Wrongful dismissal law: Summary judgment motions – the way of the future

July 11, 2014 Doug MacLeod, MacLeod Law Firm Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

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Since the Supreme Court of Canada’s decision earlier this year in Hryniak v. Mauldin 2014 SCC 7 (CanLII) more and more employees are bringing summary judgment motions to resolve their wrongful dismissal cases.

Wrongful dismissal cases that are suitable for summary judgment motions

This kind of motion is usually brought if an employer terminates an employee without just cause. After filing a statement of claim, but before discoveries or a mediation, the plaintiff can bring this motion and file an affidavit setting out basic undisputed facts like the plaintiff’s age, position, length of service and post-secondary education, and what he or she has done to look for alternative employment.

What is decided at a summary judgment motion?

In a summary judgment motion, a judge is generally asked to determine (i) the appropriate reasonable notice period, and (ii) whether the employer has proven the individual has not made reasonable efforts to find alternative employment.

(i) What is the appropriate reasonable notice period?
When determining the reasonable notice period, the judge will apply the recognized factors set out in Bardal v. Globe and Mail (1960), 24 D.L.R. (2d) 140 to the facts of the case.

(ii) Has the defendant proved the plaintiff has not made reasonable efforts to secure alternative employment?
In one case, a judge described the test to be applied as follows:

The burden of demonstrating the employee has not met that duty rests with the former employer. …The onus rests on the defendant to show either that the plaintiff “found, or by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities” …the defendant must establish that the plaintiff’s conduct in seeking to find alternative employment was unreasonable in all aspects.”

A recent summary judgment case

In a recent case, Beatty v. Best Theratronics Ltd., 2014 ONSC 3376 (CanLII), a judge on a summary judgment motion concluded that a 58 year old, Radiation Safety Officer, with 16 years service and no post-secondary education was entitled to 16 months notice of termination. The judge also concluded that the employer failed to put forward any credible evidence that the plaintiff failed to mitigate his loss of employment.

Lessons to be learned

Employers need to carefully consider whether or not to allege just cause for termination. If there is a dispute on this issue then it is unlikely that the case will be decided by way of a summary judgment motion. If not, a plaintiff cannot generally avoid the delay and significant legal costs associated with a trial.
Employers need to prove that the plaintiff has not made reasonable efforts to seek alternative employment. This means monitoring the job market, submitting a comprehensive affidavit in opposition to the summary judgment motion, and vigorously cross-examining the plaintiff on his affidavit on this issue.

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Doug MacLeod, MacLeod Law Firm

Employment and labour lawyer at MacLeod Law Firm

For the past 30 years, Doug MacLeod, founder of the MacLeod Law Firm, a Canadian labour and employment law firm, has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at doug@macleodlawfirm.ca. Read more