Friday, October 14, 2011

Summary Judgment Motion Fails Against HBC

Aileen Thorne worked for HBC for about 37.5 years before she was terminated without cause on February 1, 2011 at age 59.  At the time of her termination, she was making just under $40,000 per year and was an "allocation associate", whatever that means.

It turns out that the meaning of "allocation associate" is pretty contentious.

She has sued in wrongful dismissal, seeking pay in lieu of reasonable notice.  The usual factors are length of employment, age of the employee, availability of replacement employment, and character of employment.  Length of employment and age of the employee are usually pretty uncontroversial (though occasionally there's a fight about the former), and availability of replacement employment is not often closely analysed.  But character of employment...that is more difficult:  Front-line employees with no significant responsibility don't get much; skilled labourers and managers get more.  So there's often a fight about what the employee's duties actually entailed.

The facts of this case are like looking into a file of my own from last year, that settled this winter.  Similar employer, comparable length of service, and the most significant fight being over the level of responsibility exercised by the employee.

Let me explain that, on files such as these, the margins are often very small for a plaintiff.  For old employees with such incredible lengths of service, you can probably expect a notice period at a minimum of 12 months, ranging up as high as 24 months (seldom higher), depending on level of responsibility and other factors - so $40,000 to $80,000, right?

Wrong.  For an employee with such long service in an employer as large as HBC, the statutory minimum entitlements max out both termination pay and severance requirements, being a total of 32 weeks pay on termination.  8 months, roughly.  So if you walk away with 12 months at the end of the day, that actually only means an additional 4 months, which would mean $13,000 in this case.  Minus taxes.  Minus any EI overpayments that might be generated.  Minus any mitigation earnings.  Minus legal fees.

I've occasionally used contingency fee retainers for employee-side files, but I don't like to, for a couple of reasons.  Between EI and taxes, an employee's take-home entitlements on additional pay in lieu of notice is fairly modest.  If the lawyer then takes a percentage of the gross, then the employee often doesn't get anything - or occasionally actually still comes out behind.

In the Thorne case, Ms. Thorne brought a motion for summary judgment, presumably to try to deal with the matter expeditiously and save on legal fees.  And recently, the Rules of Civil Procedure expanded the scope of motions for summary judgment, allowing motions judges to assess factual disputes in limited ways.  In this case, however, the motions judge found that this was not an appropriate case in which to do so.

However, the judge reserved costs to the trial judge (rather than awarding them to HBC, the successful party on the motion), which is a real mercy to a plaintiff under such circumstances.  As well, HBC's affidavits had suggested that, since it wasn't taking the position that the notice period would be less than 12 months, they were contemplating a further voluntary payment to the plaintiff, which the judge suggested that this was something that should be "carefully considered by a fair and compassionate employer".  Shades of Brito v. Canac Kitchens, no?


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.

No comments:

Post a Comment