“Rocket Docket” to Summary Judgment in “Without Cause” Wrongful Dismissal Cases


Time Published on July 26, 2013

An Ontario Court has signaled that it is prepared to adjudicate wrongful dismissal cases very quickly where the employer has not asserted just cause to terminate the worker’s employment. The case involved a 70 year old machine operator who had been employed by the defendant auto parts manufacturer for 20 years.  His employment was terminated without cause and he was provided with a modest severance payment.

The worker sued for wrongful dismissal approximately 18 months after his termination.  The worker brought a motion for what is known as “summary judgment”.   Summary judgment is a process where a court can make a decision on the outcome of a case without having a trial.  Summary judgment is only permitted where a Court finds that it can have a “full appreciation” of the evidence required to determine the legal issues without a trial.  Summary judgment motions are commonly used where the facts of a case are not disputed and the Court is only required to make a legal ruling.

The employer in the case argued that the worker ought not to be allowed to pursue a summary judgment motion until it had the opportunity to examine the worker for discovery.  Discovery is a pre-trial process where the employer would have the right to ask the worker questions out of court which relate to the issues in the case.  The employer indicated it wished to examine the worker on the efforts he made to find another job and various issues related to his entitlement to overtime and benefits in the notice period.

In wrongful dismissal matters, Courts expect workers to take steps to find alternate employment to mitigate the loss arising from the loss of their employment.  Courts will reduce the damages owing if the employer can prove that the worker did not actively pursue alternate employment.  The employer in this case asserted that it ought to have the right to explore this issue before a summary judgment motion was heard.

The Court categorically rejected this argument and held that the worker had filed materials demonstrating that he had looked for other jobs.   The Court noted that it was not surprised that the worker was not able to locate another job in light of his advanced age and the state of the economy.  The Court held that this was a simple case where the only real issue to be determined was the length of the notice period.  The Court granted summary judgment and awarded the worker 22 months of pay in lieu of notice and invited submissions on legal costs.

The case shows that Courts will entertain summary judgment motions at an “early stage” in “without cause” wrongful dismissal matters without discoveries.  The Court in this matter commented that it is incumbent upon trial judges to simplify the litigation process and make decisions on the merits of a case before the parties are “financially exhausted”.

This case may signal a trend towards summary judgment becoming fairly commonplace at an early stage of without cause wrongful dismissal cases.  As a practical matter, this means that workers would have the ability to obtain a judgment without the expense and delays associated with a trial and discoveries.   This would reduce the time and effort required by a worker’s counsel to pursue a straight forward dismissal case.

Of course, this case was brought under the "simplified rules" (claims between $25K and $100K or where the plaintiff agrees to limit recovery to within that range) and so the employer was not permitted to cross examine the plaintiff on his affidavit filed on the motion.  In ordinary procedure cases (claims of $100K or more) employers may cross-examine on affidavits filed with summary judgment motions, so the concern about lack of discovery would be less important for high value claims.  But in our experience many if not most wrongful dismissal actions are brought under the simplified procedure.  So this decision will certainly resonate.

From the perspective of employers, it somewhat problematic that a Court would be prepared to rule on a case before the employer can explore the mitigation issue.  However, it is important to appreciate that the facts of this case involved a 70 year old labourer who provided evidence of mitigation.   As a practical matter, it is very unlikely that the employer in this case could have convinced a Court that this employee did not do enough to mitigate his loss.  The Court in this case clearly felt that engaging the discovery process would be a waste of resources and proceeded to rule on the merits.

It is important to appreciate that summary judgment will not always be available at an early stage of a “without cause” case.  For example, a trial may be necessary to resolve disputes about the employee’s entitlement to particular compensation such as bonuses and stock options.  Further, a Court would likely be more inclined to allow discovery to proceed if there was appeared to be a genuine dispute about the worker’s mitigation efforts.  However, it is clear from this case that the Courts will be prepared to rule on straight forward “without cause” by way of summary judgment.

Tag employment law,  wrongful dismissal litigation