Wrongful dismissal claims are the bread and butter of employment lawyers. We deal with a wide variety of issues, from complex litigation involving harassment and discrimination to proactive work like drafting contracts and policy manuals. However, many clients come to us because they need to pursue or defend a claim that, at its core, is focussed on the amount of notice or dismissal, or pay in lieu thereof, that the former employee is entitled to.
For years, if not longer, much has been written about delays in our system of justice, the barriers to justice that these delays create, and the need for a “better system”. Unfortunately, our system of justice has, in many respects, become bloated by procedural matters that ultimately delay judgment and add to the time and cost involved. Mr. Justice David Brown has been a particularly vocal critic, both in his judgments and in papers such as the one he presented at a recent Ontario Bar Association event entitled Some Thoughts On Creating A Sustainable Public Civil Justice System.
As Justice Brown states,
While the Fundamental Goal enunciated by Rule 1.04(1) talks about securing the determination of every civil proceeding on its merits, many of the rules – indeed the majority of the rules – do not concern final adjudications on the merits.
He goes on to note that much of the time, energy and money expended in litigation is focused on procedural or peripheral matters, rather than on timely adjudication on the merits.
So what are we to do? Those of us that practice employment law are fortunate, in a sense, that many of the disputes are not complex. As a result, there are procedures available that allow us to circumvent the litigation process and move quickly to judgment.
Summary judgment has been the subject of extensive discussion in recent times, particularly due to amendments to the Rules of Civil Procedure in Ontario and the Supreme Court of Canada’s decision in Hryniak v. Mauldin. The Hryniak decision confirmed the top court’s desire to expand the application of summary judgment. In Sweda Farms Ltd. v Egg Farmers of Ontario, the Superior Court of Ontario summarized the approach to be used in summary judgment motions as follows:
33 As I read Hryniak, the court on the motion for summary judgment should undertake the following analysis:
- the Court will assume that the parties have placed before it, in some form, all of the evidence that will be available at trial;
- on the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
- if the court cannot grant judgment on the motion, the court should:
a. decide those issues that can be decided in accordance with the principles described in two (2), above;
b. identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues; and c. in the absence of compelling reasons to the contrary, the court should cease itself of the further steps required to bring the matter to a conclusion.
34 The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a “full appreciation” of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the Court’s appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured. [emphasis added]
Defendants used to be able to avoid summary judgment by introducing issues such as failure to mitigate or allegations of just cause. Similarly, the assumption was that constructive dismissal claims or claims for extraordinary damages would require a full trial. In recent times, however, our courts have expanded the types of claims that they would consider by way of summary procedures. These include:
Beatty v. Best Theratronics Ltd.(aggravated damages): The plaintiff sought damages for wrongful dismissal, as well as aggravated damages arising out of the manner in which he was dismissed. The employer alleged that the plaintiff had failed to make reasonable efforts to mitigate his damages. After pleadings were complete, he brought a motion for summary judgment. Mr. Justice Hackland found that the issue of the amount of notice to which Mr. Beatty was entitled could be decided by way of summary judgment, as could the mitigation issue. As a result, judgment was rendered on those points.
With respect to the claim for aggravated damages, Mr. Justice Hackland found that there were issues of credibility that had to be addressed before judgment could be rendered. As a result, Hackland J. ordered that a summary trial would take place before him, not to exceed two days in length, on the issues of
- Is the plaintiff entitled to aggravated or punitive damages?
- What special damages is the plaintiff entitled to claim in respect of the notice period?
Younger v. Canadian National Railway Company (constructive dismissal): The British Columbia Supreme Court allowed this claim to proceed by way of summary trial despite the fact that it was based upon an allegation of constructive dismissal. As we all know, such cases are more complex than “simple notice cases” and typically involve issues of credibility.
In addition, human rights claims can, in some jurisdictions, also be dealt with via abbreviated processes. In Ontario, the process was changed to provide for summary hearings that can occur at the request of the Respondent or the initiative of the Tribunal. The intention is to weed out complaints without merit, and the Applicant must show that there is a reasonable prospect of success in order to get past this procedural hurdle. Given the current lack of authority on the part of the Tribunal to award costs, this can be a valuable tool to help a Respondent avoid excessive legal fees defending a spurious claim.
In short, there are matters that employment lawyers deal with which can and should be dealt with in a summary manner. Plaintiff’s counsel should always consider whether summary judgment, or a summary trial, would be appropriate. Similarly, defence counsel should also consider summary procedures, including a summary hearing to nip a frivolous human rights claim in the bud. No one should assume, without consideration, that every claim requires the full litigation process, and a year or more, before a final judgment can be reached.
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