How quickly must I sue after being fired?

The limitation period for Ontario Employment Law disputes is governed by the Limitations Act, 2002. Under the Limitations Act all wrongful dismissal claims must be brought with in 2 years of the date the claim was discovered. Discovery has a very specific meaning:

Discovery
5 (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

If a claim is not brought within the limitation period than in almost all circumstances the employee forever loses the opportunity to sue for wrongful dismissal or termination pay.

Limitation Period for Wrongful Dismissal Claims

In the employment law contact, the recent case of Bailey v Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONSC 1789, states:

[44] The leading case in Ontario on the commencement of the limitation period in a wrongful dismissal action is Jones v. Friedman, 2006 CanLII 580 (ON CA) (“Jones (CA)”). In that decision, the Ontario Court of Appeal held at para. 4 as follows:

A limitation period commences when the cause of action arises. In a breach of contract, the cause of action arises when the contract was breached. For the purposes of a wrongful dismissal action, the employment contract is breached when the employer dismisses the employee without reasonable notice

In ordinary circumstances this means that a wrongful termination claim is discovered on the date the employee first receives notice of termination. Not the date that the employee’s employment ended.

While there are some dissenting cases, such as the decision of Justice Pitt in Webster v Almore Trading & Manufacturing Co, 2010 ONSC 3854, it would be prudent for any lawyer or plaintiff to ensure that their wrongful dismissal lawsuits are started within two years of notice of termination.

Although there is an argument to be made that the limitation period should not start until after notice is given, you do not want to be in a position where you have to make that argument before a Judge.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

I’ve been fired. Does my employer have to tell me why?

In short: no.

Although it can be frustrating for employees, Ontario employers are under no obligation to give a reason after terminating an  employee. In fact, Ontario employers do not need a reason at all to end an employment relationship and, therefore, are not required to prove that the employee did something wrong to explain why they were fired. Instead, an employer simply must provide the employee with reasonable notice.

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How much notice/severance should I get after being fired?

That’s a more complicated question then all of those “online severance calculators” make it seem. Before we delve into the factors which play a role, both employees and employers need a little context and exposition on how the Ontario wrongful dismissal system works.

Overview

Firstly, you need to understand that “notice” and “severance”, though often used interchangeably in common parlance, mean different things. Under the Employment Standards Act, severance pay is defined and is an amount of money an employer needs to pay an employee on termination if certain conditions are met. In addition to severance, employers must give notice of termination to employees.

Severance Pay

An employee is only entitled to severance pay if they have been employed for 5 years or more and:

  1. the termination occurred because of a permanent discontinuance of all or part of an employer’s business at an establishment and the employee is one of 50 or more employees who have their employment relationship severed within a six-month period as a result; or
  2. the employer has a payroll of $2.5 million or more.

If an employee is entitled to severance pay, they are to be paid severance in a lump sum amount equivalent to one week of non-overtime wages per completed year of employment up to a maximum of 26 weeks, within 7 days of termination.

Entitlements to severance are relatively well defined. It is the notice requirements of termination that require a more nuanced analysis.

Reasonable Notice of Termination

In Ontario, employers can give notice of termination to employees in two ways. Either,

  1. An employer can give notice ahead of time; or
  2. An employer can fire an employee right away, but provide “pay in lieu of notice” equivalent to what would have been earned over the notice period.

The first step in calculating the amount of notice depends on whether that employee’s termination is subject to a valid employment contract. If the employment contract contains a  clause that sets out the amount of notice an employee gets upon being fired and the contract is valid, then the employee is entitled only to the reasonable notice set out therein.  These contracts may be invalid or void ab initio (unenforceable from the beginning) for many reasons, including if they provide for less termination entitlements than the minimums established by Employment Standards Act.

If there is no contract, or the contract is not enforceable, then an employee is entitled to what the Ontario Courts call “reasonable notice”. Reasonable notice is always more than the minimum notice. The amount of  reasonable notice depends on many factors and is calculated by the Courts after considering all of the surrounding factors. Considerations include (1) age, (2) length of service, (3) character of employment and (4) availability of similar employment. Employees are entitled to more notice if:

  • they are older;
  • they worked somewhere a very short or a very long period of time;
  • their job was very specialized and it will be difficult to find comparable employment; or
  • the employer convinced them to leave another stable job.

An employee might also be entitled to further money on termination if the employer:

  • acted badly in the manner of termination;
  • fired you for a discriminatory reason;
  • fired the employee for insisting on his/her rights under the ESA;

Contact Justin W. Anisman

To contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing, call 416-833-8443 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

 

Important Upcoming Changes to the Ontario Workplace

On November 27, 2017, the Fair Workplaces, Better Jobs Act 2017 received royal assent and became Law in Ontario. Set out below are some of the most important changes to Ontario’s workplaces.

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Termination of the Employment Relationship in Ontario

Notice and Severance under the Employment Standards Act / The Minimum Standards

The Employment Standards Act, 2000 (the “ESA”) provides the minimum standards of employment with respect to, among many other things, overtime, hours of work, minimum wages, holidays, pregnancy and parental leave, and termination of employment in Ontario.

Under the ESA, employers are required to give their employees advance notice of termination in writing or, in the alternative, pay wages and continue benefits for the statutory notice period (commonly referred to as termination pay). With respect to the termination of a single employee (as opposed to mass firings or lay-offs), the minimum length of notice depends on the length of the terminated employee’s service:

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