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Hamilton Employment Lawyers

Serving Fired Employees Across Ontario since 2003

If you've been fired, our Hamilton Employment Lawyers can help. We've been representing terminated employees since 2003.

Have you been terminated? Get what you are owed. Not what your employer wants to pay you.

If you’ve recently been fired, our Hamilton Employment Lawyers understand what you are going through. We’ve represented thousands of employee victims over the past 20 years who have been fired and lost their jobs. We have seen first hand that job loss is an involuntary disruptive life event that is often associated with subsequent unemployment, long-term earnings losses, often times lower job quality; declines in psychological and physical well-being; loss of psychosocial assets; social withdrawal; family disruption; and lower levels of overall well-being.

While reemployment mitigates some of the negative effects of job loss, it does not eliminate them. In short, we understand that for many, being fired is an unfortunate and traumatic event.

We believe that wrongly terminated employees are victims who deserve representation to get what they are owed, and not what their employer “wants” them to have. If you are a terminated employee, you have the right to be treated fairly. You have the right to be treated with respect. You’ve given years to your company, now, only to be fired without due consideration.

If you’ve been fired, it’s important that you are not forced into making a decision too soon. It’s important that you are afforded the time to collect your thoughts and seek the advice of a qualified Hamilton employment lawyer. It’s important that you make sure that you receive the severance compensation that you are entitled to – and not what your employer thinks you are entitled to. Never accept what you employer is offering or sign release papers without getting proper legal advice from a qualified employment lawyer.

Matt Lalande is a Hamilton Employment Lawyer with extensive experience in representing employees who have been unfairly terminated or wrongfully terminated. We have negotiated thoughsands of severance packages and tried many employment law and wrongful dismissal matters. Our firm offers free employment lawyer consultations for employees who have been terminated and lost their jobs, and we would be happy to talk to you about your situation.

It may be tempting to sign off and move on, but don’t. Talk to our Hamilton Employment Lawyers before making any decision regarding your termination.

If you’ve been fired, you have the absolute right to obtain 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 lawyer.  Our law firm has offered legal guidance and representation to Hamilton employees, as well as executives, professionals and employees throughout Ontario on select employment law matters since 2003 – and we can help you make an informed decision about your severance…and what is owed to you.

If you’ve been fired, it’s also important to understand that you should never sign anything under duress or while you may be upset or emotional. It’s important that you “cool off” and have your severance papers reviewed by a qualified Hamilton employment lawyer who can ensure that you are paid proper termination pay, proper severance pay, proper common law pay in lieu of notice, and most important, we can ensure that your contract is not invalidated by a termination clause which contravenes the Employment Standards Act of Ontario.  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.

If you’ve been fired, what severance are you entitled to?

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.

There are three main areas of termination entitlement that your employer may be required to provide you at the time of your termination are:

  • minimum statutory termination notice 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.

What is minimum statutory notice in Ontario?

An employer in Ontario has the full and total right to terminate a contract of employment of indefinite hiring if the employer gives the employee appropriate notice of his or her termination. Notice can be provided various ways, but there must always be a “minimum” amount of notice given.

In Ontario, the Ministry of Labour prescribes minimum standards with respect to what employers must comply with. These minimum standards address employer obligations, including pregnancy and parental leave, wages, hours of work, overtime, and termination. 

Ontario’s Employment Standards Act also mandates that employers are not to terminate an employee’s employment unless they pay that employee termination pay equal to his or her regular wages that he or she would have earned during the notice period. The employer must continue to provide the employee’s benefits, including pension, during the statutory notice period.

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.

What is the minimum amount of termination pay owed in Ontario?

