In the case of
Adjemian v. Brook Crompton North America, the Plaintiff sued her former
employer, for damages for wrongful dismissal. A motion for summary judgment
(employers: i.e. asking a judge if there is really an issue for trial here -
stopping the case or part of the case dead in it's tracks ) was brought
under the rules of simplified procedure (employers: suing someone under 50K
)
The Judge was
satisfied that this case was appropriate for summary judgment and that the
Plaintiff should have a judgment in the amount of $50,000.00, plus one month of
pre-judgment interest, plus part of her legal fees paid.
How did the case
unfold?
Ms. Adjemian had been an employee of what is now Brook Crompton for 22.5
years. A long long time.
Her former employer is
a manufacturer of electronic motors for world distribution, and it has a head
office in Toronto, Ontario.
Ms. Adjemian was fired without cause on January 24, 2008.
Her history was quite
simple. She began her employment as an entry level employee, and at the time of
dismissal, she was an information and technology administrator, accounts payable
clerk, and inventory receiving clerk. Her position was not managerial nor
supervisory, and she reported directly to Brook
Crompton’s Operations Manager.
Crompton has gone through some difficult times that required
downsizing of personnel, and Ms. Adjemian was
one of the employees affected and ultimately let go. She was given a reference
letter.
At the time of her
dismissal, she was 47 years of age. Her base salary was $47,324.00, but
she deposed that Brook Crompton had announced a 4% non-discretionary salary increase for
all employees. She was enrolled in a comprehensive benefits plan that included
medical, dental, vision, short-term and long-term disability payments, and life
insurance all paid for by Brook Crompton. She had 4 weeks vacation each year. It was a
pretty good job.In fact, in 2007, she received a bonus of $2,297 and Brook Crompton made
pension contributions of $4,132.
The termination
and severance
Her employer paid her
four months salary (16 weeks) and continued her benefits for four
months.
After she was fired,
Ms. Adjemian has attempted to find employment
but so far without success. She provided a comprehensive brief documenting her
considerable efforts to find a new job. She has applied for 120 positions in
various industries and job types and she has had 9 job interviews.
The case and why it
is unique
The question asked to the Judge Ms.
Adjemian is entitled to a summary judgment under
rule 76.07 (9), which states
(9) The presiding judge
shall grant judgment on the motion unless,
(a) he or she is unable
to decide the issues in the action without cross-examination; or
(b) it would be otherwise
unjust to decide the issues on the motion.
Can you bring a
summary judgment motion in simplified procedure (i.e. lawsuits under
50K?)
Yes.
The judge went through
the classic tests...although important to remember is that the test for a
summary judgment is less stringent under simplified procedure than the
test for a summary judgment for a lawsuit (This was set by the case of
Bradley-Kelly Construction Ltd. v.
Ottawa-Carleton Regional Transit Commission 1996
CanLII 8038 (ON S.C.), (1996), 30 O.R. (3d) 301 (Gen. Div.);
Opportunity Labour Agency v. Pax-All
Manufacturing Inc., [2007] O.J. No. 1820 (S.C.J.).)
Unlike a motion for summary judgment in a normal action, where the
determinant is whether there is a genuine issue for trial, the focal point under
the simplified procedure is whether, even if there is a genuine issue for
trial, the court can fairly and justly decide the action on the motion and
without a trial. ( This was set by the cases of Robertson v. Ball 1996 CanLII
8228 (ON S.C.), (1996), 31 O.R. (3d) 30 (Gen. Div.); Giardino v. Frum Development Group (1998), 20
C.P.C. (4th) 368 (Ont. Gen. Div.); Masini USA, Inc. v. Simsol Jewellry Wholesale Ltd. 2003 CanLII 41000 (ON S.C.), (2003), 67 O.R. (3d)
229 (S.C.J.); Braithwaite Technology Consultants Inc. v. Blanketware Corporation 2004
CanLII 30089 (ON S.C.), (2004), 72 O.R. (3d) 611 (S.C.J.).)
