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Monkhouse Law wins alleged cause case without calling a single witness, winning a one year seniority employee 3 months notice, tuition reimbursement, and legal fees.
This week’s decision, 975866 Ontario Ltd., 2015 ONSC 7508, was a judgment obtained by Andrew Monkhouse and Laura McLennan of Monkhouse Law. It strongly affirms that cases involving cause allegations may still be appropriate for summary judgment, and that Superior Court level cost awards are possible on a motion for summary judgment, even when the judgment on the merits is below the small claims court cut off of $25,000.
The Plaintiff was employed by 975866 Ontario Ltd. (“TAGG”), a corporation that provides design and engineering manufacturing and installation for commercial and industrial markets as a Job Captain. He was hired on November 12, 2013 pursuant to a written offer of employment for a base salary of $89,000.00 annually, as well as a tuition reimbursement of $6,000.00 for a University of Toronto Building Science Certificate course.
On October 9, 2014, after almost one year of employment and at the age of 41, the Plaintiff was dismissed and was provided with statutory minimum notice. He brought an action for wrongful dismissal, and upon advice of his lawyer asked the Court to resolve the matter on a motion for summary judgment, a procedure whereby the Court resolves straightforward cases at a single-day hearing on the basis of written testimony and documentary evidence.
The Defendant opposed summary judgment, and denied that they owed the employee any reasonable notice.
The action proceeded to summary judgment, and was resolved, meaning that the judge decided that the employee won his case, without having to hear from any witnesses at all. Thus, winning the case without calling a single witness.
There were four issues in the case:
1. If the matter was appropriate for summary judgment
2. If there was ‘cause’ to terminate the Plaintiff;
3. The amount the Plaintiff would receive, including notice and tuition reimbursement; and,
4. The amount of legal fees to be covered.
Monkhouse law, on behalf of the Plaintiff, won on all four issues.
The Decision issue by issue
1) Whether the matter was appropriate for Summary Judgment
The Defendant objected to the matter proceeding on a summary judgment motion on the basis that there was a “genuine issue for trial”, being whether the Plaintiff was dismissed with cause. However, G.Dow J. rejected that cause existed, for reasons outlined below, and granted full summary judgment on the matter. In pronouncing the matter suitable for summary judgment, the learned justice stated that “wrongful dismissal matters are particularly well suited to summary judgment motions and assist the parties in obtaining affordable access to the civil justice system.”
2) Whether there was Cause to Terminate the Plaintiff
While the Defendant did not initially allege cause at the time of termination, it chose to do so in its Defence. Specifically, the Defendant cited issues with the Plaintiff’s attendance and performance, taking the position that the Plaintiff had not provided evidence to contradict these asserted issues. This was quickly rejected by the learned justice who cited the principle in Hryniak v. Maudlin,  1 S.C.R. 87, being that the onus was primarily on the employer to “lead trump” on a summary judgment motion, as in, put its best evidence forward. As TAGG failed to adduce evidence of the alleged cause, aside from the testimony of its owner to whom the Plaintiff did not directly report to, and because there was no documented warnings or a reference to the termination as “for cause”, G.Dow J. was able to find that there was no cause to terminate the Plaintiff, even without verbal testimony.
3) Amount of Damages
The Court found that the Plaintiff had been recruited into his position with TAGG in that he had been recruited by an employment agency retained by TAGG to leave his prior position, which he had been working at for three months and which paid significantly less. It noted his age and the fact that he obtained a position seven months after his dismissal as factors to consider in determining the appropriate notice period.
After considering these factors, the Court determined that the Plaintiff was entitled to a reasonable notice period of 3 months even though he had only just over 1 year seniority. This is twelve times more than statutory minimums paid upon termination (the sum of $1,711.54).
The Plaintiff was awarded full reimbursement of the tuition allowance promised in his Offer of Employment, the sum of $6,000.00, which was never paid to him by the Defendant. The Defendant’s reason for the non-payment was that it did “not benefit from this additional education”, an argument which was quickly rejected. The determination on this entitlement was relatively simple given that it was clearly outlined in the Offer of Employment.
4) The Amount of Legal Fees to be Covered
When the Court went on to determine the appropriate cost award, the Defence argued that the Plaintiff should not receive costs at all because they recovered an amount that could be recovered in Small Claims Court.
This is because the monetary jurisdiction of the Small Claims court is $25,000 and the award was $18,333.34 on the merits of the case.
Justice Dow, in soundly rejecting this line of argument found that the method proposed by the Plaintiff was expedient and efficient, equal to, if not better than the Small Claims Court.
What’s more, the learned justice noted that a Small Claims trial, which would have required oral evidence and not simply written evidence, would have inevitably been a multi-day trial, resulting in more substantial costs and expense of time.
Costs were thus awarded at the Superior Court level, a total of $13,809.91 including HST and disbursements, equating to 69% of the judgment (the award for common law notice and tuition reimbursement ($20,044.88)), a substantial award.
Asgari is a great case for Plaintiffs, not only due to the fact that it is demonstrative that cause cases are appropriate for full summary judgment, but also because of the sizeable costs awarded.
While many Defence counsel are quick to advocate for penalization of a Plaintiff wherein a matter could have been brought before the Small Claims Court (as Counsel for the Defendant did in Asgari), this case shows that penalization is not guaranteed and that it can actually be more beneficial for a Plaintiff given the larger costs awards in the Superior Court of Justice. If Asgari, for example, had proceeded to a small claims trial, the cost award would have been limited to $3,750, for a total of $22,083.34, or almost $10,000 less than what was awarded in Superior Court.
For employers this case shows the risk of failing to have a solid negotiation strategy, the employer in the end paid the full amount for severance, and legal fees of the employee’s lawyer when if they had meaningfully engaged in negotiation earlier they could have avoided these costs, as well as their own, fees.
Asgari serves as an example of Monkhouse Law’s ability when it comes to approaching wrongful dismissal matters. If you need an employment lawyer, contact Monkhouse Law today for a free consultation.
*Note: Past successes do not necessarily represent an increased chance of success on future cases. Each case must be weighted on it’s own merits by an employment lawyer.