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New decision discusses the role of summary judgement in wrongful dismissal cases and an employee’s duty to mitigate

Jul 27, 2016

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By Mika Imai

The length and cost of a traditional lawsuit are a constant frustration for clients and lawyers. Preparing court materials, booking court dates, examining witnesses and engaging in mediation are just a few of the reasons lawsuits drag on. As a result, employment lawyers are increasingly using summary judgment motions to obtain a speedier and (hopefully) less costly outcome.

Summary judgement is faster than the standard trial due, in part, to limits on the amount and type of evidence that can be heard. However, summary judgement is not permitted in all cases – parties have to agree or a court must rule that there is “no genuine issue requiring a trial”.

Fortunately, courts have repeatedly held that wrongful dismissal cases are well-suited to summary judgement. In the recent case, Aylesworth v The Law Office of Harvey Storm, the Court explained:

“While cause for dismissal is occasionally a factor in [wrongful dismissal] cases, the length of notice and reasonableness of mitigation are most often the only issues for resolution. These issues seldom involve genuine actual disputes of the sort that only a trial can unravel. The amounts at issue when compared to the costs of litigation cry out for the application of the proportionality principles always providing that a fair and reasonable determination of the issues can nevertheless be accomplished.”

In Aylesworth, the only issue was whether the employee had met her duty to mitigate and summary judgement was therefore appropriate.

Aylesworth also offers insight into the scope of an employee’s duty to mitigate. The duty to mitigate describes an employee’s responsibility to search for a new job after being fired. While employees aren’t obliged to accept just any job offer, they also can’t hold out for the perfect job. An offer must be for a job of a similar nature to the job from which they were fired.

In Aylesworth, the employee was offered a new job at the same salary, but with a variety of other differences (e.g. lesser vacation entitlement). The employee responded by requesting additional information and putting forth a counterproposal. The judge found this reasonable, noting that, while the salary was matched, the job was “significantly different in a negative way”. The judge further explained: “as long as prudence does not venture into excess ‘choosiness’, I would afford a reasonable degree of latitude to an employee considering her options . . .” Notably, the fact that the employer responded to the counterproposal by withdrawing its offer, didn’t make the employee’s actions unreasonable.

The Court’s commentary on summary judgement and the scope of an employee’s duty to mitigate makes Aylesworth a useful case for employers and employees considering their options. The decision was upheld at the Divisional Court.

Symes Street & Millard has extensive experience arguing wrongful dismissal cases, both through summary judgement and at trial. If you would like to discuss whether summary judgement is appropriate in your case, contact us at the number above.


Court of Appeal clarifies law on wrongful dismissal and discrimination

Jul 11, 2016

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By Mika Imai

The Ontario Court of Appeal has sent a signal to employers – it is prepared to uphold sizeable damage awards for employees whose employment rights have been violated.

In Strudwick v Applied Consumer & Clinical Evaluations Inc, a 15-year employee was awarded $246,049.92, plus $20,000 in legal costs based on wrongful dismissal, harassment and discrimination.

Vicky Strudwick, an employee of more than 15 years, was an instructor at the polling and research corporation, Applied Consumer & Clinical Evaluations Inc. (“Applied Consumer”). After Ms. Strudwick suddenly became deaf, the general manager of Applied Consumer and her immediate supervisor “commenced a campaign of abuse . . . designed to force her resignation.” The Court explained:

. . . in addition to publically belittling, harassing and isolating Ms. Strudwick in ways relating to her disability, Applied Consumer not only denied Ms. Strudwick any accommodation of her disability but also took specific steps to increase the difficulties she faced as a result of her not being able to hear.

By way of example, Ms. Strudwick’s supervisor “would purposely give Ms. Strudwick instructions in a manner that prevented her from lip reading. Then . . . call Ms. Strudwick ‘stupid’ for not understanding the instructions.”

Ms. Strudwick was also denied workplace adjustments for her disability that had no cost or for which she offered to pay (e.g. turning her desk so she could see people approaching). Applied Consumer eventually terminated Ms. Strudwick, publically, and refused termination pay when she declined to sign a release.

A number of lessons can be learned from this decision.

For Employers:

  • Mount a defence, any defence
    • Applied Consumer did not defend the legal action against it and therefore lost the right to challenge the evidence Ms. Strudwick presented. When Applied Consumer later tried to overturn that ruling, it was unsuccessful.
  • Companies can be held legally liable for the actions of individuals in control of the company
    • Applied Consumer tried to argue that the general manager and immediate supervisor should be liable to Ms. Strudwick, not the company. In rejecting this position, the Court discussed the directing role of the general manager and supervisor and the fact that they were both active participants in and failed to stop the harassment of Ms. Strudwick.
  • Proof of financial hardship can limit damages
    • Most damages are compensatory, meaning they are not meant to punish the defendant company. Punitive damages are only awarded where necessary for retribution, denunciation and deterrence. If a company can prove that punitive damages would have a hugely detrimental impact on it (e.g. bankruptcy), a court may decide they are not needed.
    • In Strudwick, the Court of Appeal increased the punitive damages from $15,000 to $55,000, partially because there was limited evidence that the original amount ordered presented a financial strain on Applied Consumer.

For Employees:

  • You can’t get what you don’t plead
    • On appeal, Ms. Strudwick sought damages of $1,019,384.80, an amount considerably above the $240,000 (plus benefits) originally requested. The Court concluded it could not award an amount above the initial claim, stating that the proper process was for Ms. Strudwick to amend her pleadings, which she did not do.
  • Skilled employees no longer get more pay in lieu of notice
    • Courts used to award more pay in lieu of notice if a dismissed employee was highly skilled. This was based on the belief that such employees had a harder time finding another job.
    • In Strudwick, the Court confirmed recent case law that qualifications are “largely irrelevant” to an assessment of reasonable notice.
  • There is no limit on pay in lieu of notice, but it will require “exceptional” circumstances to get more than 24 months
    • The Court rejected Ms. Strudwick’s argument that, given her age and disability, she was entitled to pay in lieu of notice until retirement (i.e. 125 months), finding that employers don’t guarantee work until retirement.

Symes Street & Millard specializes in employment law, representing both employers and employees. Contact us at the number above if you would like to discuss your legal options.


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