No Summary Judgment Where Mitigation an Issue

In a somewhat surprising decision, (given the propensity with which summary judgment is being sought and granted in Ontario as of late, especially in wrongful dismissal actions,) the Honourable Justice David A. Broad declined a plaintiff’s motion for summary judgment on the basis that the plaintiff had failed to provide sufficient evidence of her mitigation efforts, and therefore, on the analysis set out by the Court of Appeal for Ontario in Combined Air Mechanical Services Inc. v Flesch, 2011 ONCA 764 the Court simply did not have a “full appreciation” upon which it could take a decision.

In his reasons for decision released May 30, 2012 in Bomhof v. Eunoia Inc. et al, 2012 ONSC 3191 Justice Broad took the unusual position of declining to award summary judgment in a wrongful dismissal action.

On the motion the defendant had taken issue with the plaintiff’s failure to lead evidence with respect to the significance of the factors relating to the Ms. Bomhof’s age and the availability of similar employment. Counsel for the employer asked the Court, on the authority of Rule 20.02(1) to draw an adverse inference against the plaintiff for her failure to lead such evidence.

On this point Justice Broad ruled that:

[6] I find that it is not incumbent on a plaintiff in a wrongful dismissal action to lead specific evidence on each possible factor under the Bardal formulation, but rather the court is to weigh all of the various relevant factors, not necessarily with reference to detailed and specific evidence, based upon the facts of each case, in order to make a common sense determination of a reasonable notice period. An example of this exercise can be found in the case of Heslop v. Cooper’s Crane 1994 CanLII 7384 (ON SC), 1994 CanLII 7384 (ON SCJ), rev’d on other grounds, 1997 CanLII 700 (ON CA), involving a 65 year old “highly skilled” salesman, where Whalen, J. stated:

Although the plaintiff was healthy, energetic and wanting to work at the time of his termination, he was not a young man. Prospective employers seeking a long term employee will probably not be interested in him. His age will be his biggest drawback. This is a factor which will make it more difficult for the plaintiff to find employment and will therefore increase the notice to which he is entitled.

[7] In order to carry out this type of analysis, it is not necessary, in all cases, for a plaintiff to lead expert or other evidence on “the availability of similar employment,” notwithstanding that it is a factor which is specifically mentioned in Bardal. Similarly, it is not incumbent on a Plaintiff to lead specific evidence on the effect of his/her age on his/her ability to find alternate employment. Indeed, counsel for the Defendant was unable to point to any case in which such a requirement was imposed. The Court is able to make a common sense determination of the period of reasonable notice, based on the relevant factors, when armed with the necessary data such as the age of the employee, his/her length of service, nature of the position, degree of responsibility etc.

Thus, although Justice Broad observed that in this case, “the necessary data required to make a determination of a reasonable notice period was not in dispute” (i.e. the Plaintiff’s age, length of service and character of the employment), adding “if the period of reasonable notice were the only issue, the matter would be capable of being determined on a motion for summary judgment, as there are no credibility issues on the data going into that determination which would require a trial to resolve,” His Honour held that since that was conflict on the evidence as to whether the plaintiff had reasonably mitigated her damages, summary judgment was not appropriate.

On this point Justice Broad observed that:

[11] … The two issues are intertwined to some degree since, as stated by Kruzick, J. in the case of Sears v. Toronto General Hospital 2001 CarswellOnt 2512(SCJ) at para. 28, the plaintiff’s efforts toward mitigation may provide a means of assessing the availability of other employment. More importantly, as discussed in more detail below, no significant efficiency is achieved by disposing of the notice period issue in isolation, in the context of this simplified procedure action.

Justice Broad further added that, “although this may not be a case involving multiple witnesses, in my view, it is a case where oral evidence would be necessary to decide the mitigation issue.” Justice Broad declined the plaintiff’s invitation to order the hearing of limited oral evidence on the issue, as contemplated by rule 20.04(2.2), because, as the Court of Appeal observed at para. 256 of Combined Air “the efficiency rationale in [rule 76] will indicate that the better course is to simply proceed to a speedy trial, whether an ordinary trial or a summary one.” [Para. 17] In this way one must also consider Justice Brown’s observations in 1318214 Ontario Limited v. Sobeys Capital Incorporated, 2012 ONSC 2784 on the issue of summary judgment versus trial.

For those reasons, therefore, Justice Broad declined to award summary judgment. It is unclear what, if any additional Orders His Honour made or were sought.

The case is curious because it signals, at least to this observer, a movement away from summary judgment, at least in Toronto. One is therefore somewhat more reluctant to engage in the process, a feeling that the Rules changes were intended to address.