Summary judgment motions can be a highly expeditious and cost effective way of dealing with a variety of employment disputes. I'd like to discuss this procedure here having regard to a couple of recent decisions.
The Alberta Court of Appeal in Poliquin v. Devon Canada Corporation recently discussed the availability of a summary judgment motion in a wrongful dismissal case. As will be discussed, this case involved the employer bringing the motion for summary judgment.
Summary judgment was discussed, and granted, in the Ontario case of Adjemian v. Brook Crompton North America. In this case, it was the employee who brought the motion for summary judgment.
Summary judgment is available under the Ontario Rules of Civil Procedure. There are really two summary judgment rules, one for "regular" lawsuits (Rule 20) and the other Simplified Rules (Rule 76) in respect of claims that are less than $50,000.
Rule 20 provides as follows:
(2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just.
(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
Rule 76 provides as follows:
(a) he or she is unable to decide the issues in the action without cross-examination; or
(b) it would be otherwise unjust to decide the issues on the motion.
The test for a summary judgment is less stringent under rule 76.07 (9) than the test for a summary judgment for a normal action under Rule 20 (see Adjemian v. Brook Crompton North America).
The Court in Adjemian held that the more stringent test under Rule 20 was met and, of course, the test under Rule 76 was met as well. According to the Court:
The employer's argument that there were genuine issues for trial, specifically the plaintiff's mitigation efforts and the character of her employment, were rejected by the Court. The Court accepted the employer's characterization of Ms. Adjemian's employment and moved on. In terms of mitigation, the Court commented that:
There is overwhelming evidence that Ms. Adjemian had made and continues to make reasonable efforts to mitigate her loss. Brook Crompton wishes to cross-examine her to establish that she could have done more, but that is not a genuine issue for trial because mitigation need not be perfect, it need only be reasonable, and on this motion for summary judgment, Brook Crompton has not remotely shown that Ms. Adjemian’s efforts to mitigate her losses were not reasonable.
The Court granted judgment in favour of Ms. Adjemian and determined that she was entitled to a reasonable notice period of 16 months less what had already been paid to her.
The Court noted, though, that "her judgment has come so quickly that it comes during the period in which she continues to have an obligation to mitigate." In these circumstances, the Court imposed a "trust requiring her to account for any mitigatory earnings." This was similar in approach to Bullen v. Proctor & Redfern Ltd. (where the court reluctantly concluded that it did not have jurisdiction to "jurisdiction to impose periodic payments ... such an order would be logical and desirable in circumstances such as these" had the legislature conferred jurisdiction on the Court to do so.) and Correa v. Dow Jones Markets Canada Inc..
Lest it be felt that summary judgment is available in every wrongful dismissal action, the following comments of Justice Malloy in Bullen v. Proctor & Redfern Ltd. are instructive:
Clearly, not every wrongful dismissal action is appropriately dealt under Rule 20. However, the summary judgment procedure will often be appropriate in wrongful dismissal actions particularly where there is no allegation of cause for dismissal and where the parties are in agreement on the underlying facts pertaining to the relevant factors to be taken into account in determining the appropriate notice period…
In Garden v. Apotex Inc. the Ontario Court of Appeal held that the case was not one where summary judgment was available because the case, at its core, would involve the assessment of conflicting evidence. As relates to credibility, the Court of Appeal in Gutierrez v. Tropic International Ltd. commented:
The principles governing motions for summary judgment are well-established. Summary judgment may only be granted where there is no genuine issue for trial, the proof of which lies upon the moving party. The role of a motions judge on such a motion is centred on the threshold question of whether a genuine issue exists requiring a trial. The determination of credibility issues, the weighing of conflicting evidence, the making of factual findings and the drawing of factual inferences, other than where only one inference is reasonably available, are matters reserved for the trier of fact. .... In order for a motion for summary judgment to be defeated based on one or more credibility issues, the credibility issues must be genuine. Where the evidence demonstrates that there is no genuine issue of fact which requires a trial for its resolution, and that a trial is unnecessary, the foundation for summary judgment is established. [case references omitted]
In Poliquin v. Devon Canada Corporation it was the employer that brought a motion for summary judgment seeking to have the plaintiff's wrongful dismissal action dismissed. The position of the employer on the metrits was that Poliquin had been dismissed for just cause and that the termination was not wrongful. The chambers judge dismissed the motion for summary judgment. In doing so, however, according to the Court of Appeal, the chambers judge found that:
The chambers judge found that Poliquin’s actions were “beyond inappropriate” and “deplorable”: Reasons, paras. 17 & 19. Nevertheless, he dismissed Devon’s summary judgment application, concluding that the proportionality of Devon’s disciplinary action in response to Poliquin’s misconduct was a matter which required a trial: Reasons, para. 20. Devon now appeals that decision.
