Wrongful Dismissal Law: The Enforceability of Settlement Agreements and Full and Final Releases

In Titus v. William F. Cook Enterprises Ltd., the Court of Appeal for Ontario canvasses the law of unconscsionability as it relates to wrongful dismissal settlements.

It identifies the following as being supportive of unconscionability:

1. A grossly unfair and improvident transaction
2. Victim's lack of independent legal advice or other suitable advice
3. Overwhelming imbalance in bargaining power caused by victim's ignorance of business, illiteracy
ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability
4. Other party's knowingly taking advantage of this vulnerability.

Not surprisingly, the court notes that the threshold to be met is exceedingly high and confirms that settlement agreements and releases should not lightly be set aside by courts after they have been signed and agreed upon.

If you are presented with a severance proposal from your employer, you should always consult with an employment lawyer before signing a release.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."

Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Wrongful Dismissal: Voluntary Resignation v. Involuntary Resignation

Where an employee is given no other choice but to resign or face a without cause termination, this will amount to a wrongful dismissal in most circumstances.

The fact that an employee accepts severance payments from the employer does not mean that the employee has forfeited his or her right to assert a wrongful dismissal claim against the employer.

For a case on point: see Aubin v. H.B. Group Insurance.

If you feel that you have been forced to resign, you should contact an employment lawyer to discuss whether you have a claim for wrongful dismissal.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."

Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Discrimination During Employment: Civil Cause of Action or Human Rights Claim?

In Andrachuk v. Bell Globe Media Publishing Inc., the Court states as follows:

It is well established that a civil cause of action cannot be grounded solely in an allegation that an employer breached the applicable human rights legislation or social standards expressed therein. 

In other words, you need something besides a discrimination claim to get your case before a civil court. An overtime or wrongful dismissal claim is usually sufficient though the decision as to how to frame and assert your allegations against your employer along with where to pursue them should never be made without consulting a qualified employment lawyer.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."

Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Toronto Employment Lawyer: Size of your Wrongful Dismissal Claim?

The size of your wrongful dismissal claim will depend on your length of service and your salary, amongst other factors.

Those with much higher salaries and lengths of service can sue or settle for much higher amounts than others. A case in point: the ousted AlarmForce CEO who filed an $11 million wrongful dismissal suit (see the full article here).

These claims will almost always need to be brought to the Ontario Superior Court of Justice by a qualified employment lawyer.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."

Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Wrongful Dismissal Lawyer or General Practitioner?

The law of wrongful dismissal, like many areas of the law, has become increasingly specialized and complex.

It may be preferable for this reason to hire a wrongful dismissal lawyer to act for you rather than a general practitioner or a lawyer who practices in several other areas of the law.

A lawyer with expertise in employment law will likely be able to negotiate more effectively, draft better correspondence and pleadings, and obtain better structured settlements on your behalf than a lawyer who lacks these qualifications.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."
Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Wrongful Dismissal or Layoff ?

The distinction between the two is often difficult to ascertain without the assistance of a qualified employment lawyer.

While the employment standards act provides for temporary layoffs, extended layoffs or repeated layoffs can trigger a wrongful dismissal as can denial of wages and benefits during the layoff period.

If you are not sure if you are still on layoff or have been wrongfully terminated, you should contact an employment lawyer to obtain a legal opinion on the issue.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."
Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Termination of Employment: Deadlines for Replies to Severance Proposals

Often an employee is asked to respond to an employer's severance proposal by a certain deadline. But, keep in mind, as a general rule, there is no general legal obligation on employees to adhere to such deadlines.

While it is often preferable for a lawyer to write to the employer taking a position on the severance package being advanced to the employee by the deadline, this is not a prerequisite to getting wrongful dismissal damages from a court or through a lawyer-negotiated settlement.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."
Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Wrongful Termination: How are Wrongful Dismissal Damages Calculated?

This question is answered by Grant J. in Gardiner v. Rockwell International of Canada Ltd., as follows:

The measure of damages in an action for damages for wrongful is the amount of income which the employee would have earned from his employer during the period of such reasonable notice, subject to a deduction in respect of any amount which the plaintiff, minimizing his damages, either had obtained or should reasonably have obtained.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."
Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Terminated, Fired, Dismissed and Being Asked to Sign a 'Draconian' Release?

