In Pegus v. Ecorite, a run-of-the-mill wrongful dismissal action, the plaintiff brought a motion for summary judgement. The defendant employer argued, among other things, that there were several tri-able issues, including: 1. whether the defendant induced the plaintiff to leave his previous employment, 2. the nature of the duties he undertook with the defendant employer, and 3. his mitigation efforts.
The court disagreed. Instead, the Court applied the new emphasis on using proportionality to interpret and apply the Rules of Civil Procedure. The defendant had not alleged cause for dismissal and the plaintiff had been employed with the defendant for a very short time. As such, the Court held, on the basis of the pleadings and the well-established jurisprudence, that it could determine the applicable reasonable notice period without putting the parties through the time and expense of a trial.
Significantly, the Court commented as follows about the use of summary judgement to determine wrongful dismissal actions:
“Proportionality is an important consideration, and must be borne in mind in considering whether a trial is necessary. Absent an allegation of cause, or a claim for exemplary or punitive damages, many wrongful dismissal actions are suitable for summary judgment motions. The factors affecting the length of notice are objective in nature, and the evidence is usually straightforward.”
Justice Gray’s comments, though eloquent, are not ground breaking. The judiciary is regularly signalling that resolutions without lengthy and expensive trials are to be encouraged, wherever possible. These developments have both positive and negative connotations for employers.
From a positive perspective, if more wrongful dismissal actions are resolved through summary judgement then the costs of litigating decrease. As a result, in appropriate cases employers can resist unreasonable settlement positions without being as exposed to the same risk of expensive litigation. Also, where employers have made reasonable offers to settle, they may want to consider bringing (or threatening to bring) a motion for summary judgement themselves in order to obtain a potential costs award under Rule 49 (which rule provides that a plaintiff may be entitled to no costs or that costs may be awarded against the plaintiff if a court awards less than a defendant offered to settle).
From a negative perspective, employees are more likely to file suit if their case can be resolved by summary judgement; especially because resolution can be obtained significantly faster by motion than through the trial process. Even in Toronto, where motion court is relatively busy, motion dates for summary judgement can likely be obtained in a matter of months; whereas, working through the mediation and trial processes to a full hearing can often take years.