Michael Ford (post until Oct. 31/19)
Employment & Labour

Summary judgment: fast tracking your wrongful dismissal lawsuit

By Bram Lecker and Kimberley Sebag

As the old saying goes, the wheels of justice turn slowly. This has never rung truer than it does right now. Ontario’s overtaxed court system provides cold comfort to people seeking timely and cost-effective settlements for their grievances. As a law firm that primarily represents employees, our clients often find themselves in court against Goliath-like employers with very deep pockets. Our plodded legal system puts them at a disadvantage because time is money for the legal profession. That is why, in 1985, we attempted to use an alternative court procedure, known as summary judgment, for a wrongful dismissal lawsuit. It ended up paving the way for fast-tracking employment lawsuits.

With this procedure, the parties present sworn written statements as evidence. They appear before a judge who examines the evidence and thumbs it up against the law to reach a verdict. It is a very swift and efficient means to reach a settlement.

The case

In one case, the employee was a purchasing manager. After six years, they terminated his employment. Our employment laws are very clear about such terminations. Employers must offer reasonable notice or payment in lieu, thereof. This employer offered the employee the minimum stipulated in the Employment Standards Act (ESA), 2000. However, they completely ignored his entitlements under our common laws. These are a set of judge-made laws that put numbers to the meaning of reasonable notice. Employers and employees are usually at opposite ends of the spectrum on this issue and it remains the most common trigger for a wrongful dismissal lawsuit.

Short of suing his former employer, the employee had very few options to obtain his legal entitlements. And he found the prospect of going through our clogged-up court system drudgerous and not worthwhile. He was, after all, a family man with two children to support and a mortgage to pay off.

Using the summary judgment procedure

That is when we decided to utilize the summary judgment procedure. Banks have used this legal instrument for years when they require speedy settlements to enforce loans and guarantees. The processes are simple, and the entire procedure can be completed within a few months in contrast to a standard trial, which can take years. We believed the employee’s case was worthy of similar expedition. Neither party disputed the law and the judge could easily arrive at a fair award for common law entitlements using the employee’s age, position, employability and length of service.

Our strategy worked! Within six months of his termination, the employee faced his former employer in court. And the judge awarded him six additional months of pay, along with costs to cover our legal fees. This was a watershed moment and represented a progressive step for employee rights. It brought social reform to our legal system. This case forged the path for wide use of summary judgment in employment litigation.

Summary judgment and the Supreme Court of Canada

Summary judgment is well suited for cases that are clear-cut and predictable, where a trial would be a waste of time. The judge generally does not hear oral evidence and makes decisions based on sworn written declarations. In fact, the Supreme Court of Canada piped in on this matter in 2014, following this case. They reiterated that a trial is not the default procedure for resolving legal disputes. They encouraged the use of summary judgment where it was proportionate, expeditious and less expensive.

In 2009, we took yet another case through the summary judgment process. Not only did the judge rule on notice period and equivalent damages, he also awarded extra amounts for loss of employee benefits, all from examining the documentary evidence.

In 2010, Rule 20 brought amendments to the summary judgment processes. It permitted judges to weigh evidence and evaluate the credibility of a deponent to draw inferences. Lawyers may include written evidence from third parties to seek awards for employee benefits and pensions. They can even apply for extra funds for outplacement counselling to support employees through their job search. And most of all, judges can now impose costs on the losing party.

Summary judgments are not for everyone

While these procedural upgrades facilitated the wide use of summary judgments, they are not for every case. The format is completely unsuitable for complex cases or when oral evidence is required to support arguments. Examples include cases that require testimony from expert witnesses to help the judge reach a decision.

Summary judgments have definitely made Ontario’s civil justice system accessible and affordable for employees. However, before you rush into your lawyer’s office and command them to resolve your employment dispute through these means, you must first allow them to evaluate the facts. Experience matters in this game of legal strategy.

Evaluating your case

At Lecker & Associates, our lawyers understand the threshold for succeeding in a summary judgment. We have been through the process several times and are old hands at it. We would only recommend this path if your case is airtight because the end-result of losing a summary judgment can be costly. It can leave you holding the bag for your employer’s legal fees.

Summary judgments have levelled the playing field for employees. You should no longer feel intimidated by the vast resources your employer has at their disposal to endure long and expensive legal battles. In fact, the very mention of summary judgment can spur some employers to settle cases faster, after they size up the economy of their own legal costs against the risk of losing the case.

If you are caught up in an unpleasant dispute with your employer, do not fear the legal costs. Summary judgments are very cost effective and lend themselves well to most wrongful dismissal cases.  

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