Our Hamilton Employment lawyers are trial lawyers with extensive experience in representing employees that have been unfairly terminated or wrongfully dismissed. If you have been recently terminated or fired, it is important to remember that you have rights.
You have the absolute right to legal advice before signing any termination documents or release. Do not lose your employment rights to severance or termination pay before speaking to a Hamilton employment termination lawyer.
If you’ve been fired, it’s important that you do not sign anything under duress or while emotional. It’s important that you “cool off” and have your severance papers reviewed by a qualified employment lawyer who can ensure that:
By working with a Hamilton employment lawyer, we can protect your employment rights and assist with the challenges of today’s workplace by providing practical advice on all aspects of the employment relationship.
Unfortunately no, if you are a unionized employee, you will more than likely be covered by a collective agreement and will generally not be able to bring an action for wrongful dismissal into court. If a dispute arises under your collective agreement, such as termination of employment, the dispute would likely go through the grievance arbitration process under your collective agreement.
If you were in a non-unionized employment relationship, your employer has an implied common law obligation to give you reasonable notice of its intention to terminate the employment relationship, unless there is just cause for termination. If your employer fails to give you reasonable notice of termination, you can bring a wrongful dismissal action for breach of that implied term.
The purpose of providing reasonable notice is to allow you to have a period of time in which to secure alternative equitable employment. Reasonable notice is determined on a case by case basis.
In Ontario, employers have the right to terminate any of their employees without reason—providing they provide appropriate notice. What does this mean for you?
This means that if you have been unfairly terminated, your employer will need to either provide you with advanced reasonable notice of your termination or a cash payment to you in place of notice.
This is not to be confused with an employee’s minimum statutory entitlement to termination pay or severance pay pursuant to the Ontario Employment Standards Act. This act provides that employees are not to be fired unless they are provided with advance notice or termination pay in place of notice, which depends on how long they have been employed. The amount of minimum notice required can be found in this chart.
Remember, the rules under the Ontario Employment Standards Act about termination and severance pay are an employer’s minimum requirements. You may have greater rights that exceed minimum payments. Some terminated employees choose to file a lawsuit against their employer for such things as wrongful dismissal or constructive dismissal.
If you have signed an employment contract and you and your employer previously agreed on the length of notice you would be given in the event of your termination, then those terms would generally govern unless you were coerced or influenced to sign the employment agreement – however the original contract must not restrict you in any way of your legal statutory entitlements.
If you have been fired for cause, you will not be entitled to Hamilton wrongful dismissal damages. “Terminated for cause” means that you have been guilty of serious misconduct, habitual neglect of duty and incompetence, or conduct incompatible with your duties—behaviors that are prejudicial to your employer’s business. The onus is on your employer to prove cause, and it has been repeatedly described as a high one to discharge. In other words, your employer must show that your conduct was misconduct of the most serious kind. If your employer is successful in showing cause for dismissal, you will not be entitled to compensation in your Hamilton wrongful dismissal case.
If you have been fired without cause, how much severance an employee is entitled to depends on a variety of factors that you should speak to a employment lawyer about without delay.
There are three main areas of termination entitlement that your employer may be required to provide you at the time of your termination, if you have been fired without cause without cause:
Statutory termination notice is mandatory termination pay owed to you in accordance with the Employment Standards Act;
Statutory severance pay – (only for certain Ontario or federally regulated employees), which must be given as pay and cannot be given as notice; and
Common law reasonable notice or pay in lieu of such notice – is employment agreements for any job, whether implied or written, are contracts. Contracts must comply with the law. If an employer is going to terminate an employee, it must lawfully terminate an employee by providing sufficient notice of that termination.
The dismissal, if wrongful, constitutes a breach of contract, allowing the employee to sue his or her employer for damages.
The primary purpose of reasonable notice is to give the employee an opportunity and a reasonable period of time to search for other employment. The period of notice is not necessarily equivalent to the period required to find new employment. The obligation of the employer is to give reasonable notice; failure to do so will expose your employer to damages for the loss of salary and benefits you would have received during the period of reasonable notice.
