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In the basic wrongful dismissal case, the central issue between the employer and employee generally turns on the question of whether the employer has provided a reasonable termination package, otherwise known as compensation in lieu of ‘reasonable notice’.

Some employers have little or no interest in fairness or reasonableness towards employees, and simply disregard their common law obligation to provide employees reasonable compensation. They know full well that when the employee seeks legal redress, despite the fact that the issues in dispute are relatively straightforward and suitable for quick resolution, the legal system has not, until recently, taken proper account of that. They can and do exploit the system in an effort to financially exhaust plaintiffs by delaying, as long as possible, facing up to contractual and legal obligations, and adding another barrier to individuals seeking justice.

Our highest court finally acknowledged that reality openly earlier this year, stating in Hryniak v. Mauldin et al, that ‘ensuring access to Justice is the greatest challenge to the Rule of Law in Canada today.’ A culture shift is required in applying the summary judgment rules. The traditional measure of whether a judge can gain a ‘full appreciation’ of the case has been rejected as too high a standard. The test now is whether the judge can gain a ‘sufficient’ appreciation to rule fairly and justly without the full forensic machinery of the complete trial process, and ultimately a trial.

In the wake of this decision, two recent decisions in Ottawa, have positively embraced the ‘culture shift’ granting summary judgment for reasonable notice damages to terminated employees. Interestingly, the two cases, decided by different judges, are against the same defendant employer. They were released within weeks of each other. The first is Beatty v. Best Theratronics, issued June 24, 2014 and the second, Arnone v. Best Theratronics, released July 14, 2014.

As Mr. Arnone’s counsel, I can plainly state that the employer’s position in its factum, and before the Judge, was that 16 weeks was reasonable at common law for this employee with 31 years’ service. It rather astoundingly maintained that Mr. Arnone, who applied for 800 jobs in 17 months between his termination and the date of cross-examination on his mitigation efforts, was not diligent enough in his mitigation efforts (at the time of writing this blog at latest count he has now made over 1,000 applications).

The appeal period has not yet run on either of these decisions. Unfortunately, neither of these employees can likely expect bank deposits any time soon. The employer has an automatic right to appeal regardless of merit to such appeal. Stay tuned for further developments on these cases and others as we track the ‘culture shift’ in summary judgment and wrongful dismissal cases.

For more information, read my full article, Summary Judgment: An Effective Weapon to Combat Low-Balling Employer.

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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