Much was made in the legal community of the Supreme Court's
ruling on summary judgment that came out in January of this
year. We wrote about it here at the time, and the focus of that
article was on whether or not this would make summary judgment
motions - a procedure used during civil litigation to dispose of a
case without a trial or the pre-trial processes such as
examinations for discovery and production of documents – more
While the consensus in the legal community seems to be that this
is in fact starting to bear out, with respect to employment law we
always think that there are enough complicating issues to defeat
such a motion when brought by the plaintiff: while there are
times that employers may wish to use this procedure as well, in
this case we are talking about situations where, generally, the
employer wants to avoid having the Court make a quick judgment
against them before the assessed notice period has run its
course. However, the Court's recent decision in Beatty v. Best Theratronics Ltd. may
have removed one of those weapons from employer counsel's
arsenal: the issue of mitigation.
In a wrongful dismissal suit, one of the issues – absent
any contractual provision that may deal with mitigation – is
always whether or not the plaintiff either mitigated his or her
damages, or whether, in the alternative, he or she failed to make
adequate efforts to mitigate. This is crucial for employers
because mitigation can reduce the amount an employer will have to
pay an employee; as a result, it is something that employer counsel
have often relied upon as a "genuine issue for trial"
that would defeat a summary judgment motion.
In the Beatty v. Best Theratronics Ltd.,
however, the Court determined that it could make a determination on
that very issue without any more than the affidavit evidence of the
plaintiff and the results of the cross-examination. While
this may not be a stretch on the relatively straightforward facts
of this case – the plaintiff was a 16-year employee without
the formal training for the job he was doing and therefore tried
but couldn't find appropriate alternative employment –
most cases require more in-depth examination of the issue of
mitigation than permitted under the summary judgment rules.
In this case the Court simply decreed that mitigation was not a
genuine issue for trial.
We will monitor this area of case law to see if this decision is
a harbinger of things to come in wrongful dismissal litigation, or
just an outlier based on the facts of this case. Either way,
the lawyers at CCPartners are ready and well-equipped to deal with
these and other motions: we believe employers can expect more
summary judgment motions in wrongful dismissal actions as plaintiff
counsel try to circumvent the normal rules of the court to get
their clients quick judgments.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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