The employer appealed the dismissal of its summary judgment motion. It argued that the chambers judge’s had failed to conclude, based on the "undisputed evidence before him, that it was “plain and obvious” that Poliquin’s wrongful dismissal action has no prospect of success." In other words, the chambers judge should have dismissed the action summarily.
The Supreme Court of Canada recently commented on the important purpose behind summary judgment rules like Rule 159(2) in Canada (Attorney General) v. Lameman (discussed here and here) stated as follows:
The test for summary judgment was put as follows:
To resist a motion for summary judgment it must be shown that the claim has a real chance of success.
The Court of Appeal in Poliguin commented:
The Court of Appeal considered what it called the undisputed key facts.
The Court of Appeal found that the employer had a Code of Conduct and that the employee had acknowledged having read, understood and accepted its terms. The Court found that the Code of Conduct formed part of the employment contract between the parties. A number of policies in the Code of Conduct applied to the allegations of just cause being advanced by the employer.
I won't review the cause allegations. Suffice it to say that the employee acknowledged at least some of the facts upon which the employer relied in terminating his employment for just cause.
The Court considered the use of the workplace computer for the exchange of inappropriate material. The Court commented on the Code of Conduct:
Employers have good reason to be concerned about the misuse of their equipment and resources in order to access, receive and disseminate pornographic and racist material. The potential for harm to an organization flowing from this kind of misconduct is great. It can easily poison a work environment, thereby denying equal employment opportunities to others. .... Since work is an essential aspect of an employee's personal life, an employer owes obligations to all employees in its organization. It cannot turn a blind eye to discrimination and harassment in its workplace.....
If an employer fails to act it faces a significant risk of actions by employees who are subjected to discrimination and harassment - and properly so. .... Therefore employers are fully justified in taking proactive steps, including the adoption of codes of conduct, to curtail and prevent improper conduct."
Now, I know this post is about the availability of summary judgment in employment disputes, but this quote is worth a short digression. It is somewhat akin to the comments by Mr. Justice Bastarache in Keays v. Honda Canada Inc. where he said that:
In any event, this expression of the rights of employers is very broad as is the comment that employees do not have a "reasonable expectation of privacy in their workplace computer" This paragraph, from a judgment of a Court of Appeal, is significant and, we can expect, will be referenced in future cases.
The Court concluded that:
The Court of Appeal held that the chambers judge failed to give adequate weight to the fact that the plaintiff, in this case, was a senior supervisor who was a "role model for other employees". According to the Court, the misconduct in question was "more serious given [the plaintiff's] responsibilities as a senior supervisor". The Court also disagreed with the chamber judge's suggestion that no co-worker or supplier complained about the pornography. According to the Court of Appeal, it was "entitled to presume from the polluting of [the employer's] workplace with pornography regardless of whether anyone complained. So too is [the employer]."
The Court also noted that the chamber's judge failed to evaluate the cumulative effect of the misconduct as was required under the contextual approach in McKinley.
The Court concluded, in all of the circumstances, that the "was no genuine issue of material fact requiring trial" and, further that there was "uncontroverted evidence" that the action for wrongful dismissal could not succeed. As such, it overturned the chamber judge's decision and summarily dismissed the action.
Many lessons can be gleaned from these cases.
Summary judgment is available in employment disputes. In Ontario the standard is more stringent in "regular" actions rather than in those under the simplified rules. That being said, summary judgment cuts both ways as the Poliquin case shows. The employer, too, can resort to summary judgment even in a just cause case. It is critical that the evidentiary foundation for the motion be established in the pleadings, affidavits or cross-examination on the affidavits.
While summary judgment is used in employment disputes, it has not been used with any degree of regularity as compared to the by-rote litigation procedures. It can, however, be an exceedingly cost-effective way of dealing with appropriate employment disputes.