Our court system has repeatedly found that there is no precise method or rule of thumb for determining a period of reasonable notice for termination of particular employment. However, there are certainly factors applied as guidelines, some of which include the following:
Length of Service – How long have you been employed with your present employer? The employee’s length of service is an important factor in the determination of reasonable notice.
Age – Courts are very cognizant that an older employee will often have a difficult time in obtaining alternative employment, and therefore considerable weight will be given to the age of the plaintiff
Availability of Similar Work – Employees that have specialized jobs or who are highly skilled have been held to deserve notice at the higher end. A similar job opportunity like yours may be virtually non-existent or very difficult to find.
Character of Employment – Courts have given considerable weight to the importance of the plaintiff’s position within the employer’s organization in calculating reasonable notice.
Health of the Employee – Courts have held the health of the employee to be a relevant factor in determining the period of reasonable notice. Medical difficulties can affect the availability of alternate employment
There are countless other variants which our Courts can consider when determining your severance, such as:
An employee that is wrongfully dismissed has had his or her employer fail to provide adequate notice of termination. How much notice an employee is entitled to depends on a variety of factors that you should speak to a Hamilton employment lawyer about immediately to learn your rights.
Generally, your employer can choose whether to provide “working notice” to the end of the working relationship or immediately provide you with compensation equivalent to your notice period. This payment is called payment “in lieu” of notice. In short, the law requires all employers to provide notice to dismissed employees, whether an employment contract was signed or not.
An employer could write a cheque for a lump sum payout to satisfy its notice obligations or, in the alternative, allow you to continue working until the end of your notice period (also avoiding the LTD nightmare since you are still insured).
A payout for payment in lieu of notice is considered compensation for breach of the implied obligation to provide proper notice of termination, although in law, the quantum of compensation is equivalent to the required length of working notice. A payment in lieu of notice is an attempt to compensate for the employer’s breach of the contract of employment.
Our employment lawyers can ensure that your employee rights are protected and upheld:
Severance Package Reviews – If you have been recently terminated, you should have your termination letter reviewed to ensure that you are not signing away your rights to any severance that you may be entitled to. Other situations that call for review include an employer removing your seniority, sale of the business, the business owner retiring, forced vacation, and unilateral changes to your employment contract that you do not agree with.
Contract Reviews – Have you been recently hired? You should have your contract reviewed before starting your new dream job to save expense later if things go sour. You should have things like non-compete or non-solicitation clauses, termination clauses or severance amounts, and discretionary bonus clauses all reviewed by a lawyer experienced with employment issues.
Fired for Cause – It is normally implied within the employment relationship that the employer may terminate employment for very good reason. If you have been fired for cause, talk to a Hamilton employment lawyer to make sure the termination is legal. You may not be getting what you are entitled to. The onus to fire for cause is a very high one for employers.
Constructive Dismissal – When an employer’s conduct displays the intention to no longer be bound by the contract of employment, the employee has a choice: He or she can either accept conduct or changes made by the employer, or treat the conduct or changes as a repudiation of the contract, hence suing for constructive dismissal.
Severance Pay – are you entitled to severance pay? Although many people interchange the two, severance pay is distinct from termination pay. Severance pay is an amount of money paid to an employee by an employer under certain conditions specified by the employment standards act.
Termination Pay – are you entitled to termination pay? Termination pay is the minimums set out by the Employment Standards Act.
Payment in Lieu of Notice – are you entitled to payment in lieu of notice? Payment in lieu of notice is different from termination pay. Payment in Lieu of Notice, otherwise called common law notice. The Employment Standards Act provides the minimum amount of notice. In some cases, there is also the common law notice period requirement, resulting in enhanced termination pay depending on certain conditions.
Lalande Personal Injury Lawyers has the trial experience and extensive knowledge in the areas of employment law and long-term disability law you need on your side. If you’ve been terminated or lost your job, call us today at 905-333-8888 to schedule your free consultation today, or fill in a contact form and we will be happy to get back to you promptly.
