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Author:
Kelsey Orth

Date:
2014.07.24

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Wrongful Dismissal
Employment Litigation

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THE EMPLOYERS' EDGE

In Summary: Mitigation May Not Matter

Much was made in the legal community of the Supreme Court’s ruling on summary judgment that came out in January of this year.  We wrote about it here at the time, and the focus of that article was on whether or not this would make summary judgment motions - a procedure used during civil litigation to dispose of a case without a trial or the pre-trial processes such as examinations for discovery and production of documents – more accessible.

While the consensus in the legal community seems to be that this is in fact starting to bear out, with respect to employment law we always think that there are enough complicating issues to defeat such a motion when brought by the plaintiff:  while there are times that employers may wish to use this procedure as well, in this case we are talking about situations where, generally, the employer wants to avoid having the Court make a quick judgment against them before the assessed notice period has run its course.  However, the Court’s recent decision in Beatty v. Best Theratronics Ltd. may have removed one of those weapons from employer counsel’s arsenal:  the issue of mitigation.

In a wrongful dismissal suit, one of the issues – absent any contractual provision that may deal with mitigation – is always whether or not the plaintiff either mitigated his or her damages, or whether, in the alternative, he or she failed to make adequate efforts to mitigate.  This is crucial for employers because mitigation can reduce the amount an employer will have to pay an employee; as a result, it is something that employer counsel have often relied upon as a “genuine issue for trial” that would defeat a summary judgment motion.

In the Beatty v. Best Theratronics Ltd., however, the Court determined that it could make a determination on that very issue without any more than the affidavit evidence of the plaintiff and the results of the cross-examination.  While this may not be a stretch on the relatively straightforward facts of this case – the plaintiff was a 16-year employee without the formal training for the job he was doing and therefore tried but couldn’t find appropriate alternative employment – most cases require more in-depth examination of the issue of mitigation than permitted under the summary judgment rules.  In this case the Court simply decreed that mitigation was not a genuine issue for trial.

We will monitor this area of case law to see if this decision is a harbinger of things to come in wrongful dismissal litigation, or just an outlier based on the facts of this case.  Either way, the lawyers at CCPartners are ready and well-equipped to deal with these and other motions: we believe employers can expect more summary judgment motions in wrongful dismissal actions as plaintiff counsel try to circumvent the normal rules of the court to get their clients quick judgments.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.

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