What Constitutes Wrongful Dismissal in Canada?
When you are dismissed without reason in Canada, it may seem like an immense betrayal, and it usually is. Wrongful dismissal is not merely the loss of a job, but the loss of what you have earned under the law and contract.
In Canada, such redress is based on the firm legal grounds of common law and statutory acts, such as the Ontario Employment Standards Act (ESA) or BC’s ESA. You have a right to know, and as an employment lawyer, you guide people through these dark waters.
Understanding the Legal Definition of Wrongful Dismissal
Wrongful dismissal occurs when you are dismissed without reasonable notice or cause, and the employer does not provide reasonable notice or pay in place of notice. Under common law, that notice period is calculated with the help of the well-known Bardal factors: your job position, your experience, your age, and how quickly you could find a new job. That is not speculation; that is an ethical calculation that is very much based on equity and fairness.
Constructive Dismissal: When Staying Becomes Impossible
It is not always about the termination itself. In other cases, an abrupt pay cut, one-sided demotion or an abrupt change in duties or venue may be so severe that it amounts to constructive dismissal. You did not quit; you were pushed out by unacceptable change. And the courts will view it as a termination in the name of employment.
Just Cause: The High Bar Employers Must Clear
Employers can say they fired you with cause, typically based on misconduct. The thing is that the standard is sky-high. The just cause requires intentional misconduct that essentially destroys the relationship. In McKinley v. BC Tel (2001 SCC 38), the Supreme Court emphasized that performance problems or even one slip-up would seldom suffice, and you would have to demonstrate intentional carelessness or gross ethical violations. Lateness or poor performance alone does not qualify.
Bad Faith in Termination: Wallace and Keays Damages
Although Keays v. In Honda Canada (2008 SCC 39), you may still be compensated even when your employer was mean to you when firing you. If they lied to you, publicly humiliated you, falsified reasons, or blocked your prospects, you can be entitled to bad faith damages (previously called Wallace bumps). The Court clarified that such damages must represent your injury, not merely a catch-all to give notice. The courts need evidence of distress that is a natural result of the dismissal.
Minimum Entitlements Under the Employment Standards Act
Provincial laws, such as the ESA in Ontario, establish minimums. When you have been employed for at least three months, you normally have a right to basic notice, which varies between four and eight weeks, depending on the length of employment. But that is not all: common law usually grants much more, particularly when you have served longer or are in a senior position. The statutory minimum is not a ceiling, but a floor.
If you are blindsided by dismissal, seek the advice of an employment lawyer immediately. She will guide you through your rights, assist in calculating your notice or severance entitlement, and determine whether constructive dismissal or bad faith damages are applicable. Such matters can become legally complicated soon. Your attorney makes sure you are not getting less than you deserve.
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