More summary judgment cases

This is a followup to my last blog, in which I discussed the expanding availability of summary judgment in the context of wrongful dismissal claims. Another recent case, this time from British Columbia, has further expanded the types of issues that courts will be prepared to consider without the need for a full trial.

In the past, when summary judgment has been used for employment-related disputes, it was used strictly for those claims where the only issue between the parties was the amount of notice or severance the plaintiff employee was entitled to.

In those cases, there is no dispute regarding the relevant underlying facts, including the employee’s length of service, position and age. As a result, it was virtually impossible to suggest there was good reason to go through the entire litigation process, including examinations for discovery and a full trial, before a court could answer the purely legal question of how much notice was required.

However, defendant employers seeking to avoid summary judgment and delay the court process were often able to do so by raising somewhat questionable allegations of just cause for dismissal, or submitting that the plaintiff employee had failed to make reasonable efforts to mitigate their damages.

For many years, courts would see those allegations and decline to award summary judgment, finding that those issues required a full trial to properly assess.

In recent times, with the evolution of summary judgment more generally through changes to the Ontario Rules of Civil Procedure and cases such as the Supreme Court of Canada's decision in Hryniak v. Mauldin, it has become clear that courts have more discretion to consider summary judgment — even in cases where there are issues of credibility, which used to be the "magic word" that would preclude summary judgment.

As I have previously blogged, courts have considered allegations of just cause and failure to mitigate and addressed them through the summary judgment process. More complex issues, such as claims for aggravated or punitive damages, have recently been addressed by way of summary trial, a compromise that involves more extensive evidence than a summary judgment motion, but avoids the necessity for proceeding through the entire litigation process and a full trial.

As regular readers will know, allegations of constructive dismissal can be particularly complex and will typically require live evidence with cross-examination. As a result, employment counsel have rarely pursued summary judgment motions in cases where the underlying cause of action was constructive dismissal.

However, in Younger v. Canadian National Railway Company, the British Columbia Supreme Court relied upon the Supreme Court of Canada's decision in Hryniak as a clear indication the legal system must involve and embrace summary procedures "whenever possible." As a result, the court ruled the case could proceed as a summary trial, despite the defendant's submissions the case was complex, involved substantial conflicts in the evidence provided by way of affidavit, and was not urgent.

As I and others have previously stated, plaintiff's counsel must consider the use of summary procedures when pursuing a wrongful dismissal claim, and defence counsel, along with their clients, should not assume a court will refuse to proceed by way of summary procedure simply because the issues are slightly more complex than a pure notice case would be.

While there continue to be extensive delays in our court system, there are some ways to circumvent the process that should not be overlooked, as their application is expanding.