In the recent case, Kaminsky v Janston Financial Group, 2020 ONSC 5320, the plaintiff
sued her former employer for wrongful dismissal after working for the defendant company for close to 18 years.
Examinations were held out of court in order for each party to discover the other’s position on the lawsuit issues through questions. After they concluded, the plaintiff made a request to the court, which is called a motion. The purpose of the motion was to remove certain paragraphs from the defendant’s Statement of Defence. The paragraphs sought to be removed referred to alleged work performance concerns that would have allowed the defendant to terminate the plaintiff for a valid reason.
The plaintiff’s reasons for bringing the motion were: (i) two paragraphs in the Defence clearly stated that the plaintiff was terminated without any reason, and (ii) the director of the defendant company had admitted in the examinations that the plaintiff was fired without any reason. When the plaintiff was examined, she refused to answer close to 50 questions regarding the alleged performance concerns. Her basis for refusing to answer was that the questions were not relevant due to the fact that the director said she was fired without any reason. The director did not correct the Defence to state that the termination was for any valid reason, nor did the director change her earlier admission.
An employer may raise performance issues about an employee in their Defence even if the employer learned about these issues after the employee was terminated. This proposition was not found to apply to the Defence. The defendant in this case knew about the alleged performance concerns which were valid grounds to terminate the plaintiff, but chose not to do so.
The Court determined that the paragraphs of the Defence that spoke to alleged performance concerns were not relevant to the plaintiff’s termination without any reason, did not serve a proper purpose, and were ordered to be removed from the Defence.
WHY THIS CASE MATTERS
As an employer, you are entitled to terminate an employee for a reason, if you have valid grounds to do so. This case demonstrates that if the employee is terminated without any reason, you should not include in the Statement of Defence allegations of wrongdoing by the employee. The consequences are that paragraphs of the Statement of Defence may be ordered to be removed by the Court.