The following specifies the amount of notice required under the Employment Standards Act:

  • No notice when an employee has been employed for under three months
  • One week’s notice in writing to the employee if his or her period of employment is less than one year
  • Two weeks’ notice in writing to the employee if his or her period of employment is one year or more but less than three years
  • Three weeks’ notice in writing to the employee if his or her period of employment is three years or more but less than four years
  • Four weeks’ notice in writing to the employee if his or her period of employment is four years or more but less than five years
  • Five weeks’ notice in writing to the employee if his or her period of employment is five years or more but less than six years
  • Six weeks’ notice in writing to the employee if his or her period of employment is six years or more but less than seven years
  • Seven weeks’ notice in writing to the employee if his or her period of employment is seven years or more but less than eight years
  • Eight weeks’ notice in writing to the employee if his or her period of employment is eight years or more

It is important to understand that termination pay is an amount paid by an employer pursuant to minimum standards legislation — it is not severance pay, nor is it compensation for wrongful dismissal. If you’re confused about the difference, reach out to a Hamilton wrongful termination lawyer.

What is Severance Pay in Ontario?

Severance pay seems to be a “catch-all” term for termination pay, but it is, in fact, something different.

Severance pay is a statutory payment that is made by the employer upon termination of an employee, in addition to any statutory individual notice of termination and group termination notice (or pay in lieu of such notice). Where notice of termination is meant to give an employee an opportunity to prepare for an upcoming termination and take measures to seek alternative employment, severance pay is meant to compensate for the investment of the employee’s long service with the employer’s business.

Severance in Ontario only applies in certain circumstances, particularly when an employer has a payroll of 2.5 million or more or, irrespective of annual payroll, when fifty or more employees are terminated in a period of six months or less because of a permanent discontinuance of all or part of the business.

To be eligible for severance pay in Hamilton, employees must have also worked a minimum of five years with an employer—and the entitlement to severance is calculated differently from above.

What is Common Law Payment in Lieu of Notice?

In every non-unionized employment relationship, an 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.

The reasonable notice period is a period in addition to, but includes the minimum statutory termination notice period and the period of time covered by statutory severance pay.

Failure to provide adequate reasonable can expose the employer to damages in a wrongful dismissal action for the loss of salary and benefits you would have received during the period of reasonable notice. Common law reasonable notice is

The primary purpose of reasonable notice of your termination is to give you, as 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.

How is reasonable notice determined?

There are two steps to determine the employer’s potential liability for reasonable notice:

The first step is to “determine” the employee’s reasonable notice period. The reasonable notice period is determined by reference to factors such as the your character of employment; your length of service; your age; and the availability of similar employment, having regard to your experience, training, and qualifications.

The second step is to calculate the your damages over the reasonable notice period. To determine the financial value of your losses we would:

  • determine the sources of such things as your compensation, including salary, bonus, commissions, overtime, group insurance benefits, stock options, pension benefits, RRSPs, automobile benefits, fringe benefits, etc.;
  • determine whether there are contractual limits on those sources of compensation post-termination;
  • evaluate the different methods of damage calculation for each portion of your compensation; and
  • break your compensation and benefits down to a monthly or weekly figure and multiply this value by the months or weeks of reasonable notice.

Our Hamilton employment lawyers will demand what is owed to you by law – an amount that most accurately reflects what you would have earned over the applicable notice period. 

What factors influence the common law notice period?

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 which may influence the amount of reasonable notice, some of which include the following:

  • Your age
  • How long you’ve been employed
  • The character of your employment
  • The availability of similar employment
  • Whether you had a break in service
  • Lack of employment opportunities
  • Whether you are employed in a narrow field
  • Whether the employer is specialized
  • Whether you are a professional or specialist
  • Whether there’s an inducement issue

How should employers give you notice?

Generally, your employer can give you notice a few different ways.

Depending upon the reasons for dismissal, the amount of potential liability your employer faces, and the terms of the employment contract, your employer may structure a termination package as working notice, a lump-sum payment or as salary continuance. 

Salary continuance – is the most common type of termination pay, particularly with higher income individuals or executives. Salary continuance involves an employer notify employee that he or she is terminated but that termination will occur on a certain date in the future.

The employee will not remain in the workplace. The employer will continue to pay the employee until the date of termination, which will more likely than not satisfy the employers requirement of notice of termination.

