Thursday, July 3, 2014

Beatty v. Best Theratronics: Partial Summary Judgment in Wrongful Dismissal

The 'standard' wrongful dismissal action involves factual issues that are usually relatively straightforward:

  1. How long is the notice period?  For that, we turn to either a written contract or else to the Bardal factors, like age, length of service, character of employment, and availability of replacement employment - usually (though not always) factually straightforward.
  2. What would the employee have received over the notice period?  This question looks to issues like salary, bonuses, overtime, stock options, etc.  Valuing a month isn't always completely simple, but the factual issues aren't usually overly complicated.
  3. There are always boilerplate pleadings of mitigation, but those are unlikely to get anywhere unless there's either a complete failure to seek replacement employment or else a specific instance of failure to mitigate, such as by turning down a comparable replacement job.  Again, the facts usually aren't that complicated.
These are basically the 'bread and butter' of wrongful dismissal, and while they can raise plenty of interesting legal issues, there are seldom very significant arguments about the underlying facts.

There are also plenty of other issues that can arise in specific cases - constructive dismissal, deemed quit, just cause, to name a few - which tend to be more factually nuanced.  But these are a relative minority of dismissals.

So wrongful dismissal actions are frequently well-suited to determination on summary judgment, especially following the Supreme Court's interpretation of the new rules governing such motions.  Except for one thing:  Bad faith.

It's a very common feature of wrongful dismissal litigation to see allegations of bad faith conduct.  It used to be completely ubiquitous, when Wallace damages were available.  Now, it's harder to get moral damages based on bad faith conduct, but it's still not uncommon to see them awarded.  Allegations of bad faith conduct, in pursuit of moral damages, can require a court to have a much more fulsome understanding of the history and context of the termination, and frequently involve significant factual disputes.

Thus, an employee who is wrongfully dismissed, in a context where the employer has acted poorly, is frequently in the position of having an academic claim for wrongful dismissal damages, very much amenable to summary judgment, yet with a more difficult ancillary claim for moral damages arising from contested facts, which is far less amenable to summary judgment.

So the question for the plaintiff becomes:  What to do?  Do I drop the bad faith claim to get a quicker route to judgment?  Do I wait to have a full trial on the whole matter?  Or can I have my cake and eat it too - bring a partial summary judgment claim in respect of the 'standard' wrongful dismissal elements, and have a trial in respect of the other disputed issues?

While there will always be strategic elements to consider, the recent decision in Beatty v. Best Theratronics is very helpful in framing a partial summary judgment award in such a context.  The plaintiff sought full summary judgment, and was largely successful:  Justice Hackland considered it appropriate to evaluate the reasonable notice period and the value of the reasonable notice period, and found that there was no evidence to warrant a finding of failure to mitigate, so awarded traditional pay in lieu of notice.  However, Justice Hackland was not persuaded that the evidence on the motion was enough to allow him to grant the plaintiff relief in terms of aggravated or punitive damages, and ordered a summary trial, for which he was seized, on the issue.

It's an important decision.  Not particularly shocking, and in fact it very closely adheres to the Supreme Court's instructions in Hryniak, but the importance arises from the fact that Beatty is such a common scenario in employment law.


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.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

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