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Whether you are an employee or a small or large company, we understand that, at times, employment situations come up quickly and unexpectedly, which is often followed by what seems like a limitless list of questions and concerns. Our employment lawyers are here to provide you with the answers you need, and to that end, we’ve answered a few common questions in the space below:
In every non-unionized employment relationship, the employer has an implied common law obligation to give the employee reasonable notice of its intention to terminate the employment relationship, unless there is just cause for termination. If the employer fails to give the employee reasonable notice of termination, the employee can bring a wrongful dismissal action for breach of that implied term.
The purpose of providing reasonable notice is to allow the employee a period of time in which to secure alternative employment.
Yes, unlike statutory minimum termination pay, you can certainly contract out of reasonable notice. As a substitute for common law reasonable notice, you and your employer might have agreed at the outset to any amount of notice or pay in lieu of notice that is equal to or above the statutory minimum.
The starting point for determining the reasonable notice period is set out in an old seminal case case called Bardal v. Globe & Mail Ltd., from 1960. Bardal tells us that reasonable notice is decided with reference to the certain key factors (the “Bardal factors”):
Bardal lists the most important factors to be considered in assessing the common law reasonable notice period. These factors are weighed and balanced by the courts in their analysis. No single Bardal factor is to be given disproportionate weight.
It’s important to understand that Bardal does not provide an exhaustive list of the factors to be considered. Courts have added other factors into the analysis. However, additional factors are not given the same weight as the Bardal factors, except (arguably) for the factor of inducement.
The reasonable notice period has been generally capped at a rough upper limit of 24 months of notice, with the court awarding above 24 months if exceptional circumstances are demonstrated.
For example, in the case of Dawe v. Equitable Life Insurance Company, 2018 CarswellOnt 8419 (Ont. S.C.J.) a 62-year-old senior vice president with 37 years of service was awarded 30 months of notice. The court would have awarded 36 months on the basis that no comparable employment was available however only 30 months of notice was claimed.
Your employer is obligated to provide you reasonable notice of your termination – or in the alternative – payment in lieu of such notice. If your employer has not provided you with reasonable notice OR payment in lieu of notice, or your employer has provided inappropriate notice then you may in fact have a claim for wrongful dismissal.
This approach has been rejected by the appeal courts as it overemphasizes the length of service factor and undermines the flexibility of the Bardal analysis. The rule of thumb approach to reasonable notice also has little correlation to reality. Short term employees may well receive reasonable notice in excess of a month per year of service (sometimes up to four or five months per year of service) and longer-term employees (over 20 years) tend to receive less than a month per year of service.
The state of the law at present is that the appropriate range for reasonable notice has no limit or “cap”.
Abrahim v. Sliwin, 2012 ONSC 6295 (CanLII)at paragraph 24, cites how the “character” of the employment, in other words, greater notice for highly skilled positions and less notice for clerical or unskilled work, is now “largely irrelevant”: citing Love v. Acuity Investment Management Inc. (2011), 2011 ONCA 130 (CanLII), 89 C.C.E.L. (3d) 157 (Ont.C.A).
No, independent contractors are not entitled to common law reasonable notice of termination.
Yes, you can claim Human Rights damages as part of a civil law suit. The Ontario Human Rights Code was amended in 2008 to include s. 46.1 allowing courts to award damages for violations of the Code in wrongful dismissal cases.
Adjudicator Cook in the case of Boyce v. Toronto Community Housing Corporation tells us that the employer is obliged to accommodate the worker’s disability to allow the worker to continue in employment unless providing that accommodation would result in undue hardship for the employer. Under the Code, the first question is generally whether the worker is capable of performing the essential duties of the pre-disability job. If not, the second question is whether the worker could perform the essential duties of the pre-disability job with accommodation. A worker who cannot perform the essential duties of the pre-disability job even with accommodation is generally entitled under the Code to access other work that may be available, together with consideration of whether the worker could perform the essential duties associated with that other work with accommodation. This might involve consideration of specific jobs that are available, but may also involve creative accommodation solutions, including new job descriptions that allow the worker to continue in employment: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, 1999 CanLII 652 (SCC),  3 S.C.R. 3 (“Meiorin”).
