If Dr. Suess wrote wrongful dismissal claims is a review of wrongful dismissal law at Ontario law. It uses a fictitious and silly claim to explain Ontario employment law and to demonstrate how to plead a claim for wrongful dismissal.

1. IF DR. SUESS
WROTE CLAIMS FOR
WRONGFUL DISMISSAL
Sean P. Bawden
Employment Lawyer - Kelly Santini LLP
Part-Time Faculty – Algonquin College School of Business
www.ottawaemploymentlaw.com

2. INTENT AND PURPOSE
The intentions and purposes of this slide deck are, through a
fictitious and somewhat silly example, to:
(a) Explain some basic principles of “wrongful dismissal” at Ontario
law; and
(b) Demonstrate, in basic terms, how to prepare a Statement of
Claim for wrongful dismissal.

3. SCENARIO
The claim will be for a 52 year-old man, located in Ontario,
Canada, who had worked for his employer for 17 years before
finding himself suddenly and unexpectedly unemployed.
The employer has provided nothing for severance on the basis
that it had legal just cause for dismissal.
The employee refutes such claims and sues. What follows is
the text of his Statement of Claim, the document used to start
a lawsuit, if the same had been written by the late children’s
author, Dr. Suess.

4. PRESENTATION OVERVIEW
This slide deck will proceed in two parts:
First, the claim will be presented without commentary;
Then, the various claims will be explained.

5. SUMMARY OF CLAIM
The Statement of Claim is divided into and is presented in six parts:
1. The plaintiff’s claim for relief;
2. The parties;
3. The facts;
4. Liability;
5. Damages;
6. Statutes relies upon.

6. THE CLAIM
B E T W E E N:
THEODOR SEUSS GEISEL
Plaintiff
- and -
GRINCH ENTERPRISES (ONTARIO) LTD.
Defendant

7. CLAIM
1. From this Honourable Court the Plaintiff seeks:
(a) Payment in lieu of 52 weeks;
(b) To this he adds a claim as was in Keays; one million dollars
he would ask, if this Court it would please;
(c) Interest on damages, both pre-judgment and post;
(d) His costs of this action - full indemnity at most;
(e) And if after pleading the Defendant causes more grief,
this Honourable Court should grant such other relief.

8. THE PARTIES
2. The Plaintiff is an individual, residing in this town most merry. At
all material times he was an employee of the Defendant, whose
behaviour has been particularly scary.
3. The Defendant is a corp., carrying on business in town. On
account of its behaviour this Court must shut it down!

9. FACTS
4. Now fired by the boss, the Plaintiff claims for his loss.
5. The employer alleges cause, but such argument has flaws.
6. The employer will allege hoozits, and whatsits, and issues galore. But as this
Court will find, such accusations deplore.
7. At the time of dismissal 52 was his age. He made 90k a year; much more
than minimum wage.
8. The plaintiff worked hard for about 17 years. Termination of employment
was never one of his fears.
9. The plaintiff made snoozits; he made banglers; he made the boss money. To
be fired in such a way is surely not funny.

10. LIABILITY
10. Implied in all contracts of employment is that termination will be
on reasonable notice. To avoid paying such damages is the employer's
most sinister motif.

11. DAMAGES
11. The Plaintiff relies on the factors in Bardal. Making a rhyme with
such a name is particularly hardel.
12. The Plaintiff seeks pay in lieu of notice in the amount of one
year. Being close to reasonable the Defendant's position does not
even come near.
13. Alleging just cause where the same is not true, requires the Court
to award not only compensatory damages but aggravated ones too!

12. STATUTES RELIED UPON
14. The Plaintiff pleads and relies on the 2000 ESA. To be treated
fairly in employment would now truly make his day.

13. EXPLANATION
Now to explain why I did what I did.

14. STYLE POINTS
Note the following style points in the claim:
1. Paragraphs are numbered.
2. Each point is its own paragraph.
3. Six headings are used to organize the claim into six different
subject areas. Both the number and ordering are standard.
4. Claims need not rhyme. Although I see no rule prohibiting such a
thing.

15. PARAGRAPH 1
A claim should always start with the heading “Claim”.
The first paragraph typically reads “The Plaintiff claims against the
Defendant for:” and then subparagraphs follow in which the
particular claims are made, as was done in this case.

16. PARAGRAPH 1(A)
1(a): From this honourable court the plaintiff seeks… payment in lieu
of 52 weeks.
As is more fully explained here, http://bit.ly/19nHfu0, claims of
wrongful dismissal are essentially claims that one’s employer failed to
provide “reasonable notice” of termination. Reasonable notice is
measured in units of time; most often weeks or months.

