Severance Pay Ultimate Guide
How Much Severance Pay After Termination?
Read Time: 35 - 45 mins
This is the ultimate guide to Severance Pay and a complete guide regarding suing for severance pay.
According to the Government of Canada, Severance pay is money paid to you by your employer when you lose your employment through no fault of your own. If you think you may have been paid less than your fair share after termination, you might be considering suing for reasonable notice under the common law principles of wrongful dismissal, or constructive dismissal or suing for severance pay and termination pay under ESA. If you're thinking about doing so, keep reading to find out how.
The amount of severance pay you are entitled to depends on several factors. Common law reasonable notice is the default position unless the employment contract explicitly restrict the employee to Employment Standards Act statutory minimum termination pay and severance pay with employee consent.
As an employer or an employee, it makes sense to consult with severance pay lawyers from time to time especially if you live in the Toronto area. A Severance pay Lawyer is just a phone call away! FREE Consultation, No-Win-No-Fee for qualified severance pay cases.
Click here to check out the wrongful dismissal ultimate guide - a dismissal claim for those who are wrongfully terminated by their employer.
Click here to check out the constructive dismissal ultimate guide - a dismissal claim for those who are constructively dismissed by their employer.
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Questions to Ask a Severeance Pay Lawyer:
1 - What is Severance Pay?
Most companies provide a severance agreement that spells out the financial conditions of the employee's departure. In Ontario, a severance package is mandatory. The common everyday usage of the word severance is very different than what it meant in employment law context. How much "severance pay" you are entitled to legally depends on whether you intend to sue under common law or if you intend to file an ESA claim after you have been terminated.
How Much Severance Pay Do I Get?
Common Law vs. Employment Standards Act (ESA)
Common Law Severance, also referred to as reasonable notice, share nothing in common to ESA Severance and they mean very different things.
The Employment Standards Act breaks down the amount an employee might receive after termination into ESA termination pay (the amount you get depends on how long you have been working for the company) and ESA severance pay (an amount to award long term service employees if certain conditions are met).
The Common Law, on the other hand, does not draw a distinction between termination pay and severance pay, and instead award a monetary amount depends on a number of factors.
Common Law Severance
The amount an employer is required to give to a terminated employee in the form of a severance package is decided by a variety of factors, such as the length of service, age, reason of termination, position held within the company, wages and compensation previously earned, whether the individual was actively recruited, and the general economy.
It is important to note that under common law in a wrongful dismissal case or a constructive dismissal case, all damages are packaged together and referred to as "reasonable notice".
Entitlements under common law reasonable notice may dramatically exceed the statutory entitlements under ESA. A damage award in a successful case be as high as 24 to 26 months in some extreme cases.
There’s no minimum length of duration an employee needs to work to qualify for Common Law reasonable notice. Unfortunately, Common Law severance is not rocket science, and there’s no clear formula like in the case of ESA Severance. All we can do is comply the quantum of damage by keeping a list of cases involving common law reasonable notice, and then compare each employment law case at hand with the that list.
The amount an employer is required to give to a terminated employee in the form of a severance package is decided by a variety of factors, such as the length of service, age, reason of termination, position held within the company, wages and compensation previously earned, whether the individual was actively recruited, and the general economy.
It is important to note that under common law in a wrongful dismissal case or a constructive dismissal case, all damages are packaged together and referred to as "reasonable notice".
Reasonable Notice Under the Common Law will be discussed in detail in Part 5 below.
Click here to learn more about wrongful dismissal.
Click here to learn more about constructive dismissal.
ESA Termination Pay and Severance Pay
Under Employment Standards Act (ESA), the entitlement in the form of a severance package is broken up into two components, termination pay and severance pay. Click here to learn more about termination pay from the Ministry of Labour website. Click here to learn more about severance pay from the Ministry of Labour website.
Under most circumstances, entitlements under the common law principles of wrongful dismissal or constructive dismissal are substantially more than those under the ESA.
Severance Pay & Termination Pay Under ESA will be discussed in detail in Part 4 below.
How Soon Do I Get My Severance Package Entitlements After Termination?
Deadline to Pay Severance Package Under Employment Standards Act (ESA)
According to the Ministry of Labour:
Employees are entitled to termination pay and severance pay, if applicable, under ESA, seven days after their employment is ended or on their next normal pay day, whichever comes first.
An employer may, however, give severance pay in instalments with the employee's electronic or writing agreement or with the authorization of the Director of Employment Standards, Ministry of Labour, Training, and Skills Development.
A payment plan cannot be extended beyond three years. If an employer fails to make a scheduled severance payment, the employee's whole severance pay is due immediately.
Do note that while severance pay may be made in instalments, termination pay MUST be paid in full within 7 days or the next normal pay day, whichever is later.
Severance Package Under Common Law - Timeline
A claim for reasonable notice is usually filed as a wrongful dismissal suite or a constructive dismissal suite in the Superior Court. Litigation is highly unpredictable, and it could take a long time for a case to be decided by the Court.
The majority of cases filed with the court system will be settled at the mediation / settlement stage to reduce costs. We, at HTW Law, will try to negotiate a fair settlement on your behalf the best we can.
At HTW Law, we will litigate zealously on your behalf if the case cannot be settled, but no one can predict how long it will take if it comes down to that.
If you've been let go from your job and you feel that it wasn't fair, it's vital to speak with a severance pay lawyer as soon as possible.
Time is of the essence - the sooner you reach out to an employment attorney, the easier it will be for your attorney to reach a settlement for you. So you get the hard earned money 💲💲 back to your pocket. 💰
If you've been denied a fair severance package and you're searching for a lawyer who can help you with a case regarding termination without cause, termination for cause, or constructive dismissal under common law, or severance pay and /or termination pay under ESA, we're here to help. Reach out 👐🏾 to HTW Law today so we can help you get the severance package you deserve.
Time is crucial, and if you wait too long, your prospects of collecting damages will be diminished, and you may even be prohibited from doing so by law.
Call an employment lawyer to book an employment lawyer consultation as soon as you become aware of an employment law issue.
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2 - Why you Need a Severance Pay Lawyer?
If you've been the victim of wrongful dismissal or constructive dismissal, you're not alone. While this time in your life may be terrifying, a Toronto severance pay lawyer can work with you to help you fight back and take control of your life once again.
If you've been let go from your job, it can be an uncertain and scary time. You may be struggling in figuring out how you're going to pay your bills. You may be searching for another job while trying to juggle between your bills and the child care needs.
While a severance package is not meant to last a lifetime, it is meant to be a helpful stepping stone to help you get started in a new career. A severance compensation package can be a huge asset to your well-being, allowing you to keep on fighting for what you deserve. At HTW Law, we know what to do to maximize your severance payout.
