Unjust Dismissal: Being Prepared from Start to Finish - Hicks Morley

Unjust Dismissal: Being Prepared 

from Start to Finish 

June 5, 2013 

Unjust Dismissal: Being Prepared from Start to Finish 

June 5, 2013

Unjust Dismissal: Being Prepared from 

Start to Finish 

Daniel B. Fogel 

Frank Cesario 

Elisha C. Jamieson 


June 5, 2013

Overview 

• Process & Strategy 

• Overlapping Forums 

• Remedies 

• Professional and Ethical Issues 


June 5, 2013

Process & Strategy 

• The Complaint – Canada Labour Code ss. 240 and 241 

• non-unionized employee with at least 12 consecutive 

months of continuous employment may make a 

complaint if the employee “considers the dismissal to be 

unjust” 

• complaint shall be made within 90 days of dismissal 

• inspector may request employer “to provide a written 

statement giving the reasons for the dismissal” (15 days 

to respond) 


June 5, 2013


• Preparing the response [s. 241(1)] 

• Adjudicators do not permit amendments 

• Rogers Cantel Inc. v. Meilleur (1992): “The general 

rule… is that the responding employer is limited at 

the hearing… to those matters raised in its letter of 

response to the inspector from Labour Canada ...” 

• Exceptions include: 

• where the employer seeks to expand upon the 

reasons initially given, so long as those expanded 

reasons relate to those initially proffered 


June 5, 2013


• Preparing the response: 

• Strategic Considerations 

• Parties are “stuck” with the original response 

• It is essential that all incidents that you intend to rely 

on are stated in the response 

• Must clearly state the reason for cause and be 

factually accurate 

• The less detail the better 


June 5, 2013


• Preliminary Objections: 

• The position is redundant: section 242(3.1)(a): 

• Limitations on complaints – No complaint shall be 

considered by an adjudicator… where… that person 

has been laid off because… of the discontinuance of 

a function 

• Canadian Imperial Bank of Commerce v. Muthiah 

(2011) 


June 5, 2013


• Preliminary Objections: 

• The employee is a manager or employed in a 

confidential capacity 

• Section 167(3): Division XIV does not apply to or in 

respect of employees who are managers 

• The employee has been employed for less than 12 

consecutive months 


June 5, 2013


• What if you do not have cause for dismissal 

• In order to respond, you must allege cause 

• However, recent cases suggest an alternate approach: 

• If the contract defines a method of termination, and 

provides greater notice than under the Code, the 

adjudicator is without jurisdiction 


June 5, 2013


• What if you do not have cause for dismissal 

• Paul v. The National Centre for First Nations 

Governance (2012) 

• “In cases where there is a contract of employment 

that is not considered unconscionable, adjudicators 

have often concluded that they have no 

jurisdiction if the contract defines a method of 

terminating. Although this approach is not universal, 

I am of the view that in the circumstances of this case 

I do not have jurisdiction.” 


June 5, 2013

Overlapping Forums 

• CHRC Claim vs. CLC Claim 

• Canada Labour Code, s. 242(3.1)(b): 

• Limitation on complaints - No complaint shall be 

considered by an adjudicator under subsection (3) in 

respect of a person where a procedure for redress 

has been provided elsewhere in or under this or any 

other Act of Parliament. 


June 5, 2013



• Canadian Human Rights Act, s. 44(2) 

If, on receipt of a report referred to in subsection (1), the 

Commission is satisfied 

(a) that the complainant ought to exhaust grievance or review 

procedures otherwise reasonably available, or 

(b) that the complaint could more appropriately be dealt with, 

initially or completely, by means of a procedure provided for 

under an Act of Parliament other than this Act, 

it shall refer the complainant to the appropriate authority. 


June 5, 2013



• MacFarlane v. Day & Ross Inc. (2010) 

• an adjudicator must decline to hear an unjust 

dismissal complaint if another substantially similar 

complaint has been filed under the Canadian Human 

Rights Act, or 

• where no complaint has been submitted under that 

Act, if the Canada Labour Code complaint raises 

human rights issues which could reasonably 

constitute a basis for a substantially similar complaint 

under the Canadian Human Rights Act. 


June 5, 2013



• MacFarlane v. Day & Ross Inc. (2010) 

• the Canadian Human Rights Commission could refer 

the complaint to the adjudicator if it is satisfied that it 

could be more appropriately dealt with in the context 

of an unjust dismissal hearing. 

• In such an event, the adjudicator would have the 

authority to hear and decide the human rights 

allegations to the extent that they relate to the unjust 

dismissal which he is appointed to adjudicate. 


