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Some
individuals have developed a wishbone where their backbone should be.
The streetwise employment lawyer, however, applies their intimate
knowledge of this province’s 926+ pages of Ontario civil procedure to
inexpensively settle your severance pay disputes where possible, and
most efficiently litigate where necessary.
And
while some employers do extend reasonable offers of severance pay upon
termination, companies are
increasingly adopting a more hard-line approach - believing (perhaps
correctly) that most workers lack access to timely legal advice and
simply can’t afford uncapped hourly-rate legal fees even if they did.
Still more employers fear setting any form of precedent for
future negotiations with other employees to be fired, or desperately
hope their wrongfully-dismissed worker will quickly land alternative
employment thereby reducing potential Superior Court damage awards in
any event.
Yet
while initially discouraging for the wrongfully-dismissed employee to be
fired without fair compensation, the streetwise lawyer seizes exactly
this opportunity to pursue the unreasonable employer for additional
punitive damages arising therefrom.
Where
negotiations don’t result in timely settlement, your fallback position
is to issue formal Statement of Claim through Superior Court -
seeking maximum damages, interest, plus reimbursement of legal fees from
your employer for having forced you into such litigation in the first
place.
Once
issued, your claim is assigned a filing number by the court and
personally served upon your employer by professional process servers
such that the company can’t later allege that they had no awareness of
your lawsuit.
Upon
receiving your Statement of Claim, employers typically have only 30-days
in which to retain defence counsel, draft formal Statement of Defence,
serve and file with the court. Given
difficult time and financial pressures involved, many employers will
dramatically increase their settlement offers at this point so as to
avoid imminent defence lawyer fees easily approaching $10,000+ within
this first 30-day period alone.
Once
pleadings have been exchanged, lawyers draft, serve, and ultimately file
extensive Affidavit of Document materials disclosing all notes,
records, and witnesses relating to lawsuit allegations in issue.
In actions exceeding $50,000.00, lawyers further exchange
detailed Statements of Issue at least 10-days prior to
court-imposed Mandatory Mediation, followed by extensive Examinations
for Discovery of party representatives before court reporters and
ultimately resulting in typed transcripts of evidence for strategic use
on cross-examination and/or evidence-in-chief at trial.
While
no two wrongful dismissal actions are alike, typical issues at play will
include length of service, levels of pay, bonuses/benefits received,
plaintiff’s position within the company, mitigation of damages,
harassment, past performance reviews, and thorough inquiry into all
relevant circumstances underlying plaintiff’s termination from the
company.
On
road to trial, one or more parties will typically file motions dealing
with procedural issues including but not limited to adequacy of the
pleadings, inadequate disclosure of documents, undertakings and
questions refused throughout course of Examinations for Discovery.
That
said, the streetwise lawyer knows that vast majority of these interlocutory
motions are mere employer tactics intended to complicate proceedings
and force unnecessary legal fees on the plaintiff employee.
Accordingly, clients in the know are increasingly reluctant to
hire hourly-rate counsel vulnerable to these wallet-bleeding
interlocutory motion tactics, and far better retaining fixed-fee lawyers
willing to expose these employer games to motions court Masters for the
time-wasting tactics that they are.
At
the end of the day, experienced counsel will deliver formal Rule 49 Offer
to Settle thereby forcing your employer to put their best offer
forward prior to Pre-Trial and Trial.
Beat your settlement offer at trial, and your employer attracts
still added cost sanctions from the judge.
For
this reason, not to mention many tens of thousands of dollars in legal
fees incurred by your employer for Bay Street trial preparation, and
it’s no surprise that some 95%+ Ontario Superior Court actions will
ultimately settle out of court.
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