Aug 27

Summary Judgement Appropriate for Questions of Notice, Toronto Employment Lawyer


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Since the seminal decision in Hryniak v Mauldin, 2014 SCC 7, which broadened the application of summary judgment motions, many employment law matters have proceeded via this more efficient, proportionate and less expensive mode of determining issues. In brief, a summary judgement is a condensed alternative to a full trial, whereby witnesses give their evidence via sworn affidavit with documentary evidence attached as exhibits. Hyrniak also held that judges are able to craft their own procedure, for instance to hear oral evidence at a summary judgment motion, in the interests of timeliness, affordability and proportionality in order to avoid the time, expense and procedure of a full trial.

Summary judgment motions can be scheduled more quickly than a full trial and are typically done within one day. Historically these motions were deemed appropriate when the case turned on purely legal question, as opposed to questions of fact. However since Hryniak, as readers of our blog will know, Courts have consistently held that wrongful dismissal cases are appropriately determined by summary judgment. In employment law this has been a very useful culture shift which allows terminated employees to seek resolution of their wrongful dismissal matter quickly in hopes of receiving a severance package during the period of time they find themselves unemployed. If these matters were to be determined by a full trial, the employee could find themselves in receipt of a severance package after their notice has expired and once they have received a new job.

While employees are typically in favour of this fast justice, in Gu v Habitat for Humanity of Greater Toronto Area Inc, 2018 ONSC 2725, the Court dealt with a scenario where an employee attempted to resist summary judgment. In Gu the employee-Plaintiff brought a claim for wrongful dismissal, defamation, intentional infliction of emotional distress, and discrimination under the Ontario Human Rights Code, RSO 1990, c H.18 (“the OHRC”). The Defendant moved for a summary judgement, which the Plaintiff, Ms. Gu, opposed. Ms. Gu argued that there were questions of fact requiring a full trial. In particular, she pointed to the discrepancies between her affidavit and that of her former supervisor. The Court disagreed and granted the Defendant’s request for summary judgement. Justice Koehnen hearing the motion used his trial management powers to hear oral evidence in order to weigh the credibility of the witnesses.

Justice Koehnen dismissed the employee’s claims against two Defendants, her claim for defamation, discrimination as well as intentional infliction of emotional distress. Justice Koehnen found that the employee who was employed as Director of Finance and Administration for 15 years, was entitled to 18 months’ notice of her termination.

In the employment law context, summary judgment has come to be seen as a tool for fast judgment for employees to receive severance packages. This decision is notable in that it demonstrates post-Hyrniak judges are willing to be active in assessing how best to deal with a matter that has come before them for summary judgment, even in the event the employee resists. It is yet another decision that finds summary judgment for notice periods is appropriate.

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