The recent case of Kimball v Windsor Raceway Inc, 2014 ONSC 3286 (CanLII) considered a plaintiffs’ motion for summary judgment in a wrongful dismissal case.
Mr. Kimball was a long-service (43 years) employee who was 71 years old. He claimed that he had been terminated without just cause and was entitled to 24 months salary in lieu of reasonable notice. He sought summary judgment for that amount. In the alternative, Mr. Kimball sought summary judgment in the amount of $27,629.94 representing what he claimed as his entitlement to 26 weeks severance pay under the Employment Standards Act, 2000 (the “ESA”).
The defendant opposed the motion arguing that there was a “genuine issue for trial” (the test for summary judgment). The employer conceded that it’s payroll was greater than $2.5 million.
Test for Summary Judgment
Summary judgment is a process under the Rules of Civil Procedure that allows for the expeditious and cost effective determination of the claim, in whole or in part, on a motion rather than after a full blown trial. This process is much used in employment law and this, from my perspective, is a good thing.
The Court relied on the recent Supreme Court of Canada test in Hyrniak v. Mauldin,  S.C.J. No. 7 where the Court considered relatively new amendments to the Ontario Rules of Civil Procedure as relates to summary judgment:
The Ontario amendments changed the test for summary judgment from asking whether the case presents “a genuine issue for trial” to asking whether there is a “genuine issue requiring a trial”. The new rule, with its enhanced fact‑finding powers, demonstrates that a trial is not the default procedure. Further, it eliminated the presumption of substantial indemnity costs against a party that brought an unsuccessful motion for summary judgment, in order to avoid deterring the use of the procedure.
The new powers in Rules 20.04(2.1) and (2.2) expand the number of cases in which there will be no genuine issue requiring a trial by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences.
These new fact-finding powers are discretionary and are presumptively available; they may be exercised unless it is in the interest of justice for them to be exercised only at a trial; Rule 20.04(2.1). Thus, the amendments are designed to transform Rule 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication.
In discussing the test, Karakatsanis J. noted:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
Back to the Windsor Raceway Case
Now that the test has been stated, what does Heeney R.S.J. do in the Windsor Raceway case?
The judge considered whether summary judgment should be grated regarding the 26 weeks wages that the plaintiff argued was owed to him under the ESA. Severance pay under the ESA is payable where and employee has 5 or more years of service with the employer and the employer’s annual payroll is greater than $2.5 million.
Recall, the employer conceded that its payroll was greater than $2.5 million and Mr. Kimball had been employed for 43 years.
The employer had not paid the statutory severance pay and argued that the summary judgment motion should be denied:
.... because there is no evidence before the court as to whether or not the plaintiff has filed a complaint under the Act with the Minister of Labour. Had he done so, he would be precluded from commencing a civil proceeding with respect to the same matter, pursuant to s. 97 of the Act.
Not surprisingly, the Court had no time for this argument and commented that no such defence had been pleaded in the statement of defence and, given that it is a complete defence, one would have thought that, if it existed, it would have been plead. As the Court observed, “to suggest that the plaintiff may have filed a complaint with the Minister is nothing more than speculation, without any evidentiary foundation.”
Accordingly, the judge awarded partial summary judgment of this portion of the claim.
Regarding the main claim for wrongful dismissal damages (24 months less amounts paid under the ESA), the Court was unwilling to grant summary judgment for a number of reasons.
Did the Plaintiff Suffer any Damages?
There was a complete absence of certain critical evidence, namely whether the plaintiff had suffered any damages by reason of the alleged wrongful dismissal.
This is different from a failure to mitigate argument where the employer bears the onus. Here, relying on Garcia v. 1162540 Ontario Inc. (c.o.b. as Venice Fitness),  O.J. No. 5689 (Div. Ct.) where the Court discussed the difference between a “failure to mitigate” argument and a “damages argument”:
In the present case, the plaintiff failed at the first stage. He failed to demonstrate damages in the form of a loss of income. This is not the same as saying the plaintiff failed to mitigate. That is a conclusion reached if and when evidence pertaining to a mitigation defence is adduced. The problem in the present case is simply that the plaintiff never testified that he was unemployed for any period of time after his dismissal.
The level of proof required to establish lost income is not onerous. It is not the same as the proof required to establish mitigation. It is simply evidence that the plaintiff was not employed, or not employed at the same level of salary or wages as he was prior to the wrongful termination of his employment.
In the Windsor Raceway case, there was “no evidence whatsoever as to whether the plaintiff has or has not earned any income since his termination. Without such evidence, the plaintiff has not proven that he has suffered any damages, and is not, therefore, entitled to summary judgment.”
What about the retirement?
A significant issue in this case was whether the plaintiff had an intention to retire. The Court observed:
If the dismissed employee has no intention to look for work, but has instead decided to retire, the very purpose for which reasonable notice is required to be given is absent. That is a factor that may well be relevant in assessing what constitutes reasonable notice in this case.
The court refused to grant summary judgment of the main claim and indicated that the issue that required was “relatively narrow” and that the trial should take “no more than two days at most”.
Significance for Employers
In a later post I will discuss summary judgment in greater detail, but for now, the Windsor Raceway case is important for a number of reasons. The discussion of summary judgment is relevant because it affirms the approach that Courts ought to take in these cases. It is also significant that “partial summary judgment”, though risky in certain cases, will nonetheless be granted in an appropriate case.
The Court was not, and should not be expected, to act on speculation that has no foundation in the evidence. The Court made short work of the defendant’s argument that summary judgment should not be granted because the plaintiff might have filed a claim under the ESA which would have been a complete bar to his continuing with the litigation. Absent more, the Court will, as it did in this case, simply dismiss such an argument as speculative and unhelpful to the issue.
Success was divided in this case - a somewhat more streamlined trial will take place on the merits, though one wonders how much shorter the trial will be by reason of the summary judgment finding on the ESA issue?