Wrongful Termination for Cause

When an employee is terminated for cause, the employer must prove, with compelling evidence, that the employment relationship is no longer viable due to serious employee misconduct.

What constitutes cause for immediate termination in Ontario depends on a detailed review of the alleged misconduct and whether it can be proved in a court of law, together with a review of all the surrounding facts and the work history of the person involved. The courts have repeatedly said that it is difficult to prove that just cause has been established.

Numerous affirmative defences are available to rebut an allegation of cause. For example, if the employer delays taking action after knowing about the questionable conduct, this can undermine an employer’s ability to prove cause. If other employees have engaged in the same misconduct but were not disciplined uniformly, this can also form the basis of a strong defence.

Wrongful Termination Without Cause

Wrongful termination without cause occurs when an employee is terminated without cause but has not been provided with sufficient notice of their termination. Unless extenuating circumstances exist, the common law says that an employer can terminate an employee in most circumstances as long as appropriate and sufficient notice is provided. Employees are presumptively entitled to be paid common law notice entitlements, unless they have an enforceable written agreement that limits their entitlements upon termination. The statutory notice entitlements provided for under the Employment Standards Act are the minimum amounts employers must pay employees. Common law notice is usually expressed in terms of “months,” and statutory notice entitlements are stated in terms of “weeks.” While an employer must pay out the minimum statutory notice entitlements regardless, an employee’s or executive’s actual entitlements upon termination are often much greater through the common law and are only available through court action if negotiations prove unsuccessful. 

In Canada, common law notice is calculated based on the total value of an employee’s or executive’s compensation entitlements (the entire compensation package and not just base salary, which may include: benefits, earned bonuses and stock options, pension contributions or the monetary equivalents, car allowance, etc.). How much common law notice and compensation someone is entitled to upon termination generally depends on an individual assessment of various factors, such as age, position, length of service and availability of comparable employment. 

Additional damages may be available in the form of aggravated or moral damages due to how the termination was undertaken, such as when an employer acts in an unduly harsh or insensitive way. In addition, if an employee or executive has a disability when terminated, or if one of the reasons for the termination amounts to discrimination, additional damages may also be available if their rights under the Human Rights Code have been violated . Punitive damages may also be available where the conduct in question by the employer is outrageous and the court wishes to punish an employer for egregious behaviour.

Wrongful Termination Lawyer

If you need a wrongful termination lawyer, Contact Evans Law Firm today for a free no-obligation consultation with a wrongful termination lawyer. Sometimes time limits can bar an otherwise good claim from being advanced. Please don’t delay and contact us as soon as possible. There is no cost until we are  formally retained and a written retainer agreement is in place.

In Canada, the law allows an employee or executive to sue for “constructive dismissal.” Constructive dismissal occurs when the employee has not been formally terminated but their employment relationship or contract of employment has been altered or amended in a fundamental way without their consent (this can also include the existence of a toxic work environment in some circumstances). The alteration or change in the employment relationship must be a material change and not of an insignificant or minor nature.

In this case, an employee must prove that the change was material or that the change(s) to the employment relationship was such that it establishes that the Employer repudiated the employment contract or demonstrated that it no longer intends on honouring the underlying employment contract.

If an employee can prove that they were constructively dismissed, then the next step is determining how much notice and compensation/damages the employee is entitled to receive.

Constructive Dismissal Lawyer

If you need a constructive dismissal lawyer, contact Contact Evans Law Firm today for a free no-obligation consultation with a constructive dismissal lawyer. Sometimes time limits can bar an otherwise good claim from being advanced. Please don’t delay and contact us as soon as possible. There is no cost until we are formally retained and a written retainer agreement is in place.

Employee compensation claims usually arise upon termination but can also occur during the course of one’s employment.

In determining what someone’s wrongful dismissal is worth, one of the first things to get nailed down is what the employee was being paid. An employee’s compensation is derived from all sources, including an employee’s base salary, bonuses (in certain circumstances), car allowance, cell phone allowance, benefit contributions, RRSP or pension contributions, stock options, stock or equity grants, and clothing allowances, etc.