In most salary continuance scenarios, a clawback clause will be required. A clawback clause is a provision in a salary continuance package which provides that an employee will be paid a lump sum payout (normally 50% of what is owed) of the balance of the salary continuance when the employee becomes reemployed. These types of agreements are beneficial to both the employee and the employer. If the employee finds work, he or she receives a 50% windfall from the accident employer. From the employer standpoint, financial exposure is reduced.

If salary continuance is offered and accepted as the severance arrangement, deductions for both employment insurance premiums and CPP contributions must be continued since the employer-employee relationship technically continues until the cessation of salary payments.

You then be provided with your record of employment, typically within five days of your last day work.

Lump Sum – An employer could provide your severance in a lump sum payout to satisfy its notice obligations. 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.  Lump-sum packages are typically structured so that the employee receives a fixed sum, with no reduction for mitigation income earned during the notice period. Salary continuance packages can be structured so that the payments are reduced when the employee earns mitigation income.

Working Notice – is similar to salary continuance, the difference being that you will remain at your place of employment and continue your job, until your date of termination. Working notice is rarely the perfect solution given that no employee wants to work under a cloud of dismissal. We always suggest to employers that a clean break should be given to the employee, and allow that employee time to move on and find alternate equitable employment.

Are you being paid enough severance?

If you’ve been fired you need to know if you’re being paid not only enough the appropriate amount of severance required by law – but moreso – the severance that you deserve. Remember, employers in Ontario have the full right to terminate a contract of employment of indefinite hiring if the employer provides or pays the employee appropriate notice or severance pay in lieu of notice of termination.

In Ontario, there is statutory minimum notice which must be provided – which an employer cannot contract itself out of. There is also common law notice – which is termination pay or payment in lieu of notice is significantly more that the prescribed statutory minimum notice.

https://www.youtube.com/watch?v=ABxVzrR0XRg

Severance pay seems to be a catch-all term for termination pay, but it is, in fact, something different. Severance in Ontario only applies in certain circumstances, particularly when an employer has a payroll of 2.5 million or more or, irrespective of annual payroll, when fifty or more employees are terminated in a period of six months.

An employer has two options when providing an employee with reasonable notice of his or her termination. The employer can either require the employee to continue working for the period of time until his or her termination or, provide the employee with payment in lieu of that notice. You are entitled to either payment in lieu of notice (what many call severance), reasonable notice or a combination of notice and payment adding up to the proper period of notice. Therefore, 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.  In a wrongful dismissal case, the employee has the onus of establishing that they are entitled to a particular form of compensation during the notice period and establishing the financial value of their damages. Mitigation income and other collateral benefits may be deducted from this loss figure.

My employer is telling me that I have to sign my papers now or I will lose my severance. Is this true?

Employers want to understandably minimize their risk and try to put “timelines” on you making a decision to accept their “enhanced severance” or whatever they chose to call it. In order to try and close their books quickly, employers will often threaten to withdraw the enhanced severance offer (whatever it is in addition to minimum standards) if the employee does not sign a release by a certain date.

Employers have the full right to do whatever they want in regards to offering you severance over and above minimum standards, however it’s important to note that no matter what your employer decides to do, you have two full years from the date of your termination to file suit against for wrongful dismissal damages. If you live in southern Ontario, call Hamilton employment lawyer Matt Lalande to discuss any time limitations placed upon you to sign a severance package.

Our Hamilton Employment Lawyers help protect employee rights throughout Southern Ontario.

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.

Can my Severance Package be negotiated? If so, what is the process?

Yes, but only with the assistance of an experienced employment lawyer. Never try to negotiate your own severance package. Typically, once your employer has determined its liability, and how it will structure the termination package, a termination letter is drafted and will be presented to you at the termination meeting. With the assistance of an experienced Hamilton employment lawyer, the contents of the termination package are typically resolved by one of the following:

  • You accept the termination package initially offered by your employer, or;
  • You retain an experience Hamilton employment lawyer to assist in the subsequent negotiations for a different or more substantial termination package, which is ultimately accepted by both the employee and the employer, or;
  • You do not accept the termination package offered by your employer, you are unable to negotiate a mutually agreeable alternative, and you start the litigation process. If a settlement is not reached before or during trial, the court resolves the matter.