We'll examine the circumstances of your employment and work with you to discover how your employer has denied you a fair severance package. It's key to give us as much details as possible so that we can build a strong case against your employer.
Often, we're able to settle out of Court as we demonstrate to your employer that he or she did something illegal. This can result in your employer offering a settlement, or offering you to have your job back. We'll take care of the back and forth negotiations necessary to get you what you deserve.
We understand that going through a wrongful termination in Toronto or a constructive dismissal can be devastating, and we're here to do the works necessary in helping you get your life back. It can be overwhelming in fighting your employer alone. We have the resources necessary in giving you a fighting chance against corporate giants.
If you've been terminated unfairly, it's essential that you reach out for help as soon as possible right away. You DON'T have to fight this alone. Don't wait!! Time is of the essence.
If you've been let go from your job, we're here to assist you. Reaching out to us today to talk with a severance pay lawyer about your case. We handle sensitive employment law clients’ information with care.
HTW Law - Employment Lawyer is conveniently located right next to the intersection of Highway 401 and Highway 404 with a huge parking lot. You may view our Google Map here.
FREE initial employment law consultation with an experienced severance pay lawyer for qualified employment law cases!! Call us now at 647-849-6582 or Contact Us Now if you have any inquiry regarding severance pay or you want to book an appointment with us for an no obligation No-Win-No-Fee severance pay lawyer consultation.
3 - The HTW Law – Severance Pay Lawyer Approach
HTW Law - Employment Lawyer is a full-service employment law firm in Toronto that also offers employment law services near me to residents of various communities.
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Core Beliefs at HTW Law – Employment Lawyer
At HTW Law - Employment Lawyer, we believe in taking a client-centered approach and are dedicated to developing long-term relationships with our clients while providing employment law services and practical legal advice tailored to their specific needs.
We value every client who visits our employment law Toronto office, even if it is just for a lawyer consultation with an employment lawyer. Our clients aren't just file numbers or cash register receipts; they're living, breathing people in our minds and hearts.
We are not a personal injury firm that also practices employment law because we think it is profitable. We like helping people, which is why we founded HTW Law.
No one at our firm will put a client under pressure to settle an employment law case quickly so that we can laugh all the way to the bank, nor will we make up a plethora of fees and charges and bill you as "out-of-pocket costs."
We are passionate about employment law and keep ourselves up-to-date by attending seminars, conferences, and staying current on employment law cases and legislation.
We want you to succeed in your employment law litigation because we believe that word-of-mouth advertising based on your success stories is the most effective form of advertising.
It's simple. Good employment law Legal Services = happy client.
The HTW Law – Employment Lawyer Advantage
At HTW Law – Employment Lawyer, we provided free employment law consultation to employees in need, and we offer no-win, no-fee counsel in qualified employment law cases, which means that we don't get paid unless and until you get paid. You can rest assured that you are in capable hands, especially given that our success is dependent on your recovery.
We are well-versed in employment laws and human rights laws and have extensive experience in various aspects of employment law practice at HTW Law - Employment Lawyer.
If you have been a victim of workplace harassment, workplace discrimination, age discrimination, disability discrimination, marital status discrimination, or other forms of discrimination prohibited by the Human Rights Code, we can MAKE SURE that the human rights issues are properly addressed in addition to your severance pay, wrongful dismissal or constructive dismissal claims.
HTW Law - Employment Lawyer has the necessary professional expertise to successfully protect your employment rights. At HTW Law – Employment Lawyer, we have a team of medical professionals, accountants, and other experts at our disposal to produce medical reports, financial reports and damage assessments for you when your employment law litigation calls for it.
Experience
Experience counts, and we are prepared to go to court if a resolution cannot be achieved.
Client-Orientated
We listen. And from listening to your needs and wants, we formulate our legal approaches.
Full Range Service
We are a full-service employment law firm. We'll take care of it if it is employment law related.
Experience
We know how much your case is worth based on our experience and previous Court judgments in similar situations, and we'll work hard to get you there while paying attention to your needs and desires.
We Care for You
We understand how tough it is for you to lose your job. We will offer you with confidence, respect and support in a relaxing environment. A kind gesture, a cup of coffee, or something trivial can sometimes be the missing link in rapport building.
FREE employment law consultation with an experienced employment lawyer for qualified employment law cases!! We handle sensitive employment law clients’ information with care. Call us now at 647-849-6582 or Contact Us Now if you have employment law questions or inquires or want to book an appointment for an employment lawyer consultation.
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4 - Severance Pay & Termination Pay Under ESA
When you are terminated without cause you have two possible theories of recovery: 1. Termination Pay plus severance pay if certain conditions are met pursuant to the Employment Standards Act (ESA), or 2. the common law remedy of reasonable notice.
If you claim under ESA, the amount is per-determined and the amount is substantially smaller than that under common law. But in general you get the money much quicker, and the amount is in general not subject to the duty to mitigate.
Who is Eligible to Claim Under Employment Standards Act?
Under the Employment Standards Act (ESA), employees continuously employed for 3+ months are entitled to at least one week of notice, and more is required if the tenure is more. Entitlements under the Common law is usually more but it takes longer to collect. You should consult an employment lawyer whenever a severance proposal is presented by the employer.
Who is NOT Eligible to Claim Under Employment Standards Act?
The employer – employee relationship is governed by the Labour Relations Act for unionized workers and the Employment Standards Act for non-unionized workers. Only non-unionized workers are caught by the Employment Standards Act (ESA). In unionized environments, collective agreements provide for employees’ rights and responsibilities. All our discussion here regarding ESA entitlements only applies to non-unionized workers.
Federally regulated workers are governed by the Canada Labour Code (CLC), the federal equivalent of the Ontario Employment Standards Act (ESA). Unlike ESA, CLC entitles federally regulated employees who have been unjustly dismissed whom have been employed 12 months or more in a non-managerial position to receive reinstatement with back pay. Click here to learn more about federally regulated employees.
Pursuant to O. Reg. 288/01: TERMINATION AND SEVERANCE OF EMPLOYMENT, any employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer are not entitled to notice of termination, termination pay, or severance pay under ESA.
To rely on O. Reg. 288/01 to terminate an employee summarily without notice, the employer must usually demonstrate that the employee's behaviour was both serious and intentional. The statutory requirement is not the same as the common-law "just cause" test, which was considerably wider. As a result, an employee's misbehaviour may NOT be sufficient to disqualify him or her from ESA termination pay and severance pay, EVEN IF such misconduct provides just cause for summary dismissal at common law.
Termination Pay vs. Severance Pay
It may be scary 😢 to attempt to figure out how you're going to make ends meet if you've been let go from work. You're probably entitled to termination pay under ESA.
Termination pay is the amount of money that a business owes an employee after they have been fired. The amount of termination pay you are entitled to is determined by a number of factors.
In addition to termination pay, some workers are entitled to severance pay.
