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Welcome everyone.  This is Amer Mushtaq from YouCounsel. 

Today we’ll talk about choosing the appropriate court or tribunal or judicial body when you believe that you have been wrongfully dismissed from your employment and you have a case against your employer.  Before we begin, just a quick disclaimer that this course is not legal advice.  If you have any specific questions about your issue you must contact your lawyer or paralegal.  If you don’t know one, we have provided the link here for the Law Society of Upper Canada, who can refer you to someone.

So you are an employee who has been working in Ontario.  You have been wrongfully dismissed.  You believe that you have a case against your employer.  Then where do you go? 

This lecture is really directed towards people who have been living in Ontario.  The principles are not much different in other provinces.  The only thing you have to watch for is the specific employment related legislation in your province and how does that apply.  You may want to listen to this lecture, get the basic principles and then review the specific legislation in your province.  But the examples we’re giving here are relating to Ontario legislation.

Why is this important?  It’s a fundamental issue.  Why is it a fundamental issue?  Because if you end up choosing the wrong Court, it could have significant negative consequences towards the outcome of your case.  One of the consequences could be that your case may simply get thrown out.  You fight your case all the way and you’re before the judge.  At that time you may realize and the judge will point out that he or she does not have any jurisdiction—meaning does not have the power to give you what you’re asking.  You have wasted significant time and money to fight or pursue the case in that specific court.

The other factor to keep in mind is additional cost: of course the time and the cost.  If you are in the wrong court and let’s say you have the opportunity to withdraw the Claim from that Court and go to the right one.  By that time you have incurred some costs that you cannot recover and of course you have lost time.  Another thing that can happen is that you may not, if you end up in the wrong Court i.e., the wrong setting /wrong judicial body, you may lose the opportunity to get out of there and go to the right one.  You may be stuck in that specific jurisdiction where you have commenced a court action and it could have significantly grave consequences if that’s the case.  We will explain that to you by way of an example further down the line. 

Let me give this point a meaning.  Let’s look at the Employment Standards Act.  I hold it out here already this is the legislation that applies to Ontario employees called Employment Standards Act.  You can google it.  When you find it, you scroll down to Section 97.  Right here sub (1) “An employee who files a complaint under this Act with respect to an alleged failure to pay wages or comply with Part XIII (Benefit Plans) may not commence a civil proceeding with respect to the same matter.”  An employee files a complaint under so it’s exactly saying what I just said that if you have filed a complaint under the Employment Standards Act, then you cannot go to court (a civil proceeding is going to court), you cannot go to court.  You have the choice of either this or going to the court.  Here is the part that I want you to look at more closely, subsection (4) “Withdrawal of complaint – Despite subsections (1) and (2), an employee who has filed a complaint may commence a civil proceeding with respect to a matter described in those subsections if he or she withdraws the complaint within two weeks after it is filed.”

It is very clear that once you file a complaint with the Ministry of Labour you literally have the window of two weeks to withdraw that complaint.  If you don’t withdraw it, in case when you realize that you have to go to court and not to the Ministry of Labour, then you literally have two weeks to withdraw it.  If you don’t withdraw it then you are stuck with the jurisdiction of the Employment Standards Act.  As I said we’ll explain to you how massive this issue could be once we cover an example.  No opportunity to go to another court.  And if you end up in the wrong court or the wrong judicial body there may be situations where your damages could be significantly less.  There’s a lot to lose if you choose the right the wrong court or judicial body.  It’s an important issue that you need to deal with at the outset of your case—before you actually even go and file your complaint with a court.

Here are some scenarios that we’ll cover today—if you are a unionized employee or non-union employee where do you go to?  Whether you go to Court or the Ministry of Labour – that’s another topic we’ll cover here – whether you go to court or Human Rights Tribunal Of Ontario (HRTO), whether you go to the CLC (CLC essentially means Canada Labour Code—a legislation just like the Employment Standards Act that I showed you.  You can look it up online Canada Labour Code versus Court or Tribunal or Ministry of Labour.  Then the issue about choosing between Ontario Human Rights Tribunal versus Canada Human Rights Commission and Small Claims Court versus Superior Court.  We’ll cover these topics.

