Application Best Serves Proportionality, Efficiency, and Justice in Wrongful Dismissal Case: ONSC

Applications remain an appropriate vehicle, if not the preferred approach, for the resolution of wrongful dismissal cases. In an endorsement released May 12, 2026, the Honourable Justice Marc Garson of the ONSC refused a request to convert a wrongful dismissal application into an action.

In providing reasons for decision, Justice Garson observed, "Proceeding by application best reflects the principle of proportionality in light of the issues raised. It is also the most efficient, cost-effective and timely means of achieving a just result." Adding, "While many wrongful dismissal claims involving employment contracts proceed by way of an action, there is no requirement that this case do so."

Commentary

As some may know, I have long had a penchant for proceeding via Application in wrongful dismissal cases. Farah v. EODC Inc., 2017 ONSC 3948, referenced by Justice Garson in his reasons for decision, was I case I brought.

In 2023, I gave a presentation to the Thunder Bay Law Association titled, I Swear This Works: Expedient Advocacy in Employment Law Cases, in which I sang the virtues of Applications.

I maintain the position that most wrongful dismissal cases are appropriate for resolution via Application.

About Sean Bawden

Sean Bawden is Experience. At Work.

I am an experienced employment lawyer and wrongful dismissal lawyer practicing across Ontario and beyond with Kelly Santini LLP, which is based in Ottawa.

For two and a half years, I was in-house legal counsel providing employment law advice to one of Canada’s largest corporations and appeared in labour courts and tribunals literally the world over.

I have also been a part-time professor at Algonquin College and have taught Employment Law, Trial Advocacy for Paralegals, and Small Claims Court Practice. I am a past president (2024-2025) of the County of Carleton Law Association (“CCLA”), and have sat as a safe sport adjudicator.

I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

How to Efficiently Get Your Wrongful Dismissal Case Through the Ontario Superior Court of Justice

On July 6, 2022, the applicant commenced employment with her employer pursuant to the terms of a one-year fixed-term contract agreement. Sometime before the end of that one-year term, the employer terminated the contract.

On March 27, 2023, the employee caused the Ontario Superior Court of Justice sitting at Hamilton to issue an Application against the employer for damages equal to the balance of the contract.

The employee’s application was heard less than three months later and on June 21, before the contract was even set to expire, she had her decision.

For those critical of the pace at which some litigation can move, the claim stands as proof that with proper advocacy things can get done.

Termination for “Cause” Provision Violates the ESA

Does a termination clause that only allows an employer to terminate an employee without notice for “just cause” comply with the provisions of the Ontario Employment Standards Act, 2000?

In the case of Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617, the Honourable Justice Carole J. Brown of the Ontario Superior Court of Justice held that it does not.

Wrongful Dismissal Cases are Appropriate for Resolution by way of Application: ONSC

(c) istock/Jrcasas

A frequent criticism of the Canadian judicial system is that it moves too slowly. Indeed, as the Supreme Court of Canada recently observed in its now infamous decision in R. v. Jordan, [2016] 1 SCR 631, 2016 SCC 27 there has been a “culture of complacency towards delays” in the justice system for years. And while the Supreme Court’s comments were directed towards the criminal system in that case, most would tend to agree that things are no better in the civil bar.

And so what is one to do when he finds himself with a simple, straight-forward wrongful dismissal case, where the only points in issue are: (1) Is this employment contract dispositive of my entitlements to reasonable notice, and (2) If the answer to that question is no, then what is the notice period?

Prevailing wisdom over the past seven or so years has been that the dismissed party should start an action, and then bring a motion for summary judgment. (See the comments of Justice Hackland in Beatty v. Best Theratronics Ltd., 2014 ONSC 3376 (CanLII): I agree with Perell J.’s observation in Adjemian v. Brook Crompton North America, [2008] O.J. No. 2238 (Ont. S.C.J.) that summary judgment may be an appropriate and optimal way to proceed in cases involving the determination of reasonable notice periods.)

But, as will be considered below, motions for summary judgment, especially in cases where the amount claimed is less than $100,000, can have their drawbacks and limitations.

Is there a better way yet still?

I believe there is. And, in the case of Farah v EODC Inc., 2017 ONSC 3948 (CanLII), the Ontario Superior Court of Justice endorsed such an approach as appropriate.