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Summary Judgment – Not Always the Best Answer in Employment Cases

Summary judgment motions can be a valuable tool in the arsenal of an employee seeking a quick resolution of a wrongful dismissal claim. If successful, the employee will have substantially reduced the time and expense associated with his claim. At the very least, since the Supreme Court of Canada’s decision in Hyrniak v. Mauldin, Courts have shown themselves increasingly willing to resolve some if not all of the issues in an employment case by way of summary judgment. However, employees need to take heed: not all wrongful dismissal claims are conducive to summary judgment, even with the Court’s expanded powers under Rule 20. The decision in Dawson v. Colt Food Services Limited is a case in point.

Mr. Dawson was the food and beverage manager for the defendant employer, had been employed for almost 13 years and was 56 years old. Following a meeting with the employer’s owner to discuss ongoing performance issues, Mr. Dawson believed that his employment had been terminated. The day following the meeting, Mr. Dawson called in sick and then sent an email requesting the terms and conditions of his termination. Shortly thereafter, Mr. Dawson provided an ambiguous medical note to the employer indicating that he was off work for medical reasons and would be reassessed in the near future. Mr. Dawson never returned to work and the employer took the position that he had abandoned his job.

There were numerous issues before the Court:

1. whether Mr. Dawson’s employment had been terminated or whether he had resigned/abandoned his position;

2. if wrongfully terminated, what were his damages; and

3. was Mr. Dawson entitled to damages for breach of s.5 of the Ontario Human Rights Code?

The employer took the position that there were clear conflicts in the evidence as to what transpired at the critical meeting between the parties and that credibility would be a key factor in resolving the issue as to whether Mr. Dawson was terminated or resigned. As a result, the employer argued that a full appreciation of the evidence called for a trial and the employee’s motion should be dismissed.

The Court accepted the employer’s argument. Notwithstanding the affidavit evidence and the extensive cross-examinations on affidavits, the Court concluded that there were numerous genuine issues requiring a trial. The Court was not satisfied that the dispute could be fairly and justly adjudicated on the evidence before it and found that the serious credibility issues and material factual issues ought to be determined at trial. The Court was of the view that this was not a case where its discretionary powers to weigh evidence, evaluate credibility and draw inferences, ought to be exercised.

Although recent cases have shown that summary judgment is not limited only to straightforward employment law cases, where there are serious credibility issues relating to material facts, Courts will be much less likely to view summary judgment as an appropriate method of deciding the case.

Written by Susanne Balpataky Susanne Balpataky is an experienced commercial litigator who has practiced at Speigel Nichols Fox LLP since joining the firm in 1991.