Chart Your Path Forward

There are both statutory and common law remedies available to employees in Ontario upon termination. The ESA, as well as Ontario's human rights legislation, similar to employment and human rights legislation in other jurisdictions across the country, include defined complaint and enforcement procedures to ensure employers are complying with the statutes. Through these mechanisms, an employee can claim remedies for breaches of employment and human rights.

Two common law remedies available to terminated employees in Ontario who have either attempted to negotiate their entitlement to reasonable notice under the common law with their employer to no avail, or who would prefer to forgo negotiating the same with their employer, include bringing an action against your employer for either wrongful dismissal or constructive dismissal.

Wrongful dismissal is a claim that in failing to provide you with adequate notice of your termination, your employer violated an express or implied term of your employment contract, and as a result, you should be fairly compensated. All non-unionized employees who have not signed an employment contract with a fixed-duration are considered indefinite-term employees. If an indefinite-term employee is terminated without cause, they are entitled to reasonable notice. If an employer fails to provide reasonable notice or payment in lieu prior to firing an employee on a without cause basis, the employee is entitled to damages.

Constructive dismissal is slightly different than wrongful dismissal. Constructive dismissal is a claim that you were forced to resign from your job because your employer made a unilateral change to a fundamental term of your employment contract which fundamentally changed the very nature of the employee and employer relationship. Some signs that you may have been constructively dismissed include a significant, unilateral change to your employment duties, a reduction or change in how you were being compensated, and being demoted.

In both wrongful dismissal and constructive dismissal actions, an employee can claim monetary compensation for, among other things, lost salary and wages, lost commissions, lost benefits, as well as mental distress and loss of reputation.

Importantly, there is nothing in the ESA which prevents an employee in Ontario from bringing a civil action against their employer. To be clear, even if you have been terminated and your employer provided you with your ESA entitlements, you can still negotiate with, or bring a claim against, your employer regarding your common law entitlements upon being terminated without cause in Ontario.