Wrongful Termination In Ontario: 28 Questions & Expert Answers

If you’ve found yourself reading this post, you’ve likely just experienced the termination of your employment in Ontario. You might have even been wrongfully dismissed. I want to acknowledge that this is a stressful situation and I’m sorry that you’re going through it.

As a lawyer that has spent her career dedicated to employment and human rights law, I’ve connected with hundreds of employees that have gone through the termination of their employment in Ontario. As you can imagine, they have a lot of questions. Although many are unique to their specific situation, a few consistent themes have emerged. 

To help you navigate this challenging situation, I’ve compiled a list of frequently asked questions from employees that have been terminated in Ontario, and will do my best to provide answers as an employment lawyer.

Note: As mentioned, every situation/contract/termination package is unique, so please consult with an employment lawyer to discuss your matter. This post includes legal information but is not legal advice.

28 frequently asked questions from employees that have been wrongfully terminated in Ontario and answers from an employment lawyer‍

1. "What is the difference between termination with cause, without cause, and wrongful termination in Ontario?"‍

Termination "with cause" means an employer has grounds to dismiss an employee, typically due to misconduct or persistent performance related issues. In contrast, termination "without cause" happens when an employer ends employment without alleging misconduct, requiring them to provide notice or pay in lieu of notice.

In Ontario, wrongful termination describes a dismissal that violates employment laws or breaches the terms of an employment contract. For example, if you've been terminated without cause and your employer does not provide adequate notice or severanceyou're likely being wrongfully terminated. It also includes terminations that were based on discrimination as prohibited by the Ontario Human Rights Code, or retaliatory dismissals for exercising legal rights.

2. "Can my employer really terminate me without cause in Ontario?"‍

Yes, employers in Ontario can terminate employees without cause, provided they offer adequate notice, or pay in lieu of notice, following the guidelines set by the Employment Standards Act, 2000, and the common law, if applicable. An employment lawyer can help you determine if the employer’s notice, or pay in lieu of notice, is fair given your specific situation.

3. "How do I know if my termination was without cause?"‍

If your employer does not provide a specific reason related to misconduct or performance for your termination, but they do provide notice pay, you’ve likely been terminated without cause.

4. "What is the difference between being terminated without cause and being laid off?"‍

Being terminated without cause means your employment is ended without fault on your part, requiring notice or severance from the employer. A layoff, on the other hand, is typically considered a temporary work stoppage with an expected return to work. However, if prolonged, or if your employer has no right to lay you off under contract or past practice, a layoff will become a termination unless you consent to it. If you’ve been laid off, it’s best to speak with an employment lawyer immediately to determine your rights. 

5. "Can my employer terminate my employment without providing any warnings?"‍

Getting terminated without any warnings can feel abrupt, but as mentioned above, employers in Ontario can terminate your employment without cause, which means they can legally dismiss an employee without giving warnings as long as they provide adequate notice, or pay in lieu of notice. However, if the termination is for cause due to misconduct or persistent poor performance, it's generally expected that the employer will have provided warnings and an opportunity to improve before proceeding with termination. If your employer alleges they have cause to terminate you, it's a good idea to speak with an employment lawyer. Employers must meet a high bar to prove just cause, and sometimes cause is alleged where there isn’t any.

6. "My performance reviews have been great; I don't understand why I'm being terminated?"

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‍Unfortunately, many of the employees we speak with have had good performance reviews before being terminated, which can feel quite disheartening. But as mentioned, in Ontario, employers can terminate employment without cause, meaning they do not need to provide a reason related to job performance. Even if your performance reviews have been positive, you can still be legally terminated as long as the employer complies with requirements for notice, or pay in lieu of notice, as outlined by the Employment Standards Act, 2000 and the common law, if applicable.

7. "Can I ask for a written reason for my termination?"‍

We get this question a lot, as many employees feel that a reason for their termination will provide closure, especially if they’ve dedicated much of their working career to an employer. Although you can request a written explanation for your termination, employers are not legally required to provide one unless specified in a contract or collective agreement.

8. "Should I sign a severance package or release agreement immediately after termination?"‍

No, it's in your best interest to review any severance offer with an employment lawyer before signing to ensure it fairly compensates you for your termination. Employers will often add a deadline to sign your release, but you can always ask for an extension if you did not have enough time to consult with an employment lawyer.

9. "Is there a difference between severance and termination pay when terminated without cause?"‍

In Ontario, termination pay is compensation for employees terminated without cause, calculated based on their length of service – at a minimum, this typically amounts to one week per year of employment, up to eight weeks. Severance pay, on the other hand, is owed to longer-term employees – at least five years – under specific conditions, such as the employer's payroll exceeding $2.5 million or a permanent closure of the business, offering one week of pay per year of service, up to a maximum of 26 weeks. The key distinctions between them lie in their eligibility criteria, with severance pay targeting long-term employees and often amounting to more substantial compensation due to an employee's prolonged service.

10. "How do I negotiate a better termination package?"‍

Consider consulting with an employment lawyer who can assess the fairness of the offer and negotiate on your behalf for improved terms.

11. "What happens if I find a new job while negotiating my termination package?"‍

Finding a new job may affect your negotiations, as compensation is normally focused on your lost income. However, each case is unique, and legal advice is beneficial.

12. "How does termination without cause affect my eligibility for Employment Insurance (EI)?"‍

You're generally eligible for EI benefits after a termination without cause, provided you meet the other eligibility criteria set by Service Canada.

