There is some misconception about wrongful dismissal in Ontario. Particularly, some individuals believe you to prove you were dismissed unfairly or arbitrability to prove wrongful dismissal. This, however, couldn’t be farther from the truth.
All you have to do to prove wrongful dismissal is show you were not provided “reasonable” notice of your dismissal.
In Ontario, employers have the absolute right to terminate anyone for any reason (so long as it is not discriminatory). And this rule makes sense. Requiring good faith reasons for every dismissal would deprive employers of the ability to determine the composition of their workforce on their own.
Accordingly, employers can be as arbitrary or as unfair in their decisions to dismiss employees as they please.
Still, there is one rule about dismissals that Ontario employers must follow. Employers must provide “reasonable notice” of dismissal to an employee. This means the employer has to provide an employee adequate warning they are going to dismiss them. Alternatively, an employer can provide pay in lieu of this advanced warning. Yes, an employee may be dismissed either on reasonable working notice or by payment in lieu of reasonable notice. The latter option is almost invariably selected because, for obvious reasons, it is not always productive for a business to continue to employ a person who has received notice of dismissal.
Why do employers owe dismissed employees “reasonable notice”? Decades-old Canadian common law automatically implies a term of reasonable notice of termination into an employment relationship of indefinite duration unless an employment contract explicitly says otherwise.
The amount of reasonable notice an employer owes an employee largely depends on the employee’s length of tenure, among several other factors as discussed below in the next section.
Therefore, the only question that should come up in a traditional wrongful dismissal case is whether the employer provided “reasonable” notice of the dismissal.
Note: Employees can sue for wrongful dismissal and other damages for a myriad of reasons unrelated to the issue of reasonable notice.
Hence, simply put, all you have to do to prove wrongful dismissal is show you were not provided “reasonable” notice.
Keep in mind, again, the manner of the dismissal or the reason for it is irrelevant in proving wrongful dismissal. All that matters is whether someone was provided “reasonable” notice.
Consequently, to prove wrongful dismissal, of course, you must calculate how much notice someone ought to have received.
Proving Wrongful Dismissal
In determining the amount of notice of dismissal that should be given to an employee, the principal concern is to consider what is reasonable in the circumstances. To that end, courts consider the Bardal factors: the age of the employee, the character of his or her employment, the length of service, and the availability of similar types of employment, considering the experience, training, and qualifications of the employee. Each case is unique, and notice must be determined in the context of the particular dismissal.
Next, courts will compare analogous cases (i.e., the “common law” “jurisprudence”) where the facts about each above-noted Bardal factor are closely comparable to set down the reasonable notice period.
For instance, if there are a range of past cases awarding 14-20 months’ reasonable notice where — the employees were around 50 years old, worked in management for about 10 years, earning nearly $250,000 — then the employee in our instant case could expect his or her reasonable notice period should be about 14-20 months.
In the end, if the employee in our above example was offered less than 14 months or something else in the lower end of the range of reasonable notice, he or she could argue they were wrongfully dismissed. To win his or her case, they would have to prove that based on the circumstances (i.e., the Bardal factors), and the case law, he or she ought to have received more notice than his or her employer offered them. If they do that successfully, then they have proved wrongful dismissal! In the result, the court would award them all the money their employer ought to have provided them in lieu of reasonable notice, plus costs.
Lastly, keep in mind Employers can use contracts to define how much notice an employee is owed upon dismissal instead of relying on common law reasonable notice. However, as we have discussed in many blog posts, not all of these contracts are enforceable.
Jeff is a lawyer in Toronto who works for a technology startup. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles. Jeff is interested in Canadian business, technology and law, and this blog is his platform to share his views and tips in those areas.