Wrongful dismissal up to $50,000: court or an ESA claim?

Legal information, not legal advice. This guide and our free tools give legal information. They do not give advice about your case. A licensed lawyer can give legal advice.

The answer

If your employer ended your job without cause and without fair notice, you can sue for wrongful dismissal. Small Claims Court takes wrongful dismissal claims up to $50,000.

Choose one path before you file anything. If you file an ESA claim with the Ministry of Labour, the law bars a court case on the same matter. You can withdraw the ESA claim within 2 weeks to keep the court route.

The 2 paths

• An ESA claim goes to the Ministry of Labour, not to a court. It covers the ESA minimums, such as termination pay.
• A court claim can include common-law reasonable notice. The court sets that notice from your job, your service, your age, and the job market. Common-law notice can be longer than the ESA minimum.

You cannot run both paths on the same matter.

What to do

1. Read the warning above before you file anything.
2. Gather the documents: your contract or offer letter, the termination letter, pay records, and benefits records.
3. Read your contract for a termination clause. A valid clause can limit you to the ESA minimums. A clause that breaks the ESA in any part is void, and reasonable notice applies. Get advice on your clause.
4. Estimate the claim: pay and benefits for the notice period, minus what the employer paid you and what you earned. The number depends on your facts.
5. Is the total more than $50,000? You can claim only $50,000 and give up the rest. You cannot split one claim into 2 cases.
6. Check the deadline: 2 years from the dismissal, in most cases.
7. Send a demand letter: /demand-letter.
8. Fill in Form 7A, file it, and pay $108: /build/7a.

You must look for work

You must make reasonable efforts to find new work after a dismissal. The court can subtract what you earn in the notice period. Keep a record of every application, reply, and interview.

Deadlines and fees

• ESA claim window: 2 years.
• Withdrawal window to keep the court route: 2 weeks after the ESA claim.
• Court claim: 2 years from discovery, in most cases.
• File a claim: $108. Fix a trial date: $308.

Common mistakes

• Do not file both an ESA claim and a court claim on the same matter.
• Do not sign a release on the spot. Get advice first.
• Do not stop your job search. Keep the records.
• Do not wait. The 2-year clock runs from the dismissal, in most cases.

When to get a lawyer

Wrongful dismissal turns on your contract and your facts. Get legal advice before you file. Legal services provided by Mithril Law — Jonathan Kleiman, licensed Ontario lawyer.

Free tools

• Check if your claim is worth it: /check
• Write a demand letter: /demand-letter
• Fill in your court forms: /build/7a
• Calculate your deadlines: /calculators/deadlines