Employment Litigation How to take an employer to court 2

Employment Litigation: How To Get The Most Out of Litigation

Employment litigation refers to a legal dispute between an employee and their employer respecting a work-related issue. Employees may sue their employer when they need to enforce their rights against and seek damages for workplace issues. 

Employers and employees can discuss the relevant workplace issue and attempt to negotiate a resolution before taking matters to court. When a resolution cannot reach a solution, employees have the option to commence litigation against their employer.

Below are reasons an employee may sue their employer, what steps an employee should take before litigation, what is likely to happen during litigation, and how one of our experienced employment lawyers at Achkar Law can help get the most out of your litigation.  

What Are Reasons to Sue An Employer?

Under Ontario employment law, employees can sue their workplace for a multitude of reasons, including but not limited to:  

  • Wrongful dismissal   
  • Human rights violations
  • Other torts and related claims for damages

What Is Wrongful Dismissal?

When employees are terminated and not provided sufficient notice or pay in lieu, they can commence a legal claim starting with employment litigation against their employer for wrongful dismissal. 

What an employee is entitled to for notice is determined by both the Ontario Employment Standards Act, 2000 and the common law. Employees can be entitled to salary, bonus, benefits, pension contributions, commissions, stock options and other contractual perks as part of their notice period damages. 

What Are Human Rights Violations?

Employees can begin the employment litigation process and commence legal proceedings against their employer for Human Rights violations either by filing a Human Rights Application with the Ontario Human Rights Tribunal or including the claim for Human Rights remedies to their main civil action. 

Human Rights violations can include discrimination and harassment of the employee based on their race, ancestry, ethnicity, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, place of origin, a record of offences, marital status, family status or disability.  

Employees can seek lost wages resulting from the employer’s Human Rights breach and general damages for injury to their dignity, feelings and self-respect. Employees can also ask for non-monetary remedies against their employer, such as apologies and reinstatement.

Other Torts and Related Claims for Damages

Employees can also begin their employment litigation process against their employees based on how their termination occurred and other torts relating to an employer’s conduct. 

Employees might be entitled to aggravated, moral and punitive damages in addition to their wrongful dismissal damages if an employer acted in bad faith, egregiously and deceptively in the manner of the employee’s termination. Often, these damages must accompany another cause of action, such as wrongful dismissal. 

The employee may also file a claim for other torts, including but not limited to:

  • Defamation
  • Personal injury (sexual assault, assault, and negligence)
  • Breach 
  • Malicious prosecution
  • Intentional infliction of mental distress

Commencing Employment Litigation

In Ontario, an employee can sue their employer in small claims court if the amount they’re claiming is $35,000 or less. However, if the amount is more significant than $35,000, employees will have to take their lawsuit through the Ontario Superior Court. Employees can commence a Human Rights Application for Human Rights issues by filing the appropriate form with the Ontario Human Rights Tribunal. 

Steps to Take Before Legal Action

An employee should be mindful that employment litigation can be costly, stressful and time-consuming. It is, therefore, best to take the following steps before considering litigation: 

  1. Communicate with the employer and make a complaint in writing to management or HR to ensure they have an opportunity to resolve your workplace issue. Employees are obligated to reasonably bring issues to their employer’s attention for resolution before claiming the employer acted wrongfully or improperly in many cases. 
  2. Review the employment contract if there is a written agreement and determine what recourse may be available. Some employers require that an employee mediate and arbitrate their issues as part of the written contract – this could mean an employee does not have the right to commence a civil proceeding for resolution. 
  3. Document as much as possible, communicate with the employer in writing, and lawfully secure any relevant evidence. Where verbal conversations occur, employees need to take notes with dates and details as witness testimony is not as strong as written evidence in most cases. 
  4. Consult an employment lawyer to determine legal entitlements, the extent of damages available, and the best options for proceeding against the employer. 

The Employment Litigation Process

While every legal case is dependent on its circumstances, most employment and human rights cases follow these general steps: 

  1. Consultation: An employee meets with a lawyer to discuss how the lawyer can help them with their legal issue. Once the employee signs a retainer agreement, the lawyer formally represents them.  
  2. Demand Letter: A lawyer drafts and sends the employer a demand letter outlining the employee’s entitlements and makes an offer to settle before litigation. Negotiations can continue from this point until there is agreement or refusal to continue. 
  3. Pleadings: A lawyer commences legal proceedings against the employer by either serving a statement of claim or filing a Human Rights Application with the Ontario Human Rights Tribunal. After an employer provides their Defence or Response, the employee’s lawyer may also draft and file a Reply if necessary.
  4. Mediation: Mediation is a process where a neutral third party, the mediator, helps the parties attempt settlement of their legal matter as part of the litigation process. In some jurisdictions in Ontario, such as Toronto, mediation is mandatory for civil claims. Parties can agree to mediation in the Human Rights litigation process in their respective pleading forms.  
  5. Discoveries: The parties must disclose documents relevant to the legal claims in the pleadings and question one another in examinations for discovery for admissions on the record.
  6. Pre-Trial: Once discoveries are complete and there are no other formal steps or motions left to bring, the parties may set the matter down for trial. Before a trial date is formally set, a pre-trial conference will usually be scheduled with a judge to canvas possible settlement.
  7. Trial: The parties prepare and attend a trial, which can take a few days of submissions, examinations, and legal arguments. The Court then renders its judgement, and the losing party typically is ordered to pay some or most of the succeeding party’s legal costs. 

How Can An Employment Lawyer Help?

While employees can commence their proceedings by attempting to negotiate with their employer to resolve their issues, employment and human rights lawyers have the expertise to avoid any pitfalls or issues with the employment litigation process. Consulting and retaining an employment lawyer to help navigate litigation is a valuable investment to resolve a matter as efficiently and effectively as possible. 

Contact Us 

If you are an employer who had legal proceedings commenced against them or an employee who wants to explore their options for initiating legal proceedings against an employer, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800)771-7882 or email us at [email protected], and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for strategic solutions.

Disclaimer: This blog is not intended to serve as or should be construed as legal advice and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call (800) 771-7882 or email [email protected]