Written on behalf of Peter McSherry
In the recent decision in Aylsworth v The Law Office of Harvey Storm, 2016 ONSC 3938, the Ontario Divisional Court dismissed the employer’s appeal of a summary judgment motion, siding with a legal assistant in a wrongful dismissal action.
This decision highlights the importance and appropriateness of summary judgments in cases where the facts are not in dispute.
Lynne Aylsworth was employed as a legal assistant for over 15 years with The Law Office of Harvey Storm (“Mr. Storm”), a sole practitioner in real estate law. The Appellant merged his off with Real Estate Lawyers.ca LLP (“REL”) as he was approaching retirement. As a result, Ms. Aylsworth was given working notice of termination. Shortly thereafter, REL made a written offer of employment to Ms. Aylsworth. The most notable difference in the terms of employment offered by REL was that she would no longer be entitled to the summer vacation she had previously taken every year. Ms. Aylsworth requested time to consider and speak to her lawyer. She responded to REL with a counteroffer and asked some questions about the offer.
REL considered this to be a rejection of its offer and replied that it would be contacting other candidates.
The Motion Judge found that REL’s offer was a “take it or leave it offer” and the terms of the offer were less favourable than Ms. Aylsworth had previously enjoyed. It was not unreasonable for Ms. Aylsworth to raise questions for clarification given that the terms were “significantly different in a negative way” and attempted to negotiate a raise to compensate for some of them.
The Divisional Court found the Motion Judge was correct in dealing with the matter by way of summary judgment because the facts were not in dispute. The Divisional Court noted that the employer bears the burden of establishing the failure to mitigate: the employer must show that the employee’s conduct was unreasonable in all respects.
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To read the full decision, click here.