September 4, 2015 By: Karine Dion
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Increased use of summary judgment motions seen as greatly improving access to justice

Accessibility to justice has been a growing concern in the Canadian legal landscape for some time. The required steps in a litigation file are numerous, the caseloads of our judges are overwhelming, and the delays inherent in any file, especially from the party with the deeper pockets, are becoming inordinate. For many individuals, the amount of money required to see a case through to trial is simply not worth the expense, leading them to settle at an earlier stage, and often for less than what they are truly owed. This is especially true in the employment law world.

On Jan. 1, 2010, changes to Ontario’s Rules of Civil Procedure came into effect. In an effort to improve access to justice, the changes included expanding the scope of a motion judge’s powers to include: (1) weighing evidence, (2) evaluating the credibility of a deponent, and (3) drawing any reasonable inference from the evidence. Oral evidence can now also be ordered heard. These expanded powers have been greatly utilized and their scope initially determined in the seminal case of Hryniak v. Mauldin.

Although a case based in the tort of civil fraud, Hryniak is now the foundation upon which all summary judgment motions are decided. As confirmed by the Supreme Court, the motion rules must be “interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”. These motions have become particularly useful in the resolution of employment law matters, as recognized by the Court of Appeal for Ontario in Arnone v. Best Theratronics Ltd.

In the case of Beatty v. Best Theratronics Ltd., the motion judge granted partial summary judgment on two of the issues raised, namely the period of reasonable notice and the alleged failure to mitigate, whereas the issues surrounding the claims for aggravated, punitive and special damages required a summary trial. As confirmed by Justice Charles Hackland, “the test is now whether the court’s appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured”.

Initially focused on establishing the length of reasonable notice in a wrongful termination case, motions for summary judgment have also been granted in employment law cases where important facts are in dispute.

In the case of Cloutier v. Q Residential LP Corp. rendered in July 2015, the terminated plaintiff was granted reasonable notice even though it was a contested constructive dismissal matter. While on sick leave, the plaintiff’s employer came to visit her and offered her a less prestigious position with a reduced salary. However, her position had already been filled on a permanent full-time basis some weeks prior. Even though there was contention as to whether or not the plaintiff had accepted the demotion, Justice Marc Labrosse found in her favour because the defendants had already made a unilateral and fundamental change to the terms of her employment prior to visiting her, and the plaintiff was not provided with reasonable notice of this change. This recent case shows a willingness of courts to determine more complex cases, such as disputed claims of constructive dismissal, by way of summary judgment motions.

The Supreme Court properly explained the growing importance of these motions in Hryniak: “Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised. However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result”.

Plaintiffs want their day in court. Whether it is by way of a trial or a motion, they want to be able to explain the events that led them to start a claim, and they want their matter to be decided by an unbiased third party. Motions for summary judgment are becoming the best way for them to achieve this goal.

The traditional trial no longer offers the benefits it once did to plaintiffs. What was once a fair and relatively expeditious way of resolving a matter has moved so far outside the realm of attainability that many who would otherwise benefit from such a system avoid it altogether. With the quickly expanding summary judgment precedents, especially within employment law, it is clear that these motions have begun replacing the traditional trials in an effort to restore a legal model that has been arguably taken off course and no longer offers the same access to justice to those who seek it out.

Karine Dion is an associate lawyer in the employment and labour law groups at Nelligan O’Brien Payne (www.nelligan.ca). She can be reached at 613-231-8369 or by e-mail at karine.dion@nelligan.ca.

[This article was originally published in the September 4, 2015 edition of The Lawyers Weekly.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law