THIS FLEXIBILITY TO CONSIDER PREVIOUSLY
IRRELEVANT FACTORS IS YET ANOTHER EXAMPLE OF
HOW COURTS WILL GO TO GREAT LENGTHS TO TRY
AND PROTECT VULNERABLE EMPLOYEES WHO HAVE
BEEN TERMINATED WITHOUT CAUSE AT LAW.
previously irrelevant factors to now be material
when assessing reasonable notice.
PREVIOUSLY IRRELEVANT
FACTORS BECOME RELEVANT
For example, in the recent case of Fraser
v. Canerector Inc., 2015 ONSC 2138,
the court determined that an employee
dismissed during the summer might be entitled
to an extended notice period on the
basis that employers generally do not hire
in the summer months. Employers ought
to familiarize themselves with this “time
of year” factor, as it will likely be argued
by any astute plaintiff counsel for their clients
dismissed in the summer (and likely
around the December holiday period as
well) to justify a longer notice period.
Similarly – and separate and apart from
their obligations pursuant to human rights
legislation – employers will want to consider
how an employee’s family status may
lengthen a period of reasonable notice.
In the recent case of Partridge v. Botony
Dental Corporation, 2015 ONSC 343,
the fact that the plaintiff was responsible
for providing income and was the primary
caregiver for her young children (her
husband was self-employed and unable
to easily attend to the children) appeared
to be material in the court’s award of reasonable
notice as it was significantly longer
than would be expected when considering
the traditional factors alone.
This flexibility to consider previously
irrelevant factors is yet another example
of how courts will go to great lengths to
try and protect vulnerable employees who
have been terminated without cause at law.
SUMMARY JUDGMENT
MOTIONS
These “new” factors that have been used
to increase periods of reasonable notice
are being coupled with procedural regimes
that make it easier for a plaintiff to obtain
judgment. In the past, employers would be
in a position to leverage procedural rules
to extend the life of a litigation, as they
were often in a better position to bear the
costs of lengthy proceeding.
Although many cases involving determinations
of reasonable notice (where
cause was not alleged) had previously been
dealt with through “summary judgment”
motions, the Supreme Court of Canada’s
2014 decision Hryniak v. Mauldin has led
to a sea-change in the way cases are litigated
in that trials are no longer the preferred
course to determine civil proceedings
– summary judgment motions are the
best mechanism to ensure speedy justice.
Courts from across Canada – and particularly
in Ontario – have clearly stated
that summary judgment motions are
well suited to determine the enforceability
of termination clauses, the period of
reasonable notice and the appropriateness
of an employee’s mitigation efforts.
Courts are responding to the call for
“speedy justice” in Hryniak. For example,
the Toronto civil courts have recently
stated a goal of having all summary
judgment motions heard within 100
days from when the motion is booked.
Given the above, employers must
adapt their litigation strategies and consider
the “culture shift” articulated by
the Supreme Court in Hryniak. Offers
to settle employment disputes – even
before litigation is commenced – should
consider that the previous long wait to obtain
judgment may no longer exist.
POTENTIAL CONSEQUENCES
One unintended consequence of the increasing
use of summary judgment
motions is that for long-serving employees,
they may often be heard before
the end of the employee’s notice period.
Many employers had hoped that this
would create, in effect, a de facto delay on
judgment, until the period of reasonable
notice had concluded and the parties
could consider the employee’s mitigation
efforts. That has not been the case.
The clear trend is that employers will be
ordered to pay the dismissed employee
the amount representing the entire
notice period, notwithstanding that it
is impossible for the employer to make
arguments as to reasonable mitigation
efforts during the period following judgment.
Courts have addressed this issue
by imposing a trust on the employee’s
judgment, to account to the employer
for any mitigation income earned. There
is a valid argument that this will create a
disincentive for those employees to look
for work. However, employers are not
necessarily without a remedy. Insisting
on mitigation information following
the judgment and informing the dismissed
employee of their ongoing duty
to collect and preserve this information
could provide an employer with an opportunity
for redemption. However, the
employer will have to do a cost-benefit
analysis of engaging its counsel for this
purpose.
Ultimately, all of the above uncertainty
takes us to the one piece of advice that
still endures: employers can avoid all of
the above concerns by utilizing comprehensive
employment agreements with
unassailable termination clauses setting
out each party’s obligations on termination
of employment. This will greatly
limit the employer’s potential liability in
terms of both providing the dismissed
employee with reasonable notice, and
also in its eventual legal fees and costs. ■
Mark Repath is an associate at Van
Kralingen Law.
legal words
14 ❚ OCTOBER 2015 ❚ HR PROFESSIONAL