17. PARAGRAPH 1(B)
1(b) To this he adds a claim as was in Keays; one million dollars he
would ask, if this Court it would please.
Honda v. Keays, 2008 SCC 39, is the leading Supreme Court of Canada
authority concerning when and how aggravated damages for the
manner of dismissal from employment are to be awarded.

18. PARAGRAPH 1(C)
1(c) Interest on damages, both pre-judgment and post.
Pursuant to the provisions of the Court of Justice Act, a plaintiff is
entitled to both pre-judgment and post-judgment interest on any
amount awarded for damages.
More information on interest rates is available here:
http://www.attorneygeneral.jus.gov.on.ca/english/courts/interestrates.asp

19. PARAGRAPH 1(D)
1(d) His costs of this action - full indemnity at most.
A successful party to an action is typically entitled to an award of
“costs” in addition to damages. Costs is an amount awarded by the
court to indemnify a party for the costs associated with litigation,
both actual and legal fees. The amount awarded for “costs” will vary.
Typically one does not get full indemnity; one is awarded less.

20. PARAGRAPH 1(E)
1(e) And if after pleading the Defendant causes more grief, this
Honourable Court should grant such other relief.
Most claims will contain a catchall “and such further and other relief
as counsel may request and this Honourable Court may allow”
because the court can only award that which is requested. This phrase
is intended to ensure nothing is missed.

21. THE PARTIES
It is a rule of pleadings that the legal status of the parties to a claim
must be identified within the body of the claim. A party to a claim
may be an individual, a corporation, a partnership, a municipality, a
crown corporation, or some other form of legal being. Only legal
entities may sue and be sued. In some cases, such as in the case of
minors, a “litigation guardian” must be appointed.
One should also plead where the parties live or carry on business.

22. PARAGRAPH 2
2. The Plaintiff is an individual, residing in this town most merry.
At all material times he was an employee of the Defendant, whose
behaviour has been particularly scary.
Given the rule of pleadings that the legal status of the parties must be
identified, paragraph 2 confirms that the plaintiff is an individual.
One should also plead where a party lives or carries on business.

23. PARAGRAPH 3
3. The Defendant is a corp, carrying on business in town. On
account of its behaviour this Court must shut it down.
This paragraph pleads that the defendant is a corporation. Typically,
one would identify pursuant to what law the corporation was
incorporated. While there are several statutes pursuant to which a
corporation may be incorporated, the Ontario and Canada Business
Corporations Acts are most common.
Note that it is also pleaded that the defendant carries on business in
the same jurisdiction where the claim was commenced.

24. FACTS
Always give the court a brief and concise statement of the facts that
would entitle the plaintiff to judgment.
In the Ontario Small Claims Court, the evidence supporting the facts
should be attached to the claim.
In the Ontario Superior Court of Justice evidence must not be
pleaded.

25. PARAGRAPH 4
4. Now fired by the boss, the Plaintiff claims for his loss.
This paragraph sets out that the plaintiff has been dismissed from
employment. This fact is the primary reason he is suing – he has lost
wages.

26. PARAGRAPHS 5 & 6
5. The employer alleges cause, but such argument has flaws.
6. The employer will allege hoozits, and whatsits, and issues galore.
But as this Court will find, such accusations deplore.
These paragraphs set out the issue the court must resolve: Did the
employer have legal just cause to terminate employment? The
employer will claim that it did. Legally, if an employer has “just cause”
to terminate employment, then it is excused from providing the
dismissed employee with notice and severance.

27. PARAGRAPH 7
7. At the time of dismissal 52 was his age. He made 90k a year;
much more than minimum wage.
This paragraph breaks a cardinal rule of pleading that only one fact
should be contained in each paragraph; the same has been done for
rhyming purposes.
An employee’s age is one of the four key factors in determining the
amount of reasonable notice to which he is entitled.

28. PARAGRAPH 7
7. At the time of dismissal 52 was his age. He made 90k a year;
much more than minimum wage.
The amount of an employee’s salary is important for two reasons.
First, one needs to know the employee’s salary in order to calculate
the amount of money to which he would be entitled. (Wrongful
dismissal damages are a function of one’s wages.)
Second, an employee’s salary can speak to the “character of his
employment” and the chances he will be able to find new, comparable
employment at a similar salary level.

29. PARAGRAPH 8
8. The Plaintiff worked hard for about 17 years. Termination of
employment was never one of his fears.
Length of employment is one of the four key factors in determining
the amount of reasonable notice to which a dismissed employee is
entitled. However, one should not employ any sort of mechanical
calculation, such a one week or one month per year of service to
calculate reasonable notice.