"Severance pay" in everyday usage is VERY different ❌ than "Severance pay" for the purpose of ESA.
Severance pay is compensation given to a qualified employee whose employment has been "severed." It pays an employee for losses (such as loss of seniority) that occur when a long-term employee is let go from their position.
Any employee who has been employed for over 3 months is entitled to termination pay under the ESA. However, severance pay is not available to all workers. If certain criteria are met, a long-term employee may be eligible for both termination pay and severance pay under the Employment Standards Act (ESA).
Termination pay and severance pay will be covered in depth below.
Termination Pay Under ESA - Who Is Eligible?
Under the ESA, employees who have been continuously employed for three months or more who have been terminated without cause is entitled to termination pay.
Under the Employment Standards Act (ESA) a person's employment is terminated if the employer:
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dismisses an employee, or stop employing the employee by failure to pay wages due to the bankruptcy or insolvency of the employer;
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constructively dismisses an employee and the employee resigns within a reasonable time;
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suspend or layoff an employee for a period that is longer than a "temporary layoff".
A. Exemptions to Notice of Termination or Termination Pay
Not all employees are entitled to notice of termination or termination pay under the ESA.
As mentioned above, an employee who belong to a trade union, a federally regulated employee and an employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer are not eligible to notice of termination, termination pay, or severance pay under ESA.
Please click here to check out the Exemptions to notice of termination or termination pay. Please also click here to check out the special rule tool to determine whether you are qualify for termination notice or monetary compensation in lieu if payment.
B. Constructive Dismissal
Common law constructive dismissal is deemed to be a termination for ESA Purposes triggering the payment obligation under PART XV TERMINATION AND SEVERANCE OF EMPLOYMENT of the ESA to eligible workers.
A constructive dismissal may occur when an employer makes a significant change to a fundamental term or condition of an employee's employment without the employee's actual or implied consent.
Click here to read the constructive dismissal definitive guide - a dismissal claim for workers who are compelled to quit owing to an employer's breach of contract.
Click here to check out a related but different definitive guide on wrongful dismissal - a dismissal claim for workers who have been wrongfully terminated by their employer.
C. When Will a Temporary Layoff Turns Into A Termination Under ESA?
In a pre-pandemic world, being laid off while the employment contract was silent on the matter is deemed to be a termination for the purpose of ESA that triggers the payment obligation under PART XV TERMINATION AND SEVERANCE OF EMPLOYMENT to eligible employees.
For the purpose of ESA, any employee who is receiving less than one quarter of what they would have earned in a regular work week is deemed to be on layoff.
Under the Employment Standards Act (ESA), in general with some exceptions, unpaid temporary layoffs of 13 weeks or more are considered a termination of employment, whereas paid temporary layoffs of 35 weeks or more are considered a termination of employment.
Click here to learn more about ESA temporary Layoffs from the government of Ontario.
INFECTIOUS DISEASE EMERGENCY LEAVE (IDEL), O. Reg. 228/20, was implemented during the COVID-19 pandemic.
During this period, a non-unionized employee whose employer has temporarily reduced or abolished their hours of work due to COVID-19 is regarded to be on job-protected infectious disease emergency leave and will not be considered laid off or constructively fired.
Although companies are not required to provide benefits for lay-off employees most of the time, an employee on IDEL is not "considered" to be laid off, and is deemed to be on a "sick leave" and therefore must continue to get benefits. The expiration date of IDEL is constantly changing, and it has been extended multiple times during the pandemic.
Click here to learn more about how COVID-19 has impacted employment law and what the current IDEL expiration date is.
Termination Pay Under ESA - When to Pay?
Employees must be given termination pay under the Employment Standards Act (ESA) either seven days after their employment is ended or on their next normal pay date, whichever is later.
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Termination Pay Under ESA - How to Calculate?
Under the ESA, employees who have continuously worked for three months or more but less than one year are entitled to one week notice of termination or more; two weeks of notice if they have worked for one year or more but less than three years; and one week notice for each subsequent year of employment up to a maximum of eight weeks.
However, employers are allowed to terminate employment without notice by paying termination pay equivalent to what the employee would otherwise have received during required period of notice and maintaining any benefits the employee would otherwise have received over that period.
If an employee works 13 weeks or more after the termination date indicated on the termination letter, the employee is entitled to a fresh written notice of termination as if the prior notice had never been issued. The employee's length of employment during the temporary work period will be stacked onto the employee's overall length of employment.
The above termination pay computation does not apply to mass termination. Special regulations govern the amount of notice needed in the event of mass terminations, which occur when the employment of 50 or more workers is terminated at an employer's business establishment (which may be several locations) during a four-week period.
The amount of notice required in a mass termination under the ESA for termination pay is determined not by the workers' length of service, but by the number of employees who have been dismissed.
• Eight weeks' notice if the employment of 50 to 199 workers is to be terminated;
• 12 weeks' notice if the employment of 200 to 499 employees is to be terminated; and
• 16 weeks' notice if the employment of 500 or more employees is to be terminated.
The mass-termination rules do not apply if:
1. the number of employees terminated represents no more than 10% of the employees who have been employed for at least three months at the establishment; and
2. none of the terminations are the result of the employer's permanent discontinuance of all or part of its business at the establishment.
Severance Pay Under ESA - Who? How Much? When to Pay?
ESA severance pay is required, under the ESA when an employer “severs” the employment of an employee with five years or more of service and either of:
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the severance occurred because of a permanent discontinuance of all or part of the employer’s business establishment and the employee is one of 50 or more employees who have their employment relationship severed within a six-month period as a result; or
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the employer has a global payroll of $2.5 million or more.
Under ESA, the calculation of an employer’s payroll relates to its payroll in all jurisdictions, and not just in Ontario.
Criteria of a Payroll of $2.5 million CAD
With respect to the criteria requiring a payroll of $2.5 million or more, section 64(2) of the Employment Standards Act (ESA) provides the following guidance:
a) the total wages earned by all of the employer’s employees in the 4-week period prior to termination, when multiplied by 13, must be equivalent to $2.5 million or more; or
b) the total wages earned by all of the employer’s employees in the last or second-last fiscal year prior to termination was $2.5 million or more.
Only Ontario Payroll or Global Payroll?
The confusion was settled once and for all in the Divisional Court decision in Hawkes v. Max Aicher (North America) Limited, 2021 ONSC 4290.
In Hawkes, Mr. Hawkes's former employer, Max Aicher (North America) Limited, had a payroll in Ontario that was slightly less than $2.5 million.
However, the parent company based out of Germany, Max Aicher GmbH & Co KG, had a global payroll that far exceeded $2.5 million.
The Divisional Court in Hawkes held that the company’s global payroll triggered section 64 of the ESA, and ruled in para. 52 that “that the calculation of payroll for the purpose of s. 64 of the ESA is not limited to either Ontario payroll or Canadian payroll” and entitled Mr. Hawkes to statutory severance pay.
