How to decide whether to take legal action (and what to expect if you do)

First, let’s define what we mean by taking legal action.

For the purposes of this article, we’re not talking about filing a human rights complaint, filing a grievance through your union, or making a formal report to your employer.

What we’re talking about here is filing—or threatening to file—a civil lawsuit.

What’s a civil lawsuit?

In civil court, cases are also called claims, lawsuits, or simply “litigation” (which means taking legal action). These are private disputes between people or companies. That means there is no police investigation, no Crown attorney, and no involvement of a tribunal or agency.

Unlike at a tribunal or in a criminal court, no one investigates the case—you and your lawyer have to collect and present all of your evidence yourself. And the other side gets to present their evidence as well.

You have to prove each of the facts on a balance of probabilities. This standard of proof is lower than in a criminal case. A balance of probabilities means that you have to prove that it is more likely than not that the harassment occurred, and that the harassment meets the legal tests for your type of case. In sexual harassment cases, it often comes down to your word against the defendants, and the judge will decide who to believe.

Why would someone file a civil lawsuit?

The main reason is money.

Nobody can go change what happened to you. But if somebody caused you harm, the premise of the legal system is that, in some circumstances, they can be forced to give you money to make up for it. That’s the main reason courts exist.

There are other reasons you might want to take legal action. You might want the harasser to be ordered to stop harassing you. You might want a permanent public record of what happened. It might feel important to you to have a judge rule in your favour. You might want keep the same thing from happening to someone else.

But the main reason people take legal action, and the main benefit of legal action, is money. It’s that simple.

Why don’t people file a civil lawsuit?

Most people who are harassed don’t take legal action.

There’s no way to know for sure how many do. But the research says that most people who’ve been harassed don’t take any formal action at all. Fewer than half report to their employer what happened. Most don’t talk to a lawyer. Our guess is less than 1% file a lawsuit.

Why? There are probably three main reasons:

• They’re not sure if they have solid legal grounds for a claim, so they don’t know how likely it is that their case would be successful.
• They think pursuing a legal claim would take too long, be too expensive, and be too risky.
• They think it would be unpleasant, and they would rather just put the whole thing behind them and move on.

Those are good reasons.

Researchers say litigation can be really bad for your mental health. It can take years, and during that time, you have to tell your story over and over, including to lawyers on the other side who will try to make you look bad. Researchers say this can keep people stuck in the past and prevent them from being able to heal and move forward.

It’s also expensive. Some people end up spending tens of thousands of dollars, or even hundreds of thousands. If you don’t have that kind of money, it can be hard to even imagine launching a civil court case. However, if a lawyer thinks you have a good case, they make take it on contingency, which means they would only get paid if you win.

Here’s something you need to know.

Just because you start legal action doesn’t mean you’re committing yourself to a long, expensive process.

Hardly any cases go all the way to a trial, and there are lots of opportunities to settle or withdraw along the way.

• If you threaten legal action by sending your employer what’s called a demand letter, they may settle with you immediately. In that case, your only expense is the cost of the letter itself, plus any negotiations that might follow it.
• If you file a civil case against the harasser or your employer, it may get settled before you get to the trial stage. In Canada, 98% of civil court cases are settled or abandoned before they ever get to trial. Abandonment is a bad outcome for you (it means you gave up), but a settlement could be great.
• You could choose to pursue a claim through small claims court rather than ordinary civil court. The downside of small claims court is that the awards are smaller. But the upside is that the process is shorter and simpler, and you might be able to do it by yourself, without even needing a lawyer.

If you think you might have a legal case, even if you’re pretty sure you don’t want to go all the way to trial, you should seriously consider talking with a lawyer.

You can usually get a short consultation for free. A lawyer can help you figure out how strong your case is, and what course of action might make sense for you.

If I take legal action, what could I get?

You can settle for any amount of money that your opponent is willing to offer and you are willing to accept. Or, if you go to trial and win, the judge will decide how much money you get.

Typically, amounts are calculated on the basis of lost wages or expenses, costs of medical treatment, as well as harm to your well-being. These are called general damages. Occasionally, the amount you’re given will also include punitive damages, which are intended to punish the other party for their bad behaviour.

