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Dealing with a dismissal is difficult. The stress of this situation can easily become compounded when an employee is required to fight an employer to receive their lawful entitlements. While a lawyer can provide guidance through the steps of the negotiation and litigation process, knowing how the process works prior to initiating it should help alleviate some of the stress. Here is a brief outline of steps in the litigation process, in the order in which they (generally!) occur:

  1. Sending a demand letter. Most employment matters start with a letter from your lawyer to the employer setting out your entitlements and insisting that these be paid.
  2. Negotiations. The parties may engage in a negotiation to resolve the matter. If, however, the employer is not prepared to negotiate, or will not accept to settle on the employee’s terms (with the assistance of his or her lawyer), the employee will have to begin the litigation process.
  3. Issuing and serving a Statement of Claim. This is the first step to starting a lawsuit. The Statement of Claim (“Claim”) is the document that sets out the employee’s legal position and what he or she believes to be their lawful entitlements from the employer. Generally, a Claim must be issued within 2 years of when the entitlements were due, or the employee will be prohibited from bringing a claim.
  4. Receiving the Statement of Defence. Within 20 days of being served with the Claim, the employer must provide the employee with its Statement of Defence (“Defence”). This is the employer’s response to the employee’s allegations, which sets out its position as to why the employee is not entitled to the things he or she is claiming. If the employer serves a “Notice of Intent to Defend”, it will receive an additional 10 days, for a total of 30 days, to prepare its Defence.
  5. Serving a Reply. The employee has the chance to respond to any new allegations raised in the Defence by serving a Reply. This must be done within 10 days of receiving the Defence. Replies are often not necessary, as they are limited to responding to new allegations only.
  6. Mediation. Once the pleadings (the Claim, Defence, and Reply, if necessary) are complete, the parties typically attend at mediation. In Ottawa, Toronto, and Windsor, mediation is mandatory for most civil claims. Mediation is a confidential process where a neutral third party (the mediator) tries to get the employer and employee to a negotiated settlement. Many employment claims settle at mediation, or shortly thereafter.
  7. Documentary and Oral Discovery. If the claim does not settle at mediation, the parties typically proceed to discovery. This is the phase where the parties exchange all documents relevant to the claim, and get asked questions by the other party about related matters.
  8. Summary Judgment Motion or Trial. A summary judgment motion is a hearing before a judge, usually based on written evidence (as opposed to having witnesses testify orally). It is typically shorter and less expensive than a trial, and can usually be scheduled much sooner. The courts have repeatedly acknowledged that wrongful dismissal cases are particularly well-poised for summary judgment motions; read more in our previous blog posts Another Appropriate Use of Summary Judgment Motions and Summary Judgment Strikes Again!.

If a matter is not appropriate for summary judgment, or if a party loses a summary judgment motion, the matter will be set down for trial, where witnesses will be called and the parties will argue their case. It can take several months following the hearing of the matter (whether by way of summary judgment motion or trial) to receive the judge’s decision.

The steps set out above do not always take place in the same order. For example, plaintiffs are increasingly bringing summary judgment motions immediately following the pleadings, while defendants sometimes insist that discovery take place before the mediation. The parties can also agree to extend most timelines set out above and often do so.

Once the decision is rendered on the summary judgment motion or at trial, parties are usually invited to make cost submissions, after which a decision will be rendered as to how much, if any, of the winning party’s costs will be covered by the losing party.

But the story does not end there. The losing party may appeal all or part of the judge’s decision. However, this is not overly common, and the appeal usually has to be made within 30 days of the decision, such that you will know fairly quickly whether the claim is finally resolved.

While litigation can be a confusing and time-consuming process, understanding the basic steps when trying to enforce your rights will hopefully be of assistance to anyone trying to navigate the litigation process for the first time.

For more information about the litigation process for an employment dispute, contact our Employment Law Group.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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