ESA severance pay is calculated specifically by multiplying the employee’s regular wages (excluding overtime) for a regular work week by the sum of:
(the number of completed years of employment) + (the number of completed months of employment of the final year divided by 12)
Example: Jim worked 6 years, 9 months and 2 weeks at the time of termination.
On average, he worked 40 hrs a week at $18/hr. The employer has a global payroll of $3 million. How much severance pay is Jim entitled to?
Number of completed years = 6, number of completed months = 9 (or 0.75 years)
Required Notice of Severance or Severance Pay in Lieu of Notice = 6.75 weeks
Regular work week wage = 4hr x $18/hr = $720
Jim is entitled to a severance pay of 6.75 weeks x $720/week = $4,860
When to Pay?
Under section 65 of the Employment Standards Act (ESA), the maximum severance pay entitlement is an amount equal to the employee's normal earnings for a regular work week for a period of up to 26 weeks. Severance must be paid in one lump amount within seven days after cessation of employment or on the following normal pay day, whichever is later.
With a few small exceptions, an installment plan for severance pay is only permitted if the employee agrees to it. A payment plan cannot last more than three years. If an employer fails to make a scheduled payment, the employee's severance pay is immediately due.
Most of the exemptions to termination pay also applies to severance pay. Please click here to check out the Exemptions to severance pay. Please also click here to check out the special rule tool to determine whether you are qualify for severance pay.
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Vacation time and Vacation Pay under ESA
Vacation time and Vacation Pay is governed by PART XI VACATION WITH PAY of the Employment Standards Act (ESA).
For employees who have been employed for less than 5 years:
After each 12-month vacation entitlement year, employees are entitled to two weeks of vacation time under the ESA.
In addition, vacation pay is available. Vacation pay must be at least 4% of "gross" earnings received (excluding the vacation pay) during the 12-month vacation entitlement year or stub period (where that applies).
For employees who have been employed for 5 years or more:
After each 12-month vacation entitlement year, employees are entitled to three weeks of vacation time under the ESA.
In addition, vacation pay is available. Vacation pay must be at least 6% of "gross" earnings received (excluding the vacation pay) during the 12-month vacation entitlement year or stub period (where that applies).
A stub period is defined as the time between the date of employment and the start of an alternate 12-month vacation entitlement year.
For example: If an employer has selected an alternate vacation entitlement year that runs from January 1 to December 31, and the employee is recruited on September 1, the stub period will be September 1 to December 31.
Vacation pay is payable on termination pay but not on severance pay. This is because termination pay is payment in lieu of notice of termination, while severance pay is a payment to compensate for the loss of seniority.
Similar to termination pay, unpaid vacation pay must be paid within seven days of the job terminating or on the employee's next pay day, whichever is later.
Some workers work in occupations that are excluded from the vacation with pay provisions of the ESA. Please visit the special rule tool for additional information on these job types.
Click here to learn more about the vacation time and vacation pay from the government of Ontario.
HTW Law - Employment Lawyer is conveniently located right next to the intersection of Highway 401 and Highway 404 with a huge parking lot. You may view our Google Map here.
FREE employment law consultation with an experienced employment lawyer for qualified employment law cases!! We handle sensitive employment law clients’ information with care. Call us now at 647-849-6582 or Contact Us Now if you have employment law inquires or want to book an appointment for an employment lawyer consultation.
5 - Reasonable Notice Under the Common Law
When you are terminated without cause you can: 1) file a claim to the Ministry of Labour - Employment Standards and sue for termination pay, severance pay, vacation pay if certain conditions are met , or 2) file a constructive dismissal or wrongful dismissal suite and seek, inter alias, the common law remedy of reasonable notice.
Common law severance is usually a lot more than ESA severance. You should consult an employment lawyer whenever a severance proposal is presented by an employer or if you have recently been terminated.
A common law severance lawsuit, on the other hand, takes far longer to resolve than an ESA severance case. Most significantly, whether you claim reasonable notice in a wrongful dismissal or constructive dismissal case, the duty to mitigate applies. Click here to learn more about wrongful dismissal duty to mitigate. Click here to learn more about constructive dismissal duty to mitigate.
Common Law Severance Calculation
Common law severance calculation is analogous to termination pay and severance pay under ESA in principles. The amount in a severance package that an employer must pay to a terminated employee, under common law is determined by a number of factors, including length of service, age, reason for dismissal, position held within the company, compensation, whether the employee was actively recruited, and the state of the economy.
Note that common law doesn't draw a distinction between payment in lieu of working notice and "severance" (payment for long term service), everything is calculated as a full severance pay package in a wrongful dismissal claim or a constructive dismissal claim.
In certain extreme circumstances, a damage judgement in a successful wrongful dismissal lawsuit or a successful constructive dismissal lawsuit may be as high as 24 to 26 months.
However, compared to a wrongful dismissal action or a constructive dismissal action, there is considerably less ambiguity in determining ESA termination pay and ESA severance pay, which allows for a more speedy resolution.
Common law severance calculation in the form of reasonable notice is highly fact specific, and it’s more of an art than a science. Please read the following blog post for an in-depth discussion of how common law severance is computed:
A Case Law Analysis of How Much Notice Is Reasonable Following Termination Without Cause?
Click here for an in-depth discussion of wrongful dismissal in the wrongful dismissal ultimate guide.
Click here for an in-depth discussion of constructive dismissal in the constructive dismissal ultimate guide.
Common Law Treatment of Layoff
Under common law, there are no specific rules governing temporary layoffs or layoffs in general.
Unless the employment contract authorizes otherwise, a temporary layoff, or any sort of work reduction or suspension, may be considered contractual repudiation under common law, and therefore entitles an employee to quit and claim constructive dismissal.
Some Examples of What Employer's Conduct Constitutes as Constructive Dismissal?
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Temporarily laying off an employee when there is no right to do under the employment contract;
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Significantly changing an employee's established work responsibilities;
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Significantly lowering an employee's salary, even if only temporarily;
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Suspension without Pay, particularly when the employer suspends an employee prematurely without conducting a proper investigation into misconduct;
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Unilateral Change of Oral Promise on Work Arrangements, especially if the oral promise was honoured for a long time prior to the unilateral change.
Please read the following blog post to learn more about successful consecutive dismissal cases in recent years:
Defences for a Claim of Common Law Reasonable Notice
A. Termination for Cause
Termination for cause also referred to as summary dismissal, termination without notice.
Termination for cause, if validly asserted, allows an employer to terminate an employee without notice or payment in lieu.
The Court has often cautioned employers NOT to terminate an employee for cause absent the most serious type of job related misconduct.
