Jul 5

Tagg Industries v Reider: Cross-examinations may be permitted in simplified procedure matters notwithstanding the Rules, Toronto Employment Lawyer


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As readers of our blog and many employment law commentators know, the law has developed to allow more room for summary judgment motions as opposed to full trials for wrongful dismissal matters. Summary judgment motions, when appropriate, are a quicker and cheaper way to receive justice.

Generally speaking, simple wrongful dismissal matters where the main dispute is the amount of notice owing to an employee are appropriate for summary judgment. However in some circumstances even some wrongful dismissals that are more complex, ex. involve cause allegations or just generally have a larger factual dispute between the parties, can be determined by summary judgment with the aid of out of court cross-examinations where the parties have an opportunity to test the credibility of witnesses. One limitation to conducting cross-examinations are for simplified procedure matters which are matters brought under the more streamlined process when the value at issue is less than $100,000. What makes this difficult is that sometimes when dealing with a more complex wrongful dismissal matter worth less than $100,000 the rules may prevent you from seeking summary judgment forcing you to into the more-costly trial procedure. That said the Court is also showing some flexibility on this very issue.

In the recent decision of Tagg Industries v Reider, 2018 ONSC 5727 (CanLII) the Court was dealing with a summary judgment motion involving the wrongful dismissal of an employee on an alleged for-cause termination as well as repayment of a loan for the employer.  In determining the matter was appropriate for summary judgment the Court found that it was more proportionate and in the interest of justice to consider cross-examination evidence in a simplified procedure matter in order to make the necessary findings of fact to resolve the matter, notwithstanding that the rules disallowed them.

This is also in line with an earlier decision from Master Short in Yue v Vong, 2012 ONSC 1033 (CanLII) which also allowed for examinations for discovery to be used as cross-examinations in a simplified procedure matter.

In both cases the parties had initially consented to scheduling and conducting the cross-examinations and an issue later arose as to the ability to use the cross-examination evidence on a motion when in simplified procedure. It appears the Courts are willing to be flexible in the application of the rules in order to get to a proportionate and just adjudication of the issues.

For practitioners in this area, these cases can and should be used as examples of how to be creative with the rules and save costs which ought to be in the interests of all parties to a litigation.

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