You’ve probably seen headlines about people in the United States being awarded millions of dollars. It’s not like that in Canada. Here, an award of $200,000 is considered really large.

What does it cost to take legal action?

You will need to pay for your own lawyer, and also for any support they have, like if they use a paralegal to help them. Lawyers usually charge by the hour, and they will charge you for everything they do: for all the time they spend preparing for your case—talking to you, reading documents, writing letters, contacting the other side’s lawyers, and interviewing witnesses.

You will also need to pay any costs your lawyer incurs on your behalf, like the costs of filing documents, experts’ fees, or getting transcripts or photocopies made.

• If your lawyer ends up just drafting a single letter for you, that could cost as little as a few hundred dollars.
• If your case goes all the way to trial, it will probably cost many thousands of dollars, and if you end up needing to appeal, it could be much more.

If you go all the way to trial and win, the judge will make the other party pay some of your legal fees. But if you lose, the judge will make you pay some of the legal costs of the other party.

Why might I sue or threaten to sue?

You can’t sue on the basis that you were sexually harassed. That’s not a claim that civil court will accept. Instead, you have two main ways to make a claim.

Your employer responded to the harassment in a way that broke your employment agreement.

This is called wrongful dismissal or constructive dismissal.

Wrongful dismissal means you were fired without cause—without a valid reason, or without being given reasonable notice or pay instead of notice. If you got fired because your employer wanted to get rid of you rather than stop the harassment, you might be able to sue your employer for wrongful dismissal.

Constructive dismissal means that although your employer didn’t literally fire you, they effectively fired you, by making such big changes to your work that you might as well have been fired. The kinds of changes that count as constructive dismissal include things like a reduction in your work hours, a change in your work assignment, a pay cut, a demotion, or a suspension. If your employer made a change like that rather than stopping the harassment, you might be able to sue them for constructive dismissal.

Constructive dismissal can also include things your employer didn’t do. Your employer has an obligation to provide you with a workplace that’s free of harassment and discrimination. If you reported harassment and your employer didn’t stop it, you might have a case for constructive dismissal on that basis.

The harassment caused you loss or harm.

This is called a tort, which means it’s a claim that’s accepted in civil court. Torts that apply to sexual harassment include battery, intentional infliction of mental suffering, and negligence.

If you want to sue for the harm you suffered because of the harassment, that would be a tort. Here are the torts that most commonly apply to sexual harassment:

• Battery is any direct, intentional, and physical interference with your body that is harmful or offensive. This tort protects your personal, physical autonomy. If you sue on this basis, you could be suing the harasser or your employer if the harasser is a senior officer of the company.
• Intentional infliction of mental suffering recognizes that the harm might not be physical, but that, nonetheless, the harasser deliberately hurt you. For this kind of lawsuit, you have to prove that the harasser wanted to cause harm and prove the illness or symptoms that resulted. If you sue on this basis, you’d be suing the harasser or your employer if the harasser is a senior officer of the company.
• Negligence means your employer failed to meet the standard of care that a reasonable person would have shown in the situation. In a harassment case, this could be a claim that they had a duty of care to protect you from the harm caused by the harasser, and that they didn’t live up to that duty. It could also be that your employer knew of a harasser’s conduct but ignored it. In these types of cases, you’d be suing your employer, not the harasser.

What are the risks of taking legal action?

Lawsuits are adversarial, and if you sue the harasser or your employer, they may decide you’re their enemy and try to hurt you or damage your career.

The harasser might trash-talk you to other people, or try to hurt you physically, or be hostile in some other way.

If you are still working for your employer, they might try to punish you or fire you. That’s called a reprisal and it’s illegal. Your employer might also talk negatively about you to other people, or refuse to give you a good reference, or make your life unpleasant in other ways.

Lawsuits are public, which means people will know your private business.

Courts are open to the public, which means anyone can access the documents in the case and can sit in the courtroom and watch the trial. Once a decision has been made, it will be listed on public, searchable websites.