June 5, 2013


• Civil Claim vs. CLC Claim 

• Ng v. Bank of Montreal (2010) 

• In this case, the adjudicator did not decide the unjust 

dismissal complaint because it was withdrawn 

• “Absent a prior final determination on the merits, I see 

no basis to apply the doctrine of abuse of process, 

especially in light of section 246(1) of the Canada 

Labour Code which provides that ‘no civil remedy of 

an employee against his employer is suspended or 

affected by sections 240 to 245’.” 


June 5, 2013


• Civil Claim vs. CLC Claim 

• Ng v. Bank of Montreal (2010) 

• “Had I not found that Ms. Ng's claim was statutebarred, 

I would not have been inclined to exercise my 

discretion to stay her action.” 

• Unclear whether Court’s refusal was premised on 

withdrawal of unjust dismissal complaint or because 

the two proceedings could be pursued concurrently 


June 5, 2013

Remedies 

• Section 242(4): 

(4) Where an adjudicator decides pursuant to subsection (3) that a 

person has been unjustly dismissed, the adjudicator may, by order, 

require the employer who dismissed the person to 

(a) pay the person compensation not exceeding the amount of 

money that is equivalent to the remuneration that would, but for 

the dismissal, have been paid by the employer to the person; 

(b) reinstate the person in his employ; and 

(c) do any other like thing that it is equitable to require the 

employer to do in order to remedy or counteract any 

consequence of the dismissal. 


June 5, 2013

Remedies 

• Reinstatement: s. 242(b) 

• Sprint Canada v. Lancaster (2004) 

• the purpose of the Code is to provide employees with 

similar protection against unjust dismissal as would 

be available under a collective agreement 

• reinstatement is appropriate in all but the most 

exceptional circumstances 

• Sheikholeslami v. Atomic Energy of Canada Ltd. (1998) 

• Reinstatement inappropriate where: (a) an absence 

of trust; and (b) the relationship is no longer viable 


June 5, 2013

Remedies 

• Monetary Orders: s. 242(a) 

• Wolf Lake First Nation v. Young (1997) 

• Designed to fully compensate an employee who is unjustly 

dismissed. 

• Limiting the amount of damages for unjust dismissal to the 

amount of severance pay or on the basis of the common law is 

an error. 

• Ross v. Rosedale Transport Ltd. (2003) 

• Employee is entitled to be compensated for any and all losses of 

wages and other employee benefits from the date of termination 

until the date of the award, whether or not reinstatement is 

ordered. 


June 5, 2013

Remedies 

• “Make Whole” Orders: s. 242(c) 

• Lockwood v. B & D Walter Trucking Ltd. (2010) 

• philosophy is to make the claimant whole by compensating for 

any real losses that are a result of the dismissal 

• Can include damages for: 

• Emotional distress 

• Personal Dignity and Mitigation expenses (incl. cost of flights) 

• Legal costs and moral damages 

• Award of legal costs against employee is permitted only in 

extraordinary circumstances 


June 5, 2013

Remedies 

• Other Types of Orders 

• Potential Issues: 

• Can an adjudicator award damages for loss of 

earnings and loss of opportunity 

• Can an adjudicator order an employer to change or 

amend a Notice of Termination (Form 33) 


June 5, 2013

Professional and Ethical Issues 

2.04 - Unrepresented Persons 

(14) When a lawyer is dealing on a client’s behalf with an unrepresented 

person, the lawyer shall 

(a) urge the unrepresented person to obtain independent legal 

representation, 

(b) take care to see that the unrepresented person is not proceeding 

under the impression that his or her interests will be protected by the 

lawyer, and 

(c) make clear to the unrepresented person that the lawyer is acting 

exclusively in the interests of the client and accordingly his or her 

comments may be partisan. 


June 5, 2013


• Other Rules which may play a role when dealing with 

unrepresented persons include: 

• Rule 4.01(2)(h) – binding authorities 

• Rule 4.01(6) and 6.03(1) – courtesy 

• Rule 6.03(2) – agreeing to reasonable procedural 

requests 

• Rule 6.03(5) – communications 


June 5, 2013


Rule 2.02: Quality of Service 

• Encouraging Compromise or Settlement 

• (2) A lawyer shall advise and encourage the client to compromise or 

settle a dispute whenever it is possible to do so on a reasonable basis 

and shall discourage the client from commencing useless legal 

proceedings. 

• (3) The lawyer shall consider the use of alternative dispute resolution 

(ADR) for every dispute, and, if appropriate, the lawyer shall inform the 

client of ADR options and, if so instructed, take steps to pursue those 

options. 


June 5, 2013

Unjust Dismissal: Being Prepared 

from Start to Finish 

June 5, 2013 


June 5, 2013

Unjust Dismissal: Being Prepared from Start to Finish - Hicks Morley

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