Can a claim be brought under the ESA in addition to starting an action for wrongful dismissal?

Question: In Ontario can an employee bring a claim under the Employment Standards Act, 2000, in addition to starting an action for damages for wrongful dismissal?

Answer: No, under the Employment Standards Act, 2000, an employee cannot sue an employer for wrongful dismissal and also maintain a claim for termination or severance pay pursuant to the act.

The act provides that an employee may start a civil action after starting an employment standards complaint only if the complaint is withdrawn within two weeks after having been filed.

After this two-week period, the employee should be confined to his ESA claim and should no longer be permitted to start or continue a civil action for wrongful dismissal (subject only to a court’s inherent jurisdiction to do justice in any particular case. See Scarlett v. Wolfe Transmission Limited as reported on page 2987 in issue #383 of CELT.)

For more information see:

Scarlett v. Wolfe Transmission Limited, 2002 CarswellOnt 3917 (O.S.C.)

Peter Israel is counsel to Goodman and Carr LLP in Toronto and is head of the firm’s Human Resource Management Group. Peter can be reached at (416) 595-2323.

Latest stories