This post lays out the litigation process, specifically focusing on a wrongful dismissal, from start to possible trial.
Step 1: The Consultation
This is directly after you you have been wrongfully dismissed. It’s best to contact an employment lawyer in order to assess whether or not you have a claim. If you negotiate your severance package yourself it is very likely that you will end up with much less than if you hire a lawyer to do it, even after legal fees.
An employment lawyer can go over your documentation, hear your side of the story, and see if a claim is worth pursuing. If it is, and you are ready to start a claim, you sign a retainer and the process begins.
Step 2: Initiating the Process/ Filing the Claim
Depending on your situation, your lawyer may recommend sending a letter to your previous employer, or just sending a letter with an actual Plaintiff’s claim and an offer to settle.
Once a statement of claim has been issued it “gets the ball rolling” as the other side is now under specific time limits. Their Statement of Defence must be filed 20 days after they receive the Plaintiff’s claim unless they inform you that they will be filing a claim and who their lawyer is. In that case, it is only extended to 30 days total.
Step 3: Mediation
In some locations such as Toronto, Ottawa and Essex County there is mandatory mediation. Mediation is the stage where a majority of wrongful dismissal cases settle.
Mediation is a useful part of the process (and mandatory in certain areas) because it assists the parties in reaching a settlement and gaining information regarding the other side’s case including what issues they feel are important and what their zone or range of agreement is. During a mediation, the parties and their legal representation will generally sit in separate rooms, and a Mediator will go from room to room, exchanging offers and providing insight on each side’s position.
Once a mediator is appointed the mediator holds a mediation within 90 days of that date. Generally this means that you are having a mediation within 4-5 months of when you first file a statement of claim.
About 80% of cases settle at, or before, the mediation stage.
Step 4: Discovery
Discovery can be held before or after mediation, depending on the case. The discovery process is essentially an opportunity for each party to measure the other’s case.
Discovery consists of two parts, documentary discovery and oral discovery. In documentary discovery, each party has to give the other party all documents arguably relevant to the claim.
In oral discoveries, the company gets to interview the person making the claim and they get to interview one representative from the company. During the interview process, your lawyer is with you the entire time.
The Discovery process is valuable as it is another opportunity to gain insight into the other party’s case and to determine whether a trial is the correct path to take.
Step 5: Judicial Pre-Trial
A pre-trial, as the name implies, is the final stop before an actual trial. During a pre-trial, the parties, their representation, and a judge will be present. The judge will try to achieve settlement between the parties, and will go through the issues of importance and monetary figures, similar to mediation.
The parties will deal with pre-trial issues that need to be resolved in order to get to trial.
Typically, most cases which do not settle at mediation often settle at the pre-trial stage due to the expenses involved with a trial.
Step 6: Trial
If a settlement has not proven possible, the parties will proceed to trial. It often takes a longer time to get to the trial stage, due to the amount of claims within the system.
It can take a year and a half to two years to get a trial date in Ontario.
At trial, a judge will hear from each party’s witnesses, view their evidence and case law in support of their claim, and make a decision as to whether costs should be awarded, against whom they should be awarded, and whether other orders should be made.
Ongoing Advice for Employees
Filing a claim is a process and it is not a ‘quick fix’, however, it is often the only way to obtain a remedy in wrongful dismissal matters. At Monkhouse Law, we also realize that the litigation process is not necessarily affordable for recently terminated individuals, which is why we have implemented a fee deferral system for those clients.
For those employees who have found themselves out of a job, after our initial in person consultation fee, we defer all other fees, including disbursements, until you receive a settlement amount from your employer.
If you believe you may have a wrongful dismissal claim and are currently unemployed, you can still obtain legal representation without the burden of thousand dollar retainers. Contact Monkhouse Law today for a free consultation
Ongoing Advice for Employers
Courts can be a slow process that can result in high legal fees. It is important to get expert legal advice regarding any potential litigation in order to make sure that timelines are being followed and that you are minimizing your costs. To learn more make sure to Contact Monkhouse Law today for a free consultation.