To defend against a wrongful dismissal claim in New Brunswick, employers must decisively prove they provided adequate severance notice or had clear “just cause” for the termination. You strictly have 20 days to file your Statement of Defence at the Court of King’s Bench.
Letting an employee go is never an easy commercial decision, but sometimes it is necessary for the survival of the company. However, if a former employee feels they were treated unfairly, they may retaliate by filing a wrongful dismissal lawsuit. For businesses operating in Dieppe, Bathurst, or Miramichi, facing a sudden legal claim can be incredibly stressful and financially draining. Under New Brunswick law, employees possess strong legal protections, and the burden heavily rests on the employer to prove the termination was lawful.
This comprehensive legal guide outlines how to defend your business against a wrongful dismissal lawsuit in New Brunswick. We will explain how to evaluate the claim, the vital difference between just cause and reasonable notice, and why partnering with a skilled labour law firm is critical to minimizing your financial exposure.
Step-by-Step Process to Defend a Wrongful Dismissal Claim
Ignoring a lawsuit is the absolute worst strategy an employer can adopt. If you fail to respond to a legal claim, the court can easily award a default judgment against your business, allowing the ex-employee to automatically win. Here is how you should proactively respond.
Step 1: Acknowledge the 20-Day Legal Deadline
When your business is formally served with a Statement of Claim, the clock immediately starts ticking. In New Brunswick, you generally have exactly 20 days to file a formal Statement of Defence with the Court of King’s Bench. Missing this strict deadline is disastrous.
Your very first move should be to contact an employment lawyer. Do not contact the former employee directly to argue 🚫. Anything you say in a panicked email or voicemail can be used as evidence against your company in court.
Step 2: Preserve All Employment Records
To mount a strong defence, your legal team needs concrete documentation. You must immediately secure the employee’s entire personnel file. This includes their original signed employment contract, any disciplinary warnings, performance reviews, and email correspondence.
If your defence relies on proving the employee performed poorly, you need a documented paper trail showing that you warned them and provided a chance to improve . Without hard evidence, judges typically side with the employee.
Step 3: Assess the “Just Cause” Threshold
In Canadian employment law, firing someone for “just cause” means you fired them for serious misconduct (like theft, violence, or gross insubordination) without paying any severance. Claiming just cause is the “capital punishment” of employment law, and New Brunswick judges set an exceptionally high bar for proving it.
If you cannot conclusively prove just cause, your defence will pivot to proving that the severance (notice) you offered was legally sufficient. Severance is calculated based on common law factors like the employee’s age, length of service, and the nature of their position 📊.
Step 4: Draft and File the Statement of Defence
Once your lawyer has reviewed the facts, they will draft the Statement of Defence. This formal legal document explicitly denies the former employee’s exaggerated claims and outlines your company’s version of the events.
After filing the document at the local Court of King’s Bench, both parties typically enter a discovery phase and are strongly encouraged to attempt mediation . Settling out of court is almost always cheaper and far less disruptive to your daily business operations than proceeding to a full public trial.
| Termination Type | Employer Obligation | Legal Defence Strategy |
|---|---|---|
| Without Cause | Must provide reasonable notice or pay in lieu. | Argue that the severance package offered met common law standards. |
| With Just Cause | No severance or notice is required. | Provide strict documentation of severe misconduct or chronic policy violations. |
| Constructive Dismissal | Employee quit due to forced negative changes. | Prove that the changes to their job duties or pay were minimal or agreed upon. |
How Much Does it Cost in New Brunswick?
Defending an employment lawsuit carries significant corporate expenses, making early settlement a wise business strategy:
- Court Filing Fees: Filing your Statement of Defence at the Court of King’s Bench costs roughly $75 CAD.
- Legal Retainers: Hiring an employment litigation firm usually requires an upfront retainer between $3,500 and $7,500 CAD.
- Mediation Costs: A private commercial mediator typically charges between $1,500 and $3,000 CAD per day, often split equally with the former employee.
- Trial Fees: If the dispute refuses to settle and goes to a full trial, total employer legal fees can easily reach $20,000 to $40,000 CAD.
How Long Does the Process Take?
Employment disputes are rarely resolved overnight. If both sides are reasonable, the matter can often be settled through private mediation within 3 to 6 months. However, if the former employee stubbornly demands an unreasonable payout, litigating the case through the New Brunswick court system can realistically take 12 to 24 months before a trial date is finally secured.
Frequently Asked Questions (FAQ)
Does the Employment Standards Act determine severance?
No, not entirely. While the Act sets the absolute minimum severance required by provincial law, New Brunswick courts apply “common law” reasonable notice, which usually entitles the employee to a significantly higher payout.
Can an employment contract limit their severance?
Yes. If the employee signed a properly drafted, legally binding employment contract that explicitly limits their severance to the Employment Standards Act minimums, the court will generally enforce it and dismiss the lawsuit.
What happens if the employee finds a new job quickly?
This is called “mitigation.” If the fired employee secures a similar job shortly after termination, their financial damages are significantly reduced, and your company’s legal obligation to pay ongoing severance drops accordingly.
Can I just pay them what they are asking to make it go away?
You can negotiate a settlement, but never hand over a cheque without having the employee sign a strict “Full and Final Release.” This legal document firmly prevents them from ever suing your company again for this specific issue.
Will my business reputation be ruined by a public trial?
Trials are public record, meaning anyone can read the allegations. This is exactly why most businesses prefer to settle wrongful dismissal lawsuits quietly through confidential mediation before they reach a courtroom.
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