IF DR. SUESS WROTE CLAIMS FOR

WRONGFUL DISMISSAL

Sean P. Bawden

Employment Lawyer - Kelly Santini LLP

Part-Time Faculty – Algonquin College School of Business

www.ottawaemploymentlaw.com

INTENT AND PURPOSE

The intentions and purposes of this slide deck are, through a fictitious and somewhat silly example, to:

(a)Explain some basic principles of “wrongful dismissal” at Ontario law; and

(b)Demonstrate, in basic terms, how to prepare a Statement of Claim for wrongful dismissal.

SCENARIO

The claim will be for a 52 year-old man, located in Ontario, Canada, who had worked for his employer for 17 years before finding himself suddenly and unexpectedly unemployed.

The employer has provided nothing for severance on the basis that it had legal just cause for dismissal.

The employee refutes such claims and sues. What follows is the text of his Statement of Claim, the document used to start a lawsuit, if the same had been written by the late children’s author, Dr. Suess.

PRESENTATION OVERVIEW

This slide deck will proceed in two parts:

First, the claim will be presented without

commentary;

Then, the various claims will be explained.

SUMMARY OF CLAIM

The Statement of Claim is divided into and is

presented in six parts:

1. The plaintiff’s claim for relief;

2. The parties;

3. The facts;

4. Liability;

5. Damages;

6. Statutes relies upon.

THE CLAIM

B E T W E E N:

THEODOR SEUSS GEISEL

Plaintiff

- and -

GRINCH ENTERPRISES (ONTARIO) LTD.

Defendant

CLAIM

1. From this Honourable Court the Plaintiff seeks:

(a) Payment in lieu of 52 weeks;(b) To this he adds a claim as was in Keays; one million dollars he would ask, if this Court it would please;(c) Interest on damages, both pre-judgment and post;(d) His costs of this action - full indemnity at most;(e) And if after pleading the Defendant causes more grief, this Honourable Court should grant such other relief.

THE PARTIES

2. The Plaintiff is an individual, residing in this town most merry. At all material times he was an employee of the Defendant, whose behaviour has been particularly scary. 3. The Defendant is a corp., carrying on business in town. On account of its behaviour this Court must shut it down!

FACTS

4. Now fired by the boss, the Plaintiff claims for his loss.

5. The employer alleges cause, but such argument has flaws.

6. The employer will allege hoozits, and whatsits, and issues galore. But as this Court will find, such accusations deplore.

7. At the time of dismissal 52 was his age. He made 90k a year; much more than minimum wage.

8. The plaintiff worked hard for about 17 years. Termination of employment was never one of his fears.

9. The plaintiff made snoozits; he made banglers; he made the boss money. To be fired in such a way is surely not funny.

LIABILITY

10. Implied in all contracts of employment is that termination will be on reasonable notice. To avoid paying such damages is the employer's most sinister motif.

DAMAGES

11. The Plaintiff relies on the factors in Bardal. Making a rhyme with such a name is particularly hardel.12. The Plaintiff seeks pay in lieu of notice in the amount of one year. Being close to reasonable the Defendant's position does not even come near. 13. Alleging just cause where the same is not true, requires the Court to award not only compensatory damages but aggravated ones too!

STATUTES RELIED UPON

14. The Plaintiff pleads and relies on the 2000 ESA. To be treated fairly in employment would now truly make his day.

EXPLANATION

Now to explain why I did what I

did.

STYLE POINTS

Note the following style points in the claim:

1. Paragraphs are numbered.

2. Each point is its own paragraph.

3. Six headings are used to organize the claim into six

different subject areas. Both the number and ordering

are standard.

4. Claims need not rhyme. Although I see no rule

prohibiting such a thing.

PARAGRAPH 1

A claim should always start with the heading “Claim”.

The first paragraph typically reads “The Plaintiff claims against the Defendant for:” and then subparagraphs follow in which the particular claims are made, as was done in this case.

PARAGRAPH 1(A)

1(a): From this honourable court the plaintiff seeks… payment in lieu of 52 weeks.

As is more fully explained here, http://bit.ly/19nHfu0, claims of wrongful dismissal are essentially claims that one’s employer failed to provide “reasonable notice” of termination. Reasonable notice is measured in units of time; most often weeks or months.

PARAGRAPH 1(B)

1(b) To this he adds a claim as was in Keays; one million dollars he would ask, if this Court it would please.

