Labor & Employment Law

Summary Judgment in Employment Cases

By Michael Fitzgibbon

I've previously written about summary judgments in employment disputes here and here.  

Rule 20.04(2) of the Ontario Rules of Civil Procedure provides that:

The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

Rule 20.04(3) says:

In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence. 

The (new) Rule 20 enhances the powers of motions judges to weigh evidence on a motion for summary judgment and to make findings of fact.  While many employment cases are made-to-measure for summary judgment, it's by no means a gimme.

Obaidi v. Home Depot is a case in point in which the employer sought summary judgment in a case involving the termination of an employee, without judge cause, and in accordance with the terms of an employment agreement entered into with the employee.  

This is a really interesting case on a number of fronts.  The Court dismissed the motion.

According to Mr. Justice Brown "The ?new Rule 20? greatly enhances the powers of motions judges to weigh evidence on a motion for summary judgment and to make findings of fact".  True enough, but:

.... as I stated in Lawless v. Anderson, 2010 ONSC 2723 (CanLII), 2010 ONSC 2723, at paragraph 21:

Of course, these enhanced powers of a motion judge are not without limit.  Rule 20.04(2.1) makes it clear that a judge should not exercise the expanded powers where ?it is in the interest of justice for such powers to be exercised only at a trial?.  The quality of the record on a summary judgment motion and a number of other case-specific factors likely will guide judicial discretion in assessing whether a fair, final disposition of a proceeding can occur using a summary judgment motion record, including a hybrid record of written and viva voce evidence, or whether justice and fairness necessitates traversing the matter to a full trial. (emphasis added)

In the Obaidi case, Affidavit evidence identifying a number of crucial issues were filed and the Moving Party "elected to remain unchallenged either through reply evidence or through the cross-examination of Mr. Obaidi, the plaintiff?s evidence about the existence of a binding, oral contract of employment".

The moving party bears the onus of persuading the Court that no genuine issue requiring a trial exists which means putting your best foot forward and proactively identifying evidentiary gaps and dealing with them.   

Full post as published by Thoughts from a Management Lawyer on November 24, 2010 (boomark / email).