In a Human Rights setting, employees bears the onus of establishing discrimination on a balance of probabilities. The employee must prove it is more probable than not that one or more Human Rights Code grounds was a factor in the decision to terminate his or her employment. (Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII) at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (CanLII) at para. 109.) If the employee is successful in making out a prima facie case of discrimination, the evidentiary burden shifts to the employer to provide a rational explanation which is not discriminatory. It is not sufficient to rebut an inference of discrimination with just any rational alternative explanation. The employer must offer an explanation which is credible on all the evidence. The ultimate issue is whether an inference of discrimination is more probable from the evidence that the actual explanation offered by JLL. See Shaw v. Phipps, 2010 ONSC 3884 (CanLII) at para. 77, upheld 2012 ONCA 155 (CanLII).
Absolutely. In assessing credibility of plaintiffs or applicants, Judges or Adjudicators are guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA),  2 D.L.R. 354 (B.C.C.A.). At pp. 356-357, where the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
The task of Judges and Adjudicators is to consider whether, having regard to the totality of the evidence before me, each of the plaintiffs or applicants have proven the material allegations that form the foundation of their claims that their Code rights have been violated on a balance of probabilities and on the basis of evidence that is clear, cogent and convincing. This necessitates an assessment of each plaintiff or applicant’s credibility as it relates to their material allegations, having regard to the totality of the evidence.
Martin v. Nova Scotia (Workers’ Compensation Board), 2003 SCC 54 (CanLII) has told us that there is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real.
Evans v. Teamsters, Local 31, 2008 CarswellYukon 22 at paras. 30 and 33 (SCC) wherein the duty to accept a reemployment offer was summarized as follows:
I do not mean to suggest with the above analysis that an employee should always be required to return to work for the dismissing employer and my qualification that this should only occur where there are no barriers to re-employment is significant. This Court has held that the employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found (Michaels v. Red Deer College (1975), 1975 CanLII 15 (SCC),  2 S.C.R. 324 (S.C.C.)). Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity. In 1989, the Ontario Court of Appeal held that a reasonable person should be expected to do so “[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious” (Mifsud v. MacMillan Bathurst Inc. (1989), 1989 CanLII 260 (ON CA), 70 O.R. (2d) 701 (Ont. C.A.)). In Cox, the British Columbia Court of Appeal held that other relevant factors include the history and nature of the employment, whether or not the employee has commenced litigation, and whether the offer of re-employment was made while the employee was still working for the employer or only after he or she had already left (paras. 12-18). In my view, the foregoing elements all underline the importance of a multi-factored and contextual analysis. The critical element is that an employee “not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation” (Farquhar, at p. 94), and it is that factor which must be at the forefront of the inquiry into what is reasonable. Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer (Reibl v. Hughes, 1980 CanLII 23 (SCC),  2 S.C.R. 880 (S.C.C.)), it is extremely important that the non-tangible elements of the situation – including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements – be included in the evaluation.
I believe that although both constructively dismissed and wrongfully dismissed employees may be required to mitigate their damages by returning to work for the dismissing employer, they are only required to do so where the conditions discussed in para. 30 above are met and the factors mentioned in Cox are considered. This kind of mitigation requires “a situation of mutual understanding and respect, and a situation where neither the employer nor the employee is likely to put the other’s interests in jeopardy” (Farquhar, at p. 95). Further, the reasonableness of an employee’s decision not to mitigate will be assessed on an objective standard.
See also Gent v. Strone Inc., 2019 ONSC 155.
Yes, it can in certain circusmtances. For example, in the case of Strudwick v Applied Consumer & Clinical Evaluations Inc, Judge Dow awarded an increased notice period because the employer’s conduct, with regard to completing the plaintiff’s record of employment and making it more difficult for her to obtain employment insurance benefits resulted in the conclusion that 24 months is was appropriate amount. The law comes from the Supreme Court of Canada decision in 1997, Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC),  3 S.C.R. 701, where, at paragraph 130, the Court concluded that where an employer dismisses an employee in a manner that negatively affects the employee’s chances of finding alternative employment, a Court may properly increase the employee’s period of reasonable notice to reflect that increased difficulty.
Yes, and they should. Lump sum damage awards should reflect salary increases that would have been offered to a plaintiff. For example, in the case of Strudwick v Applied Consumer & Clinical Evaluations Inc, Judge Dow accepted 2 percent cost of living increases.