Honda v. Keays, 2008 SCC 39, is the leading Supreme Court of Canada authority concerning when and how aggravated damages for the manner of dismissal from employment are to be awarded.

PARAGRAPH 1(C)

1(c) Interest on damages, both pre-judgment and

post.

Pursuant to the provisions of the Court of Justice Act, a plaintiff is entitled to both pre-judgment and post-judgment interest on any amount awarded for damages.More information on interest rates is available here: http://www.attorneygeneral.jus.gov.on.ca/english/courts/interestrates.asp

PARAGRAPH 1(D)

1(d) His costs of this action - full indemnity at most.

A successful party to an action is typically entitled to an award of “costs” in addition to damages. Costs is an amount awarded by the court to indemnify a party for the costs associated with litigation, both actual and legal fees. The amount awarded for “costs” will vary. Typically one does not get full indemnity; one is awarded less.

PARAGRAPH 1(E)

1(e) And if after pleading the Defendant causes more grief, this Honourable Court should grant such other relief.

Most claims will contain a catchall “and such further and other relief as counsel may request and this Honourable Court may allow” because the court can only award that which is requested. This phrase is intended to ensure nothing is missed.

THE PARTIES

It is a rule of pleadings that the legal status of the parties to a claim must be identified within the body of the claim. A party to a claim may be an individual, a corporation, a partnership, a municipality, a crown corporation, or some other form of legal being. Only legal entities may sue and be sued. In some cases, such as in the case of minors, a “litigation guardian” must be appointed.One should also plead where the parties live or carry on business.

PARAGRAPH 2

2. The Plaintiff is an individual, residing in this town most merry. At all material times he was an employee of the Defendant, whose behaviour has been particularly scary.

Given the rule of pleadings that the legal status of the parties must be identified, paragraph 2 confirms that the plaintiff is an individual.One should also plead where a party lives or carries on business.

PARAGRAPH 3

3. The Defendant is a corp, carrying on business in town. On account of its behaviour this Court must shut it down.

This paragraph pleads that the defendant is a corporation. Typically, one would identify pursuant to what law the corporation was incorporated. While there are several statutes pursuant to which a corporation may be incorporated, the Ontario and Canada Business Corporations Acts are most common.Note that it is also pleaded that the defendant carries on business in the same jurisdiction where the claim was commenced.

FACTS

Always give the court a brief and concise statement of the facts that would entitle the plaintiff to judgment. In the Ontario Small Claims Court, the evidence supporting the facts should be attached to the claim. In the Ontario Superior Court of Justice evidence must not be pleaded.

PARAGRAPH 4

4. Now fired by the boss, the Plaintiff claims for his

loss.

This paragraph sets out that the plaintiff has been dismissed from employment. This fact is the primary reason he is suing – he has lost wages.

PARAGRAPHS 5 & 6

5. The employer alleges cause, but such argument has flaws.6. The employer will allege hoozits, and whatsits, and issues galore. But as this Court will find, such accusations deplore.

These paragraphs set out the issue the court must resolve: Did the employer have legal just cause to terminate employment? The employer will claim that it did. Legally, if an employer has “just cause” to terminate employment, then it is excused from providing the dismissed employee with notice and severance.

PARAGRAPH 7

7. At the time of dismissal 52 was his age. He made 90k a year; much more than minimum wage.

This paragraph breaks a cardinal rule of pleading that only one fact should be contained in each paragraph; the same has been done for rhyming purposes.

An employee’s age is one of the four key factors in determining the amount of reasonable notice to which he is entitled.

PARAGRAPH 7

7. At the time of dismissal 52 was his age. He made 90k a year; much more than minimum wage.

The amount of an employee’s salary is important for two reasons. First, one needs to know the employee’s salary in order to calculate the amount of money to which he would be entitled. (Wrongful dismissal damages are a function of one’s wages.)Second, an employee’s salary can speak to the “character of his employment” and the chances he will be able to find new, comparable employment at a similar salary level.

PARAGRAPH 8

8. The Plaintiff worked hard for about 17 years. Termination of employment was never one of his fears.

Length of employment is one of the four key factors in determining the amount of reasonable notice to which a dismissed employee is entitled. However, one should not employ any sort of mechanical calculation, such a one week or one month per year of service to calculate reasonable notice.

