Wrongful Dismissal Lawsuits in Ontario - the Litigation Process
**Written by Adele Zhang, Summer Student at Lee Workplace Law
The termination of an employment relationship may not be always clean cut. In some cases, the employee may consider starting a wrongful dismissal lawsuit. Where such a lawsuit is on the horizon, it may be worthwhile for employers and employees alike to understand what constitutes a wrongful dismissal and what the litigation process involves.
In this blog post, we outline the general process for bringing an employment lawsuit in the Ontario Superior Court of Justice. It is important to keep in mind that every lawsuit is different, and there may be additional steps or processes in any given lawsuit.
Step 1 - Understand what Counts as a Wrongful Dismissal
The first step is to understand what amounts to wrongful dismissal. Generally, there are three ways for the employment relationship to end that may constitute wrongful dismissal:
- Termination Without Cause - Where the employee is terminated without cause and not provided sufficient notice or compensation;
- Termination for Cause - Where the employee is terminated for cause, not provided sufficient notice or compensation, and the allegation of cause for termination is not substantiated; or
- Constructive Dismissal - Where the employer imposes serious, unilateral changes to the terms of the employee's employment, without consent.
Step 2 - Consult a Lawyer
If a wrongful dismissal lawsuit may be pending, employers and employees alike should consult an employment lawyer. An employment lawyer will hear your side of the story and look at documentation such as an employment contract to help determine whether there are grounds for a wrongful dismissal claim.
Step 3 - The Claim and Defence
The lawsuit is typically initiated by the employee filing and serving a Statement of Claim. The Statement of Claim outlines the essence of the complaint and the remedy being sought.
Once the Statement of Claim has been issued, the employer has twenty to thirty days to file their Statement of Defence.
If there are any new issues raised in the Statement of Defence that were not addressed in the Statement of Claim, the employee may file a Reply within ten days of receiving the Statement of Defence.
Step 4 - Exchange Affidavits of Documents
After exchanging statements, both parties normally prepare an Affidavit of Documents. This document provides a summary of all the documentation relevant to the issues raised in the lawsuit.
For a wrongful dismissal claim, this may include documents such as the employment contract, the termination letter, the employer's handbooks and policies, amongst others.
Step 4 - Mandatory Mediation
The next step typical is mediation. Mediation is a process in which the parties select an independent third party (i.e. the mediator) to assist in resolving their dispute. The mediator's role is to facilitate settlement. In advance of the mediation, the parties exchange Mediation Briefs which summarize the facts, legal issues and any prior offers to settle.
Mediation is mandatory in certain regions such as Toronto, Ottawa, and Essex County, and must take place within 180 days of the filing of the Statement of Defence.
If a settlement is made during this process, Minutes of Settlement are prepared to document the terms and conditions of the settlement reached. This document is confirmed and signed by both parties and becomes a binding contract. While not guaranteed, a high number of wrongful dismissal claims settle at mediation.
Step 5 - Examination for Discovery
If settlement is not reached at mediation, the next step is typically examination for discovery. In some cases, discovery may be held before mediation. During discovery, parties will examine each other's evidence, either orally or by written questions. This is an opportunity to evaluate the strength of the other side's case and explore the evidence. This process can also help determine whether a trial is the correct path or whether settlement is a better alternative.
Step 6 - Pre-Trial Conference
Before going to trial, the parties must meet with a judge to review their case. Each party must prepare a pre-trial memorandum which is provided to the other party and the judge prior to the meeting. The purpose of this conference is to further explore settlement options, failing which, to set a date and timetable for the trial. Ontario judges do tend to push for settlement at this stage as a means of preventing a matter from actually going ahead to trial.
It can take between one to two years to get a trial date in Ontario.
Step 7 - Trial
At trial, both parties will present their arguments and supporting evidence before a judge. Then, after considering each party's submissions and relevant authority, the judge will make a binding decision. The judge may also determine whether legal costs should be awarded, and how much.
If you lose at trial, it may be possible to appeal the decision to a higher court. However, appeals can be a time-consuming process, and success is not guaranteed.
Takeaways
The end of an employment relationship can be tricky, and litigation can add extra complexity into the mix. In all cases, employers and employees who are faced with employment lawsuits are encouraged to seek legal assistance. While this blog post has provided a broad overview of the process, there may be additional steps or complexities that arise. Lee Workplace Law would be happy to help you with your wrongful dismissal suit.
