Know your rights
Filing an ESA claim? It can cost you the right to sue
You've lost your job and the pay you were handed looks thin. Filing a claim with the Ministry of Labour seems like the obvious next step. Before you send that form, know this: for termination pay and severance pay, a claim and a lawsuit don't go together, and the claim can only get you the minimum.
One dismissal, one route
Ontario's Employment Standards Act, 2000 (the ESA) says it plainly. Under section 97, an employee who files a complaint claiming termination pay or severance pay may not start a civil proceeding for wrongful dismissal over the same termination.
It works the other way too: under section 98, once you sue for wrongful dismissal, you can't file a complaint for termination pay or severance pay about the same dismissal.
Why the choice matters
A Ministry claim enforces the ESA, which sets minimums: up to 8 weeks of termination pay (section 57) and, if you have 5 years or more with an employer whose payroll is $2.5 million or more, severance pay of up to 26 weeks (sections 64 and 65).
A wrongful dismissal lawsuit asks for something else: reasonable notice, the pay courts award in place of the notice you should have had. Courts often award more than the minimum, and the ESA itself says it doesn't take away your civil remedies, except through this rule.
You get two weeks to change your mind
Filed already? Section 97 leaves a way back: withdraw the complaint within two weeks after filing it, and you can still go to court. After those two weeks, the choice is made.
Before you file
- Know both numbers. Your ESA minimum, and what courts have awarded people like you.
- Watch the calendar. A complaint about something that happened more than two years ago is treated as never filed, and suing has its own deadline.
- In a union? Generally you can't file a claim: your collective agreement is the route.
A claim can still be the right choice, for instance when the gap between the two numbers is small. The Ministry's own guide says you may wish to contact a lawyer if you have questions about your entitlements. The point is to choose, not to find out later.
Not sure which route fits? Ask your question →
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Sources
This article is general information about Ontario employment law, not legal advice. The law and its application change, and every case turns on its own facts: for advice about your situation, speak with an Ontario employment lawyer.
