The use of the summary judgment process is becoming more and more widespread in wrongful dismissal cases.
In this post, I look at three recent decisions to show how useful this process can be for plaintiffs. The conclusion is that it is getting more difficult for employers to drag their feet and lowball their dismissed employees in non-cause wrongful dismissal cases. Employees faced with low, out of the range offers can use the summary judgment process to get a fairly quick judgment with minimal risk.
In Beatty v. Best Theratronics Ltd., (2015) ONCA 247, the court upheld a 16 month notice period for a radiation safety officer. Clifford Beatty was 58 years old when he was dismissed. He had worked for the employer for a period of 16 years. In a summary judgment motion, he was awarded 16 months’ notice by an Ontario Superior Court judge. The defendant appealed the decision and tried to argue that the appropriate notice period was only 12 weeks. Not surprisingly, this seems to have angered the appellate court panel which sided, quite firmly, on behalf of the plaintiff. The defendant might have attracted a bit more court sympathy if it had put forward a reasonable alternate notice period – perhaps 10 or 12 months. But there was no basis, on the record, for proposing 12 weeks. The defendant also argued that the plaintiff had failed to apply for a sufficient number of positions over the course of the notice period. This submission was also rejected by the court, which upheld the trial court’s decision that the plaintiff had conducted a “reasonable” job search. The court also, once again, noted that there were no real credibility or factual issues that would have required a trial rather than the use of a summary judgment process. The appeal was dismissed with a costs award of $16,500. This certainly looks like a reasonable victory for the dismissed employee.
In Maxwell v. United Rentals of Canada Inc. (2015) ONSC 2580, the summary judgment process was used by a service manager who had worked for his employer for 31 years. Kevin Maxwell was 51 years old when he was dismissed on a without cause basis. He was earning an annual salary of approximately $64,700 but with bonuses and other amounts his annual income came to $81,100. The case went to a summary judgment motion. The plaintiff asked for 20 months’ compensation. The defendant proposed that 16 months should be the proper number. The court awarded 18 months’ compensation. A key issue seems to have been the annual figure to be used. The defendant argued that the plaintiff’s base salary should be the appropriate figure. The court chose to use the plaintiff’s T4 amount, which included bonuses and other amounts. This represented the plaintiff’s earnings more closely. The court also rejected the defendant’s arguments that the plaintiff had failed to mitigate damages properly by applying to 120 jobs. The court specifically noted that the defendant had not provided any assistance and this “is an important factor to be taken into consideration when the employer then accuses the former employee of not taking adequate steps to secure alternate employment.” While this decision highlights the fact that dismissed employees are entitled to be paid on the basis of their full annual income rather than base pay alone, the notice period awarded to the plaintiff was probably low.
In another recent decision, one of the key issues was how the money should be paid. In Markoukis v. SNC-Lavalin Inc. (2015) ONSC 1081, the dismissed employee had worked for the defendant for almost 41 years. Eftihios Markoulakis was 65 at the time of dismissal and was a senior civil engineer. He was paid out 34 weeks’ pay, based on the Ontario Employment Standards Act minimums for notice and severance pay. He sued his employer and asked for 30 months’ notice.
The trial court judge agreed that there were exceptional factors here including the almost 41 years of service that the plaintiff had under his belt. She ordered a notice period of 27 months. However, the motion was heard only 31 weeks after the plaintiff was dismissed. It would be unfair to order the defendant to pay the full 27 months’ compensation when the parties were only in month 8. The defendant would be entitled to credit if the plaintiff were to earn any other money or find alternate employment. The court held that the defendant would be required to pay the plaintiff monthly until the end of the 27 month notice period. The court held that the defendant reserved the right, during the notice period, to bring a motion challenging the plaintiff’s mitigation efforts or dealing with other issues that might be arise. While the plaintiff won an extraordinarily lengthy notice period, he will have to continue to report to the defendant about his mitigation efforts for the balance of the notice period. So this was not a “no strings attached” victory.
Looking at all three cases together, it is quite evident that summary judgment motions are one of the most appropriate ways of dealing with wrongful dismissal cases, where no cause is alleged. They are relatively inexpensive, relatively quick and quite difficult to defeat.
The best approach for employers defending these motions is to take a reasonable approach to damages. Employers that show up in court and put forward extremely low suggested notice periods are likely to find that the plaintiff has won everything that he or she requested. On the other hand, where the defendant puts forward a reasonable notice period, as in the Maxwell case, the court might be more inclined to view the employer more favourably.
For dismissed employees, as in all wrongful dismissal cases, it is very important to prepare a detailed and reasonable record of job search and other mitigation efforts. Although the standard is not an extremely onerous one, employees must be able to show that they have made reasonable efforts to try and find alternate employment or an alternate comparable income source. If the dismissal was “without cause” and the dismissed employee is making reasonable efforts to find new employment, the summary judgment process can be invaluable.