If you are a unionized employee, very important to keep in mind, the only place and the only process that is open to you if you are terminated is called arbitral process.  It’s through the union.  You cannot commence it through your own private lawyer.  What you do is—through your union you file what’s called a grievance.  That’s why this process is also called grievance arbitration.  You file a grievance through your Union against your employer.  It goes through the arbitration process.  You do not have (as a unionized employee) to go to court, to go to another tribunal, a judicial body or even to the Labour Board.  The only option you have is grievance arbitration.   I am emphasizing this because a lot of times we get calls from unionized employees who call us and who want us as private lawyers to get involved in their issues.  We advise them that we cannot—they must go through their Union for their representation.  Quite frankly, that’s why they have been paying their union dues so that they could get representation through Union lawyers. 

But there are exceptions.  The only exception you have is, if you have a human rights case.  If you believe that you have been discriminated against and you want to bring a complaint with the Human Rights Tribunal, you have the option to retain your own lawyer or paralegal and file a complaint with the Human Rights Tribunal or you can do the grievance arbitration.  You can’t do both.  Keep that in mind—you have the choice of either doing grievance arbitration or going to the Human Rights Tribunal if you have a discrimination case.  You cannot do both.  If you have filed a grievance and you want to go to the tribunal you have to first withdraw the grievance.  There have to be certain consequences to that withdrawal—how far it is in the grievance process.  Similarly, if you have filed the human rights complaint and it’s being processed, you may not have the option to then file the grievance.  It’s one of the two.  This brings me to the next point that there is no option of having duplicitous proceedings (what that means, is you can’t take two shots—two kicks at a can).  You can’t go to the tribunal and maybe unsuccessful with your case and then you decide that you want to go to the grievance process.  You don’t have that opportunity.

There is another exception, which is called DFR Applications.  DFR stands for Duty of Fair Representation.  This is a basic duty that a union has towards its union members, i.e., to fairly represent them.  If you are a unionized employee and you believe that your union is not fairly representing you then you can bring a DFR application in front of the Labour Board.  That’s a separate topic but that’s another exception that you can have.  The key to remember is that if you’re a unionized employee, the arbitral process is the one that’s open to you—the only exception is really a human rights complaint but you cannot go to court.

Let’s go to the topic number 2 which is choosing between the Court and the Ministry of Labour.  This is an issue that is very common.  We see this all the time.  What happens is, an employee gets terminated.  They go online and Google the topics.  From their research they find out that they have access to the Ministry of Labour—where they can file their complaint and they believe that they will save time and money by going to Ministry of Labour and have them deal with this matter.   Actually, in 99% of the cases it is not worthwhile to go to Ministry of Labour for wrongful dismissal issues.  You may be better off going to court because the remedies that are in court are a lot more than what the Ministry of Labour can give you, especially with respect to termination. 

Why is that ?  Because the jurisdiction or the power of the Ministry of Labour is literally what is prescribed under the Employment Standards Act.   This is the legislation.  The four corners of this legislation decide what a Ministry of Labour Employment Standards Officer can and cannot do.  The Ministry of Labour does not have common law remedies i.e., it does not have the power or common law remedies.  A lot of technical information here.  But what does this all mean?  Let’s look at an example – say you’re an employee who made $60,000 per annum.  You worked for your company for about, let’s say, 20 years and you got terminated.  If you go to the Ministry of Labour and file an Employment Standards Act complaint then the termination pay you will be entitled to—if you’re successful—is 8 weeks of pay, which let’s say is approximately $10,000.  If you have a case and in court for common law rights which may be the situation in your case then you could be entitled to as high as two years of pay which is about $120,000.  You can see that by choosing to go to Ministry of Labour and not going to court you may end up losing $110,000.  This is just an example to give you a sense of how significant the difference is in terms of what you choose—which court or which body you choose.  This is a significant amount of money.  And that’s what you may end up losing if you incorrectly choose the Ministry of Labour route as opposed to going to court.  We have experienced this issue a lot in our practice.  We know that a lot of people make this mistake.  They end up making a complaint with Ministry of Labour and then as you know, you have literally two weeks to withdraw that complaint—they realize after 1 or 1.5 months, that the process is too complicated and they need a lawyers assistance.  They contact us or any employment lawyer.  It is at that time they realise that they have lost the window of opportunity to go and file a case in court and are obviously losing significant remedies.  It is very important at the outset to figure out whether Ministry of Labour is the right place for you to go to or you should be going to court.  That’s a consideration to have at the time of termination.