This means that private information about you—which could include information about your salary, medications you take, medical diagnoses you’ve received, or things you’ve said and done—will be available to anyone. If you want to see the kind of information that ends up getting published, you can read some court decisions:

• Pawlett v. Dominion Protection Services Ltd
• King vs Skylink Financial Advisors
• Cooke vs HTS Engineering Ltd
• Colistro vs Tbaytel, The Corporation of the City of Thunder Bay and Steve Benoit
• Lancia v Park Dentistry Professional Corporation

You might be able to use a pseudonym if you can show that there’s a good reason to do this: that your mental health could suffer or you might not sue if you had to go public.

Lawsuits are expensive, and the harasser or your employer might deliberately behave in ways that increase your costs.

Many defendants use tactics to delay or prolong a case, such as filing motions, requesting lots of extra documents from you, refusing to hand over their documents, and changing lawyers. These can be strategic moves to drive up your legal costs so you either settle or drop your case altogether. This is called litigation bullying—it is very difficult to manage and adds extra stress and cost.

The harasser or your employer might sue you for defamation, which can also drive up your legal costs.

If you sue your employer or the harasser, they might start their own lawsuit against you for defamation, saying that your claims are untrue and are hurting their reputation, or causing loss of business or other financial damage. Defending against a defamation lawsuit is a whole other process and will increase your legal costs and stress, even if what you are being sued for isn’t true.

You might get nothing in the end.

It’s entirely possible you could go all the way through a long and expensive legal process, and in the end…lose. You could end up spending an enormous amount of time and money on the process, and needing to pay the legal costs of the other side. Even if you win, a harasser might not have any money to pay you. You could end up traumatized by the whole experience, and getting nothing out of it.

What to expect if you start a civil court action

The first step is that you get a lawyer, and the two of you figure out who you are targeting with your legal action, and on what basis.

Once you have that figured out, your lawyer might advise you to start with a demand letter, in hopes you can reach a settlement without ever needing to take formal legal action.

If the demand letter doesn’t work, you’ll need to decide whether to proceed with legal action. If you do, here’s how it works.

Your lawyer will write a statement of claim in which they describe what happened and say how it meets the elements of the legal test. Your lawyer will file this statement to the court, and send copies to everyone you are suing. Those people are called defendants because they are required to file a defence to your claim.

The defendants will then file a statement of defence describing the facts that they think matter to the case and will answer your claim. They will deliver it to you, also called serving it on you, or service.

These two documents are called the pleadings. Once these have been filed, the parties start a process called examination for discovery.

Discovery is like a pre-trial, though it doesn’t happen in a courtroom. It is an oral examination recorded by a court reporter in which you and the defendant reveal any evidence related to the case, even if it hurts your argument. The lawyer for the defendant will interview you, asking questions relevant to the case; your lawyer will interview the defendant. The lawyers will have already exchanged the documents that they are using to support their arguments and they may ask questions based on those documents. The information recorded in the discovery transcript may be used in the trail. The discovery process can take months or even years, depending how much evidence there is to go through.

At this point, your lawyer will be able to give you advice about how strong your case is. It’s also common at this stage for the parties to decide to try to reach a settlement through mediation, rather than going all the way to court.

During the mediation process you and the other party may be required to sign a confidentiality agreement. This agreement only applies to the discussions during the mediation. Any admissions or offers made then can’t be repeated in a hearing later, or talked about publicly. This isn’t a long-term ban as part of a settlement; it is a tool to create a period of open discussion during mediation.

Here, you might reach a settlement. Your lawyer will help you decide whether to accept it. They can’t tell you what to do, but they can help you understand your options.

If you don’t reach a settlement, the case goes on to trial.

During a trial, a judge will oversee the courtroom. They may decide the case, or either you or the defendant can request a jury trial. You will have to prove each aspect of your claim. You can bring evidence—witnesses or documents—to prove each fact. The harasser or employer will also get to bring their own evidence supporting their version of events. Each side gets to cross-examine the witnesses that the other side calls. The judge or jury hears all the evidence, and the legal arguments made by the lawyers, before making a decision.

Often the judge will first hear evidence about the facts and make a decision on whether the harassment happened and, if they decide it did, how much money you will receive. (This is called an award of damages.) This may take weeks or even months, depending how complicated the case is. If the trial is heard by a jury, they will decide immediately.

