An oddity in Labour & Employment Law
A man has filed a lawsuit against his boss, claiming that the sound
of her voice made him throw up.
Anthony Dingle, a New York housing authority superintendent,
alleges in his lawsuit that his boss constantly berated him; her verbal
abuse sickened him so much that hearing the sound of her voice made
him vomit. He claims he began seeing a psychological therapist to
cope, according to the New York Post.
This takes the concept of hurling insults to a new level.— Natalie Fraser
Lawddities
Legal Oddities in (Blank) Law
Man claims boss’s voice made him vomit
BRETT LAMB / DREAMSTIME.COM
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Summary judgment motions escalate
in wrongful dismissal actions
Many wrongful dismissal
cases are straightforward, involve
very few contentious facts and do
not require argument on complex
legal issues,making them good
candidates for summary judgment. But under the old procedure in Ontario, summary judgment was often difficult to obtain,
so it was rarely used to resolve
wrongful dismissal claims early
on in the litigation process. Now,
with the province’s new Rules of
Civil Procedure, summary judgment has become more attainable and both employers and
employees seem to be bringing
summary judgment motions at
an increasing rate.
The most significant change
to the summary judgment procedure is the additional powers
given to judges to weigh evidence, evaluate credibility and
draw reasonable inferences from
the evidence. With these new
powers, motion judges are willing to resolve a number of issues
that may have required a trial
under the old rules, including:
(a) the length of reasonable
notice; (b) the calculation of
damages; (c) the adequacy of
mitigation; (d) deductions, if
any; and (e) the method of paying damages and interest.
From a strategic perspective,
counsel may consider abandoning less supportable claims
on the motion to increase the
likelihood of success on the issue
of reasonable notice. For example,
in Simpkin v. Ability Machine
and Manufacturing Inc., [2010]
O.J. No. 2330, the plaintiff was
successful in obtaining a reasonable notice award on summary
judgment when claims that may
have required a trial, such as
aggravated and punitive damages, damages for mental distress
and breach of fiduciary duty,
were abandoned.
To take full advantage of a
motion judge’s increased powers, the parties must provide
enough evidence to determine
the issues. Obaidi v. Home Depot
of Canada Inc., [2010] O.J. No.
4829, highlights the importance
of “leading trump” or risking
loss. In Obaidi, the defendant
sought to dismiss a wrongful dismissal action on the basis that it
had satisfied its termination
obligations pursuant to an
employment agreement. The
plaintiff presented affidavit evidence suggesting that the ter-
ALEX
KOWAL
“
With these new
powers, motion judges
are willing to resolve
a number of issues
that may have
required a trial under
the old rules...
mination clause and the agreement as a whole should not
stand. The defendant did not file
any evidence in response to the
plaintiff ’s evidence.
In refusing to grant the dismissal, Justice D.M. Brown, by
reference to Lawless v. Anderson, [2010] O.J. No. 2017, noted
that while the motion judge’s
powers had increased under the
new rules, the quality of the record and case-specific factors
would ultimately guide judicial
discretion in assessing whether a
fair, final disposition of a proceeding can occur using a summary judgment motion.
Employers can also successfully use the new procedure to
obtain an early dismissal where
its legal defence has a solid factual foundation. In Duong v.
Linamar Corp., [2010] O.J. No.
2314, the defendant moved to
dismiss a claim for wrongful dismissal, breach of fiduciary duty
and breach of good faith on the
grounds of frustration of contract. Justice J. Newbould noted
that most of the evidence in the
case was not contested, as it
related to the plaintiff’s medical
condition; the only contentious
point was what flowed from the
medical condition.
In dismissing the claim, Justice Newbould reviewed the relevant law and drew a legal conclusion based on the evidence
presented, ultimately finding that
the employment contract was
frustrated by the time the defendant terminated the plaintiff.
Perhaps the most unsettled
issue is how motion judges will
account for the obligation to
mitigate after summary judg-
ment is awarded. Since, in most
cases, the reasonable notice per-
iod will expire at some point
after judgment has been ren-
dered, there is a concern
regarding how to address future
mitigation efforts.
Alex Kowal is an associate
lawyer at Greenberg Turner, A
Human Resources Law Firm, in
Toronto. He provides advice and
assistance to management clients.
