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July 27, 2016

New decision discusses the role of summary judgement in wrongful dismissal cases and an employee’s duty to mitigate


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By Mika Imai

The length and cost of a traditional lawsuit are a constant frustration for clients and lawyers. Preparing court materials, booking court dates, examining witnesses and engaging in mediation are just a few of the reasons lawsuits drag on. As a result, employment lawyers are increasingly using summary judgment motions to obtain a speedier and (hopefully) less costly outcome.

Summary judgement is faster than the standard trial due, in part, to limits on the amount and type of evidence that can be heard. However, summary judgement is not permitted in all cases – parties have to agree or a court must rule that there is “no genuine issue requiring a trial”.

Fortunately, courts have repeatedly held that wrongful dismissal cases are well-suited to summary judgement. In the recent case, Aylesworth v The Law Office of Harvey Storm, the Court explained:

“While cause for dismissal is occasionally a factor in [wrongful dismissal] cases, the length of notice and reasonableness of mitigation are most often the only issues for resolution. These issues seldom involve genuine actual disputes of the sort that only a trial can unravel. The amounts at issue when compared to the costs of litigation cry out for the application of the proportionality principles always providing that a fair and reasonable determination of the issues can nevertheless be accomplished.”

In Aylesworth, the only issue was whether the employee had met her duty to mitigate and summary judgement was therefore appropriate.

Aylesworth also offers insight into the scope of an employee’s duty to mitigate. The duty to mitigate describes an employee’s responsibility to search for a new job after being fired. While employees aren’t obliged to accept just any job offer, they also can’t hold out for the perfect job. An offer must be for a job of a similar nature to the job from which they were fired.

In Aylesworth, the employee was offered a new job at the same salary, but with a variety of other differences (e.g. lesser vacation entitlement). The employee responded by requesting additional information and putting forth a counterproposal. The judge found this reasonable, noting that, while the salary was matched, the job was “significantly different in a negative way”. The judge further explained: “as long as prudence does not venture into excess ‘choosiness’, I would afford a reasonable degree of latitude to an employee considering her options . . .” Notably, the fact that the employer responded to the counterproposal by withdrawing its offer, didn’t make the employee’s actions unreasonable.

The Court’s commentary on summary judgement and the scope of an employee’s duty to mitigate makes Aylesworth a useful case for employers and employees considering their options. The decision was upheld at the Divisional Court.

Millard & Company has extensive experience arguing wrongful dismissal cases, both through summary judgement and at trial. If you would like to discuss whether summary judgement is appropriate in your case, contact us at the number above.

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