In most instances, the Court will regard a termination for cause as an effort to “get cheap” by dismissing an employee without just compensation or severance pay.
It's one of the factors the Court examines when determining whether to award morale damages and punitive damages to an employee in a wrongful dismissal case, and a summary dismissal tends to tip the scales heavily in the employee's favour.
It's important to remember that even if the employee's behaviour was improper, even illegal, if it was unconnected to the work, or has No impact on his or her ability to carry out the job junction, there's no ground for a termination for cause.
What is a Genuine Termination for Cause Allowed by Court?
In general, if an employer has concerns about an employee's performance or even misconduct, the employer must warn or inform the employee of the particular issues, as well as give the person with a fair chance to change.
An employer will only be considered for a termination with "just cause" if no improvement or change is shown over a lengthy period of time and the presentation of numerous warnings, typically in writing.
Because it's a fact-based decision, evidence preservation is crucial in proving a "just cause" termination.
However, in rare cases of serious misconduct, "just cause" termination is considerably easier to prove. This is particularly true if the employee has engaged in activities that are actionable in courts. Misappropriation of business money, criminal fraud, a major violation of client/customer confidentiality, and so on are examples of such cases.
Be VERY cautious if you are an employer and you intend to terminate someone for cause, especially after the decision of Waksdale v Swegon North America Inc., which went all the way to the Supreme Court of Canada!!
Please read the following blog post for an in-depth discussion of the legal status of termination for cause after Waksdale v Swegon North America Inc.:
Termination For Cause After Waksdale v Swegon North America Inc.
B. Frustration of Contract
An employer may seek to dismiss an employee who has been sick or incapacitated for an extended period of time by alleging frustration of contract. However, even if an employee has been successfully terminated due to frustration of contract because of illness or long term disability, ESA termination pay and severance pay still has to be satisfied under the Ontario Regulation 288/01 – Termination and Severance of Employment (made pursuant to ESA) .
To decide whether the contract was frustrated, the Court will examine a variety of relevant circumstances, including the following:
a. Due to sickness or disability, how long has the employee been unable to work?
Was the disability or illness temporary or permanent? When will the worker be able to return to work? To answer this issue, the Court will examine medical and other evidence.
b. What was the connection between the contract's term, the length of the absence, and the nature of the services to be provided?
The duration of disability leave in relation to the period of employment shall be considered by the Court.
Frustration of Purpose is more of an art than science, and it’s highly technical. Read the following blog post for an in-depth discussion of frustration of contract:
Interplay between Long Term Disability, Wrongful Dismissal, Disability Discrimination
C. Section 31 of the Workplace Safety and Insurance Act (WSIA)
Section 31 of the Workplace Safety and Insurance Act (WSIA) allows a party to an action (often the employer defendant) to apply to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) to decide whether the right of action has been statute barred by the WSIA. It's not a complete defence, but at least it significantly limits the damage awards the worker is entitled to.
A qualified mental stress is deemed to be a kind of "personal injury by accident" under WSIA.
If you quit your job due to work-related mental stress and file a lawsuit against the Employer Defendant, he or she may apply to the WSIAT to have the case dismissed under Section 31 of the WSIA.
Although you have two years to bring a case in Court in related to your job related stress, you ONLY have 6 months to file a WSIB claim, subject to the extension under s. 31 (4) of the WSIA.
After a Section 31 application is heard by the (Workplace Safety and Insurance Appeals Tribunal) WSIAT, the deadline for submitting a WSIB claim is six months after the Tribunal’s determination under section 31(1), pursuant to Section 31(4) of the WSIA, and in accordance to WSIAT Practice Direction: Right to Sue Applications.
In other words, your lawsuit will be statute barred, and you will get NO compensation for the emotional anguish you experienced, unless you file a WSIB benefit claim forthwith after a Section 31 (1) determination.
A Section 31 Defence under the WSIA is most often used to defend against a constructive dismissal case. There is well-established caselaw establishing that WSIAT has no right to take away a claim of wrongful dismissal or a workplace harassment complaint under the Human Rights Code.
The “inextricably link” test will be used to assess whether a constructive dismissal claim is statute barred. The test is whether the ONLY allegation of constructive dismissal was workplace harassment, or there’s more, such as breach of employment contract, contractual repudiation, etc…
Section 31 Defence under the Workplace Safety and Insurance Act (WSIA) is only available to businesses who are covered by the WSIB coverage, which is ONLY mandatory for Schedule 1 and Schedule 2 industries, pursuant to section 11 of the WSIA. Businesses that are not in Schedule 1 or Schedule 2 sectors may nevertheless opt in to WSIB coverage by paying premiums, even though it's not mandatory.
Mandatory WSIB premiums cover the employees, but not owners (except for most construction businesses). Owners (partners, sole proprietors, independent operators and executive officers) can apply for optional WSIB coverage for themselves, as long as they have coverage for any employees they may have. No mandatory WSIB premiums is required to cover independent contractors either.
Click here to learn more about the WISB insurance and about how to apply for WSIB coverage.
As an employer, you want to make sure your business, and the employee in question is under WSIB coverage before claiming a Section 31 Defence under the WSIA.
So the guiding principle in determining whether a dismissal case is statute barred by the WSIA is whether or not the case involves a situation in which the worker's employment was effectively terminated by the harassing and bullying conduct of coworkers and management, which caused his or her mental distress to such a degree that he or she was forced to take sick leave and, eventually, resign. These facts, if proven, are inextricably linked to a claim for mental stress under s. 13(4) of the WSIA. Thus, the worker's right of action is taken away.
Please read the following blog post for an in-depth discussion of the interplay between a dismissal claim and the WSIA statute bar:
Am I Barred From Claiming Constructive Dismissal or Wrongful Dismissal if I Quit Due to Stress?
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6 - Benefits Under Employment Insurance (EI)
Employment Insurance (EI) provides regular benefits to any and all workers who lose their jobs through no fault of their own (e.g. due to shortage of work, seasonal or mass lay-offs) and are ready and able to work, but CANNOT find a job.
If you are looking for “severance pay” in the form of a severance package, it’s a good idea to claim EI in the meantime.
Deadline to Apply for EI Regular Benefits While Waiting for Severance Pay
As an employee, you should apply for employment insurance benefits as soon as you stop working. Don't wait for your severance pay to come!! Apply within 4 weeks of your final day at work or you might not be eligible if you wait longer.
As an employer, you are required to issue an Record of Employment (ROE) each time one of your employees experiences an interruption of earnings, and file the ROE with Service Canada. If you fail to issue the ROE as required, you may face a $2,000 fine, up to 6 months in jail, or both.
Employees are not require to wait for the ROE from the employer to start an EI claim. But the EI payments may be delayed if your employer does not file the ROE with Service Canada.
Click here to submit a claim for EI regular benefits while you wait for severance pay.