Although the test for
a summary judgment is more onerous in a normal law suit than under Rule 76, it
has been used to grant judgment in a wrongful dismissal action before ( This was
set by Cronk v. Canadian General Insurance
Co. 1995 CanLII 814 (ON
C.A.), (1995), 25 O.R. (3d) 505(C.A.); Bullen v. Proctor & Redfern Ltd. 1996 CanLII 8135 (ON S.C.), (1996),
20 C.C.E.L. (2d) 36 (Ont. Gen. Div.); Ducharme v. Cambridge Stamping Inc. [2008] O.J. No. 1666 (S.C.J.).
Therefore iot follows
that if the stricter Rule 20 test can be satisfied for a wrongful dismissal
claim, then a summary judgment under rule 76.07(9) may also be available for a
wrongful dismissal claim brought pursuant to Rule 76.
The
decision
The judge found that
there were no genuine issues for trial in the case at bar. There is overwhelming
evidence that Ms. Adjemian had made and
continues to make reasonable efforts to try and find a job.
Further, there is no
genuine issue for trial about the characterization of her employment. The court
can accept Brook Crompton’s characterization of her employment and then move on to
decide the appropriate notice period for such employment.
Once the two purported
issues were resolved, the Judge found that they can be properly resolved on this
motion for summary judgment - there is no remaining issue that requires a
trial.
The law and
severance
Ms.
Adjemian seeks damages for wrongful dismissal.
An employee who is
wrongfully dismissed is entitled to recover the value of all losses arising from
the failure to have been given reasonable notice of the termination of his or
her employment ( this comes from the clasic cases of Koor v. Metropolitan Trust Co. of Canada, [1993]
O.J. No. 1476 (Gen. Div.); Earl v. Northern
Purification Services (Eastern) Ltd., [1980]
O.J. No. 160 (H.C.J.); Davidson v. Allelix
Inc. reflex,
(1991), 86 D.L.R. (4th) 542 (Ont. C.A.); Locke v. Avco Financial Services Can. Ltd. reflex, (1987), 85 N.B.R.
(2d) 93 (Q.B.).
Where an employee is
dismissed without cause, he or she is entitled to reasonable notice of
termination or pay in lieu of notice.
In determining the
length of notice the court considered: (a) the character of employment; (b) the
length of service; (c) the age of the employee; and (d) the availability of
similar employment having regard to the experience, training, and qualifications
of the employee (from the classic cases of Machinter v. HOJ Industries Ltd., 1992 CanLII 102 (S.C.C.), [1992] 1
S.C.R. 986; Cronk v. Canadian General
Insurance Co. 1995 CanLII 814 (ON
C.A.), (1995), 25 O.R. (3d) 505(C.A.); Bardal v. Globe & Mail, [1960] O.W.N. 253 (H.C.)).
The Plainiff sought
16 months notice and got it....and more
Having regard to the
authorities provided by her to provide some guidance as to the appropriate
notice period for plaintiffs in comparable situations, The judge was satisfied
that this is a fair notice period. Keeping in mind the severance payments
already made to her,the Judge calculated her damages to be $61,944.65.
Broken down this
was:
Salary (12 months) @
$49,216.96
Benefits (12 months and estimated at 10% of salary) @
$4,921.69
Pension contribution (16 months)@ $5,509.00
Bonus for
2008 @ $2,297.00
Why am I writing
about this?
Because we don't
really see summary judgment issues in simplified procedure cases, which is where
most wrongful dismissal lawsuits fall into. 70% of the Canadian population is
middle class. Most don't make over $60,000.00. With the shift in employment
movement, it is often, but everyday that you run into employees that are owed
more than $50,000.00 in severance. This motion should be used more if all your
issues are in place and there is nothing more but damages to go to Court over.
This woman had proof that she was looking reasonably for another job. The
company also admitted certain fact (i.e. her salary, bonus...) If you got the
facts in place then perhaps the question to the Judge should be used more.
For employers? Be
careful when you fire people. When I speak to employer I always advice them to
call me. It is worth the call to a lawyer to terminate this properly and in good
faith.