Does an employer’s failure to confirm that an employee will unconditionally receive their minimum statutory entitlements on termination, if that employee rejects the employer’s “without prejudice” offer to settle their severance claim, warrant an award of moral damages?
In Russell v. The Brick Warehouse LP, 2021 ONSC 4822 (CanLII), Justice Susan Vella of the Ontario Superior Court held that it did.
Is a stated “desire” to return to work, at some point, and without more information, sufficient to rebut the medical evidence that a contract of employment has become legally frustrated?
In Katz et al. v. Clarke, 2019 ONSC 2188, the Ontario Divisional Court held that was not.
Given all the other noise about what it takes to make a contractual termination clause legally binding, one can be forgiven for overlooking the most basic rule: The language used must be clear.
The contractual termination clause considered in the case of McMichael v The New Zealand & Australian Lamb Company, 2018 ONSC 5422 (CanLII), about which I recently blogged for other reasons in my post, Choice of Law Provisions: Application of the Ontario Employment Standards Act to International Employees, clearly demonstrates this most basic of rules.
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Can you sue someone in Ontario civil court exclusively for discrimination under the Ontario Human Rights Code? Definitely not, according to a decision of the Ontario Superior Court of Justice sitting at Ottawa involving Gene Simmons and a KISS concert: Lee v Simmons et al., 2017 ONSC 4980.
Summary judgment, a method of resolving lawsuits without the need for a trial, has long been considered an appropriate means by which to resolve wrongful dismissal cases. The changes made in 2010 to the Rules of Civil Procedure, the rules governing lawsuits in Ontario, served only to increase the popularity of such a process.
But, as this blog has considered on more than one occasion, the speed and efficiency of summary judgment bring with them their own challenges in wrongful dismissal cases; most acutely what to do about the dismissed employee’s duty to mitigate?
In April of 2015, in the case of Markoulakis v SNC-Lavalin Inc., 2015 ONSC 1081 (CanLII) the Honourable Justice Andra Pollak held that the use of the “Trust Approach” previously approved by the Court of Appeal for Ontario in Cronk v. Canadian General Insurance Co. (1995), 25 OR (3d) 505 (CA) was no longer appropriate given the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7. That case was summarized by this blog in the post Rushing to Judgment: How to Reconcile the Duty to Mitigate with Summary Judgment in Wrongful Dismissal Cases.
More recently however, on June 29, 2015, the Honourable Justice Paul Perell, also of the Ontario Superior Court of Justice, in the case of Paquette v TeraGo Networks Inc., 2015 ONSC 4189 (CanLII) described the "Partial Summary Judgment Approach", where the employee is granted a partial summary judgment and the parties return to court during and or at the end of the notice period for further payments subject to the duty to mitigate, employed by Justice Pollak as “cynical, patronizing, unfair, impractical, and expensive.” Justice Perell specifically mentioned the Markoulakis case in making such comments.
Ouch.
How should the court account for a plaintiff’s duty to mitigate his damages following termination from employment, when summary judgment can be awarded before the expiry of the reasonable notice period?
More to the point, how can an employer ensure that the dismissed employee will take all reasonable steps to mitigate his damages if that dismissed employee is already in receipt of his pay in lieu of notice?
In the case of Markoulakis v SNC-Lavalin Inc., 2015 ONSC 1081 (released April 16, 2015), the Honourable Justice Andra Pollak held that the use of the “Trust Approach” previously approved by the Court of Appeal for Ontario in Cronk v. Canadian General Insurance Co. (1995), 25 OR (3d) 505 (CA) is no longer appropriate, given the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.
Will summary judgment be appropriate in a wrongful dismissal action if the issue of the plaintiff’s mitigation efforts are hotly contested? According to a 2013, pre-Hryniak decision, the answer can sometimes be “no.”
In a case where the primary concern was that of availability of similar employment, the Ontario Superior Court of Justice refused to grant summary judgment in an otherwise straightforward wrongful dismissal matter.
If an employee is made the prime suspect in a workplace investigation but is found to be not responsible for the harm that was the subject of the investigation, can the employer nonetheless terminate the employee’s employment on a without cause basis with impunity?
In refusing to grant summary judgment fixing the applicable notice period and dismissing the plaintiff employee’s claims for moral and punitive damages in a termination without cause case, the Honourable Justice Margaret Eberhard in the case of Brownson v. Honda of Canada Mfg., 2013 ONSC 896, leave to appeal refused 2013 ONSC 6974, held that the answer may be that no, the employer cannot terminate the employee’s employment on a without cause basis with impunity.
Summary judgment remains an effective and appropriate means for the resolution of wrongful dismissal cases. However, as the recently decided case of Beatty v. Best Theratronics Ltd., 2014 ONSC 3376 (CanLII) demonstrates, not all aspects of such cases are amenable to summary disposition.
After four years of waiting, the Supreme Court of Canada has weighed in on the proper interpretation and approach to Ontario’s Summary Judgment procedure. The decision is a game-changer for litigation.
In its unanimous decision in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), authored by the Honourable Justice Karakatsanis, the Court has clearly said that the preferred route for disposition of lawsuits is not the trial as we know it.
For the reasons set out below, it is this author’s opinion that this decision will undoubtedly have a positive influence on the resolution of cases for the suddenly unemployed.
There is no shortage of ways to structure a severance package. A common way for employers to attempt to terminate an employee's employment, while keeping cash flow in check, is to provide the dismissed employee with "salary continuance," i.e. payment of salary over a period of time, rather than paying the employee a lump sum. A question that I am often asked is, can the employer legally require the employee to accept salary continuance?
Like most of the answers in our series Answers to Common Questions, the answer is "it depends"
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.
