Sunday 13 July 2014

Summary Judgment - Appropriate In Most But Not All Employment Law Cases

Summary judgment remains an effective and appropriate means for the resolution of wrongful dismissal cases. However, as the recently decided case of Beatty v. Best Theratronics Ltd., 2014 ONSC 3376 (CanLII) demonstrates, not all aspects of such cases are amenable to summary disposition.


On August 18, 2010, the plaintiff was summarily terminated from his employment by the defendant without cause. The plaintiff sued, claiming wrongful dismissal and aggravated damages for the manner of his dismissal. He subsequently brought a summary judgment motion to resolve the case.

The motion was heard in Ottawa by the Honourable Justice Charles Hackland, who decided that two of the issues raised, being the period of reasonable notice and the alleged failure to mitigate, did not present a genuine issue requiring a trial and were therefore appropriate for disposition by way of summary judgment.

However, for Justice Hackland, the issues of entitlement to aggravated or punitive damages and to certain special damages, did require viva voce evidence. His Honour resolved to deal with those issues later by way of a summary trial, as contemplated by Rule 20.05 (2).

Reasons for Decision

On the issue of the appropriateness of summary judgment in cases about reasonable notice, Justice Hackland observed that:

In my view, there are no contested matters of significance in this case that would prevent the court from establishing the reasonable notice period, subject to the mitigation argument discussed below. I agree with Perell J.’s observation in Adjemian v. Brook Crompton North America, [2008] O.J. No. 2238 (Ont. S.C.J.) that summary judgment may be an appropriate and optimal way to proceed in cases involving the determination of reasonable notice periods. To the same effect are: Camaganacan v. St. Joseph’s Printing Ltd., [2010] O.J. No. 3953 (Ont. S.C.J.) and Di Tomaso v. Crown Metal Packaging Canada LP, [2010] O.J. No. 5761 (Ont. S.C.J.). In my view, these cases are consistent with the Supreme Court’s ruling in Hryniak.

Based on the facts of the case, Justice Hackland ruled that the reasonable period of notice for a 58 year old employee without a university degree, with 16 years of service, in a senior and specialized technical position, earning a salary of $82,825 annually plus benefits was 16 months. The court rejected the employer’s argument that the plaintiff had failed to mitigate his damages.

On the issue of the appropriateness of summary judgment in cases including claims for damages on an aggravated or punitive basis, Justice Hackland held that because there were issues of credibility, which require the full mechanics of a trial, summary judgment based on affidavit evidence alone was not appropriate.


A lot has been made as of late of the effectiveness of summary judgment in the employment law context. Some employment law blogs have heralded the Supreme Court of Canada’s decision in Hryniak v. Mauldin as a potential watershed moment. In fact, I am guilty of adding to that enthusiasm when, in the post Supreme Court of Canada Provides Guidance on Summary Judgment: What it Means for the Suddenly Unemployed, I wrote, “this new decision from the Supreme Court of Canada should serve to further bolster the position that summary disposition of such cases is the preferred route for most wrongful dismissal cases.”

However, as I review my earlier post I am somewhat relieved to note that even immediately following the Supreme Court’s decision I observed that, “The use of the Summary Judgment procedure for the resolution of employment law cases, especially wrongful dismissal cases, has long been recognized by the Ontario courts as an appropriate method for the resolution of such cases.” Like Justice Hackland, I cited the 2008 decision in Adjemian v. Brook Crompton North America for that proposition.

So has anything really changed in the employment law world post Hryniak? In reality, probably not. Summary judgment has made sense and continues to makes sense for straight-forward notice cases. (Consider the case of Wellman v. The Herjavec Group Inc., 2014 ONSC 2039 (CanLII), in which summary judgment was obtained only nine months following termination.) Good employment lawyers (acting on both side of the case) appreciate that point.

What is interesting about the Beatty decision is Justice Hackland’s decision to order a two-day mini trial, before him, on the issues of whether the plaintiff entitled to aggravated or punitive damages and special damages.

Litigation can be expensive. Efforts to reduce the amount of process required to resolve a case should be lauded. Personally, I think Justice Hackland’s decision makes a lot of sense. His Honour has already read the affidavits and heard the arguments from counsel on the issues. He is familiar with the issues and the facts – at least as they read on paper. Rather than make a decision based on the affidavits and risk an appeal on the basis that the case was not appropriate for summary judgment, he orders a mini-trial as clearly contemplated by the Rules, before him. I cannot say that I have seen a lot of this yet, but I like it.

A final word on this issue, when looking over the recent employment law cases resolved by summary judgment, or at least those that are generating some attention in the employment blogosphere, I cannot help but notice that they are cases from the Ontario Superior Court sitting at Ottawa. In order to make the system work cases, as much as anything else, require good counsel. Perhaps it is therefore no coincidence that it’s the rather collegial and pragmatic bar from the County of Carleton Law Association that’s leading the way. Maybe I’m just boasting.

Takeaways for those with Labour Pains

The takeaway for those with labour pains is that employment litigation does not always have to be complicated or expensive. Experienced employment litigators know how to get a case through the system to judgment. We appreciate that what people want are results; not process.

If you are an employee in Ontario, who has recently been let go from your job, and you want an opinion on whether your severance package is reasonable, or if you wish to dispute your severance package in court, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

To reach the author of this blog, Sean Bawden, email or call 613.238.6321 x260.

If you are an employer in Ontario and one of your former employees is taking issue with the amount of severance you have offered, it may be prudent to seek professional legal advice. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

To reach the author of this blog, Sean Bawden, email or call 613.238.6321 x260.


As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.

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