Click here for an ultimate guide on everything you want to know about EI Benefits from the government of Canada website.
Who Is Eligible for Employment Insurance (EI) Regular Benefits?
To be eligible to claim Employment Insurance (EI) regular benefits, you must:
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have lost your job due to no fault of your own;
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be out of work and without pay for at least one week (7 days);
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have completed the necessary amount of hours in your area;
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have paid EI premium; AND
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be actively searching for employment and are ready, willing, and able of working every day.
In most cases, your employer deducts a portion of your salary as Employment Insurance (EI) premium. Click here to see a list of EI premium rates and maximums.
To be eligible for Employment Insurance regular benefits, you MUST have worked a certain number of hours in the previous year. This figure ranges from 420 to 700 hours, depending on the unemployment rate in your region. Use this online tool to find out how many work hours you require in your area.
Usually, you are not eligible for EI regular benefits if you:
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left your job unless it’s in related to a constructive dismissal;
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were dismissed for wilful misconduct; OR
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have not made any contributions to the EI program (e.g. consultants, contract workers and so on).
In most cases, you won't be eligible for EI regular payments if you lose or leave your employment because you didn't comply with your employer's required COVID-19 immunization policy. You may still receive a severance pay from employer though.
Click here to find out more from the Government of Canada regarding eligibility of EI.
How Much EI Regular Benefits Do I Get?
The amount of EI Benefits is subject to change. As of January 2021, Employment Insurance (EI) pays 55% of your past earnings, up to a maximum of $595 per week. Click here to learn more regarding EI benefits amount.
If you are from a low-income family, you may qualify for more. Find more information about how you may get more from the family supplement.
If your spouse and you both apply for EI benefits at the same time, only one of you may get the family supplement.
The Family Supplement progressively reduces as your income level increases. It’s recommended to have the spouse with the lower income level to use the family supplement for maximum effect.
How Long Do I Get Employment Insurance (EI) for?
You can get EI regular benefits for 14 - 45 weeks.
The length of time you can get benefits depends on the unemployment rate in your region and how long you have worked in the last 52 weeks or since your last claim, whichever is shorter. Use this online tool to find out the unemployment rate in your area. After you receive severance pay, there might be an EI clawback, which we will discuss below.
When you get regular benefits, you must:
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Be ready and able to work;
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Look for employment;
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Attend EI appointments;
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Report all money earned while on EI;
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Report all work done while on EI (even if you haven't been paid yet); and
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Report if you will be out of your city or outside of Canada.
Can I Work While on Employment Insurance (EI) Regular Benefits?
You are allowed to work part-time while on Employment Insurance benefits. If you work while receiving EI benefits, you may retain half of your benefits for every dollar you make, up to 90% of your prior weekly earnings (roughly 4 and a half days of work).
Your EI payments are reduced dollar for dollar if you exceed this limit.
If you work a full week, regardless of how much you earn, you are ineligible for EI payments for that week. This won’t reduce the total number of weeks payable on your claim though.
So for instance, you have eligible for 42 weeks of EI regular benefits. 30 weeks into the 42-week-period, you worked full time for 2 weeks. While, you won’t get any EI regular benefits during those two weeks, you still have 12 weeks payable on your EI claim.
Visit the Working While on EI Claim page for additional details.
When you work and get benefits at the same time, you must report your job earnings and hours for each week you work, in the week in which the work occurred, even if you haven't yet received the money.
If you receive other payments while receiving EI, some types of earnings, e.g. severance pay, will be deducted from your EI benefits, while other types of income have no impact on your EI benefits. You can refer to the earnings chart to determine if a payment is considered earnings for EI benefits purposes and, if so, how those earnings are distributed.
Clawback of EI Benefits at Income Tax Time
The repayment of Employment Insurance (EI) payments is also known as the clawback of EI benefits. EI benefits are taxable, and you may be required to repay part of the EI benefits you received when you submit your income tax return, depending on your net income and whether you were given EI regular payments.
As of January 20, 2021, if your income from all sources exceeds $70,375, you will be required to repay 30% of the lesser of:
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your net income above $70,375; or
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the total regular benefits paid in the taxation year.
You do not have to repay your EI benefits if:
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your net income in 2021 is less than $70,375; or
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you received less than 1 week of regular EI benefits in the preceding 10 taxation years
Click here for an in-depth discussion of EI benefits repayment from the government of Canada website. Click here for a list of different Employment Insurance benefits and leave.
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Obligation to Repay EI Regular Benefits Overpayment
Employees who are receiving Loss of Earnings ("LOE") benefits under section 43 of the Workplace Safety and Insurance Act, for work related accident, and who are also entitled to reasonable notice as a consequence of job termination CANNOT, in most cases, double recover.
It is common practice to deduct the amount of LOE benefits received by an employee from ESA termination pay, ESA severance pay, and common law reasonable notice awards, providing the LOE benefits are for the same time period.
Similarly, if an employee successfully sues an employer for wrongful dismissal or constructive dismissal, and received common law severance pay / reasonable notice, the employee must repay the Employment Insurance (EI) amount received that is considered "earnings” to clawback overpayment.
Repayment of Employment Insurance Benefits or Postponement
You should apply for Employment Insurance (EI) benefits as soon as possible after losing your job, since you usually have to submit a claim for EI regular benefits within four weeks after your last day of work. Apply ASAP, even if you expect to receive severance pay at a later time!!
There is usually a two-week waiting period before EI benefits begin, after your EI regular benefits application has been approved. Severance pay or other Termination payouts will be converted into weeks of earnings at your normal wage rate. Please note that these payments might be categorized by an employer as payment in lieu of notice, vacation pay, severance pay, or a "retiring allowance" in a severance package.
This number of weeks will be added to the standard two week waiting period. Payment of EI benefits will be postponed until this time has expired, at which point EI regular benefits will usually commence if you are still unemployed then.
Complications arise, however, if a settlement has been reached with the former employer or a damages award has been ordered by Court in the form of common law severance pay, after the employee is already receiving EI regular benefits. The employee may be required to return part or all of the EI regular benefits received, depending on the circumstances.
The theory is that payment of EI regular benefits should only begin after all termination payouts end.
If you receive a severance package from your employer, ESA termination pay, vacation pay (if applicable), and ESA severance pay (if applicable), a Court judgement award for common law severance pay (also referred to as reasonable notice), or an out-of-court settlement, you may be required to return part or all of the EI regular benefits overpayment received that are deemed to be “earnings” to reset the EI regular benefits clock, depending on the circumstances.
If you are still unemployed following the termination-payment-period, as indicated above, your EI regular benefits will be reinstated.
Duty to Inform Service Canada of “Earnings”
Employees must notify Service Canada of any wages or income they obtain once they begin receiving EI regular benefits.
Section 35 of EI Regulations determines what income constitutes earnings, while section 36 of EI Regulations sets out how those earnings are to be allocated.
