THE LAWYERS WEEKLY
May 21, 2010 | 9
How to win
must now prove
hile employers continue to
have a duty of good faith
toward employees in the manner
of dismissal, uncertainty remains
as to when an employee will be
awarded damages for a breach, and
what employees need to demonstrate
to be awarded damages. This uncer-
tainty is due to the seismic shift in
employment law created by the
Supreme Court of Canada in Honda
Canada v. Keays,  S.C.J. No. 40, from which
the dust has not completely settled.
In Brien v. Niagara Motors Limited,  O.J.
No. 5313, the Ontario Court of Appeal reviewed the
duty of employers to act in good faith at the time of
termination for an employee who alleged mental distress from her termination. The decision appears to
confirm that bad faith conduct on its own will no
longer be a sufficient basis to award damages.
The case involved the termination of a 23-year
employee, Margaret Brien, from her job as office
manager at the Niagara Motors car dealership. Her
termination came as a complete surprise. Brien
experienced tremendous shock when she was terminated, since she had never previously been disciplined and was not provided with warnings about
her performance. At the time of termination, the
dealership told Brien that her dismissal was the
result of her position being eliminated. The dealership, however, had secretly advertised her position,
and, to add insult to injury, required Brien to train
her replacement after her dismissal.
In a classic example of an employer playing hardball that would have attracted Wallace damages
prior to Keays, the dealership only alleged that Brien
had performed her duties
incompetently and unprofessionally after she commenced
the court action. The
employer also alleged that
her misconduct provided just
cause for her termination and
thus they owed her no notice
of termination. Finally, the
employer refused to provide
Brien with a letter of reference or to assist her in any
way with her job search.
The trial judge concluded
that there was no just cause
for her termination. Rather,
the trial judge found the
employer was dishonest, misleading and insensitive
during the termination, at a time when Brien was at
her most vulnerable. The trial judge concluded that
the employer acted in bad faith in the manner of
Brien’s dismissal, and pursuant to Wallace
principles, increased the award of 24 months pay in lieu of
notice by two additional months.
On appeal, the Court of Appeal considered, in
See Brien Page 11
conduct on its
own will no
longer be a
SHANE OBRIEN / IS TOCKPHOTO. COM
Summary judgment motions
will soon become far more common in wrongful dismissal claims.
Plaintiffs and their counsel should
consider using such motions to
strategically litigate their claims,
and employers and their counsel
should be aware that they may not
have the luxury of extended delays
between dismissal and judgment.
Daniel Lublin wrote about this
issue in The Lawyers Weekly a year
ago, focussing on the Ontario Court
of Appeal’s decision in Adjemian v.
Brook Crompton North America,
 O.J. 5230. In that case, the
plaintiff believed she had been
wrongfully dismissed, commenced
litigation and promptly brought a
motion for summary judgment.
In response, the employer
argued that issues of mitigation
and the appropriate period of
notice precluded summary judgment in routine wrongful dismissal cases. Justice Perell of the
Ontario Superior Court disagreed,
and the Ontario Court of Appeal
confirmed the decision, granting
the plaintiff summary judgment.
Lublin noted that Adjemian,
like many plaintiffs, could not
afford to wait months or years for
judgment, all the while funding
the litigation. In many cases,
employers count on the costs and
delays of litigation as deterrents to
cause plaintiffs to either decide not
to commence litigation at all, or
settle for substantially less than
they would receive if they proceeded to trial.
Since Adjemian, there have
been significant changes to the
Rules of Civil Procedure in
Ontario that should allow for
even more widespread use of
motions for summary judgment.
Under the old rules, a moving
party had to show that there was
“no genuine issue for trial” in
order to obtain summary judgment. Judges hearing motions
for summary judgment were precluded from weighing evidence
or assessing credibility.
As a result, in many cases it was
open to responding parties to raise