Journal

Otherwise known as
Michael’s soapbox

2018-03-30T10:54:03+00:00 April 2, 2018|Uncategorized|

Summary Judgment, Employment Cases and Reasonable Notice

An Ontario Court in the as-yet unreported case of Edmond v. Algonquin College [2018] O.J. No. 1615 recently reiterated that “wrongful dismissal cases are well-suited to summary judgment motions and assist the parties in obtaining affordable access to the civil justice system”. 

In this case, the employee was 59 years of age, had been employed for about 9 years, as the Manager of Cooperative Education, earning $85,728 a year.  She claimed damages for wrongful dismissal of 12 months salary and benefits. 

The employer defended on the basis that the employee had been terminated for just cause and had, therefore, not been wrongfully dismissed and was not entitled to any damages.

The plaintiff also claimed damages for alleged breaches of the employer’s duty of good faith and fair dealing in the manner of the dismissal, and for breach of privacy and intrusion upon seclusion. 

The Court reviewed the law with respect to summary judgment motions and determined that, at least some of the issues, could be determined on a motion for summary judgment motion. 

The Court considered the just cause allegations and dismissed them noting, as has been done in many cases, that “dismissal for cause without notice as a sanction in employment law is comparable to capital punishment in the criminal justice system”.

The Court then went on to consider the period of common law reasonable notice.  Looking at the usual factors in Bardal v. Globe & Mail Ltd., [1960] O.J. No. 149 (character of the employment, the length of service, the age of the employee, the employee’s experience, training and qualifications and the availability of similar employment), the Court found that the period of reasonable notice was 12 months. 

I pause to note that, although Courts have repeatedly said that no single Bardal factor should be given undue weight, it is clear that some factors are indeed more relevant than others.  In particular, age and length of service and the Edmond case is an example of a situation where age, no doubt, impacted the notice assessment towards the high end.  At the same time “character of employment” has been found to be a factor of less significance, absence evidence to the contrary (see, for example, the Court of Appeal decision in Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 (CanLII))

The Court did not grant summary judgment with respect to the claims for damages for breach of duty of good faith and fair dealing and her claim for damages for breach of privacy and intrusion upon seclusion.  Those would proceed to a summary trial.

My point here is twofold:

  1. Summary judgment can be an expeditious means of obtaining a resolution to the dispute (or part of the dispute) even, as in Edmonds, where just cause is in issue. 
  2. Age (particularly where the terminated employee is over 50) is certainly a factor that weighs in the notice assessment and would tend to push the period of reasonable notice towards the upper end of the range.