Tuesday, July 22, 2014

It's in the paper; it must be true!

There's a piece in the Toronto Star today about wrongful dismissals and summary judgment motions.  This is a topic I've written about on a number of occasions, including recently following the decision in Beatty v. Best Theratronics.

The Star piece, by Toronto lawyer Sheryl Smolkin, is entitled "Court opens way to faster settlements of wrongful dismissal cases" - a deceptive headline, in my view, but in my media experience, the headlines are typically drafted by the editors.  In law, when we talk about "settlement", we're talking about a resolution reached through the agreement of the parties.  ("Settle" can have other meanings, and you might say that courts 'settle' disputes, but it's confusing at minimum to say that a 'settlement' is reached through a court order.)

What the piece is getting at, ultimately, is the impact of the Hryniak decision from the Supreme Court earlier this year on wrongful dismissal cases.  Recall my commentary back in January:
Civil trials are relatively rare already.  And while the Hryniak case remains an example of a rare case requiring a trial, the framework laid out in this decision will send very large numbers of other cases to summary judgment motions - probably including most wrongful dismissal actions.

I've posted about several other wrongful dismissal actions decided on summary judgment in the past; it can be a very expeditious way of dealing with a matter.  The case of Pegus v. Ecorite Distributors Ltd. comes to mind as a decision very reflective of the 'proportionality' concerns raised by the SCC in Hryniak.  (In that case, there was a motion for summary judgment based on 'deemed admissions' by the employer in a low-dollar-value case which had been pending for three years.  The employer sought to withdraw the deemed admissions, and Justice Gray permitted said withdrawal, but proceeded to decide the issues in dispute anyways and grant summary judgment.)

I suspect that we'll be seeing a lot more summary judgment motions in the days to come.
Basically, Ms. Smolkin is saying something similar, that Hryniak has the result that a lot of wrongful dismissal matters will be resolved by way of summary judgment motion.  The article covers a lot of territory, in terms of civil litigation process, and is remarkably short for doing so, with the result that it oversimplifies a lot of what it discusses, and also with the result of overstating the article's own thesis:  The reality is that "straightforward wrongful dismissal cases" were always amenable to summary judgment motion, where the basic facts were undisputed.  The impact of Hryniak is that the scope of wrongful dismissal case amenable to summary judgment motion is even wider than ever.  It's no longer the case that a dispute as to the character of employment will necessary recall a trial, for example.  After Hryniak, the fact that certain facts are disputed will not be fatal to a summary judgment motion.

But what's particularly troubling is the blanket statement that a summary judgment motion "is not a good idea if you are also asking for punitive or aggravated damages or damages for mental stress.  In these situations the issues are sufficiently complex that a full trial is required".

Incorrect on both counts, as evidenced by the Beatty case.  The takeaway from Beatty was this:  You can still bring a motion for summary judgment even if you're seeking punitive and aggravated damages - you might not get those damages on summary judgment if the issues require a trial, but even then the judge may order a "summary trial" just of those issues, granting judgment on the rest.  So that can still be a "good idea", and doesn't require the matter to go to a "full trial".  Beatty will still be an immensely more affordable process than the conventional full trial it would have required pre-Hryniak.

Here's the rub, though:  Ms. Smolkin knows that.  When Stuart Rudner pointed it out on Twitter, she responded, "Thanks Stuart.  I wrote about that decision but parts of the article got cut."

You see, Ms. Smolkin is a lawyer who routinely writes about employment law matters.  She knows the area of law quite well, and is a very credible source, being published out of a major news outlet.  But, in the print media, the editor has the final say in what gets printed, and that may or may not omit crucial information or context.

Brevity is extremely important in journalism.  Lawyers tend to be on the other extreme - I'll be the first to admit it, but the first of a very long line.  Part of that is because context is so very important in all things legal.  So lawyers make things longer to avoid over-generalizing or to make sure they're not omitting important details, and that can be a problem...but what happened to Ms. Smolkin's piece is arguably worse, because the cuts ended up leaving an overall impression which is demonstrably untrue.

This is one of several reasons to always remain sceptical of what you read in the newspaper.  Even if it's a credible newspaper, written by a sophisticated journalist who knows the topic, that doesn't necessarily make it true.

And to a lesser extent, even when you're reading unedited materials directly from a credible source (such as this blog), you should still remain a bit sceptical, because context is everything, and there's absolutely no substitute for getting legal advice dealing specifically with your legal issue directly from a lawyer.


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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