There are things the judge or jury can’t do. They can’t order your employer to fire the harasser, to give you your job back, to make the harasser apologize, or make your employer implement specific policies. If you want those kinds of remedies, a human rights body is a better bet.

How is small claims court different from civil court?

Small claims court is a slightly simpler and faster way of legally settling smaller lawsuits. The exact dollar amount you could be awarded in small claims court varies from jurisdiction to jurisdiction; the maximum ranges from $15,000 to $50,000. If you want to ask for damages that fall below this limit, you can start a small claims case. The process is a little less complicated and you can either represent yourself or, if you live in Ontario, hire a paralegal.

Because there are limits on costs awards at small claims, this means that you do not risk as big an award against you, if you lose your case. Small claims courts don’t make costs awards for the time you spend representing yourself—just for the amount you pay to a lawyer, and sometimes also your filing fees.

You might also use small claims court if you get an award from a human rights body or labour board, but the harasser hasn’t paid up. If the total amount is under the small claims ceiling in your province or territory, you can start a case to force them to pay. Before you do this, even in small claims, try sending a demand letter first. You can pay a lawyer to write this for you—an hour or two of legal help to send a demand letter could be a good investment.

What to expect at the end

Collecting the money

If you agree to a settlement or win at trial, it will be up to you to collect the money.

If you reach a settlement, this is usually easy. In this case, the other party has agreed to pay you a certain amount, and usually they will do it fairly quickly.

If you win at trial, though, collecting the money may be harder. You can start by sending a demand letter reminding the party of the judgment. If they don’t pay up, you can go back to the court and ask the court to force them to pay. This is another legal process and will take more time and cost you more money.

Confidentiality versus publicity

If you reach a settlement, the other party will almost always insist that you sign an NDA. (Unless you live in P.E.I. In 2022, P.E.I. became the first jurisdiction in Canada to ban NDAs in cases of sexual misconduct, harassment, and discrimination unless the affected person chooses to sign one.)

An NDA may seem like an unimportant detail, but it’s not. An NDA is a binding legal agreement, and if you sign it, you’ll be obligated to live up to what it says. If you don’t, you might end up having to pay back the money you got in the settlement, or you could be sued and forced to pay even more money.

Some people are happy to sign an NDA because they don’t plan on telling anyone about what happened to them anyway. Others would rather go to trial than agree to a settlement that requires an NDA.

It’s not uncommon for a person to sign an NDA and then come to regret it, years or even decades later.

Sometimes people realize later that they need to speak publicly about their experience in order to process it and heal from it.

Or they learn that the circumstances in which they signed the agreement weren’t exactly what they’d thought at the time. For example, lots of people sign an NDA assuming their harassment was an isolated incident, but some find out later that the harasser was actually harassing a lot of people. They may then want to speak up in support of other people who got harassed, and regret signing an agreement that says they can’t.

You can read stories of people who signed NDAs on this website that’s advocating for them to be banned in Canada.

If you’re willing to sign an NDA, it’s a good idea to think about whether there are people you might want to talk about your case with—like your partner or another family member or friend, a therapist, a health care professional, the police, or any other authority. If so, you should make sure your lawyer knows that, so they can ensure the NDA allows it. You should also make sure you understand whether those people are allowed to tell other people.

If you’re considering signing an NDA, definitely discuss it thoroughly with your lawyer first. They can help you understand the terms and decide whether you’re willing to agree to them, and also can negotiate changes.

If your case goes to trial, it’s simpler. Once a decision has been made, it will be listed on public, searchable websites. The judge can anonymize the decision by using only your initials instead of your full name. You may be able to do this if you can show that you would suffer emotional injury if you are publicly identified.

So, should I do it?

There’s no single right answer.

It depends on the facts of your case. It depends on who the harasser is and who your employer is. It depends on how much effort and money you’re willing to spend. It depends on whether you can afford to make an enemy of the harasser and your employer. It depends on how stressful you’re likely to find the experience, and whether the stress is worth the potential benefit to you.

That’s why we urge you to consult with a lawyer. They will listen to your story and help you understand what, in your specific circumstances, is realistically possible.

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