Different paths to judgment

We are all familiar with the traditional dispute resolution process at law, which is to follow the litigation process through to a trial, which culminates in a judgment being rendered by either judge or jury.

Most of us are also aware that in Ontario, that process can take at least a year and, in many cases, several years. Plaintiffs can find this to be untenable, and often end up settling for less than they truly deserve because they cannot afford, financially or psychologically, to get all the way to trial.

Knowing this, some employers will take advantage of the delays that bog down our system in order to force a plaintiff employee to accept far less than her true legal entitlement.

That being said, there are different paths to judgment. In recent years, much has been written about the notion of summary judgment, particularly in the context of wrongful dismissal claims.

Simply put, summary judgment is a mechanism by which a party can obtain judgment without having to proceed through the entire litigation process and engage in a full trial. At any point in the litigation process, either party can file a motion for summary judgment, which essentially asks a judge to find that some or all of the issues in the action can be determined without the need for a full trial.

It is particularly effective in matters where the underlying facts are not at issue. A perfect example of this would be a wrongful dismissal claim where the only issue is the amount of notice of dismissal the employee is entitled to. If the parties are in agreement with respect to the key background facts, such as the length of employment, employee's age, and nature of his position, then why go through examinations for discovery and the full trial process?

If a judge agrees that some or all of the issues can be decided by way of summary judgment, then the parties can introduce evidence by way of affidavit. Opposing parties will then have the right to cross-examine the people who gave the evidence by affidavit, and the parties will then argue the issues before a judge based upon the evidence contained in the affidavits and the transcripts of the cross examinations.

This is, obviously, a much shorter and more efficient path to the determination of the issues.

Historically, employers that wanted to delay judgment could often "muddy the waters" by introducing issues such as the possibility that just cause for dismissal existed, or that the plaintiff had failed to make reasonable efforts to mitigate his damages.

Many judges concluded that such issues required evidence from live witnesses, and therefore ruled that a full trial was necessary. However, recent cases and changes to the Rules of Civil Procedure have clarified that judges have more discretion to realistically assess the issues and determine whether a trial is truly necessary.

A good example of how judges will approach summary judgment in the context of a wrongful dismissal claim is the recent decision of Justice Hackland in Beatty v. Best Theratronics Ltd. In that case, the plaintiff sought damages for wrongful dismissal, as well as aggravated damages arising out of the manner in which he was dismissed.

After pleadings were complete, he brought a motion for summary judgment. Not surprisingly, the defendant argued that the issues required a full trial. In his reasoning, Hackland referred to the recent Supreme Court of Canada decision in Hryniak v. Mauldin, as well as the subsequent decision in Sweda Farms Ltd. v Egg Farmers of Ontario. In the latter case, the court summarized the approach to be used in summary judgment motions as follows:

33 As I read Hryniak, the court on the motion for summary judgment should undertake the following analysis:

1. the court will assume that the parties have placed before it, in some form, all of the evidence that will be available at trial;
2. on the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
3. if the court cannot grant judgment on the motion, the court should:
   1. decide those issues that can be decided in accordance with the principles described in two (2), above;
   2. identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues; and c. in the absence of compelling reasons to the contrary, the court should cease itself of the further steps required to bring the matter to a conclusion.

34 The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a "full appreciation" of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the Court's appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured. (emphasis added)

In Beatty, the defendant employer alleged that the plaintiff had failed to make reasonable efforts to mitigate his damages. Hackland found that the issue of the amount of notice to which Beatty was entitled could be decided by way of summary judgment, as could the mitigation issue. As a result, judgment was rendered on those points.

With respect to the claim for aggravated damages, Hackland the court wrote as follows:

"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 Perelll J.'s observation in Adjermin v. Bruch Crompton North America, [2008] O.J. 2238 that summary judgment may be an appropriate and optimal way to proceed in cases involving the determination of reasonable notice periods."

With respect to the claim for aggravated damages, Hackland found that there were issues of credibility that had to be addressed before judgment could be rendered. As a result, Hackland ordered that a summary trial would take place before him, not to exceed two days in length, on the issues of

•Is the plaintiff entitled to aggravated or punitive damages?

•What special damages is the plaintiff entitled to claim in respect of the notice period?

The summary trial is a mechanism that is provided for in the rules relating to summary judgment, and allows a court to maintain control of a matter and ensure that an efficient process is followed to bring it to conclusion.

As this case demonstrates, some wrongful dismissal claims can be dealt with in a manner that is quicker and more efficient than the traditional litigation process. Plaintiff employees should be aware of this, as should defendant employers. Furthermore, defendant employers can use summary judgment procedures to their advantage where baseless claims are brought against them and they want to attempt to have the claim dismissed quickly.