A new Ontario Court of Appeal decision continues to support the
use of the summary judgment process for wrongful dismissal cases.
This move away from a full trial process for such cases reduces the
costs and time associated with litigation. Ultimately, this could
provide easier access to litigation and faster decisions for
plaintiffs in straightforward wrongful dismissal claims,
complicating life for employers.
Arnone v. Best Theratronics Ltd.1 is
the latest pronouncement by the Ontario Court of Appeal relying
upon the Supreme Court of Canada decision in Hryniak v.
Mauldin2for the proposition that a straightforward
claim for wrongful dismissal without cause is the type of case
usually amenable to a motion for summary judgment under Rule
In this particular case the Plaintiff was a 53 year old Manager
level employee with 31 years of service making $95,000.00 per
annum. At the time of the Plaintiff's termination of employment
he was 16.8 months away from the date upon which he would be
entitled to receive a full unreduced pension. The judge hearing the
motion for judgment seized upon this particular fact and attempted
to fashion a result that would "bridge the gap" to the
Plaintiff's retirement date.
On appeal, the Ontario Court of Appeal found fault with this
approach and confirmed that rather than bridging the Plaintiff to
the date of eligibility for an unreduced pension, the common law
period of reasonable notice ought to be assessed using the standard
The Court of Appeal went on to confirm that an appellate court
ought not to interfere with a trial judge's assessment of
reasonable notice unless the same is outside an acceptable range or
alternatively was based upon an error in principle or an
unreasonable finding of fact. In all other cases the trial
judge's assessment is entitled to deference.
The Court of Appeal substituted the alternative finding of the
trial judge which was that reasonable notice would otherwise amount
to 22 months. The appellate decision further overturned the
motion judge by confirming that the Defendant was entitled to
offset the Plaintiff's income generated from his new employment
during the period of reasonable notice.
The Court also confirmed that in matters such as these the
Plaintiff is entitled to the present value of the loss of pension
benefits over the period of reasonable notice consistent with the
earlier Ontario Court of Appeal decision in Taggart v. Canada
Life Assurance Co.5
Finally, it appears that there was no discussion at either the
original motion or on appeal of the possible impact upon the award
of the pension benefits available to the Plaintiff. This issue
appears to have been well settled by the Supreme Court of Canada
decision in IBM Canada Ltd. v. Waterman6where
the majority held that pension benefits are a form of deferred
compensation for the employee's past service rather than an
indemnity for wage loss and accordingly are not to be set-off
against damages for wrongful dismissal.
The previous noteworthy decision of the Ontario Court of Appeal
on this subject was Bernier v. Nygard International
Partnership.7 In that case the motion for
summary judgment was heard during the period of reasonable notice
and the court imposed a trust in favour of the Defendant with
respect to any mitigation earnings generated by the Plaintiff over
the balance of the period.
Another approach which has been used is for the court to grant
partial summary judgment to the date of the motion, adjourning the
balance of the motion.
It appears that motions for summary judgment are increasingly
becoming part of the landscape of employment law in Ontario as part
of the "culture shift" away from the full trial model in
order to follow the direction of the Supreme Court of
Canada8 that courts must fairly and justly
adjudicate disputes by way of a timely, affordable and
1 Arnone v. Best Theratronics
Ltd. (2015), ONCA 63
2Hryniak v. Mauldin(2014),
3Bardal v. The Globe and Mail Ltd. (1960),
24 DLR (2d) 140 (Ont HC) at page 145
4Minott v. O'Shanter Development
Co.(1999), 42 OR (3d) 321 (CA)
5Taggart v. Canada Life Assurance
Co.,2006 CANLI 53345 (ONCA)
6IBM Canada Ltd. v. Waterman, 3 SCR 985
7Bernier v. Nygard International
Partnership,2013 OMCA 780
8Hryniak v. Mauldin(2014),
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