Fisher's Wrongful Dismissal Database quantifies case law
By April Cunningham, Associate Editor
The question of determining reasonable notice in wrongful dismissal cases is often quite subjective, but an online database created and maintained by Toronto employment mediator and arbitrator Barry B. Fisher allows lawyers to find a range of likely notice periods within seconds.
Published by Carswell, and launched 25 years ago, Fisher’s Wrongful Dismissal Database is often cited in court cases and referenced by judges.
“It becomes the standard because it’s objective,” says Fisher, principal of Barry Fisher Arbitration & Mediation. “It doesn’t provide an opinion, it provides the data and it’s up to the lawyer to interpret it.”
The database, accessible with a subscription, is unique because it searches using key criteria based on the Bardal factors, including age, years of service and “character of employment” or job title. No other search engine narrows down case law so specifically for notice periods, Fisher says.
For example, a search of reasonable notice cases across Canada for sales managers with 12 to 18 years of service between the ages of 40 and 50 reveals outcomes for 14 cases. The database generates a simple report displaying case names, salaries, judges and notice periods for easy comparison. For these factors, the average notice period awarded is 11 months.
“The database is trying to show a bell curve,” Fisher tells AdvocateDaily.com. “You just try to figure out what the parameters are, so you can tell your client the most likely outcome if their case went to court.”
The fourth Bardal factor, availability of similar employment, is not tracked because it’s difficult to quantify, he says, and very few cases have evidence of alternative jobs on the market.
Fisher, who enters “every keystroke” into the database himself (aside from a lawyer who handles Quebec cases), first came up with the idea in the 1980s.
“I would be negotiating with older lawyers who seemed to just pull numbers out of the air as to what they thought was the proper notice period,” he says. “And whenever I’d ask them what cases they were relying upon, they would either have none or say, ‘Years of experience, young man.’ That wasn’t good enough for me.”
He started tracking cases, preparing brief summaries and keeping them in a binder for his own reference.
“It quickly got to the point where it was an ungainly number of cases,” he says. Using a DOS data management program, Fisher developed a simple database to input cases. After he had accumulated about 200, he had the opportunity to present a paper on his project — sparking interest among the employment law community and the Law Society of Upper Canada (LSUC).
He eventually made an agreement with the LSUC that they would carry his database, which remained in his control. When Quick Law came out in the 1990s, allowing lawyers to conduct searches on their own, Fisher teamed up with a developer to build a standalone product, which caught the interest of Carswell, a division of Thomson-Reuters. The company now owns and publishes the database, which remains in Fisher's name.
“At first it was sold on floppy disks and people would get an updated set of disks a few times a year,” he says. Eventually, the database moved online, where it has existed for more than 10 years, allowing lawyers to search directly from their own computers.
“Legal research is much more democratic now,” he says. “Everyone can have access to everything.”
Fisher receives new wrongful dismissal cases on a regular basis from Carswell, and he spends a few hours each month updating the database. He also writes regular blog posts highlighting shifts in case law. After years of writing about notice periods while running his ADR practice, the law still fascinates him, he says.
“There are still things that amaze me,” Fisher says. “Notwithstanding hundreds of thousands of cases, there's still a high level of uncertainty in determining notice periods, especially for short-service employees. The ability to predict notice periods for them is getting more difficult. And that’s a real shame because many people lose their jobs in the first couple of years.”
Fisher has also noted a trend over the past decade to place less importance on the “character of employment.” For example, a secretary with 10 years of experience is now likely to receive a similar notice period as a vice-president with the same years of service.
He expects his database will help employment lawyers for years to come.
“As long as the law continues to be uncertain, as it has been throughout my entire career,” he says. “It’s remarkable because these decisions occur hundreds of times a day, tens of thousands of time a year, and the courts continue to say each case should be decided on its individual merits.”