Wednesday, January 21, 2015

Keys to Maximizing Compensation in Harassment-Type Wrongful Dismissal Cases: A Plaintiff Lawyer's Experience

    Litigating harassment-type wrongful dismissal cases is not a job for all.  These cases by their very nature - the fact that a plaintiff is asserting conduct which is not only contrary to law and public policy but is outright socially offensive often means that the lawyer advancing such a case may often become a casualty of the acrimony of the litigation.  The following is my personal experience from a case which I litigated on behalf of an employee who was bullied at work by his supervisor to the point where it caused severe mental distress and prolonged post-termination suffering.

What to Plead:

     Actions of this nature are not standard wrongful dismissal actions.  A standard wrongful dismissal action is based in the law of contracts.  Damages flowing from this cause of action are typically restricted to compensation for reasonable notice.

     Actions involving harassment where there is a provable medically recognized injury is a very different type of case.  These cases, in my view, involve causes of action which go beyond a standard wrongful dismissal pleading.  They involve tort and statutory breach-based causes of action.  Typically the involved statute is human rights legislation.

     In the subject case I asserted claims of negligence, assault and battery and breach of the Ontario Human Rights Code.  In addition, I sought aggravated and punitive damages for the alleged conduct. The effect of these pleadings was to bring the case outside of the reasonable notice forum and into a tort-based forum of compensation - to put the client in the position they would have been in but for the conduct.  These damages are not capped.

Who to Examine:

     Clearly, you will want to examine the main perpetrator.  In the subject case I accomplished this by making this person a party to the litigation.  Often - as was the case in the subject case there was an inconsistency in the supervisor's acts and omissions and the company's stated policies.  You will wish to assert and exploit such a scenario.  You will want to ensure that you obtain as much documentary evidence from the parties being examined as possible.  You will also want to ensure that you pin all parties down on delineating with precision precisely what their defence to the claim is - providing you with the summary of material facts in support of it and the identity and contact information for all material witnesses.  These cases are won at discovery.  The job of effective plaintiff counsel is to make the defendant work to produce all of the material facts in their possession or control.  Defence counsel and defendants do not like to do this from my experience.

Be Careful
Be Civil:

     In advancing these cases it is not uncommon for plaintiff counsel to encounter very strong resistance in the form of refusals to answer relevant questions.   In that case several proper questions were objected to by defence counsel.  Remember - do not lose your cool.  It is simply defence posturing.  It is not worth the time, money and inherent damage to plaintiff counsel's reputation to face a civility complaint to the Society.  If a motion is necessary bring the motion.  In that case a motion was brought and I was successful - the defendant was ordered to answer and had to pay costs for the trouble they caused.


       Once you have armed yourself with all of the facts you need to establish your case, it is vitally important that you know what you want to accomplish in terms of monetary compensation.  As a rule of thumb I am of the view that cases of this nature require six figure compensation with substantial indemnity costs.  After a few hours of negotiations in the subject case defence counsel looked me straight in the eye - pounded her fist on the table and stated, "You are never going to get
$100,000 out of us Ernest Guiste.  I politely said - "very well - I guess we are done.  I will start
preparing for trial."

     A couple weeks after the mediation session I was walking down the street and my cell phone rang.  It was the mediator.  He said to me - "Ernest the other side is willing to do the $100,000 now.  I said - "Very well - I will advise my client and get back to you.  My client's position had changed now.  There was too much hurt.  I advised the mediator that $100,000 was not enough and that I would be preparing for trial and I did.


     The case settled in advance of trial for well over the $100,000.

Keys to settlement:

1.  Retain a lawyer who knows the area of law and will plead the case properly
2.  Retain a lawyer who has experience litigating these cases
3.  Retain a lawyer who is willing to spend the time.  These cases can take time to get to fruition.

Available for Consultation:

     If you have experienced racial, sexual or any other forms of harassment at work which has adversely impacted your health to the point where you are unable to work in your
work environment feel free to call me for a consultation on your case.
Tel.(416) 364-8908 - E mail:

NOTE:  Cases settle based on the facts and the particular circumstances of the parties.  I do not by any means promise or represent that I will recover six figure settlements on every case.

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