Deciding where to bring a wrongful dismissal case that also contains a discrimination claim should be given careful thought, says Toronto employment lawyer Doug MacLeod.
“It’s a pretty important strategic decision that can have a significant impact on the outcome of the case,” says MacLeod, principal of MacLeod Law Firm.
MacLeod says the first task is to assess the situation. Often someone will seek legal advice after being laid off or terminated. Only after asking the right questions does it become clear that there may be a discrimination claim as well.
In those situations, the main options in Ontario are to go to small claims court, the Ontario Human Rights Tribunal, or the Superior Court of Justice, MacLeod tells AdvocateDaily.com.
The first consideration is to keep in mind is that the vast majority of termination cases are settled before trial. So the litigation process in each legal venue and the needs of the client have to be carefully considered at the outset, he adds.
The Human Rights Tribunal has more expertise when it comes to adjudicating discrimination, however, “It’s potentially dangerous to go to the Human Rights Tribunal because if the adjudicator finds there’s no discrimination, then they won’t award any damages for lost wages,” MacLeod says.
“Accordingly, if it’s a very weak discrimination case, we would normally lean towards commencing proceedings in the courts.”
Another consideration is how much the client has to invest in litigation. If the client can’t afford to pay legal costs or disbursements like filing fees, and transcript costs, then the Tribunal could be the best option for a case with a strong discrimination claim.
The client’s objectives is another factor to take into consideration. In this regard, MacLeod has found some people are really looking for their day in court.
“At the Tribunal an employee usually attends a three-hour mediation,” he says. This mediation provides the client with an opportunity to tell her story to an objective third party, often without the other side being present.
If the client goes through the courts, however, they may not have that chance, and if they do, they could be subject to a gruelling cross-examination. This can be traumatic for individuals who have been subject to discrimination such as sexual harassment.
“The court process can be a terrible process for some employees,” MacLeod says. “Many employees find it to be quite a stressful process.”
Long-term employees who are entitled to a long notice period and have a human rights complaint are often best served through the court system, says MacLeod. The summary judgment procedure allows these employees to get before a judge, often in six to nine months, to obtain wrongful dismissal damages. This can be contrasted with the Tribunal where it often takes a year to get to a hearing.
“One situation where a lawyer may decide to commence a claim under the Simplified Rules in Toronto is where the wrongful claim is worth more than $25,000 but a large human rights award is not expected,” he adds. In those situations, mediation is mandatory and most cases settle at or shortly after these mediations.
Small claims court will hear wrongful dismissal cases that are less than $25,000, but there is no mandatory mediation.
“There are a lot of factors to consider when deciding which legal forum to bring a wrongful dismissal claim that also involves a alleged violation of the Ontario Human Rights Code,” MacLeod says.