30. PARAGRAPH 8
8. The Plaintiff worked hard for about 17 years. Termination of
employment was never one of his fears.
Under Ontario law an employer need not have cause to terminate
employment. Absent certain express prohibited reasons, an employer
may terminate the employment of any employee at any time.

31. PARAGRAPH 9
9. The Plaintiff made snoozits, he made banglers, he made the boss
money. To be fired in such a way is surely not funny.
The plaintiff in this case alleges that the employer breached the duty
of good faith an fair dealing on termination. Employers owe
employees a duty of honesty on termination (Honda v Keays; Wallace v.
United Grain Growers Ltd., [1997] 3 S.C.R. 701.)
Alleging cause where it is not warranted can be a breach of this duty.

32. LIABILITY
In order to be successful in a lawsuit a plaintiff must establish that the
defendant did something legally wrong; i.e. that the defendant is
“liable” to the plaintiff for doing something legally prohibited.

33. PARAGRAPH 10
10. Implied in all contracts of employment is that termination will
be on reasonable notice. To avoid paying such damages is the
employer's most sinister motif.
In Machtinger v. HOJ Industries Ltd., [1992] 1 SCR 986, the Supreme
Court of Canada confirmed that it is a presumed implied condition
of all contracts of employment that termination will be on reasonable
notice. The Court in that case confirmed that the presumption can be
rebutted where the employer has used a legally binding employment
agreement setting out a different, legal, amount of notice.

34. PARAGRAPH 10
10. Implied in all contracts of employment is that termination will be
on reasonable notice. To avoid paying such damages is the
employer's most sinister motif.
Recall that in this case the employer has alleged cause, meaning that if
it can win on that point it can avoid paying damages for reasonable
notice.
The plaintiff employee thus alleges that the defendant employer is
liable for its failure to provide reasonable notice or payment in lieu
thereof.

35. DAMAGES
The second component of any lawsuit is damages; i.e. the amount of
money to which the plaintiff makes claim as a result of the
defendant’s wrongdoing.
As mentioned before, in a wrongful dismissal case, the amount of
“damages” to which a dismissed employee is typically entitled is
measured as a payment in lieu of the wages the employee would have
earned/received had the employer kept the employee in employment
during the “reasonable notice” period.

36. PARAGRAPH 11
11. The Plaintiff relies on the factors in Bardal. Making a rhyme
with such a name is particularly hardel.
Bardal v Globe and Mail, [1960] OWN 253 (HCJ) remains the leading
case for calculating reasonable notice.
The four factors set out by the court in that case for determining
reasonable notice were: the employee’s age, years of service, character
of employment, and the availability of similar employment. (Have a
look back at paragraphs 7 & 8.)

37. PARAGRAPH 12
12. The Plaintiff seeks pay in lieu of notice in the amount of one
year. Being close to reasonable the Defendant's position does not
even come near.
To be wholly honest, on these factors I think the plaintiff is
undervaluing his claim – but it makes better rhyming.
Note, however, that he sets out what he believes is this notice period
(one year, or 52 weeks as pleaded in paragraph 1(a).) He then seeks
payment in lieu of notice, as is appropriate.

38. PARAGRAPH 13
13. Alleging just cause where the same is not true, requires the Court
to award not only compensatory damages but aggravated ones
too!
Compensatory damages are designed to compensate a plaintiff for his
actual loss. Payment in lieu of notice is compensatory.
As mentioned before, lying about the reason for dismissal is a
“separate actionable wrong” entitling a dismissed employee to
“aggravated damages”, i.e. money on top of compensatory damages
to express disapproval of the employer’s actions.

39. STATUTES RELIED UPON
“Statutes” are laws passed by elected governments. An example of a
statute is the Ontario Employment Standards Act, 2000, SO 2000, c 41.
The Employment Standards Act, 2000 is an Ontario law, a statute, setting
out minimum standards of employment in this province with respect
to employees other than those employed in a “federal work or
undertaking.”

40. PARAGRAPH 14
14. The Plaintiff pleads and relies on the 2000 ESA. To be treated
fairly in employment would now truly make his day.
As mentioned in the previous slide, the Employment Standards Act, 2000
prescribes certain minimum standards with respect to employment.
One of that law’s provisions is that employees are entitled to notice
of termination.

41. FOLLOW-ON
For more information about employment law in Ontario or for legal
advice about your situation, contact:
Sean P. Bawden
Employment Lawyer
Kelly Santini LLP
160 Elgin Street, Suite 2401
Ottawa, ON K2P 2P7
T. 613.238.6321 x260
E. sbawden@kellysantini.com

42. DISCLAIMER
Everyone’s situation is different.
The preceding is not intended to be legal advice for any particular
situation.
It is always prudent to seek professional legal advice before making
any decisions with respect to your own case.