The Supreme Court of Canada Rules on Summary Judgment: A “Shift in Culture” and it’s Impact on Wrongful Dismissal Litigation

Jan 28, 2014

By Pamela Krauss, Lawyer

On January 23, 2014 the Supreme Court of Canada (“SCC”) rendered its much anticipated decision in Hryniak v. Mauldin, 2014 SCC 7, clarifying the use of summary judgment in civil litigation. 

Summary judgment allows litigants to bring a motion early in a law suit to request the court to rule on the merits of the case without proceeding through the process of trial if there is “no genuine issue for trial”, as provided in the Rules of Civil Procedure (Ontario).  However, the scope and meaning of this phrase has been the subject of litigation since its adoption in 2010.  Judges and lawyers have been awaiting clarification on when summary judgment is accessible to plaintiffs and defendants.  We anticipate that the legal principles established in Hryniak v. Mauldi will have a profound impact on litigation between employees and employers.

More and more employees have been utilizing the summary judgment mechanism in wrongful dismissal actions to quickly and affordably have their entitlement to reasonable notice of termination and damages assessed by a court of law.  Successful motions have been brought by Morrison Reist, for example in Kotecha v. Affinia 2013 ONSC 4817, where Justice Hambly of the Superior Court of Justice decided our client’s, Mr. Kotecha’s, entitlements without the mechanism of a trial.  Mr. Kotecha was terminated from employment with Affinia after 20 years of service as the result of Affinia’s shut down of its Guelph manufacturing plant.  Mr. Kotecha was not given proper notice of his termination, as confirmed by Justice Hambly, and was granted a judgment for the damages he sustained as a result totaling over $90,000.00 including legal costs.  This judgment was achieved within 6 months of the Statement of Claim being served on the employer, whereby taking the action to trial would have likely taken over a year. 

Kotecha v. Affinia is an example of a straightforward wrongful dismissal action whereby facts are not in serious dispute and the question for the court is simply what pay in lieu of notice of termination should have been provided to the employee in their circumstances.  Generally the courts have been comfortable granting judgment early in litigation in such cases.  This has allowed employees to access justice against their employers quickly and in a cost effective manner.  Previously there was a risk in bringing such motions as there has not been clarity on when summary judgment is available to litigants.  Now the courts, lawyers and employees have clear, succinct direction from the SCC as provided in Hryniak

In its decision, the SCC confirmed that Ontario judges should take a broad approach in granting summary judgment to a moving party.  The Court emphasized that not only does a trial judge need to consider the evidence presented and their ability to make a ruling on the evidence; they also need to consider proportionality of the case to the procedure used to allow justice to be served.  Justice Karakatsanis speaking for the SCC stated:

Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  Trials have become increasingly expensive and protracted.  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.  Without an effective and accessible means of enforcing rights, the rule of law is threatened.

She goes on to say:

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.  This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.  The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

Based on these fundamental goals, in its decision the SCC set out the test for Summary Judgment as follows:

In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

The SCC’s emphasis on the consideration of expediency and expense is HUGE for employees.  It has fully opened the door for wrongfully terminated employees to quickly and swiftly achieve judgment in their favour for the damages they sustain when terminated unlawfully by their employer.  The breadth of power the SCC has confirmed on judges to grant summary judgment has further created an opportunity for more complex wrongful dismissal actions to also avoid trial.  Often employees suing for wrongful dismissal claim aggravated damages and punitive damages relating to the manner of dismissal if it resulted in distress exceeding the expected discomfort and anxiety that generally follows the loss of employment.  Now these types of claims may also be adequately disposed of on a summary judgment motion if the judge finds summary judgment is the most effective mechanism to dispose of the matter. 

The SCC has confirmed that a motion for summary judgment is a powerful tool that employees and their legal counsel can use to enforce employee rights upon termination of employment.  What this decision means for employers is they will have challenges prolonging liability to employees at termination.  If they do not effect lawful terminations, justice against them may be brought swiftly without the opportunity to control and slow down the process.  It is worth noting however that this decision is not all bad for employers.  Employer’s could also initiate summary judgment and use it as a tool to allow them to quickly have a judge assess their liability in a cost effective manner if they are defending an unreasonable and frivolous wrongful dismissal claim brought by en employee.

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