Say you are fired and are offered a lump sum settlement in exchange for a Release of the company. You know little about the Employment Standards Act and are uncertain if the settlement offered is fair. What should you do? Read on for information on typical Ordinary Procedure (claims over $50,000.00) litigation stages…1) NEVER sign a Release without proper legal advice and consultation from your licensed attorney. Tell your employer that you would like some time to think about it and then contact a lawyer.
2) Once you retain a lawyer, he or she will typically forward your employer a Demand Letter on your behalf. The Demand Letter is a document that briefly outlines the events surrounding the employee’s dismissal, the employee’s legal rights and how those rights were breached by the employer. Towards the end of the Demand Letter, your lawyer may put forth your settlement position. The purpose of such a demand letter is to bring the legal dispute to a quick settlement (or at least to kickstart further negotiations), thereby saving the client thousands of dollars in legal fees, time and stress.
3) If the demand letter is unanswered or the employer refuses to settle, then the actual court litigation is commenced by the delivery of the Statement of Claim which is a written statement by a Plaintiff (i.e. person commencing proceedings) detailing the facts which support the claim against the Defendant (i.e. the one defending against the claim )and the relief sought.
4) Upon receipt of the Statement of Claim, the employer/Defendant (who by then has usually retained a lawyer) will deliver the Statement of Defence which is a written statement by the Defendant detailing the facts which support its defence against the claims sought by the Plaintiff.
5) Next, the Plaintiff has the option of a Reply which is a document responding to the allegations set forth in the Statement of Defence. This typically will close this stage known as the Pleadings.
6) After the close of Pleadings, each side has an obligation to disclose all the documents that the party has in its position that are relevant to the litigation between the parties in a sworn document referred to as an Affidavit of Documents. In more complicated proceedings, this document might consists of dozens if not hundreds of documents to be disclosed.
7) Note that in all wrongful dismissal cases, a mediation (i.e. negotiation between the parties facilitated by neutral third party called the Mediator) must be held within 150 days of the close of Pleadings.
8) Should the parties not resolve their dispute at the mediation, the next step in the proceedings is the Examinations for Discovery, which represents an opportunity for lawyers to assess the strengths and weaknesses of the evidence and their case in greater detail by examining the other party under oath. Discoveries of even one individual can often take more than a day to complete and therefore can be quite costly.
9) You should bear in mind that at any time, a party might bring a Motion which is an interlocutory procedural device to bring about a decision of the court on a contested matter before the actual trial. These motions are often utilized as delay tactics by Defendants and add costs to the overall litigation process.
10) Before proceeding to the Trial, one of the party’s counsel sets the matter down for Trial by filing a legal document called the Trial Record. Once a case is placed on the trial list, a Notice of Pre-trial Conference will be sent to all the parties listing a date for the Pre-Trial Conference. A Pre-Trial Conference is a meeting of the parties usually before a judge who will hear what evidence and documents each party intends to rely on and give his or her opinion on the case. The judge at the Pre-Trial Conference will try and effect settlement but cannot enforce one and will not be the same judge sitting for the parties’ Trial. To prepare the judge for the Pre-trial Conference, each party is obligated by Ontario Rules of Civil Procedure to deliver a Pre-Trial Memo setting out the facts and issues in dispute.
11) If no settlement is reached at the Pre-trial Conference, then the matter finally proceeds to Trial (although one should bear in mind that a Trial is rare, as about 95% of cases settle before trial.) At the Trial, the judge will hear evidence as presented by both parties and render an order called the Judgment. A judge will then award costs accordingly or ask each party to make submission for costs. Of course, the losing party might have the option of an Appeal on the Judgment. In the event that the winning party has difficulty collecting on a Judgment, there are many ways to try and effect Enforcement of the Judgment.Note that for each stage mentioned there might be some or many documents that need to be filed/served (e.g. to start Examinations for Discovery one serves a Notice of Examination).
As for claims between $10,000 and $50,000, Ontario courts provide a more expedited set of rules called Simplified Procedure also referred to as Simplified Rules. The Simplified Rules process eliminates some of the more costly stages of Ordinary Procedure claims, most notably the Examinations For Discovery, and is invoked in order to speed the litigation along for a quicker (but still not necessarily quick) litigation. For more information on Simplified Procedure visit http://www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/rule76factsheet.asp.
Finally, for claims up to $10,000, the Small Claims Court is the venue for such litigation. Because of the maximum recovery amount of $10,000 and costs of legal representation, litigants sometimes choose to represent themselves to save money. While this might be efficient for some cases, in other instances, litigants often may find themselves on the losing end regardless of the evidence, as they are ill-equipped to present legal arguments and evidence before the Small Claims Court judges. It is highly recommended that you find a qualified lawyer.
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