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An employee terminated “without cause” in Ontario is entitled to receive notice of dismissal. Employers rarely provide working notice of termination (for obvious reasons) and in a vast majority of cases provide a payment in lieu. A Wrongful Dismissal case occurs at law when an employer fails to provide appropriate notice (or pay in lieu) to a terminated employee. Damages for Wrongful Dismissal are therefore referred to as “reasonable notice”.
The right to termination upon provision of reasonable notice is a common law entitlement, which means the assessment of appropriate notice is determined by a Court through a holistic analysis involving many different factors. Generally speaking, the most important factors are:
Although these four factors typically carry the most weight, Courts can and have in fact relied upon hundreds of others in assessing notice. It is therefore vital to consult with an experienced wrongful dismissal lawyer to properly determine the value of your claim for reasonable notice based on your specific circumstances. Do not rely upon database searches or online “severance calculators” as the basis for what your Wrongful Dismissal case is worth. As is stated in the seminal case on Wrongful Dismissal, Bardal v. Globe & Mail Ltd., “there can be no catalogue laid down as to what is reasonable in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case”.
As you can see, there is no “one size fits” all method for assessing damages for Wrongful Dismissal. Some have suggested that there is a “rule of thumb” that appropriate notice is quantified at 1 month per year of service. That approach has no basis in law and has been repeatedly debunked at Court and by other legal commentators. In certain circumstances, an employee may be entitled to several months per year of service, while in other cases, the calculation is much lower. It is always best to leave the assessment of your Wrongful Dismissal claim to experienced wrongful dismissal lawyers so that you fully understand and maximize your severance entitlement.It is also very important not to confuse statutory payments with Wrongful Dismissal damages. Statutory payments under the Employment Standards Act, 2000 (“the Act”) are only minimum entitlements. These are usually significantly less than common law damages for Wrongful Dismissal. Many employers try to confuse employees by suggesting that they are being generous by offering payments over and above the employee’s minimum entitlements under the Act. However, in most cases, these offers are still far less than an employee’s common law entitlement to damages for Wrongful Dismissal. In other cases, an employer will not even indicate that statutory minimum payments are owing at all.
The wrongful dismissal lawyers at Marvin A. Gorodensky Professional Corporation are committed to ensuring that your rights are protected.
We would be pleased to assist if you have any questions or concerns about a severance offer and advocate on your behalf to obtain a fair and reasonable package for your wrongful dismissal case.