Accrued but unpaid compensation entitlements should also be included in the amounts owing to an employee upon termination. Certain accrued entitlements, such as earned vacation pay, have special status, and other enforcement options may be available through the Employment Standards Act (ESA).

Employers will typically try to negotiate with an unsuspecting terminated employee and seek to offer a certain number of months of base salary only to resolve their employment claims. In most cases, this is but a fraction of what the employee’s case is worth. Employers, like casinos, aren’t there to give money away; always get legal advice from an experienced employment lawyer.

Employee Compensation Lawyer

If you need an employee compensation lawyer, Contact Evans Law Firm today for a free no-obligation consultation with an employee compensation lawyer. Sometimes time limits can bar an otherwise good claim from being advanced. Please don’t delay and contact us as soon as possible. There is no cost until we are formally retained and a written retainer agreement is in place.

The law relating to the enforceability of employment contracts clearly favours employees and executives and continues to evolve almost daily in significant and meaningful ways. Recently, the Ontario courts made a series of decisions which provide employees and executives with new and powerful arguments to successfully challenge the enforceability or validity of an employment contract, in whole or in part.

Typically, an employment contract is only helpful to an employer. It is primarily a means of limiting their financial exposure when an employee is terminated. Employment contracts can also place restrictions on an employee or make them legally liable for specific actions post-termination, with significant legal exposure if they violate the agreement.

Clients often seek advice regarding the impact of their existing employment contractual restrictions if they quit and seek to work for a competitor. These issues must be carefully reviewed before anything is finalized, and ideally before meaningful discussions are held with the new employer.

Knowing the law and how to build a persuasive argument relating to the validity or enforceability of an employment contract or termination provisions can dramatically impact the value of an employee’s case upon termination.

Employment Contract Professional Review and Legal Advice

Our lawyers can quickly and efficiently determine the areas in an employment contract that fall far below what is fair and reasonable. Harsh terms in an otherwise enforceable contract may handcuff an employee or executive down the road. Many contracts don’t adequately protect an employee or executive’s rights, either now or in the future — when it matters most. The time to negotiate safeguards and protections in a contract is before it is too late. A professional review of your agreement can give you peace of mind and preserve your legal rights.

Employment Contract Lawyer

If you need an employment contract lawyer, Contact Evans Law Firm today for a free no-obligation consultation with an employment contract lawyer. Sometimes time limits can bar an otherwise good claim from being advanced. Please don’t delay and contact us as soon as possible. There is no cost until we are formally retained and a written retainer agreement is in place.

As lawyers, we tend to speak about litigation as the formalization of the court’s process and procedures after an originating process has been commenced – that is, after a Statement of Claim or Notice of Application has been issued and filed in the courts and served on the defendants or respondents.

Litigation can also involve proceedings advanced before administrative tribunals, where a party has a statutory claim or cause of action (as opposed to a common law or contractual claim) and seeks to have their statutory rights determined by an adjudicator who has jurisdiction to exercise a statutory power of decision-making, set out in the tribunal’s enabling legislation. An example would be human rights claims arising under the Human Rights Code, adjudicated by the Human Rights Tribunal of Ontario.

Employment litigation is a term designed to highlight that the time for discussions or informal settlement negotiations is now over. Formal processes and procedures have been enacted to resolve the matter in court, concluding with a court trial or a hearing before a tribunal.

Mediation

Mediation is an informal and without-prejudice process where the parties have a third-party neutral facilitator assist them in settling or resolving their dispute. Usually, the process is optional. Some civil matters in the courts, depending on the jurisdiction, have mandatory mediation.

The selection of mediators is generally made between the lawyers involved, as they will have experience with knowing who they believe can effectively deal with the issues in dispute and get it over the finish line. When mandatory mediation is required and the parties can’t agree on the selection of a mediator, a process exists to have a roster-approved mediator appointed to mediate the dispute and mandate the attendance of the parties.

Employment Litigation Lawyer

If you need an employment litigation lawyer, contact Contact Evans Law Firm today for a free no-obligation consultation with an employment litigation lawyer. Sometimes time limits can bar an otherwise good claim from being advanced. Please don’t delay and contact us as soon as possible. There is no cost until we are  formally retained and a written retainer agreement is in place.

