Holmes v. Hatch 2017 Ont CA
In a wrongful dismissal matter, the motions judge decided that the employer’s failure to take into account some of the specific factors set out for termination in the employment agreement constituted a fundamental breach of that contract. Accordingly, she awarded damages at common law. The Court of Appeal set aside that decision because the employee never pleaded this type of breach of contract and never pleaded repudiation of the contract. Further, the employee did not advance those claims in his motion or in his factum. It was only when the motions judge raised the notion of this type of breach that the parties made oral and subsequent written submissions. Accordingly, the employer was denied the opportunity to adduce evidence on the precise breach allegation on which the judge decided the motion. A party must know the evidentiary burden it has to meet in a motion for summary judgment.
Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.