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Defence to Wrongful Dismissal Lawsuit

ontario wrongful dismissal small claims defence

When defending a wrongful dismissal lawsuit, it is important to bear in mind Ontario employment law.  Essentially, an employer is always allowed to dismiss an employee , so long as the necessary notice is given, or payment in lieu of notice as well as any vacation money owing, wages, etc,. A starting point is the Employment Standards Act.  However, that is, as intentionally stated, just a starting point.  That is because even though the ESA prescribes certain amounts of notice, severance, etc. that must be paid, the reality is that the court, through common law legal precedent have established a typically higher notice period.

A full discussion of wrongful dismissal law has been the subject of previous articles.  See also here and here for the perspective from the employee’s point of view and a discussion of the law in some more detail.

That said, there is a time where an employer need not pay notice, severance, etc (though wages, vacation pay, etc. must still be paid if owing), and that is in the case of just cause.  Just cause can be insubordination, absenteeism so long as the dismissal was precipitated by advance warnings, and other such forms of abuse by the employee of his/her position.  However, as an employer, you must bear in mind that there is a heavy onus to establish cause.  In fact, Justice Echlin of the Superior Court of Justice has referred to just cause as the “capital punishment” of wrongful dismissal in that the onus on an employer to prove cause is essentially beyond a reasonable doubt that there was cause versus no cause.  Indeed this can be a high limit.

Of course, there are other types of dismissal not involving cause such as temporary layoffs and the like, but that is beyond the scope of this post.

So, what do you do if you are reading this blog and you have already been sued for making a mistake in not paying the right notice.  That will be the subject of a future article, but for now, you may just have to settle for consulting with a lawyer to learn what you can do about your specific case.

***UPDATE***

Effective July 1, 2014, all Defendants must not SERVE (provide) the Plaintiff with the Defence and THEN file the Defence with the Small Claims Court along with proof of service by way of swearing an Affidavit of Service.  a full discussion of how to do all this is beyond the scope of this article, but we discuss all this in my strategy session