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Serious insight for serious situations.

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Wrongful dismissal: A procedural sign of things to come?

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6 Jun at
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An interesting case crossed my desk this week. It was the wrongful dismissal case of Whiteman v. Eastern Lift Truck Inc. 183 A.C.W.S. (3d) 87. The case was recently decided by Mr. Justice Ray of the Superior Court of Justice.

What jumped out at me was how efficiently the plaintiff and his counsel made use of the procedural tools available to get a good result with minimal expense. Counsel for the defendant also deserves kudos as he agreed with the suggestion to deal with the case in this fashion.

The plaintiff was a forklift mechanic who earned $58,000 a year. He had worked for the employer for six years. No cause was alleged. The issue to be determined was the length of notice to which he was entitled, as well as whether the termination violated the Human Rights Code of Ontario.

Rather than wade through examinations for discovery and a trial, which would have made little economic sense since the plaintiff’s case was worth less than $30,000, plaintiff’s counsel brought a motion for partial summary judgment under Rule 76.07 of the Rules of Civil Procedure. Simply put, this rule allows a judge to render a decision when he or she determines there is enough information to do so, and where the judge determines that there is no need for cross examination of the parties. It appears that the evidence used was the plaintiff’s own affidavit that set out his job search. This was enough for the judge to conclude that the plaintiff was entitled to five-and-a-half months’ notice. The human rights issue, which could not be addressed using this process, was left undetermined. This will mean that it can be tried on its own at a later date, or settled between the parties. I am told by counsel that the matter took all of two hours to be heard in court.

If you are an employment lawyer reading this, ask yourself how many of the wrongful dismissal files sitting on your desk could be handled this way. If you are an employer, ask yourself the same question. If you are an employee considering engaging the services of counsel, make sure you ask if your dispute can be determined as simply and as efficiently as this. I think this case is a procedural sign of things to come.

Janice Rubin