PARAGRAPH 8

8. The Plaintiff worked hard for about 17 years. Termination of employment was never one of his fears.

Under Ontario law an employer need not have cause to terminate employment. Absent certain express prohibited reasons, an employer may terminate the employment of any employee at any time.

PARAGRAPH 9

9. The Plaintiff made snoozits, he made banglers, he made the boss money. To be fired in such a way is surely not funny.

The plaintiff in this case alleges that the employer breached the duty of good faith an fair dealing on termination. Employers owe employees a duty of honesty on termination (Honda v Keays; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701.)Alleging cause where it is not warranted can be a breach of this duty.

LIABILITY

In order to be successful in a lawsuit a plaintiff must establish that the defendant did something legally wrong; i.e. that the defendant is “liable” to the plaintiff for doing something legally prohibited.

PARAGRAPH 10

10. Implied in all contracts of employment is that termination will be on reasonable notice. To avoid paying such damages is the employer's most sinister motif.

In Machtinger v. HOJ Industries Ltd., [1992] 1 SCR 986, the Supreme Court of Canada confirmed that it is a presumed implied condition of all contracts of employment that termination will be on reasonable notice. The Court in that case confirmed that the presumption can be rebutted where the employer has used a legally binding employment agreement setting out a different, legal, amount of notice.

PARAGRAPH 10

10. Implied in all contracts of employment is that termination will be on reasonable notice. To avoid paying such damages is the employer's most sinister motif.

Recall that in this case the employer has alleged cause, meaning that if it can win on that point it can avoid paying damages for reasonable notice.The plaintiff employee thus alleges that the defendant employer is liable for its failure to provide reasonable notice or payment in lieu thereof.

DAMAGES

The second component of any lawsuit is damages; i.e. the amount of money to which the plaintiff makes claim as a result of the defendant’s wrongdoing.

As mentioned before, in a wrongful dismissal case, the amount of “damages” to which a dismissed employee is typically entitled is measured as a payment in lieu of the wages the employee would have earned/received had the employer kept the employee in employment during the “reasonable notice” period.

PARAGRAPH 11

11. The Plaintiff relies on the factors in Bardal. Making a rhyme with such a name is particularly hardel.

Bardal v Globe and Mail, [1960] OWN 253 (HCJ) remains the leading case for calculating reasonable notice.The four factors set out by the court in that case for determining reasonable notice were: the employee’s age, years of service, character of employment, and the availability of similar employment. (Have a look back at paragraphs 7 & 8.)

PARAGRAPH 12

12. The Plaintiff seeks pay in lieu of notice in the amount of one year. Being close to reasonable the Defendant's position does not even come near.

To be wholly honest, on these factors I think the plaintiff is undervaluing his claim – but it makes better rhyming. Note, however, that he sets out what he believes is this notice period (one year, or 52 weeks as pleaded in paragraph 1(a).) He then seeks payment in lieu of notice, as is appropriate.

PARAGRAPH 13

13. Alleging just cause where the same is not true, requires the Court to award not only compensatory damages but aggravated ones too!

Compensatory damages are designed to compensate a plaintiff for his actual loss. Payment in lieu of notice is compensatory.As mentioned before, lying about the reason for dismissal is a “separate actionable wrong” entitling a dismissed employee to “aggravated damages”, i.e. money on top of compensatory damages to express disapproval of the employer’s actions.

STATUTES RELIED UPON

“Statutes” are laws passed by elected governments. An example of a statute is the Ontario Employment Standards Act, 2000, SO 2000, c 41.

The Employment Standards Act, 2000 is an Ontario law, a statute, setting out minimum standards of employment in this province with respect to employees other than those employed in a “federal work or undertaking.”

PARAGRAPH 14

14. The Plaintiff pleads and relies on the 2000 ESA. To be treated fairly in employment would now truly make his day.

As mentioned in the previous slide, the Employment Standards Act, 2000 prescribes certain minimum standards with respect to employment. One of that law’s provisions is that employees are entitled to notice of termination.

FOLLOW-ON

For more information about employment law in Ontario or for legal advice about your situation, contact:

Sean P. BawdenEmployment LawyerKelly Santini LLP160 Elgin Street, Suite 2401Ottawa, ON K2P 2P7T. 613.238.6321 x260E. sbawden@kellysantini.com

DISCLAIMER

Everyone’s situation is different.

The preceding is not intended to be legal advice for any particular situation.

It is always prudent to seek professional legal advice before making any decisions with respect to your

own case.