVID and was very sick and in the hospital for five months. Thankfully, he is still with us today. 2021 saw many precedent-setting decisions, and, by this time, employment lawyers had figured out a lot that just a year ago, involved making educated guesses.

On the business front, before the pandemic, with minimal barriers to entry in this field of law, many disability and personal injury lawyers were joining the employment law bar. The pandemic acted as a catalyst, rapidly expanding the employment law bar. The lockdown in Ontario resulted in perhaps the largest number of layoffs in Canadian history. These layoffs resulted in constructive dismissal claims, which then resulted in a boom for employment lawyers.

OR: Sunira, given the recent amendments to Ontario’s Employment Standards Act and financial support provided by the government to employers and employees, what types of cases should employment lawyers expect to cross their desks soon?

SC: I think we are going to see more curious cases of the employee who has never met their employer. These employees were recruited during the labour shortage, sight unseen, only to be terminated a year or so later. These cases are interesting because the personal connection between the employer and the employee does not really exist. The entire relationship existed over Zoom or a virtual platform. And employers tried to contract their way out of paying these employees beyond ESA minimums. Given all the changes to the case law on the enforceability of the termination provisions, much of our business has turned to interpreting contracts and advocating for clients where contracts drawn up even a year ago are no longer enforceable.

OR: Tahir, if you had a chance to change the direction of your legal career now, would you still focus your practice on employment law?

TK: Practicing employment law was serendipitous. I was practicing insurance defence and commercial litigation at the time and had gotten an offer of employment from one of Canada’s largest insurance companies. Around the same time, I had met my professor at Osgoode Hall Law School, and my mentor – Justice Todd Archibald. He recommended I join Howard Levitt’s firm, now called Levitt Sheikh LLP. The rest, as they say, is history.

For several reasons, two of which I have listed below, I would never leave employment and labour law. These two areas of law go hand in hand, although many lawyers now tend to practice one or the other.

Employment law is recession proof. That makes it a great area of law to practice. In good times, companies are expanding, there is plenty of transactional work that requires employment lawyers to analyze employment agreements. In good times, companies are also hiring, promoting, and restructuring. These result in the need to draft contracts and policies, and resolve wrongful dismissal claims. During tough economic times, like now, companies are reducing their workforce. Terminations lead to negotiating severance packages and sometimes, litigation.

Another intriguing thing about employment law is that it involves both advisory work and dispute resolution. Using traditional vernacular, employment lawyers can truly be both barristers and solicitors. 

OR: Sunira, in one of your recent Toronto Sun employment law-related columns, you wrote: “Employment is similar to the breath. It is our silent companion. It rides along, parallel to our lives in good times and in bad. It sustains us. We rarely give it much value until we lose it.” Did the pandemic take our breath away? How can employment lawyers help both employers and employees? 

SC: Employers and employees have lost the social fabric that underpins a successful employer-employee relationship. My advice for both is to create social, in-person connections to breed loyalty to employers and a feeling of purpose for employees. 

Employment gives purpose. When employees lost their job or were required to work from home, that purpose was lost. It took our collective breath away.

OR: Tahir, what changes in the workplace do you foresee happening? What tips would you give to law students and new calls? 

TK: For one, the future of the workplace is hybrid. If hybrid is possible, hybrid is inevitable.

Law students and new calls need to balance planning with allowing destiny to take them to the untrodden path. Many successful lawyers will tell you that serendipity led them to their area of practice.

OR: Sunira, in your opinion, how should employers prepare to meet the changing dynamics of the new workplace? 

SC: Lean in to employee-friendly perks. It is much less expensive and not often done.

OR: My last question is for both of you. What role should the use of technology and automation play in this area of practice? Do AI-based solutions have the potential to replace an employment lawyer? 

TK: I hope AI-based solutions reduce the cost of legal services, including in employment law. Unfortunately, the billable-hour model discourages strategies that reduce the time it would take for lawyers to complete tasks. This hinders the induction of AI in the legal workspace. That must change. If it does not, lawyers will lose their monopoly on the practice of law.

SC: Technology should always be used to reduce client costs. Where technology can reduce the time a lawyer is spending on a case and speed up the administration of the file, it must be used. Our firm uses technology to lower overhead and to remain nimble in the services we can provide to our clients.

AI-based solutions should be embraced for contract-based issues and case law. Otherwise, employment law is high touch and very human-centred. I don’t think we are going anywhere soon.

OR: Thank you both for this insightful conversation! I hope our readers now appreciate the subtle changes in practising employment law and meeting the evolving demands of the post-pandemic work world. 

 

About the author

Oksana Romanov is a 3L law student at the Lincoln Alexander School of Law at Toronto Metropolitan University. She is the 2022-23 Ontario Bar Association Student Section Executive and her law school’s ambassador. She is an aspiring employment law lawyer. To learn more about the author, you can visit her LinkedIn profile.