Class actions, group claims, and individual claims can involve contractual, common law, and statutory causes of action. Employment claims are primarily contractual disputes. Employment contracts can either be expressed or implied. Even where there is no written employment contract, the law imposes an implied contract from the surrounding facts and circumstances. Collateral claims relating to statutory and civil wrongs or tort claims can also arise in an employment dispute.

Group litigation or class actions on behalf of employees may arise in many ways, such as when an Employer fails or refuses to pay overtime or statutory pay, or forces employees to work off the clock or provide employment services for free. Provable patterns of group discrimination, including systemic discrimination cases, based on sex, race, creed, colour, age or disability, or any other analogous ground of discrimination as set out in the Human Rights Code may also give rise to a potential group litigation or class action.

Group litigation, or “Class Actions”,  can also occur when there is a mass lay-off or termination of a large group of employees. When these occur, it is usually a sign of a significant financial problem with the Employer. If there is a threat of mass or group lay-offs/terminations, do not delay in seeking advice and assistance as time is of the essence for these types of claims, before all the company assets are gone.

Class Action Lawyer

If you need a class action lawyer to respond to the threat of mass lay-offs or other employment disputes affecting a group of employees, Contact Evans Law Firm today for a free no-obligation consultation with a class action lawyer. Sometimes time limits can bar an otherwise good claim from being advanced. Please don’t delay and contact us as soon as possible. There is no cost until we are formally retained and a written retainer agreement is in place.

Some employees and executives believe that all human rights claims can only be advanced before the Human Rights Tribunal of Ontario (HRTO). This isn’t always the case.

In Ontario, you may sue your employer in court if your human rights, which are statutorily protected by the Human Rights Code, have been violated alongside additional employment claims. When you add human rights claims to an employment action, it can have a significant impact on the value of a case for several reasons:

• Damage awards imposed by the courts can be higher than if your case is brought before the HRTO
• The court process can be much quicker than before the HRTO, where you may wait 5+ years before your case proceeds to a hearing.
• For employers, now more than ever, there is a negative stigma associated with being labelled a human rights violator. Such a finding and pronouncement by a Judge can seriously and negatively impact a corporation’s business reputation. Corporations are increasingly concerned with negative press and any potential harm to their corporate image and brand, as they should be.

Human Rights Lawyer

If you need a human rights lawyer, Contact Evans Law Firm today for a free no-obligation consultation with a human rights lawyer. Sometimes time limits can bar an otherwise good claim from being advanced. Please don’t delay and contact us as soon as possible. There is no cost until we are formally retained and a written retainer agreement is in place.

Sometimes employers will seek extraordinary relief in the courts against an employee or executive in the form of an injunction. By their very nature, these proceedings require a quick turnaround to prepare before such a motion is heard and argued. Usually, these proceedings, from start to finish, occur within days or weeks and certainly not months.

What is an injunction?

An injunction is an equitable remedy that the court may grant in exceptional cases.

Injunctions can result in judicial orders that restrain a party from undertaking or continuing a certain action, or compel a party to complete a certain action.

Interlocutory Injunctive proceedings allow the court, in exceptional cases and where the high legal test has been met, to issue appropriate orders to preserve the parties’ rights until the matter is litigated fully on its merits. Successfully arguing against an interlocutory injunction can determine the entire case and render the underlying action moot.

The test for an injunction is very high, and the moving party seeking such relief has to prove its case based on the well-recognized three-prong legal test.

Usually, the motivation for bringing an injunction or interlocutory injunction against an employee or executive is because there is a severe threat to the business undertaking, such as someone trying to poach the business, employees, or customers or take current or future business opportunities.

Defending Against an Injunction

As an employee or executive, you are now being sued, and your former employer has brought an injunction against you. What should you do?

Firstly, most injunctions must be brought with notice against any party where relief is being sought. If on the receiving end of an injunction, you must be served personally, any failure to do so may be fatal to an employer’s case. Once properly served, you have the right to respond and, more importantly, to be represented by your counsel.

Injunctions are usually referred to in terms of duration as either temporary or permanent.

