Are summary judgment motions coming soon to a theatre near you?

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. Mauldin² for 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 20.

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 “Bardal³ factors”.

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.⁴

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. Waterman⁶ where 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 proportionate procedure.