Kevin Marshall
October 3, 2017
A recent without cause dismissal case shows summary judgments can be an effective tool for fast resolution, even if there are lingering issues such as mitigation.
“Mitigation can be a contentious issue and that may be reason enough why many lawyers like myself may be reluctant to go to summary judgment.”
“Those who represent employees commonly run into the problem where the client hasn’t looked for work, or at least hasn’t been able to prove they’ve put much effort into looking for a job. That is the primary way one mitigates his or her damages, and if they can’t produce evidence of mitigation, that works against them.”
But in Summerfield v. Staples Canada Inc., 2016 ONSC 3656 (CanLII), a summary judgment was made in even though the employer raised concerns over the employee’s failure to mitigate.
The employee, an enterprise account manager, earned an annual salary of $83,900 including benefits when she was terminated without cause after almost five years on the job, according to the written decision.
The woman was 39 at the time of termination and had no written employment agreement. She was offered a severance package, the terms of which were not disclosed to the court, and which she rejected.
Instead, she took five weeks of termination pay required under the Employment Standards Act, and five weeks of benefits, and started to look for a job.
The written decision details her job search, including networking with industry contacts, attending job fairs and searching websites. She applied for approximately 25 jobs and had a several interviews.
“I find as a fact that Ms. Summerfield made an exemplary effort to mitigate,” Justice Paul Perell wrote. “She started almost immediately to search for a new job and she assiduously continued with that effort in an organized and diligent way. Staples failed to meet the onus of proving a failure to mitigate.”
The employee claimed she ought to have received nine months’ compensation in lieu of notice, seeking a summary judgment of $55,147.41. Perell awarded six months' notice or about $34,000.
I have tended to shy away from use of summary judgments unless I have a straightforward case.
“Many lawyers are a little concerned because of complications like mitigation, but recent changes to the law have lowered the threshold that has to be met."
“The fact that mitigation was contentious and they were still able to resolve it in this case is interesting, because that’s often been the biggest problem I run into."
Clients must often produce evidence they have applied for jobs, attended interviews and made inquiries.
But as the judgment reads, “the innocent party need only be reasonable, not perfect.”
In employment law, damages are usually known from the point the person is fired if proof of mitigation can be established.
“So for without cause dismissals, why spend months or years going through a trial? It shouldn’t be that complicated.”