The key to defending an injunction is that you must act quickly. This is because of the quick turnaround before the case is argued in court. This is not a time to delay – you need to retain experienced legal counsel as soon as possible. These cases tend to be very paper intensive and require supporting affidavits and written submissions on the law and recent issues. To defend an injunction properly, your lawyer must put together a record of materials and affidavits seeking to undermine or contradict the factual assertions and legal position advanced by your employer.

Injunction Lawyer

If you need an injunction lawyer, Contact Evans Law Firm today for a free no-obligation consultation with an injunction lawyer. Sometimes time limits can bar an otherwise good claim from being advanced. Please don’t delay and contact us as soon as possible. There is no cost until we are formally retained and a written retainer agreement is in place.

Employees and executives may need advice regarding pension-related issues. Pension issues can arise while someone is employed, or after they have left employment. Given that the regulation of pension obligations is a creature of statute, most times, the traditional two-year time limit doesn’t apply.

Pension entitlements upon severance can significantly impact the value of an employee’s future pension entitlements and vesting requirements. How monies are characterized in any settlement for pension contributions can dramatically affect your future income from a tax perspective.

Employees unfamiliar with their rights sometimes ignore or walk away from pension entitlements when they are severed from employment.

Pension contributions (in whole or part) which are paid into a registered pension plan by an employer, form part of an employee’s overall compensation entitlements. Many unrepresented parties fail to appreciate or go after pension claims, and significant sums of money are lost.

Pension law is a particularly thorny area of the law. Not all lawyers know or appreciate how pensions work and how they are regulated in Ontario and Canada. John Evans, the principal and founder of Evans Law Firm, has been involved with numerous pension disputes over the years involving, among others, challenging class action settlements on behalf of beneficiaries, securing additional pension contributions over the life of the notice period, negotiating lump sum payments for lost pension entitlements, and ensuring that such payments are treated properly from a tax perspective is critical. John has retained actuaries in the past for clients to calculate pension entitlements and, more importantly, maximize their returns at the end of the day.

Pension Lawyer

If you need a pension lawyer, Contact Evans Law Firm today for a free no-obligation consultation with a pension lawyer. Sometimes time limits can bar an otherwise good claim from being advanced. Please don’t delay and contact us as soon as possible. There is no cost until we are formally retained and a written retainer agreement is in place.

If you have been terminated from your job and your employer has given you a written offer demanding you accept, sign a release, and return to them within seven (7) days, what should you do?

GET LEGAL ADVICE, and don’t sign anything until you do!

Should you represent yourself?

It is rarely, if ever, a good idea for an employee to negotiate directly with their employer, as the employer (and their lawyer) will have a clear and decisive advantage in the negotiation process.

You have two years from the date of termination to commence a civil action for wrongful dismissal in Ontario. Employers set arbitrary deadlines to get you moving and to think that an offer will disappear unless you accept it right away — rarely is this the case. Now is not the time to be hasty or rush to accept the first offer. Instead, this is the time to ensure you provide for yourself and your family, and have sufficient time to position yourself for new employment without any financial distress.

What forms part of a wrongful dismissal settlement?

Each case is different and each client’s “needs and wants” are unique. Maximizing your financial position after you have been terminated is fundamentally important, but other considerations can and do come into play.

Employers often are prepared to provide letters of reference as part of an overall settlement. Sometimes making sure future prospective employers contact the right member of senior management, who will say positive things about you, is critical to assisting you in finding new employment.

In the negotiating process, depending on your leverage, you are only limited by what you want in return for a binding settlement. Being creative should always be encouraged.

Seek Legal Advice

Always seek legal advice before signing any release, settlement agreement, or binding contract to know your rights and what you are legally entitled to. Clients need to understand the actual value of their case and, more importantly, their rights and all the options available.

Building sound legal arguments takes skill and experience and must be based on a fair and realistic assessment of all the facts, the current state of the law, and well-accepted legal principles. 

Employment Law Advice

If you need employment law advice, Contact Evans Law Firm today for a free no-obligation consultation with an employment lawyer. Sometimes time limits can bar an otherwise good claim from being advanced. Please don’t delay and contact us as soon as possible. There is no cost until we are formally retained and a written retainer agreement is in place.