Law Times

Law Times • January 16, 2017 Page 7 www.lawtimesnews.com Summary judgments in wrongful dismissals BY NIKOLAY CHSHERBININ A motion for summary judgment is a procedural tool that is both practical and perilous. It is practical because it can be litigation's main event. However, it is perilous because it can turn out to be a journey beset with proce- dural ramifications and costs. Despite becoming increasingly preva- lent in employment law cases, summary judgment motions are not always an ef- fective way to resolve issues of credibili- ty, critical material facts, mitigation and conf licting evidence. A recent employment case in point is Ronald Dawson v. Colt Food Services Limited, 2016 ONSC 7653, where Justice Guy DiTomaso determined that the mat- ter was not an appropriate case for sum- mary judgment. In Dawson, Ronald Dawson, 56, served as Colt Food Services Limited's food and beverage manager for almost 13 years. On July 3, 2015, he attended a meet- ing during which CFS discussed its ongo- ing concerns with his job performance. The meeting left Dawson confused, anxious and upset. He understood that his employment was terminated. CFS denied terminating his employ- ment and asserted that Dawson either resigned and/or abandoned his position. Following the meeting, Dawson left on a sick leave. On July 16, 2016, or 14 days af- ter the alleged dismissal, Dawson provided CFS with an unclear doctor's note, which stated "the above- noted patient was seen in my office today for medical reasons. He is currently off work for medical reasons. Will be re- assessed in the near future." Dawson never returned to CFS. Rather, on July 8, 9 and 14, he applied for a total of 11 jobs. On July 24, 2016, CFS issued a record of employment due to what they termed as "job abandonment." In response, Dawson launched a wrongful dismissal and human rights claim. Subsequently, he moved before DiTomaso to summary judgment. In his ruling, DiTomaso indicated that, due to conf licting evidence, conten- tious factual issues and serious credibility problems, the case could not be resolved on the basis of affidavits and transcripts. On a motion for summary judgment, the evidence and procedure must be such that judges are confident they can find the necessary facts and apply the relevant legal principles so as to fairly resolve a dispute. The motion judge may deploy their discretionary powers to weigh evidence, evaluate credibility and draw reasonable inferences from evidence, unless it is in the interest of justice for such powers to be exercised only at trial. The motion judge should first deter- mine if there is a genuine issue requir- ing trial based only on the evidence be- fore them, without using the fact-finding powers. If there appears to be a gen- uine issue requiring a trial, the motion judge should then determine if the need for trial could be avoided by using the discretionary powers. Where the evidence in the record establishes a clear conf lict, it is incumbent on the motion judge to consider expressly whether the powers are to be engaged in resolving the conf lict. In this case, Dawson argued that his was a straightforward claim for wrongful dismissal without cause and, therefore, it was an appropriate case for the summary judgment. DiTomaso disagreed, because the mo- tion did not simply involve the amount of severance owed to Dawson. DiTomaso was of the view that there are a number of genuine issues requiring a trial. Those issues include: 1) There was conf lict in evidence on whether Dawson was dismissed or whether he resigned from or aban- doned his employment. I note paran- thetically that the test for abandon- ment is similar to the test for resigna- tion: do statements or actions of an employee, viewed objectively by a rea- sonable person, clearly and unequivo- cally indicate an intention to no longer be bound by an employment contract. 2) In the context of the human rights claim, there were genuine issues relating to whether Dawson suf- fered any disability as a result of his alleged wrongful dismissal or whether he suffered from illness or disability unrelated to his dismissal. 3) The issue of damages was also in dispute in respect of the appropriate quantum. 4) Dawson's assertion that the test for abandonment has not been met by CFS and his dismissal resulted in his suffering illness and/or disabili- ty was yet another genuine issue re- quiring a trial. Dawson illustrates that the jurispru- dence regarding summary judgment mo- tions is still developing. It serves as an apt reminder that the employment law cases that are best suited for summary judgment motions are the ones in which critical material facts and credibility are not seriously in dispute, the issues are well defined and the damages are readily ascertainable. Given the range of issues raised, this decision will likely have an impact on the use of summary judgments in wrongful dismissal cases. LT uNikolay Chsherbinin is an employment and immigration lawyer and author of The Law of Inducement in Canadian Employment Law. He can be reached at 416-907-2587 or by visiting nclaw.ca. COMMENT Anti-SLAPP law becoming paper tiger? BY JUSTIN SAFAYENI AND ANDREA GONSALVES I n late 2015, Ontario passed its first anti-SLAPP legislation, the Protection of Public Participation Act, 2015. The law was designed to protect de- fendants against SLAPPs — or Strategic Lawsuits Against Public Participation. These lawsuits are used as a means to censor, intimidate or punish critics and to discourage them from speaking out by burdening them with the cost of litigation. The PPPA creates a fast-track motion process for