Supreme Court of Canada ruling means straightforward wrongful dismissal cases can be decided faster and more cheaply.
Many people who are fired take whatever settlement their former employer offers because they can’t afford to go to court.
But a Supreme Court of Canada ruling means that straightforward, wrongful dismissal cases can now be settled faster and for one-third to one-half the cost of a full blown trial. This so-called summary judgment route bypasses a lot of the current process.
Currently, if you lose your job and hire a lawyer, your lawyer will typically send a letter requesting compensation in lieu of notice. If the company doesn’t co-operate and your claim is over $25,000 (claims less than this are heard in Small Claims Court) you can file a lawsuit. Your former employer will generally have 20 to 30 days to file a statement of defence.
This is followed by examinations for discovery, a mandatory pre-trial conference and then a trial.
“It could take several years to get to trial depending on where in the province you bring your case,” says Toronto employment lawyer Doug MacLeod.
In contrast, a motion for summary judgment can be filed as soon as the statement of claim and statement of defence have been exchanged. “You could probably have the motion heard three to six months later if everything falls into place,” MacLeod says.
An application for summary judgment sets out basic undisputed facts, including the efforts you have made to find another job. The judge will make the decision based on your role at the company, length of service, your age and the availability of other similar employment.
The award is based on the circumstances of your case. There is no rule of thumb, for example that you are entitled to one month of notice for each year of service, or a limit based on a maximum number of months of pay (i.e. 24).
An application for summary judgment is not a good idea if you are also asking for punitive or aggravated damages or damages for mental stress. In these situations the issues are sufficiently complex that a full trial is required in order to allow the judge (or jury in some cases) to make an appropriate decision on the merits.
McLeod expects that by the end of this year applications for summary judgemnt in Ontario will be very common in uncomplicated wrongful dismissal cases. “Plaintiffs can choose to have their case resolved quickly and keep legal costs down via a summary judgment motion or roll the dice and see where the courts are going to end up on punitive damages two or three years from now,” he says.