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Q

I am involved in a wrongful dismissal lawsuit with my former employer. They are being unreasonable, if not stubborn, on settlement. Is there anything I can do to effectively back them into a tight corner?

A

Yes, the Rules of Civil Procedure in Ontario, and other jurisdictions, provide a mechanism for realistic and reasonable litigants to put the other party, in this case your former employer, at greater risk if they behave unreasonably.

By crafting and presenting a formal offer to settle, which represents a clear expression of the lowest amount you are prepared to accept in full and final satisfaction of your claim, you may be able to put your former employer at increased risk. Typically, if the amount you are awarded at trial exceeds the amount from which you earlier offered to settle with your former employer, a trial judge will award you full indemnity on the legal costs of your action from the time you made your offer onward. This is meant to encourage litigants to put forward reasonable settlement positions at the earliest possible opportunity. The logic associated with this principle suggests that if what you are awarded at trial exceeds your offer to settle, your former employer should have, in hindsight, accepted your offer to settle at the time it was made. Accordingly, all legal costs you incurred from the date of your offer to settle forward, are typically borne by your former employer.

As a result, an employer, in litigation, presented with a realistic offer to settle by a former employee must carefully consider its terms. Failure to accept the reasonable offer put forward by a former employee, if it turns out at trial the award exceeds that amount, yields the result that your former employer will pay a substantial portion of the legal costs associated with you having to continue the lawsuit.

There are some technical aspects to putting forward an effective formal offer to settle and you should consult with your lawyer in that regard.

Finally, most jurisdictions require parties go through a mediation process prior to trial which often serves as a positive platform for settlement, particularly in employment law disputes.

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Please Note: Any information provided in response to an HR or payroll question is not legal advice or a legal opinion. To obtain legal advice or a legal opinion, consult a lawyer.

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