According to Employment Insurance Regulations, a worker cannot be paid twice for a week of unemployed.
Section 45 and Section 46 of the Employment Insurance Act (EIA) require the employee and the employer or trustee of bankruptcy to determine if money must be repay and to pay it accordingly.
The employee (section 45 of the EIA) or the employer or trustee of bankruptcy (section 46 of the EIA) is obligated to confirm whether a payment is an “earning” pursuant to section 35 of the EI Regulations, which compensates for a period of time that coincides with weeks for which Employment Insurance benefits were paid.
Pursuant to Section 35 of the EI Regulations, these earnings include, but are not limited to, payments resulting from:
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a labour arbitration award;
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a court judgement (including constructive dismissal damages);
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proceeds realized from a bankrupt employer's property; or
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any other reason related to an arbitration, judgement or order.
Click here to see the earnings chart for Employment Insurance (EI) Clawback determination.
Click here to learn more about the various types of earnings for the purpose of EIA. Click here to learn more about section 45 and section 46 of EIA regarding the repayment obligation.
Retiring Allowance vs. Other Forms of Termination Payouts
If you are presently receiving Employment Insurance (EI) payments and are concerned about potential EI overpayment clawback, you may prefer to resolve the employment issue out of court rather to seeking a common law severance pay Judgment Awards from the Court.
As mentioned above, there’s a 100% clawback of EI regular benefits received after being awarded a Judgment damage after a successful wrongful dismissal or constructive dismissal case.
On the other hand, there’s a 100% exemption from EI regular benefits clawback if a payment is NOT considered to be “earnings” for the purpose of EIA.
In terms of repayment of EI overpayment duties, the categories under which you place a specific payment in your termination dispute settlement agreement matter.
It also has a significant impact on the tax treatment of a specific payment, which will be addressed in detail below in Section 7 - Tax Treatment of Severance Pay and Other Termination Payouts.
An important distinction should be made to distinguish between retiring allowance and other form of termination payouts.
A retiring allowance is an employment payment that:
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But for the termination would NOT have been paid to an employee; and
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The amount is to compensate the employee for the lost of employment
The words "severance pay" and "retiring allowance" are used interchangeably under the Employment Insurance Act (EIA), Employment Insurance Regulations (EI Regulations) and the Income Tax Act (ITA). Please do not confuse it with ESA severance pay under the Ontario Employment Standards Act (ESA), which is limited to compensating long time service workers for loss of employment seniority.
Pursuant to Section 35 of the EI Regulations, if a termination payout falls under the category of "retiring allowance", also known as severance pay, the whole amount is considered "earnings," and therefore there is a 100% clawback to recoup the EI regular benefits overpayment.
Judgment damages in related to reasonable notice of a wrongful dismissal case or a constructive dismissal case; a judgment damage in lieu of expenses, including relocation expenses, counselling and job search expenses if sufficiently connected to the loss of employment; statutory ESA severance (termination pay, severance pay, vacation pay); Lump sum payment for unused sick leave credits are deemed to be retiring allowance.
If your employment termination case proceeds to trial and you win, the whole amount, or at least a substantial part of your judgement awards, would most likely be considered "earnings" for the purposes of EIA and subject to a 100% EI regular benefits clawback.
However, if it falls under the category of "employment income" if you specify it as such in the settlement agreement, you are entitled to keep half of your EI regular payments for every dollar earned, up to 90 percent of your previous weekly earnings, as discussed above.
If a certain amounts has been labelled as “legal costs and disbursements” in the settlement agreement, for example, the full amount might even be exempted from EI regular benefits clawback as it probably wouldn’t be considered “earnings”.
Canada Revenue Agency (CRA) is responsible for collecting EI overpayments. Do note that if for some reason, the failure of repaying overpayment of EI regular benefits got off the CRA radar for over 36 months, the non-payment will be forgiven pursuant to Section 46.01 of the Employment Insurance Act.
Related Severance Pay FAQs:
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7 - Tax Treatment of Severance Pay, and Other Termination Payouts
Severance Pay for damages received from a current or former employer (such as a payment made pursuant to a grievance settlement, arbitration judgement, or court order) may be categorized as Employment income, retiring allowance, non-taxable damages, or a mix of the three. The nature of the receipt is a fact that necessitates a thorough assessment of all relevant facts and evidence in each case.
Please read the following blog post for an in-depth discussion of tax treatment of different receipts of payments in a wrongful dismissal or constructive dismissal case:
What’s the Tax Treatment of Severance Pay Settlement or Damages in a Dismissal Case?
In our every day usage, severance pay is any money received as a result of losing a job due to no fault of your own, as defined by the Canadian government. For tax purposes, however, severance pay has a totally distinct connotation, with the terms severance pay and retiring allowance being used interchangeably.
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Characterization of a Severance Pay and Other Termination Payouts
In certain cases, a payment may have dual purposes and fall under more than one characterization. In other cases, the payment may be made to resolve two distinct complaints.
According to the Canada Revenue Agency (CRA), payments in lieu of termination notice are considered income from employment, whereas a damages judgement in respect of a loss of employment, such as an award of reasonable notice, is considered retiring allowance.
In Tsiaprailis v. Canada, 2005 SCC 8, the Supreme Court of Canada established the legal test to be followed in respect of a payment has dual purposes, holding that the characterization should be made on the basis of "what the payment was meant to replace." The "surrogatum principle" states that the tax treatment of a payment of damages or a settlement payment is the same as the tax treatment of the payment it is intended to replace.
In related to a payment that resolves multiple complaints, the Federal Court of Appeal held in Forest v. Canada, 2007 FCA 362, that once it is shown that a settlement payment serves multiple purposes, the burden of proof for an apportionment should NOT be set so high.
When the settlement agreement itself is not clear as to how the categorization of the settlement receipts should be, the statement of claim would be examined first to ascertain the parties’ intent.
In instances where the nature of the payment is unclear from the statement of claim, the courts have looked to the parties' communications or agreements.
Prior judgments of courts and tribunals that are most comparable to the circumstances of the taxpayer's case, and evidence of a policy or legislative basis for awards will also be taken into account.
To avoid being challenged by CRA, a settlement agreement should explicitly specify the intended purpose of a payment, define what part of a settlement payout is attributable to that purpose, and, most importantly, the amount should be reasonable.
The following are some of the main termination payment categories:
A. Employment Income
To be considered employment income, an amount must meet two criteria:
1) the benefit must have been conferred in the context of a work relationship, and
2) the benefit must have been personally received by the employee (cannot be a corporation).
If such amount is reasonable, it is tax deductible to employer.
The Income Tax Act also consider certain amounts received by a taxpayer before, during, or after employment to be income of employment.
