Another Summary Judgment Motion Dismissed

There have been a few changes in recent years to civil litigation procedures in Ontario, and a significant one was the expansion of the rule permitting motions for summary judgment, to allow the rule to capture a broader number of cases and reduce the necessity of trials.  When seeking summary judgment, a party is asking the Court to find that there is "no genuine issue for trial" - that the opposing party's case is simply unsustainable.  In the past, a motions judge was unable to weigh the evidence or assess credibility:  If there was conflicting evidence as to any material facts, a trial would be necessary.  Now, however, motions judges are permitted to weigh evidence, assess credibility, and draw inferences of fact when determining whether or not there is a genuine issue for trial.

Simple wrongful dismissal cases, where no just cause is alleged and no punitive or moral damages are sought, are often suitable for summary judgment motions.  This is especially important as these actions do not always involve a great deal of money.  In most such cases, the dispute is over the length of the reasonable notice period, and the law on reasonable notice is well-established in principle, though every case is unique on its own merits.  In determining the reasonable notice period, the usual factors - referred to as the Bardal factors - are the age of the employee, the length of service, the character of employment, and the availability of replacement employment.

I've never seen a case where age was a matter of dispute.  The facts surrounding length of service are seldom disputed - for longer-service employees, the start date may be uncertain, but it is unusual for this to be a source of argument.  Where the length of service is in issue, it is usually because there was some interruption in the employee's service or some other reason to question whether or not a given period of time is to be included for the purpose of calculating the notice period.

The availability of replacement employment is seldom the source of much discussion, either.  Occasionally, expert evidence will be led by one side or another, but in general this one is driven more by the 'mitigation' discussion - if the plaintiff has been diligent in seeking new employment and has been remarkably unsuccessful, that may weigh in favour of a slightly longer notice period.  In most cases, this factor is hardly even mentioned in the Court's analysis.

The character of employment, however, can be more difficult.  Was the position supervisory?  How much responsibility was involved?  How specialized were the duties?  Sometimes, you get a case where there are grey areas of how much personal responsibility an employee had, whether or not the employee's role had supervisorial/managerial aspects to it, and what the bulk of the employee's job actually was.  I might say that I was an accountant, and point to the myriad tasks involving the company's books.  The company might turn around and say that I was an admin assistant, that my bookkeeping responsibilities were a small part of my duties and in any event only related to simple data entry.  This is the kind of dispute we sometimes run into here.

Incidentally, there is case law suggesting that the character of employment is of "declining relative importance", but the consequences of that are yet uncertain.

In addition to the Bardal factors, the issue of mitigation is usually raised in wrongful dismissal.  Did the employee take reasonable efforts to reduce his losses by obtaining reasonable employment?  However, the threshold for this test is not particularly high, and the onus is on the employer, so this seldom makes a difference.

There are some cases in which the Courts have found summary judgment is not appropriate.  I posted about the Thorne case some time ago, in which the character of employment was in dispute and called for a trial.  Recently, the Court released its decision regarding a summary judgment motion in Bomhof v. Eunoia Inc. et al., dismissing the motion.  In this case, a 64-year-old registered nurse with 8 years of service was dismissed.

It is well-known that there is a nurse shortage in Ontario.  It should not be difficult for an RN to find new work.  However, this RN did not include hospital settings in her employment search, and when she finally obtained part-time employment ceased searching for a new job altogether.  The employer alleged that these actions were unreasonable, and inadequate for mitigation.  The trial judge accepted that they are triable issues, and declined to order summary judgment.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.