I've previously written about summary judgments in employment disputes here and here.
Rule 20.04(2) of the Ontario Rules of Civil Procedure provides that:
The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
Rule 20.04(3) says:
In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.
The (new) Rule 20 enhances the powers of motions judges to weigh evidence on a motion for summary judgment and to make findings of fact. While many employment cases are made-to-measure for summary judgment, it's by no means a gimme.
Obaidi v. Home Depot is a case in point in which the employer sought summary judgment in a case involving the termination of an employee, without judge cause, and in accordance with the terms of an employment agreement entered into with the employee.
This is a really interesting case on a number of fronts. The Court dismissed the motion.
According to Mr. Justice Brown "The “new Rule 20” greatly enhances the powers of motions judges to weigh evidence on a motion for summary judgment and to make findings of fact". True enough, but:
.... as I stated in Lawless v. Anderson, 2010 ONSC 2723 (CanLII), 2010 ONSC 2723, at paragraph 21:
Of course, these enhanced powers of a motion judge are not without limit. Rule 20.04(2.1) makes it clear that a judge should not exercise the expanded powers where “it is in the interest of justice for such powers to be exercised only at a trial”. The quality of the record on a summary judgment motion and a number of other case-specific factors likely will guide judicial discretion in assessing whether a fair, final disposition of a proceeding can occur using a summary judgment motion record, including a hybrid record of written and viva voce evidence, or whether justice and fairness necessitates traversing the matter to a full trial. (emphasis added)
In the Obaidi case, Affidavit evidence identifying a number of crucial issues were filed and the Moving Party "elected to remain unchallenged either through reply evidence or through the cross-examination of Mr. Obaidi, the plaintiff’s evidence about the existence of a binding, oral contract of employment".
The moving party bears the onus of persuading the Court that no genuine issue requiring a trial exists which means putting your best foot forward and proactively identifying evidentiary gaps and dealing with them.
