Author: Tom Finlay
Following the changes to the Rules of Civil Procedure in 2010, summary judgment has become increasingly relied on and used by employee-side counsel as a tool to achieve the faster and earlier resolution of wrongful dismissal claims. However, it has left the Courts grappling with how to resolve those cases where the facts call for a lengthy period of reasonable notice which may extend many months beyond the hearing of the motion and the obligation on the employee to make reasonable attempts to mitigate his or her damages during the notice period.
The recent decision in Paquette v. Tera-Go Networks Inc. expressly rejected the most costly and, arguably for employees, the most painful of the three approaches to this problem. In his decision, Justice Perell identified the three approaches: (i) the Contingency approach, in which the employee’s damages or notice period is discounted by some factor as a contingency for the possibility of re-employment during the remaining notice period; (ii) the Partial Summary Judgment approach, in which the employee is granted only partial judgment of his or her damages to the date of the judgment and the parties must return to Court during or at the end of the notice period to determine whether further damages should be awarded; and (iii) the Trust and Accounting approach, in which the employee is granted an undiscounted award of damages but a trust in favour of the employer is impressed on the employee’s earnings during the remainder of the notice period.
In a victory for employees, Justice Perell expressly rejected the Partial Summary judgment, finding it to be “cynical, patronizing, unfair, impractical and expensive”, awarded the employee his full damages and imposed a constructive trust on any earnings by the employee over the remaining length of the notice period.