A signing bonus (as a recruitment incentive), a severance package (as a termination settlement incentive), pre-judgment interest on awards relating to employment or the loss of employment, legal costs that is reimbursed by the employer have been recognized by CRA as employment income.
Click here for an in-depth discussion of what is employment income under the Income Tax Act, and the tax treatment of it.
B. Retiring Allowances
For an amount to be considered a retiring allowance,
it must have been received by the employee:
(a) in recognition of the individual's long service,
OR
(b) in respect of the individual's loss of an office or employment.
The Tax Court of Canada established a two-step test in Overin v. The Queen, 1997 CanLII 159 (TCC), to determine whether a payment's connection to a loss of employment is sufficient to satisfy the requirement that an amount be "in respect of" a loss of office or employment:
(a) Would the employee have received the compensation but for the loss of employment?
(b) Was the payment intended to compensate the individual for his or her loss of job?
Retiring allowance is a tax deductible expenditure to the employer if: 1) the employee is no longer employed and is no longer receiving vacation pay, sick leave, or medical benefits; 2) the employee would not have received the amount but for the termination; and 3) the amount is reasonable.
When determining the reasonableness of a retiring allowance:, the Court will consider the length of service, its relationship to the employee's remuneration, and the value of any pension or other benefits already received by the employee.
CRA published a definite guide on retiring allowance taxation, click here to learn more.
Click here of an in-depth discussion of what is retiring allowance under the Income Tax Act, and the tax treatment of it.
C. Non-Taxable Receipts
According to the Supreme Court of Canada's decision in Schwartz v. Canada, [1996] 1 SCR 254, certain damages awards may be considered non-taxable receipts (i.e. not tax deductible) if they represent payments for damages unrelated to the loss of employment.
Payments to employees are not taxable receipts in the following situations, according to the courts:
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damages in a tort action for striping a taxpayer of his ability to work as a nuclear scientist; (Ahmad v. The Queen, 2002 CanLII 1127 (TCC))
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damages for human rights violations (Fournier v. The Queen, 1999 CanLII 260 (TCC); Mendes-Roux v. The Queen, 1997 CanLII 134 (TCC));
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damages in respect of a potential future employment (Schwartz v. Canada, [1996] 1 SCR 254)
Moral damages, such as aggravated damages and punitive damages, are not taxable. In Abenaim v. The Queen, 2017 TCC 223, at para. 101, the Tax Court of Canada, stated that "an amount received by a taxpayer as moral damages is not taxable since there is no link to a loss of employment. As a result, those damages are not taxable as a retiring allowance”.
Taxpayers must show unequivocally that the damages were incurred for events or acts unrelated to job loss in order to successfully assert that damages were awarded for personal injuries unrelated to job loss.
Click here for an in-depth discussion of what is non-taxable receipts under the Income Tax Act, and the tax treatment of it.
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D. Transferring Some or All of a Retiring Allowance Directly into an RRSP or RPP
A retiring allowance can have both an eligible and non-eligible portion for income tax purposes. Payments made directly to service providers are tax deductible for the employer. If severance pay was sent directly to the employee’s RRSP account, it would be tax deductible.
Under the Income Tax Act, a long service employee may defer a portion of his or her retirement allowance to a registered pension plan (RSP) or a registered retirement savings plan (RRSP), such eligible transfer won’t count towards the taxpayer's RRSP room.
Click here to learn more about eligible transfer of retiring allowance to RRSP or RPP from the government of Canada website.
The non-eligible portion of the retiring allowance can be transferred to the taxpayer's RRSP or a spousal or common-law partner's RRSP if there is RRSP contribution room.
Click here to learn more about non-eligible transfer of retiring allowance to RRSP.
Click here to learn more about what is retiring allowance transfer to RRSP and RPP under the Income Tax Act, and the tax treatment of it.
E. Legal Fees Paid to Obtain a Retiring Allowance or Employment Income
Employers may deduct legal costs and related services such as accounting as a "business expense" if they pay or reimburse the employee for legal expenses by paying the legal costs directly and the amount paid does not exceed a reasonable amount. (see e.g. Medynski v. The Queen, 2009 TCC 216, at para. 7, 20-21).
There is a distinction to be made between legal expenses incurred to collect or establish a right to damage for the loss of employment (e.g., a claim of reasonable notice in a wrongful dismissal claim) and legal fees paid to collect or establish a right to the employee's pay or wages.
The former relates to legal costs for retiring allowance, whereas the latter relates to legal fees for employment income. (see e.g. Bonsma v. The Queen, 2010 TCC 342)
a. Legal Fees Paid In Respect of Employment Income
Under the Income Tax Act, the legal fees spent to collect or establish a right to salary or wages may be deducted from a taxpayer's income. This deduction is only available for monies "owed" by a current or previous employer for service rendered. There’s no requirement that the amount “owed” be received by the taxpayer for the legal fees to be tax deductible.
However, if the employee failed to establish that employment income was being “owed”, the legal costs incurred would NOT be tax deductible.
Click here to learn more about tax treatment of legal and account fee paid to collect or establish a right to salary or wages.
b. Legal Fees Paid In Respect of Retiring Allowance
Under the Income Tax Act, the legal fees spent to collect or establish a right to retiring allowance may be deducted from a taxpayer's income.
Legal costs may only be deducted if the employee can demonstrate that 1) the retiring allowance has been received by the employee; and 2) the legal fees were actually incurred.
The deduction for legal costs for retiring allowance is limited. Click here to learn more about the legal expenses deduction limit.
Leftover unclaimed legal fees may be carried forward and deducted in the same manner for up to seven years if the employee continues to receive a retiring allowance that was not previously deductible, after which time legal expenses can no longer be claimed.
See e.g. Filion v. Canada, 2017 FCA 67, at para. 12.
Click here to learn more about tax treatment of legal and account fee paid to collect or establish a right to retiring allowance.
Click here for an in-depth discussion of what is legal fee deductions under the Income Tax Act, and the tax treatment of it.
We hope you now have a better understanding of what is Severance Pay, Severance Pay and Termination Pay under Employment Standards Act (ESA), Severance Pay in lieu of Reasonable Notice under the common law, EI Unemployment Benefits under the Employment Insurance Act (EIA), and the Tax treatment of Severance Pay, and other termination payouts.
When you require assistance with a constructive dismissal case, a wrongful dismissal case, or a workplace harassment or discrimination case, HTW Law – Employment Lawyer is only a phone call away. There's no need to search around for a severance pay lawyer who is ready, willing and able to assist you. When you call, we will be there to help you. We look forward to serving you soon.
FREE initial severance pay consultation with an experienced severance pay lawyer for qualified severance pay cases!! We handle sensitive severance pay clients’ information with care. Call us now at 647-849-6582 or Contact Us Now if you have severance pay questions or inquires or want to book an appointment for a severance pay lawyer consultation.
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