Negotiations for an enhanced termination package are usually commenced through a demand letter from the employee’s employment law lawyer counsel. A member of the employer’s human resources team will usually respond to the individual employee’s request with a letter that is ghostwritten by the employer’s in-house or external legal counsel.

Typically, your employer’s response will vary depending upon the terms disputed, the reasonableness of the employer’s initial offer and the circumstances surrounding the termination. For example, we may demand such things on our client’s behalf such as:

  • A longer notice period;
  • Human Rights damages;
  • Inclusion of compensation that is not accounted for in the initial offer;
  • A different method of providing notice or calculating damages for loss of compensation;
  • Additional payments such mitigation expenses, general damages for human rights infringements or aggravated or punitive damages;
  • Payment of legal fees;
  • Tax sheltering of part of the termination package; or
  • Changes to the proposed Full and Final Release.

If there are negotiations, the contents of a termination settlement agreement are typically summarized in the correspondence between legal counsel (either before or after litigation is commenced) or in formal minutes of settlement.

Connect with a Hamilton Employment Lawyer

Because of the volume of calls, we cannot see everyone. What we do however is offer a free Province wide phone consultation to determine if you have been wrongfully terminated.  If we believe that you may have a case, then we will meet you and provide you with the appropriate employment law legal advice at no cost to you. Please call us today no matter where you are in Ontario at 1-844-LALANDE or local in the Hamilton/GTA/Niagara Region at 905-333-8888 or fill in a contact form through our website. We would be happy to speak to you about your termination.

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Hamilton Employment Law FAQs

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.

The modern approach to determining wrongful dismissal damages is to apply the factors listed in Bardal v. The Globe and Mail Ltd.(1960), 24 D.L.R. (2d) 140 (Ont. H.C.) in a flexible way. The Bardal factors include: the character of employment, the length of service, the age of the employee, and the availability of similar employment, keeping in mind the experience, training and qualifications of the employee.

Aggravated damages are compensatory and awarded against an employer who engages in conduct that is unfair or is in bad faith. There is no real distinction between aggravated damages and moral damages. Damages are attributable from the conduct in the manner of termination: HondaCanada Inc. v. Keays,2008 SCC 39, [2008] 2 S.C.R. 362.

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”):

  • The character of the employment;
  • The employee’s length of service;
  • The employee’s age;
  • The availability of similar employment, having regard to the experience, training and qualifications of the employee.

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. Sliwin2012 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).

The employer’s obligation to provide the employee with reasonable notice of termination does not apply where:
  • The employee resigns his employment;
  • The employment relationship is frustrate;
  • There is just cause for termination of employment;
  • The employment contract contains a valid term providing for the amount of notice to be given in the event of termination;
  • The employment contract is for a fixed term.
A dependent contractor are workers who cannot be considered employees, but who are economically dependent on a single client company. Dependent contractors are similar to employees in that they are entitled to reasonable notice of the termination of the working relationship, in recognition of their economic dependence on a single employer. They can be awarded notice periods that are similar to those given to employees.

No, independent contractors are not entitled to common law reasonable notice of termination.

There are two steps to determining the employer’s liability for reasonable notice:
  • First, the employer must determine the period of reasonable notice. There is no definitive catalogue or list that will guide in assessing reasonable notice in a particular case. The most important considerations are the Bardal factors, however, other factors may also be considered.
  • Second, the employer must calculate the employee’s damages based upon the reasonable notice period. Reasonable notice damages are usually calculated on the basis of the employee’s compensation per month, multiplied by the number of months of reasonable notice. There may be deductions from the damages for mitigation income and collateral benefits.

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)[1999] 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. Pieters2013 ONCA 396 (CanLII) at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne2010 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. Phipps2010 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. Chorny1951 CanLII 252 (BC CA)[1952] 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)[1976] 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)[1980] 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)[1997] 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)[2008] 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., [2002], 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.

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