The elements and circumstances for an award of aggravated damages were reviewed in the Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII) decision. In paragraph 66, aggravated damages are described as compensatory damages which are part of breach of contract damages. They are to address “the additional harm suffered because of the way the contract was breached”. Relative to wrongful dismissal claims, they address employer conduct that is “unfair or is in bad faith”: at paragraph 66, citing the Supreme Court of Canada decision in Keays v. Honda Canada Inc., 2008 SCC 39 (CanLII),  2 S.C.R. 362 at paragraph 57. It is noted that the breach of an employment agreement will inevitably cause some mental distress and such distress and hurt feelings are not compensable.
Punitive damages are distinct from aggravated damages. These damages are designed to punish an employer, and as such are an exception to the general rule that damages are to compensate an injured party. Punitive damages go beyond compensatory damages.
Starting at paragraph 67 of Whiten v. Pilot Insurance Co., , S.C.R. 595, Binnie J. describes punitive damages as an award designed to meet the objectives of punishment, deterrence and denunciation rather than compensation. Binnie J. goes on to provide that punitive damages cannot be limited to specific categories but should be resorted to only in exceptional cases. At paragraph 94 his Honour offers eleven descriptive points on punitive damages:
(1) Punitive damages are very much the exception rather than the rule,
(2) [They are] imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.
(3) Where they are awarded, punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant,
(4) [In awarding punitive damages, the court must have] … regard to any other fines or penalties suffered by the defendant for the misconduct in question.
(5) Punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence and denunciation.
(6) [The purpose of punitive damages] … is not to compensate the plaintiff, but
(7) [Their purpose, rather, is] to give a defendant his or her just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened.
(8) Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives, and
(9) [Punitive damages] … are given in an amount that is no greater than necessary to rationally accomplish their purpose.
(10) … while normally the state would be the recipient of any fine or penalty for misconduct, the plaintiff will keep punitive damages as a “windfall” in addition to compensatory damages.
(11) Judges and juries in our system have usually found that moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient.
Special Damages are designed to return the plaintiff to the same financial position that he or she was in prior to the alleged injury. Under all human rights statutes, victims of discrimination may receive compensation for special damages such as lost income and expenses incurred as a result of the discrimination.
Where the discrimination results in the termination of employment, the proper measure of compensation for lost income is not the common law measure of “reasonable notice.” This is because the nature of the wrong, and the purpose of the remedy to address it, is different in cases of discrimination and wrongful dismissal. The difference was explained by the Ontario Court of Appeal in Piazza v. Airport Taxicab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 60 D.L.R. (4th) 759 (Ont. C.A.), at paras. 8-10:
In wrongful dismissal cases the wrong suffered by the employee is the breach by the employer of the implied contractual term to give reasonable notice before terminating the contract of employment. Damages are awarded to place the employee in the same position as he or she would have been had reasonable notice been given.
A gross-up must be argued. Your lawyer must put forward a claim for recognition of the increased tax burden this lump sum award will attract within the personal-combined (Ontario/Federal) rates. or example, in the case of Strudwick v Applied Consumer & Clinical Evaluations Inc, Judge Dow awarded a gross up for taxes of an additional $4,986.21 based an award of 24 months notice.
No, you have the full legal right in Ontario to seek the assistance of an employment lawyer before signing any type of contract, whether you’re starting or ending a job. Furthermore, if you decide to sue your employer for wrongful dismissal, you have two years from the date of your termination to do so.
There is a fee involved with the intial consultation. If we decide to work together, we will work out a payment arrangement that suits your needs.
You should bring in a copy of your identification; a copy of your termination letter or severance package; your original employment agreement or contract, if you still have it; any information regarding your position and duties; your up-to-date CV (if you have one); and information regarding your salary, benefits, allowances, and bonuses. If you have been fired for cause, please bring in all of your warning letters or documentation you have pertaining to the cause.
Matt Lalande has been representing victims with life changing injuries since 2003. Many injured victims inevitably end up with employment situations as a result of their inability to get back to work – many get fired or end up having issues with their long-term disability carrier. As a result Matt has represented both injured clients and clients in the community, as well as employers, since 2003.