When the T-1000 came from the future to destroy John Connor, Arnie made sure he was stopped in his tracks. While employers who have to date relied upon prohibitive time and costs to deter ex-employee claims might not face the wrath that Skynet did, given the recent decision of Cloutier v. Q Residential LP Corp, 2015 ONSC 4431 (CanLII), a rethinking of such approaches may be required.
Since the Supreme Court's decision in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), summary judgment has become a common tool in straightforward employment law matters. In Hryniak, the Court was explicit that summary judgment should be used whenever there "is no genuine issue requiring a trial."
Cloutier, a case that dealt with the constructive dismissal of a managerial employee, is illustrative of how the courts are beginning to expand the scope ofsummary judgment. Further, it reiterates the utility of this tool for employment lawyers seeking to achieve expedient and cost-efficient results for their clients.
The facts of Cloutier involved a Regional Manager, Ms. Cloutier, who became ill and went on medical leave in 2012. Shortly after Ms. Cloutier began her leave, the Defendant hired an individual to assume her role on an indefinite go-forward basis. In Spring 2013, the Defendant's President met with the Plaintiff and offered to return her to work in the reduced role of a Resident Manager, with an associated drop in salary from $75,000.00 to $40,000.00.
Ms. Cloutier rejected this change and brought forward a claim for constructive dismissal.
Ms. Cloutier elected to advance her court case by bringing a motion for summary judgment. Q Residential objected, stating that summary judgment was far from appropriate in the circumstances. It further asserted that there were substantive facts in dispute which raised a genuine issue for trial.
Justice Labrosse rejected the Defendant's assertion in this regard. In particular, he noted:
While the Defendants contend that the disputed facts surrounding the March 20, 2013 meeting raise a genuine issue for trial, I disagree. 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. [at para. 28]
Given the straightforward and largely undisputed nature of the material facts, Justice Labrosse held that Ms. Cloutier had been constructively dismissed and was entitled to 15 months' notice. He further allowed for a bifurcation of the legal proceeding: carving out both the Plaintiff's remaining Human Rights claim and her claim for aggravated damages, both of which were to be dealt with by means of a future mini-trial.
There are four key points for employers to take from Cloutier:
- Following on the heels of a number of well-publicized Ontario employment law decisions this year, it affirms that summary judgment is the appropriate approach in factually straightforward dismissal cases;
- The courts will take a pragmatic approach to the use of summary judgment in employment claims where ancillary issues, such as an alleged breach of the Human Rights Code or aggravated damages, are in dispute. Using summary judgment to resolve a substantial portion of a claim, while leaving other issues to be decided by way of mini-trial at a later date, is demonstrative of the court's commitment to efficiency and early settlement;
- It reaffirms the principle set out in Sweda Farms Ltd. v. Egg Farmers of Ontario 2014 ONCA 878 (CanLII) that parties to litigation must put their best foot forward in responding to summary judgment motions, so as to allow the Court to deal with the case in as efficient a manner as possible; and
- The courts are prepared to expand the application of summary judgment to claims of constructive dismissal. Despite the complexities often associated with such claims, Cloutier is a clear sign that, should the right circumstances allow, this door is now firmly open.