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        Employment lawyers restricted to wrongful dismissal litigation
         Employment lawyers restricted to wrongful dismissal litigation

Toronto

Ontario

Canada

 

 

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Labour and Employment Lawyers in Toronto
Employment lawyers restricted to wrongful dismissal litigation

Tel: (416) 590-1900
Fax: (416) 590-1600

info@dumarkowitz.com

17th Floor, Yonge/Eglinton Centre
2300 Yonge Street
Suite 1750
Toronto, Ontario
M4P 1E4


"Work  is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society.  A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being."

-- Chief Justice Dickson, in Reference re: Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 (Supreme Court of Canada),
at page 368.

 

 

Lawyer Stephen Du speaks to The Toronto Star on:

Litigation strategy: Beating the unreasonable employer in court.

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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