In a recent blog, we discussed the trend toward the use of summary judgement motions to resolve wrongful dismissal actions.
By contrast, in another recent decision, Anderson v. Cardinal Health, the Ontario Superior Court held that summary judgement was not appropriate as mitigation and the character of employment presented issues necessitating a trial.
In this case, the Plaintiff brought an action against her former employer after she was dismissed without cause. She had been employed for over 22 years and was 55 years of age at the time of termination. She was provided with termination and severance pay under the Employment Standards Act, 2000. She sued for wrongful dismissal damages at common law.
The Plaintiff moved for summary judgement. The summary judgment process allows a court to render a decision in a case without going through an entire trial. The court will grant a summary judgement motion where it is convinced that it has a “full appreciation” of the evidence required to determine the legal issues at hand.
The court found that it was unable to render a finding as to whether the plaintiff made sufficient efforts to mitigate her damages. It received conflicting evidence from the Plaintiff and the Defendant regarding the adequacy of the Plaintiff’s mitigation efforts. The Defendant had argued that it had found 27 positions that would have been suitable for the Plaintiff that she failed to apply for. The Plaintiff contended that she did not apply for these positions because these jobs offered lower wages and did not have comparable duties. The evidence she did present of her mitigation efforts did not provide any information regarding the hourly wage, benefits, duties, and qualifications of the positions she did apply for. As such, the court could not assess the credibility of the Plaintiff’s reason for failure to apply for these other positions. It concluded that it could not make a finding as to whether her conduct was reasonable.
The court also found that the particulars of the positions that she had applied for where pertinent to its determination of the availability of comparable employment opportunities, which it required in order to determine the reasonable notice period. In coming to its conclusion, the court relied on another decision, Thorne v. Hudson’s Bay Co., where the court dismissed a motion for summary judgment after the parties had given conflicting evidence regarding the availability of comparable employment as well as the plaintiff’s mitigation efforts.
As this case illustrates, where there is conflicting evidence regarding a plaintiff’s mitigation efforts the courts might dismiss a summary judgement motion. However, this will not be the case in every instance where mitigation is contested. If the court is satisfied that a decision can be made based on the evidence presented then it will allow the motion for summary judgement. This was the case in another recent decision, Bernier v. Nygard International Partnership, where the court was presented with a voluminous written record on the plaintiff’s job search. In that case, the defence had not provided any evidence of jobs that the plaintiff failed to pursue. It only provided an assertion that the plaintiff was searching for jobs with too high of a salary. The court found, based on the record, that it was more than able to gain a full appreciation of the evidence and allowed the motion for summary judgement.