Summary judgment is a quick and cheap way to get your case to Ontario Superior Court. It’s an ideal tool for employees in wrongful dismissal cases. Each time we recommend this process to our clients, we explain the pros and cons of that process. Here is how that discussion often goes:

Why is summary judgment good for wrongful dismissal?

Summary judgment is a great tool for wrongful dismissal cases for three main reasons: First, it’s much faster, cheaper, and simpler than a trial. Second, the court has held that most straightforward wrongful dismissal cases are appropriate for summary judgment. Third, it puts a lot of pressure on your employer to settle your case relatively early.

When is summary judgment the right move?

The Ontario Superior Court can grant summary judgment where it finds there is “no genuine issue requiring a trial”. That has a fairly specific legal meaning, and depends on your specific case. Surprisingly, however, most wrongful dismissal cases (even very good cases) raise no genuine issue for trial and are a good fit for summary judgment.

Just how quick and how inexpensive is it?

In the grand scheme, a summary judgment motion is still quite time-consuming and expensive. To explain: “Quick” means that you can get a hearing date as soon as 4-8 months after filing your statement of claim; “Inexpensive” means that the cost is significantly less than preparing for trial – perhaps one third or one quarter of that amount.

Why is it so quick and inexpensive?

Basically, it’s quick and inexpensive because it’s a short hearing – usually no more than 3-4 hours. That means it is much easier for the court to schedule compared to a days- or weeks-long trial. That also means that there is little or no time to testify or call witnesses in court. Instead, each party usually relies on an affidavit (a written sworn statement), rather than a live witness. Because the evidence needs to be kept to a minimum, employees often must forego some of the more factually complicated aspects of their claims, like human rights or special damages.

I don’t care how long it takes/how much it costs. Should I still consider summary judgment?

Yes. When measured up to a summary judgment motion, the time, expense and headache of a trial is very difficult to justify. That’s true even if moving for summary judgment means trimming down the claim.

Some of our clients correctly point out that the court can award legal costs at the end of a trial. While that is true, success at trial will usually get you back only some of your legal costs – generally only about one quarter to one third of your actual legal expenses. Additionally, costs are a double-edged sword – if you are unsuccessful at trial, you may have to pay a portion of your employer’s legal expenses.

I just want a reasonable settlement. Should I still consider summary judgment?

Yes. The vast majority of scheduled wrongful dismissal summary judgments settle before the motion date. That’s partly because a looming court date creates an incentive for your employer to settle. That incentive is a negative one — your employer does not want to spend the time, effort and money any more than you do. They may also want to avoid a negative decision on the public record. Because of this, many “low-balling” employers will quickly change their tune when they are given a clear deadline to settle.

How does one bring a summary judgment motion?

At any time after the pleadings have closed (that is, the Claim, Defence, and Reply have all been served and filed) you can arrange for a court appearance to schedule a summary judgment motion. In Toronto, this scheduling process is done in front of a judge at in Civil Practice Court (“CPC”).

At CPC, both parties can make arguments about the appropriateness of summary judgment. More often, however, both parties will simply agree to a summary judgment date, with an attached timetable. That timetable might include deadlines for each party to serve the other with their motion materials, written legal argument (called “facta”) and sometimes will include timelines for completing mediations and cross-examinations. In Toronto, summary judgment motions typically occur around 4-8 months after the CPC date.

Is summary judgment right for all wrongful dismissal cases?

No. Wrongful dismissals can easily involve genuine issues requiring a trial, which can include issues of credibility, mitigation efforts, whether there was cause for dismissal, etc. If you bring a summary judgment motion in those circumstances, you will lose; you will likely have to pay a portion of your employer’s costs; and your case will not have advanced any closer to trial.

Conclusion

Summary judgment is a powerful tool in wrongful dismissal cases, but not one to be used lightly. For that reason, it’s very important that you receive expert legal advice on whether or not to bring a wrongful dismissal.

[crossposted from Goldhawk]