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- In January 2014, the Supreme Court revamped the approach to summary judgment motions in Hryniak v. Mauldin; and
- In the six months since Hryniak, the courts have applied this revamped approach to wrongful dismissal actions, including in the June 2014 decision in Beatty v. Best Theratronics Ltd.
Following Hryniak, judges are likely to take a more proactive approach to resolving motions for summary judgment, including by making partial orders for summary judgment and overseeing the litigation in order to resolve any outstanding disputes.
Below is a summary of the Hryniak approach, an example of the application of that approach in Beatty and then some important points for wrongful dismissal litigants to consider when considering a motion for summary judgment.
Hryniak – The “New and Improved” Approach to Summary Judgment
The Supreme Court in Hryniak re-evaluated the approach to motions for summary judgment and stated that a judge should use the following analysis (as eloquently summarized in a more recent case):
- The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
- On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
- If the court cannot grant judgment on the motion, the court should:
- Decide those issues that can be decided in accordance with the principles described in 2., above;
- Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues; and
- In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.
In Hryniak, the Supreme Court rejected the notion that trials are the gold standard by which a judge can obtain is a “full appreciation” of a case. This is a welcome recognition given the significant time and costs leading up to a trial. The Supreme Court acknowledged that a motion for summary judgment will provide a judge with an appreciation of the case so that he or she may determine the merits in a “fair and just” manner.
Even if a full summary judgment is not appropriate, the Supreme Court held that a motion judge should make findings where it can and make orders where and as necessary to enable it to determine any remaining issues. The Supreme Court’s emphasis on the flexible and proactive approach to summary judgment motions ensures that some value can be gained by a moving party even if they are not successful on the entire motion.
Beatty Decision and the Application of the Hryniak Approach
In the Beatty decision, the court applied the flexible approach espoused by the Supreme Court in Hryniak. The plaintiff brought a motion for summary judgment to determine four issues:
- The length of the notice period;
- The reasonableness of the Plaintiff’s mitigation efforts;
- The plaintiff’s entitlement to aggravated and punitive damages; and
- The plaintiff’s entitlement to human rights damages.
Justice Hackland held that the written record (i.e. the affidavits of the parties) was sufficient to make findings regarding the first two issues, these being the notice period and the mitigation efforts. On both issues, the court found in favour of the plaintiff. There were no facts in dispute regarding either of these issues, and the case law was clear about the appropriate length of the notice period for an employee similar to the plaintiff and the “reasonableness” of the plaintiff’s job search efforts, so the court made appropriate findings on those points.
With respect to the fourth issue, the human rights damages, the court found that no such damages were applicable and dismissed this aspect of the plaintiff’s claim.
The remaining issue was the entitlement to aggravated and punitive damages. In his affidavit, the plaintiff alleged that certain discriminatory statements were made about him in the workplace. In response, the defendant’s affiants denied making or hearing such statements. Hackland J. accepted that the plaintiff’s allegations of discrimination and reprisal, if true, would give rise to additional damages, but the judge was unable to make findings about those statements on the basis of affidavits alone.
Hackland J. stated that he required viva voce evidence (i.e. in-person testimony) to determine several issues, the most important issues being whether the discriminatory statements were made and whether the defendant terminated the plaintiff’s employment as reprisal for his complaint about those statements. In addition, Hackland J. required additional “explanatory evidence” as to whether certain expenses arising from the plaintiff’s new employment could be claimed as damages in this litigation.
On the above basis, Hackland J. ordered damages for the reasonable notice period in the amount of $87,294.76 (plus interest and costs to be determined after the end of the summary trial) and a summary trial lasting no more than two days on the issues of the plaintiff’s entitlement to a) aggravated and punitive damages and b) additional expenses.
Take-Home for Wrongful Dismissal Litigants
Hackland J.’s approach in Beatty is instructive for litigants in the post-Hryniak era:
- Trials are no longer the gold standard for resolving disputes. Summary judgments will be granted where a judge has a sufficient appreciation of the case and can make a fair and just determination.
- A defendant cannot deflect a motion by simply arguing that there are issues in dispute. Following Hryniak, in motions for summary judgment, courts will make partial orders on issues that are determinable and then make interim orders to ensure that the remaining issues can be addressed.
- The motion judge may be more than a guest star in your litigation. The judge may seize himself or herself of the litigation and oversee further steps.