Ontario rules of court allow for a motion to be made to the court seeking a final judgment. This avoids the need for a traditional trial. The case is then based on affidavit evidence submitted by both parties. It is less expensive than the trial process and also is usually faster as the lengthy trial list wait is avoided.
This process can be used where there are evidentiary issues to be resolved as may be raised in a “just cause” defence case. It is certainly the preferable approach when the employer does not argue cause for termination and the central issue to be determined is what should be the period of reasonable notice.
What About Mitigation
The issue may arise as to how the motion judge should deal with the mitigation issue, that is, the employee’s job search efforts, particularly when the case has come on for hearing before the notice period has expired.
This very question arose recently in a case in which the judge awarded a notice period of 27 months. The plaintiff had been employed for 40 years, was 65 years old on termination, earning $130,000 annually as a Senior Civil Engineer.
The summary judgment motion came before the judge after roughly 8 months following termination. The company argued that it would be unfair to make an award until the period of notice had expired, which would then have allowed it the chance to examine the plaintiff’s job search efforts through to the end of the notice period.
The judge saw three possibilities, based on prior similar decisions:
- Impose a trust on the plaintiff which would require him to account for any earnings in this time period and reduce the sum paid by the company;
- Allow for an immediate partial judgment and then come back to court at the end of this period to allow for an assessment of the employee’s job search efforts;
- Apply a contingent discount to the award based on the likelihood of new employment and reduce the award accordingly.
Neither of the parties in this case advocated for the third option. The court declined to make an immediate award for the full amount as it had no evidence to predict whether or not the plaintiff would remain unemployed for the balance of the period.
The court ordered that the company keep paying the plaintiff monthly to the end of the notice period. It allowed the company the right to challenge the plaintiff’s job search efforts in this period and to return to court if it was of the view that the plaintiff had violated this obligation.
This was a curious decision as it was not accompanied by an order requiring the plaintiff to provide monthly summaries of his job search efforts. Absent this term, the employer would have no idea whether or not the plaintiff was compliant with this obligation.
Employees Take Note
The good news for the employee side is that the motion for summary judgment is now well embedded into Ontario law. Often bringing such a motion will lead to further settlement discussions to end the case. Often companies wait until a “crisis” point to make a decision. The sooner that date may be, the sooner the case may settle. If not, the summary judgment motion will likely bring a quicker and final result in any event.
Let Legal Advice Guide Your Actions
If you facing a termination issue, it is important to take legal advice to understand your rights. If you have questions about such an issue, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation
 The company had already paid the 34 weeks through to the date of the motion