Summary
Continued From Page 9
potential issues to muddy the wat-
ers enough that a judge would
decline to award summary judg-
ment. But as of January, the rules
have effectively been changed. The
new Rule 20.04( 2) provides that
the court shall grant summary
judgment if:
(a) the court is satisfied that
there is no genuine issue requir-
ing a trial with respect to a
claim or defence; …
( 2. 1) In determining under
clause ( 2)(a) whether there is a
genuine issue requiring a trial,
the court shall consider the evi-
dence submitted by the parties
and, if the determination is
being made by a judge, the
judge may exercise any of the
following powers for the pur-
pose, unless it is in the interest
of justice for such powers to be
exercised only at a trial:
3. Drawing any reasonable
inference from the evidence.
Clearly, the new rules are
designed to make summary judgment more readily available. They
have eliminated the argument, on
the part of a respondent, that it
was necessary to weigh evidence
or gauge credibility in order to
determine an issue. Now, judges
are entitled to do so on summary
judgment motions, and “shall”
grant summary judgment if they
are satisfied that there is no genuine issue requiring a trial.
Not surprisingly, the new rules
have not yet been tested extensively. In Cockshutt v. Computer
Facility Services, [2010] O.J. No.
1205, a motion for partial summary judgment was denied due to
real issues regarding the character of employment (a core factor
in the assessment of the appropriate notice period) and the enforceability of an employment agreement that would have limited the
notice period. In concluding that
a trial would be appropriate, the
court noted that since there were
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other issues that had to be tried in
any event, trying the issues for
which summary judgment was
sought would not add significantly to the length of trial.
While summary judgment
was denied in Cockshutt, it
seems to be an inescapable conclusion that it will be granted
more readily in run-of-the-mill
wrongful dismissal claims where
there is no real disagreement
regarding the key factors used in
assessing the appropriate notice
period, and no issues of just
cause or mitigation.
Some employers have argued
that it is premature to award damages on a motion when the applicable notice period has not even
concluded. In other words,
employers have argued that an
employee might receive a “
windfall” if, for example, they received a
payment equivalent to seven
months of damages, but found a
new job after only three or four
months. This issue has been
addressed by the courts in various
ways, including the creation of a
trust with periodic payments to
plaintiffs based on their confirmation that they have not obtained
new employment. It should not
preclude summary judgment.
“It seems to be an
inescapable
conclusion that
[summary judgment]
will be granted more
readily in run-of-the-mill wrongful
dismissal claims...
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As mentioned above, many
employers and their counsel
have counted on the fact that
an employee alleging wrongful
dismissal will have to wait for
an extended period of time,
without income and with substantial legal bills, to get to
judgment. They have often succeeded in forcing a wrongfully
dismissed plaintiff to accept a
fraction of the amount to which
they should be entitled.
Adjemian, and the changes to
the Rules of Civil Procedure,
should combine to make judgment more accessible to plaintiffs and, to a large degree, level
the playing field. ;
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Stuart Rudner is a partner
in Miller Thomson’s Labour
and Employment Law Group
and is the Vice-Chair (
Employment Law) of the Ontario Bar
Association’s Labour and
Employment Law Section.
