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It has been said that summary judgment motions are particularly useful for employment law matters. Thanks to Janice Payne and Craig Stehr from our Ottawa office of Nelligan O’Brien Payne LLP, there is now another decision that supports the appropriateness of summary judgment in this area of the law, even where important facts are in dispute.

These decisions address access to justice issues in an important and positive way, providing early results to the parties without the delay and expense of protracted litigation and trials.

In Cloutier v. Q Residential LP Corp. rendered on July 8, 2015, Justice Labrosse found in favour of the Plaintiff on a contested constructive dismissal matter.

The facts are straightforward. The Plaintiff had worked for the Defendants since May 2003. In December 2012, while working in the position of Regional Manager, Operations, and following some alleged mistreatment by the Vice-President to whom she reported, the Plaintiff provided the Defendants with a medical note confirming that she was going on sick leave. Less than five weeks later, the Defendants hired a replacement for the Plaintiff on a permanent full-time basis. This was not subject to the Plaintiff’s return to her position. On March 20, 2013, while still on sick leave, the President of Q Residential (her employer) visited the Plaintiff and tried to convince her to return to work in a less prestigious position with a reduced salary. The Defendants claimed that the Plaintiff accepted these changes to her employment, whereas the Plaintiff denied any such agreement and claimed that she had been constructively dismissed.

As established by Ontario’s Rules of Civil Procedure, summary judgment shall be granted where there is no genuine issue for trial.

The Defendants argued that this was not an appropriate case for summary judgment, as there were facts in dispute that raised a genuine issue for trial. With respect to the claim for constructive dismissal, the Defendants specifically argued that there was a significant factual dispute about the March 20, 2013 meeting that required a trial to resolve. However, Justice Labrosse instead agreed with the Plaintiff that there was no genuine issue requiring a trial in respect of her constructive dismissal claim (Justice Labrosse did not decide the aggravated damages and discrimination claims on the motion). A mini-trial was directed with respect to the claim for human rights damages.

More specifically, Justice Labrosse relied on the following facts that were known prior to the March 20, 2013 meeting:

By March 20, 2013, the Defendants had already hired the Plaintiff’s permanent replacement and had no equivalent position to offer the Plaintiff within the Ottawa area. Also, no proposal was made to offer equivalent employment anywhere else. The only option presented to the Plaintiff was a return to the Resident Manager position and there is no dispute that this was a position of lesser responsibility at a significantly reduced rate of pay.

Relying on the definition of constructive dismissal as established in the seminal case of Farber v. Royal Trust Co. (1997), Justice Labrosse stated the following:

Regardless of the Defendants’ contention that the demotion was accepted by the Plaintiff, it is clear that by March 20, 2013 there had been a unilateral and fundamental change to the terms of the Plaintiff’s employment and the Plaintiff was not provided with reasonable notice of this change. As of March 20, 2013, the Regional Manager position was no longer available and there was no evidence of an equivalent position which could be offered to the Plaintiff.

Given these facts, Justice Labrosse did not see the need for the Court to make a finding as to the presence or absence of an agreement by the Plaintiff to the demotion at the March 20, 2013 meeting. Regardless of whether the Plaintiff agreed to the change on March 20, 2013, the change had already been implemented by that date.

Justice Labrosse found the Plaintiff to have been constructively dismissed and entitled to a notice period of 15 months, including the annual bonus she would have otherwise earned during her notice period.

This case sends a clear message that courts have expanded their approach to summary judgment motions in employment law cases, by demonstrating a willingness to determine more complex cases, such as disputed claims of constructive dismissal.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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