Another example is for employees whose employers are federally regulated.  If you work for a federally regulated employer, then you are governed by the Canada Labour Code not Employment Standards Act.  Under the Canada Labour Code there is a specific term that’s called “unjust dismissal” and unjust dismissal is not equal to wrongful dismissal.  These are two different concepts.  Unjust dismissal has a specific meaning.  If you are a federally regulated employee you have to be careful whether (you can certainly file a wrongful dismissal complaint or a court action) you qualify for unjust dismissal complaint under the Canada Labour Code which will be filed with the federal employment standards branch.  One of the things that you have to consider is: you have to be a non managerial employee, i.e., you cannot be a manager and seek to file a complaint for unjust dismissal.  The advantage of unjust dismissal complaint is that you have a right to reinstatement.  If the decision is in your favor, you can get your job back—which is not something you could get ordinarily in court.  The court does not award jobs back.  It just gives you damages.  You can also get loss of the income award which could be much more significant than what you can get in court.  This is one situation where you may get better results than in court by filing a complaint under Canada Labour Code.  This is something for federally regulated employees to consider before they decide which body /which court they want to go to. Under Canada Labour Code (if you google it and look it up) currently you have 60 days from the time you are dismissed or you are terminated to actually file a complaint under Canada Labour Code.  If you have missed that 60 days opportunity then you won’t be able to do that—again something to consider seriously.

If you have a case for discrimination under the Human Rights Code or the Human Rights Act, depending upon whether your employer is federal or provincial you will go to either the Tribunal in Ontario or to the Canadian Human Rights Commission.  If your employer is federally regulated then you go to the Canada Human Rights Commission.  If it’s provincially regulated, then you go to the Human Rights Tribunal of Ontario.  The two have different legislation.  They have different processes and different remedies.  You have to be careful which body you go to with respect to your discrimination case. 

Another thing to consider is Small Claims Court.  The Small Claims Court in Ontario has the jurisdiction to award damages of up to $25,000.  If you believe your case is less than or equal to $25,000, then you can go to the Small Claims Court.  If it is more than $25,000 then you want to go to Superior Court of Justice. 

Another factor to consider is the kind of claims you have.  When your lawyer is considering—it’s not only the wrongful dismissal but he or she will consider if there are damages for any bad faith conduct or discrimination issues which can get tagged along and then the total damages may be much higher than $25,000.  You may be better off going to Superior Court.   Something to consider in choosing whether you want to go to small claims court or Superior Court for your wrongful dismissal.

Recap:

We’ve covered a lot of topics in this lecture and the reason why I wanted to touch upon all of these was that I at least wanted you to take away the 30,000 feet view that if you are dismissed and you are considering a court action or filing a complaint of some kind, you must at the outset decide where and what is the appropriate forum that you want to go to.  If you’re not clear yourself about it, this may be a time to go seek legal advice or a consultation with an employment lawyer. In my practice I have seen lawyers who do not practice employment law—let’s say the commercial litigator or someone who infrequently practices employment law—they don’t have a clear understanding of choosing the right forum.  This can have significant consequences for their clients.  It’s nothing that you cannot understand—it’s unfortunately that that’s how the processes are set up and they’re a bit complicated.  You have got to untangle those before you choose the right forum.  Keep that in mind—if you are wrongfully dismissed then you want to decide on the appropriate forum before you proceed and not after you have commenced the process because then that may be a bit too late.  Hopefully, this was useful.

If you have any comments, please do send us an email if you require consultation on any of these issues by means book a consultation through Clarity or feel free to contact us through our law firm and we will be happy to assist you.  Thank you and we look forward to seeing you in our next video.