13. "I'm unionized, can I be terminated without cause?"‍

For unionized employees, terminations must follow the specific procedures outlined in their Collective Agreement. If you’ve been terminated, please contact your union or an employment lawyer that specializes in supporting unionized employees.

14. "I was terminated without cause, but was not offered notice, pay in lieu of notice, or a release, what now?"‍

If you were terminated without cause, and were not offered notice, pay in lieu of notice, or a release, you might have a claim for wrongful termination and should consult with an employment lawyer for advice.

15. "What should I do if I believe my termination was discriminatory?"‍

If you suspect discrimination for any reason (disability, age, race, sex, pregnancy, etc.), you can file an application with the Human Rights Tribunal of Ontario or seek legal advice to explore your options for recourse, as this would constitute wrongful termination.

16. "How do I know if I've been wrongfully terminated and what are my rights?"‍

If you've been terminated without cause, and were not provided proper notice, pay in lieu of notice, or severance as per the Employment Standards Act, 2000 and common law where applicable, you’ve likely been wrongfully terminated. In addition, any termination related to discrimination or retaliation for exercising legal rights would also be considered wrongful termination. If wrongfully terminated, you may be entitled to notice, severance pay, compensation for lost benefits, pension, and bonus, and damages for breach of contract or human rights violations. Make sure to consult with an employment lawyer to discuss your rights.

17. "What kind of compensation might I be entitled to when wrongfully termination?"‍

When you claim that you've been wrongfully terminated, the damages you seek are pay in lieu of reasonable notice of your termination. Essentially, reasonable notice is determined based on a number of factors, including length of service, position, age, availability of comparable employment, and more. In addition to pay in lieu of notice, you should also be eligible for any benefits, bonuses, pension, etc. that you would have been entitled to during the notice period.

In some cases, employees may also be entitled to damages relating to the manner of dismissal and/or punitive damages. If discrimination contributed to your termination, you would also be entitled to general damages for discrimination.

18. "What role does the Ministry of Labour play in wrongful termination cases?"‍

The Ministry of Labour (MOL) investigates violations of the Employment Standards Act, 2000 but does not handle wrongful dismissal claims directly. Such claims may require legal action in court. Employees should seek legal advice before filing a claim with MOL as doing so will impact their ability to seek remedies in court or tribunals. 

19. "How long do I have to challenge a wrongful termination?"‍

You typically have two years from the date of termination to file a civil lawsuit for wrongful termination in Ontario. That’s why it’s important to consult with an employment lawyer. Please note that you only have one year from the date of a discriminatory incident to file a human rights application. 

20. "How do I file a claim for wrongful termination?"

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‍You have a choice. You can either file a complaint for termination pay and severance pay, if applicable, with the Ministry of Labour, or, you can sue your former employer in court for wrongful dismissal. You cannot do both. This means that if you file a claim with the Ministry of Labour you forgo your right to sue for wrongful dismissal, and vice versa. An employment lawyer can help you understand these different approaches in order to determine the best option for your circumstance. 

21. "Can my employer give me a negative reference after a wrongful termination?"‍

Employers are allowed to provide truthful references, but they cannot make false or malicious statements that could harm your future employment prospects. If you suspect this is happening, please consult with an employment lawyer.

22. "How should I explain my termination to potential employers?"‍

Be honest but concise. Focus on what you've learned from the experience and how you're looking forward to new opportunities. Termination without cause can happen for many reasons, many of which are out of your control.

23. "Can wrongful termination affect my immigration status if I am on a work visa?"‍

Yes, losing your job may affect your immigration status if your visa is tied to your employment, even if you've been wrongfully terminated. Consult with an immigration lawyer immediately to explore your options.

24. "Is there a difference in my rights if I was a part-time employee versus full-time?"‍

Under Ontario law, part-time and full-time employees have the same rights regarding termination and severance, though the amounts may vary based on hours worked and earnings.

25. "Should I seek legal advice even if I don’t plan to file a lawsuit?"‍

Yes, obtaining legal advice can clarify your rights and options, and help you make informed decisions about how to proceed after a wrongful termination. An employment lawyer can also help you determine if the employer’s notice or severance offer is fair given your circumstances.

26. "What are the common mistakes to avoid when dealing with wrongful termination?"‍

The most common mistakes we’ve seen include signing a termination package too quickly, not seeking legal advice, and discussing the case inappropriately on social media or with former colleagues. These mistakes typically make seeking recourse in a wrongful termination more challenging. 

27. "Can my employer retract my termination?"‍

Employers can retract a termination, but this is rare and usually occurs only if both parties agree to resolve the situation amicably. Typically, the best course of action when terminated without cause is to seek compensation that is fair and part ways. If your termination was tainted by discrimination or reprisal you may request reinstatement, should you wish to pursue it. 

28. "Should I look for a new job immediately, or wait until after my wrongful termination case is resolved?"‍

If you’re medically able to, you should start your job search immediately and keep a detailed record of the same. Whether you file a claim for wrongful dismissal or an application at the Human Rights Tribunal of Ontario, you have a duty to mitigate your losses which means finding new, comparable, work as soon as possible. 

The best approach is to speak with an employment lawyer when terminated in Ontario‍

As mentioned throughout the FAQ, every situation is unique, and it’s best to consult with an employment lawyer to ensure you’re being treated fairly when wrongfully terminated in Ontario. 

If you’ve been terminated without or without cause or wrongfully dismissed in Ontario, Kompa Law can help. We’re a boutique employment and human rights law firm with the expertise to help you successfully navigate this challenging situation. Request a callback to learn more.