Friday, January 15, 2016

Summary Judgment and Creative Solutions

One of the consequences of the Supreme Court's decision in Hryniak is that, even beyond the significant expansion of the availability of summary judgment generally, the courts are allowed to exercise their discretion in designing fair and expeditious processes to determine issues that may not be otherwise amenable to summary judgment.

In the case of Bevilacqua v. Gracious Living Corporation, Justice Dunphy felt it necessary to craft such a process.

The Facts

Mr. Bevilacqua worked for Gracious Living for about 16 years, but was given a lay-off notice in September 2014.  Bevilacqua commenced litigation in October 2014, apparently claiming constructive dismissal.  This is a topic I've touched on several times:  Suffice it to say that, despite one outlier case decided in 2014, my view is that the current law in Ontario continues to be that a temporary layoff, in the absence of a contractual right upon the employer to do so, constitutes a constructive dismissal.

Gracious Living, shortly after receiving the claim, offered Bevilacqua his job back, on the same terms and conditions before.  Sound familiar?  Perhaps because it sounds much like the case of Mr. Chevalier, who ultimately had to pay a very substantial costs award to his former employer because he turned down the job under similar circumstances and continued to sue for wrongful dismissal.

Bevilacqua turned down the job, and he claims that it was a bad faith offer - that they had put him on 'temporary layoff' as a way of trying to get him out permanently, and the offer to return him to his job was not made in good faith.

That appears to be the only major factual issue in contention, though.

Justice Dunphy's Decision

Justice Dunphy concluded that, because of the narrowness of the issues that might benefit from viva voce evidence, it was appropriate to fashion a summary manner of dealing with the case.
Whether it be characterized as a motion for summary judgment with some viva voce evidence, a "mini-trial", or a modified hearing under Rule 76, I have the jurisdiction necessary to order a common-sense procedure for resolving these issues that satisfies the overriding principles of justice, proportionality, and access to justice.
The process is expedited, but specific and detailed, with a fixed timeline.  In the hearing, witness testimony time is to be quite limited.  Before the hearing, of the other witnesses, out-of-court cross-examinations can be conducted beforehand.  (As a Rule 76 motion, this is interesting:  The default is that no cross-examinations on affidavits is permissible in a Rule 76 motion.  That sometimes creates a tension with the new summary judgment rules.)

Rather than requiring a "full factum", Justice Dunphy called for concise written argument directed at the four core issues in dispute.

Justice Dunphy was particularly firm on one point:  "This hearing will NOT exceed one day."


There's certainly value in Justice Dunphy's approach:  It will achieve a result expeditiously, while giving the court a reasonable opportunity to hear directly from the critical witnesses.

Still, since the release of Hryniak, I have seen plenty of summary judgment decisions (including my own) with more significant factual disputes than what appear to be the case here.

So what's the principled distinction to be made here?  In what cases will a factual dispute require a process of this nature, versus being decided by way of a normal summary judgment motion?


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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