Written by Irvin Schein and originally published at www.irvinschein.com.

When the scope of the authority of motions court judges hearing motions for summary judgment was expanded by the Ontario Court of Appeal, a trend toward using the summary judgment rule in wrongful dismissal cases was accelerated considerably.  We may well be at a point now in which routine wrongful dismissal claims and perhaps even those with some unusual fact circumstances can be concluded summarily.  This is my conclusion from my review of the trial judgment released last month by the Superior Court of Justice in Bernier v. Nygard International Partnership.

In that case, Bernier was fired by the Defendant after 13 years of work at a management level and at the age of 54.  She was given only minimum statutory salary and benefits required under the Employment Standards Act.  She sued and then brought a motion for summary judgment for the difference between those benefits and her common law entitlement. 

The Defendant argued that at the very least, there were enough questions raised about the claim that a trial of the issues was necessary and that summary judgment ought not to be granted. 

Specifically, the Defendant raised four issues:

(a)  Whether or not the Plaintiff’s statutory entitlements were modified by a contract between the parties;

(b)  Even if there was no enforceable contract, did the Defendant’s general policy limiting notice periods provide guidance for assessing what reasonable notice at common law would be;

(c)  Was the Plaintiff entitled to a bonus; and

(d)  Did the Plaintiff make reasonable efforts to mitigate her damages.

Before the recent change in the law relating to summary judgments, it is probably safe to say that any one of these issues would have met the threshold test of a genuine issue for trial.  In fact, I doubt that any experienced wrongful dismissal plaintiff’s lawyer would ever have even attempted a motion for summary judgment on these facts. 

Under the current regime, however, it’s a different story.

In this case, the judge considered himself able to examine each of these issues and come to a conclusion.  His conclusion was that none of them raise a triable issue.

On the question of an employment agreement, it appears that the Plaintiff had signed such a document at the outset of her employment, providing that her employment could be terminated with 30 days’ notice.  Unfortunately for the Defendant, this provision was contrary to the minimum notice requirements contained in the legislation, which cannot be waived by contract.  As a result, that provision in the contract was void and unenforceable.

The Defendant produced a letter written 8 years after the commencement of the Plaintiff’s employment, signed by the Defendant but not by the Plaintiff, containing amended notice provisions.  The Plaintiff denied ever having entered into any such amending agreement and the individual who signed the letter on behalf of the Defendant never swore an affidavit to the contrary.  This was enough for the judge to dispense with that argument, finding that there was no evidence suggesting that the parties had actually agreed to any amended arrangement.

The Defendant argued that it had a general policy of limiting the amount of notice to which its employees were entitled.  The Defendant insisted that this limitation was well known to the Plaintiff.  However, the judge was satisfied that if any such policy existed, it was not binding on the Plaintiff. 

On the issue of bonus, the judge found sufficient evidence before him that the bonus was a regular feature of the Plaintiff’s compensation that she had come to expect and that accordingly, and pursuant to well-established legal principles, she was entitled to her bonus in the year of termination. 

Finally, on the question of mitigation, the mere suggestion by the Defendant that the Plaintiff had not pursued sufficient efforts to find a new job was not enough to derail the motion.  There was no evidence that appropriate employment would have been available to the Plaintiff had she done more than what she did or that she declined to pursue any appropriate opportunity.  On the evidence, it appeared that the Plaintiff made very substantial efforts to find a new job.  The judge concluded that these efforts were reasonable and appropriate.

Having disposed of the various defenses, the judge went on to assess reasonable notice on the basis of the evidence before him as to the nature of her employment, the length of her employment, her age, and the realistic possibility of finding similar employment appropriate to her experience, responsibility, and qualifications.  He then concluded that the notice period suggested by the Plaintiff’s lawyer, namely 18 months, was the appropriate measure and issued a judgment accordingly.

Given that the motion was heard 7 months after termination and therefore 11 months short of the 18-month notice period, the judge ordered that the entire award would be impressed with a trust and that at the end of the 18-month notice period, the Plaintiff would have to account to the Defendant for any new employment income that she might receive during the notice period and reimburse the Defendant for any such amount.

In the vast majority of cases, summary judgments are and should remain the exception rather than the rule.  Given this case, one is left to wonder whether or not the opposite will become true in wrongful dismissal cases.