If you have been terminated without just cause and are a non-unionized employee, you should consult a qualified employment lawyer before signing a release or severance proposal being put before you.

These proposals and releases can contain onerous -- sometimes draconian -- clauses which an employment lawyer can work hard to have changed prior to your signature. More importantly perhaps, these proposals often provide for inadequate severance pay which must usually be negotiated upwards by a lawyer.

Employees should be aware that once they sign a release the chances of having it set aside to get something better is usually slim to none.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."
Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Wrongful Dismissal Actions and Claiming Losses for Defamation

In Kelly v. American Airlines, Boland J. sets out the relevant law as follows:

That ordinarily, a plaintiff in a wrongful dismissal action cannot claim damages for loss of reputation resulting from the fact of the dismissal or the manner in which it was accomplished.

Defamation is a separate action from wrongful dismissal and is treated as such by the courts. The two should not be conflated. That said, there is no bar to suing for defamation and for wrongful dismissal.

But defamation will not be made out by virtue of the wrongful dismissal itself. Instead, the Plaintiff will need to show damage to his reputation for honour, honesty, or integrity. Or disparagements of his reputation in trade, business, profession or office.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."
Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Wrongful Dismissal Actions: Part Time Employees

Part-time employees are still entitled to wrongful dismissal damages based on length of service and character of employment, amongst other factors.

The fact that employment is part-time is relevant to the calculation of pay in lieu of reasonable notice (less pay per year means less severance pay on a wrongful dismissal).

Nonetheless part-time employees still have an entitlement that must be satisfied by their employers upon a termination of their employment on a without cause basis.

If you believe you have been wrongfully dismissed and are a part-time employee, you should contact a qualified employment lawyer to assess your legal claims.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."
Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Wrongful Dismissal Actions: Shortage of Jobs in your Field and The Duty To Mitigate

Even if times are tough and jobs are scarce, employees still need to make reasonable efforts to find comparable employment upon a wrongful dismissal.

The employee must be able to prove that such efforts have been made by tendering up supporting documentation. A failure to search for comparable employment on the basis of warranted or unwarranted assumptions about the job market, will sometimes be fatal to a wrongful dismissal claim: Gingerich v. Kobe Sportwear Inc.

Robert H. Tanha, Employment Lawyer
"You want me on your side. You need me on your side."
Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Wrongful Dismissal Actions: Duty to Mitigate by Returning to Work for the Same Employer?!

Sounds strange, but such a duty in law exists for non-unionized employees who find themselves wrongfully dismissed.

I kid you not. But, thankfully, it is not an absolute duty.

In Evans  v. Teamsters Local Union No. 31, 2008 SCC 20 (CanLII), 2008 SCC 20, [2008] 1 S.C.R. 661, Bastarache J. speaking for the Supreme Court set out the relevant law, as follows:

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 (Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324). 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 CanLII 260 (ON CA), (1989), 70 O.R. (2d) 701, at p. 710). [Emphasis added.]

Robert H. Tanha, Employment Lawyer
"You want me on your side.  You need me on your side."
Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations. 

Wrongful Dismissal Actions: Contractually Fixed Terms of Notice and the Duty to Mitigate

In Bowes v. Goss Power Products Ltd., the Court of Appeal concluded that where an employee's pay in lieu of reasonable notice entitlement on a without cause termination is fixed by an employment contract, the employee does not have a duty to mitigate his or her damages by searching for comparable employment when his or her employment is terminated except where the contract itself provides for such an obligation.

In other words, where the presumption of reasonable notice at common law does not apply, an employer must insert a duty to mitigate into the employment contract and have the employee agree to it, to have it apply. In other words, it will not be implied into the contract by the court.

Robert H. Tanha, Employment Lawyer
"You want me on your side.  You need me on your side."
Equity Court Law Chambers
Woodbridge, Ontario
Serving the Greater Toronto Area
Tel: 416-706-5890
Fax: 905-851-9447
Email: robert.tanha.equitylaw@gmail.com 

* This article is provided for general information purposes and should not be considered a legal opinion.  Clients are advised to obtain legal advice on their specific situations.