So you have been served with a wrongful dismissal lawsuit, what’s next?

So you have been served with a wrongful dismissal lawsuit, what’s next?

We are regularly contacted by businesses who have been served with a wrongful dismissal lawsuit by a former employee.  This can be very stressful and for many, the first time they have been sued.  Here are answers to some of the most frequently asked questions that we have received from businesses who have been sued by former employees.

1. Do I need a lawyer?

Probably.  Hiring a lawyer to help you defend a lawsuit is a sensible idea.  Lawyers can help explain your rights and obligations, assist in preparing documents and advise you on court rules and procedures, which can be complicated.

Some employers prefer to defend themselves and there are a number of helpful online resources from the Provincial Court (https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides) and Supreme Court (https://www.bccourts.ca/supreme_court/self-represented_litigants/)  which you should access.

2. Is this lawsuit public?

Yes.  Once a Notice of Civil Claim is filed in either the Provincial or Supreme Court it is accessible to the public.  Any documents that are filed with the Court, like a Defendant’s Response or Affidavits are also accessible to the public.  In rare cases, a party can request that documents filed with the Court be “sealed” or labelled confidential which means that they are not accessible by the public.

3. How much will it cost?

It is always difficult to estimate how much defending a lawsuit will cost.  There are filing fees that are set by the Court.  If you hire a lawyer, then you will also have to pay legal fees for their time in assisting you.  Most lawyers charge an hourly rate and those rates can vary.  How complicated the case is will also have an impact on the overall cost.

Bottom line, litigation can be costly, so make sure to ask your lawyer from the outset about their fees and for them to give you a range of the expected cost.  You should also ask your lawyer for regular updates about their fees at each step of litigation.

4. When will I have to pay?

Your lawyer should provide you with a retainer agreement or an engagement letter which sets out the terms of the retainer, including when payment is due.  You may be required to provide an initial retainer when you first hire the lawyer.  Most lawyers require you to pay monthly for any time spent working on your file.

For more information about lawyer’s fees and retainers, see the Law Society of B.C.s website:  https://www.lawsociety.bc.ca/working-with-lawyers/lawyers-fees/

You may also end up having to pay your former employee damages, often in the form of more severance pay. Most cases settle before a trial, so payment happens then, or if you may have to pay the employee after a trial and award, which could take 12 months or more.

5. What happens if I don’t defend it?

If you “do nothing” and decide not to defend the lawsuit, the Plaintiff (the person who sued you) can go to Court and ask for a Default Judgement against you.  If the Plaintiff is successful, then the Court issues an Order stating that the Plaintiff “wins” their lawsuit.  The Plaintiff can then take steps to enforce that Default Judgment against you, which can include garnishing wages, freezing bank accounts or putting liens on property you own.

There are a number of online resources available to help you navigate a lawsuit, including pro bono legal services.  Here is a good summary of some of those resources:  https://www.lawsociety.bc.ca/working-with-lawyers/resources-on-the-justice-system/

Wherever you decide to go, it is important to consult a lawyer to make sure you understand your rights and obligations.