Thursday, December 6, 2012

Proper Pleadings in Wrongful Dismissal

A recent decision from the Superior Court of Justice, in Phillips v. Ontario Racquet Club, is a rare and helpful guide to drafting a wrongful dismissal statement of claim.

The case involves a tennis coach suing in wrongful dismissal, defamation, and other causes of action, and the defendants brought a motion trying to strike out extensive parts of the Statement of Claim.  The claim wasn't perfect, but the defects were largely technical and the motion was largely unsuccessful.

Advocacy teachers will tell you that the pleadings are among the most important parts of legal proceedings.  The pleadings are often the first thing that a judge or other decision-maker will see of the case, and so framing the issues in a way that is favourable to your side is centrally important.

At the same time, pleadings serve an important technical role, defining the issues in dispute, and there are technical requirements in the Rules of Civil Procedure.  So there's a dual-role in pleadings - technical, and a tool of persuasion - and sometimes there is a tension between the two roles.

The Case

From the decision, I've inferred that Phillips' allegations are that he was dismissed, and that the employer (and specific individuals involved with the employer) later set out to destroy his reputation, making allegations of sexual harassment, and inciting people to make complaints against him.  The claim included an allegation that an email was sent by one of the defendants to tennis directors, club owners, tennis association heads, etc., across the country, making the allegations of sexual harassment and sexual assault, and calling for Tennis Canada to end its relationship with Mr. Phillips.

Phillips also made allegations that the ORC had a high turnover, that other Tennis Directors had been forced out, and that the workplace was generally poor but that he had made significant strides to improve it.

The defendants argued that significant parts of the pleadings were improper.  They succeeded in a couple of ways, most importantly regarding turnover.  (Note that this isn't universally improper in wrongful dismissal:  see Covelli v. Sears.)  However, they did not convince the Master that much of the plaintiff's narrative background was irrelevant, nor the allegations regarding his improvement to the workplace.  His background was relevant to his reputation (and therefore to the defamation), and his job performance was relevant to the wrongful dismissal allegation.  Many of the finer points on which the defendants won will be easily corrected in an amended statement of claim.

Ultimately, the defendants did not succeed in having any substantive allegations struck, and their success in having damaging allegations struck was limited to the allegations of turnover.

For lawyers, the case is useful, because it gives some guidance as to the kinds of issues to which they should be alive when drafting pleadings.  Many of the actual defects in the statement of claim are actually quite common, but seldom are they really challenged, because there's nothing to be gained.

For example, the plaintiff claimed $2,000,000 for defamation, breach of contract, and wrongful dismissal.  Strictly speaking, a claim should break down what is being claimed in respect of each cause of action.  In practice, these amounts are usually generously estimated.  If I claim a million dollars, and the Court finds that I'm entitled to $150,000, it will award me $150,000.  In general, I lose nothing by putting too high a number in the claim itself.  By contrast, if I only put the number $125,000 in the claim, and the Court finds that I'm entitled to $150,000, I only get the number in the claim.  (In theory, putting a number too high could be relevant to costs, and in some cases the choice of venue may have been wrong, but generally speaking, the number in the claim is only a ceiling, and a high one at that.)  In this case, the Court essentially told the plaintiff to fix it.  Which his lawyer will be able to do easily enough.  It's an empty win for the defendants.

My Thoughts

There are a lot of different minor issues in the case, and I'm not going into detail on all of them, but I wanted to touch on the question of the relevance of his job performance.

The Master is correct, without a doubt, that job performance is essentially always pleaded in wrongful dismissal cases.  The employee will almost always claim to have done an exemplary job, and the employer will deny that allegation...but ultimately, it doesn't really matter in most wrongful dismissal cases.

There are a small number of judicial decisions implying that the fact that an employee did a good job may affect the notice period, but that proposition isn't beyond question, and it's trite law that poor performance doesn't shorten the notice period.  If there's just cause, the employee gets nothing.  If there's misconduct falling short of just cause, the employee is still entitled to full "reasonable notice".

Where just cause is alleged on the basis of poor job performance, it's obviously relevant.  Where performance-related bonuses are claimed, performance may be relevant.

Of course, at the stage of issuing the statement of claim, a plaintiff isn't necessarily 100% certain that performance isn't going to be in issue, and it simply makes sense for a plaintiff to contend that he/she performed his/her obligations under the employment contract, but pleading it more particularly than that to show that the employee was a really good employee...well, I think there might be room to question that practice.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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