courts to dismiss SLAPPs efficiently, while minimiz- ing the cost for defendants. There is widespread recognition of the harmful chilling effect SLAPPs have on free speech and public discourse on matters of public interest. This is the very ill the PPPA was enacted to remedy. But some courts have taken a narrow view of the new provisions — one that is at odds with the language of the statute and the ethos of proportionality that seems to be driving other areas of the justice system. As a result, lawsuits of dubious merit are being allowed to continue, and the purpose of the legislation is at risk of being thwarted. On its face, the PPPA is revolutionary. Defendants can now bring anti-SLAPP motions to have actions dismissed in their entirety, even before filing a state- ment of defence. And the onus on defendants in such motions is limited to establishing that "the proceeding arises from an expression made by the person that re- lates to a matter of public interest." If the defendant meets that modest onus, then the lawsuit must be dismissed, unless the plaintiff can show both that there are "grounds to believe" that their claim has "substantial merit" and there is "no valid de- fence" and that the harm to the plaintiff is "sufficiently serious that the public interest in permitting the pro- ceeding to continue outweighs the public interest in protecting that expression." But if these provisions gave civil libertarians and free expression advocates cause for celebration, such rejoicing has been short-lived. Almost immediately, courts began taking a highly restrictive view of what is needed to dismiss an action under the PPPA. Indeed, most of the motions brought so far have been unsuccessful. In one of the first re- ported decisions to consider the provisions, the court concluded — contrary to the clear wording of the pro- visions — that the threshold for plaintiffs responding to anti-SLAPP motions "must be a low one" given the consequences (see 1706406 Ontario Ltd v Pointes Protection Association). In another case, Accruent LLC v Mishimagi, the court dismissed the motion after concluding that the defendant's public statement relating to ongoing court proceedings was not "on a matter of public interest," even though the discussion of court proceedings is typically considered a matter of public interest. The result is also surprising given the court's view that "the plaintiff has brought a weak claim and used the threat of costs and embarrassment to try to extract something from the defendant that the law of defama- tion does not otherwise provide — a gag order." In oth- er words, the case is a quintessential SLAPP, yet it has been allowed to proceed. Cutting against these currents are a pair of thought- ful decisions, both by Justice Sean Dunphy of the On- tario Superior Court of Justice, that capture the intent of the PPPA and offer hope of meaningful anti-SLAPP motions in Ontario. In Able Translations Ltd v Express International Translations Inc and Platnick v Bent, Dunphy reject- ed the "low threshold" for responding plaintiffs, and held that once a defendant has discharged its onus, the plaintiff must show "credible and compelling evidence supporting the claim as being as serious one with a rea- sonable likelihood of success" and "a reasonable prob- ability that none of these defences would succeed if examined in depth following a full trial." Justice Dun- phy also adopted a broad conception of "expression … relat[ing] to a matter of public interest." The approach taken in Able and Platnick ref lects the text of the PPPA and its purposes, which are set out in the legislation and speak to promoting and encouraging debate on matters of public interest. The approach should become the accepted inter- pretation of the PPPA in Ontario. Yet, the majority of the decisions rendered so far re- f lect a reluctance by judges to deprive litigants of their day in court — even where a statute may compel that result. That reluctance must be overcome if the PPPA is to achieve its purpose and provide significant protection against SLAPPs. As Dunphy commented in Able, "the Legislature has implicitly accepted that some potentially meritori- ous defamation claims may nevertheless be dismissed without a full hearing on the merits." Unless this mes- sage is taken seriously, anti-SLAPP motions risk be- coming a meaningless waystation on the long and costly road of litigation. The PPPA follows a trend of other civil justice re- forms — including the new rule 2.1, the expanded pow- ers of summary judgment and the new regime for ad- ministrative dismissals — that allow courts to dispose of appropriate cases at early stages, without a full trial on the merits. By enabling more expeditious dispositions and eas- ing demands on court resources, these changes serve an important access to justice objective. The PPPA serves the same end, within the important sphere of expression on matters of public interest. Against that objective, an undeserving plaintiff 's "day in court" is not inviolable. In the coming months, the Court of Appeal will de- cide two PPPA appeals. Given the divergent paths fol- lowed by lower courts to date, the reasoning and results in these appeals will determine whether the PPPA will realize its promise as a meaningful tool to protect free expression or be relegated to paper tiger status. LT uAndrea Gonsalves and Justin Safayeni practise civil and constitutional litigation, with a focus on media, free expression and defamation law, at Stockwoods LLP in Toronto. u SPEAKER'S CORNER Labour Pains Nikolay Chsherbinin

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