Wrongful Dismissal in Ontario: Your Rights and What to Do Next

Start here: Severance pay in Ontario: the complete guide explains the ESA minimums, common-law notice and how to negotiate.

Quick answer: In Ontario, "wrongful dismissal" usually means you were fired without the notice or pay in lieu of notice you were legally entitled to. Your employer can end your employment without a reason, but it must give you proper notice, which at common law is often far more than the ESA minimum.

What is wrongful dismissal?

In Ontario, most employers can end your employment without giving a reason, as long as they give you proper notice or pay instead of notice. A dismissal is "wrongful" when they don't. That usually happens in one of three ways:

1. Not enough notice or pay. You were terminated without cause and offered less than you're entitled to. This is the most common situation, and it often comes down to whether you were offered only the ESA minimum when you were owed common-law reasonable notice.
2. Unproven "just cause". Your employer claims misconduct so it can pay you nothing, but the conduct doesn't meet the high legal test for cause.
3. Constructive dismissal. You weren't formally fired, but your employer made a major unilateral change to your job, such as a pay cut, demotion or an unauthorized layoff, or made the workplace intolerable.

Wrongful dismissal is different from a firing that's illegal for other reasons, such as discrimination or reprisal for asserting your rights. Those can lead to separate claims, including under the Ontario Human Rights Code, and can be pursued alongside a wrongful dismissal claim.

What you can recover

• Common-law reasonable notice, based on the Bardal factors: your age, length of service, the character of your job and the availability of similar work. This includes salary, plus bonus, commission, benefits and pension contributions you would have earned during the notice period.
• Your ESA minimums, which are owed regardless. See severance pay in Ontario for how they're calculated.
• Other damages in some cases. If the employer acted in bad faith in how it dismissed you, for example by making false accusations, being misleading, or deliberately withholding what you're owed, courts can award additional damages. See aggravated and punitive damages in Ontario and general damages in employment law.

Does a termination clause change things?

Your contract may try to limit you to the ESA minimum. Many of these clauses don't hold up. In Waksdale v. Swegon North America Inc. (2020), the Court of Appeal held that one ESA-breaching provision, even in the "for cause" section, invalidates the entire termination clause. If your clause fails, you're entitled to common-law notice. Have it reviewed before you accept any offer.

How to prove wrongful dismissal

Your case usually turns on documents. Keep:

• Your employment contract, offer letter and any amendments
• The termination letter, severance offer and release
• Pay stubs, T4s, and bonus, commission and benefits statements
• Performance reviews, praise and awards
• Emails or messages about the termination or the reasons given
• A record of your job search after termination, which matters for the duty to mitigate

More detail: how to prove wrongful dismissal in Ontario.

What to do after you're dismissed

1. Don't sign anything at the termination meeting. See why you shouldn't sign a release on the spot.
2. Ask for everything in writing, including the reason for the termination and the full details of the package.
3. Apply for EI promptly.
4. Start looking for work, and keep records of your search.
5. Get legal advice before the deadline in your offer. Book a free 30-minute phone consultation.

How wrongful dismissal claims are resolved

Most cases settle through negotiation, often after a demand letter from a lawyer. If not, claims can proceed in court. Claims up to $50,000 can go to Small Claims Court, and larger claims go to the Superior Court of Justice. Mediation is common before trial.

Time limit: you generally have two years from the date of termination to start a claim.

Related guides

• Termination without cause in Ontario
• Do you get severance if fired with cause?
• Wrongful termination settlements in Ontario
• Can you get fired without warning in Ontario?

Faisal Agha

Employment lawyer in Toronto. JD, University of Ottawa. About Faisal

This article is general information about Ontario employment law, not legal advice. Every situation is different. For advice about yours, book a free consultation.