When people call me asking for help with a settlement after having been terminated, my answer sometimes surprises them. The most effective way to extract a strong settlement is not by posturing for settlement alone, but by proceeding decisively toward a wrongful dismissal lawsuit and preparing the case as though it may ultimately be decided by a court.
That may sound counterintuitive to someone hoping to avoid litigation. In reality, it is precisely the willingness and ability to litigate that creates settlement leverage. Employers settle when they see that that the employee’s legal position is strong and that the case is being fully prepared to prove in court.
An employer’s decision to settle is not a gesture of goodwill. It is a business decision driven by risk assessment. Employers assess exposure based on various indicators of the plaintiff’s preparedness. If any of those elements appear weak, settlement value drops accordingly.
Proceeding “strongly” does not necessarily mean rushing to file a lawsuit. It means doing the work required to put the case on solid footing for trial. That may involve filing sooner rather than later, and using the Rules of Court to keep the matter moving instead of allowing it to stall in ineffective or one-sided negotiations. In practice, clients must understand several realities, including:
(a) Settlement strength flows from litigation readiness. The strongest settlement positions start with pleadings that are legally sound and factually grounded. Employers and their counsel can tell whether a claim has been properly established or not.
(b) You must be prepared to take the matter to court, including on interim issues, because some employers are simply not reasonable. Many employers will settle once confronted with a well-constructed case. Some will not. They may delay, deny, minimize, or attempt to exhaust the employee. If you are not genuinely prepared to litigate, you may be forced to accept less than you should, or nothing at all. The only protection against that outcome is sustained litigation readiness, from the outset.
(c) Trial readiness is not just a tactic. Sometimes it is the destination. There are cases where the parties reasonably disagree on a genuine point of law, or on how established principles apply to a novel or complex set of facts. In those cases, settlement may not be possible or appropriate until a court resolves the issue. If trial is what is required to achieve the best result, the only viable option is to be prepared for it. Sometimes it is not known whether the matter will settle until the eve before trial. If it does not settle, you must be prepared to have the court determine it.
(d) Excellent legal work is not optional. It is wise strategy. There is no shortcut around carefully preparing a case for trial. Employers pay close attention to whether the other side has done its work. Sloppy, incomplete, or inconsistent preparation will not attract serious settlement offers and leaves the employee exposed if the employer refuses to be reasonable.
(e) Employment litigation is inherently time-sensitive. Client delay materially undermines outcomes. When clients are slow to provide instructions, documents, or responses, real damage is likely to follow. The factual narrative dulls. Evidence becomes difficult, and sometimes nearly impossible, to gather. Strategic windows close. Settlement momentum fades. The case itself weakens, occasionally beyond repair.
Strong cases attract strong resolutions. Employers are far more likely to resolve a claim when they see disciplined preparation, consistent forward movement, and a plaintiff who understands that litigation is a process, not a threat.
If your objective is a fair settlement, the paradox is this: you must proceed as though settlement may not occur. You must be ready to prove your case. And if trial turns out to be the path to the best result, you must already be prepared to take it.
That is why my answer to “Can you help me settle this?” is almost always the same: Yes, but only by building the case as if we are going to court.
That is not bravado. It is simply prudent, disciplined advocacy. One must be prepared to see the matter through to a just result, whether that is through a settlement or a judgment.
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If you have been dismissed, are facing a dismissal, are experiencing issues at work, or simply want to understand your rights, we are here to help. Learn more about Inspire Law or book a consultation to discuss your specific situation.
This article is for general informational purposes only, does not constitute legal advice, and is not directed at any particular client or case. The views expressed herein are based on current law, specific facts and available information and may not be applicable to your specific situation or to any matter on which we may act. You should not rely on this material in place of consulting a qualified lawyer about your own situation.
About the Author
Susan Kootnekoff is a lawyer and founder of Inspire Law, an employment and human rights law practice that serves clients across British Columbia and beyond. She represents clients in employment related matters including wrongful dismissal claims, employment contract negotiations, severance negotiations, human rights complaints and workplace rights.
© 2025 Susan Kootnekoff, Barrister & Solicitor
