Character Matters: Don't Be So Quick To (Summary) Judge

A recent decision of the Ontario Superior Court of Justice is bucking the summary judgment trend in wrongful dismissal cases. In Skov v. G & K Services Canada Inc., 1 the motion judge held that the appropriate length of reasonable notice owed to a dismissed employee could not be determined by way of summary judgment. Instead, the motion judge held that a mini-trial was necessary to determine a legal issue that was thought to be of declining significance: the character of the dismissed employee's employment.

Background

Mr. Skov was employed by G & K Services Canada Inc. for nearly 21 years before his employment was terminated without cause in 2016. At the time of his dismissal, he held the position of Customer Development Manager and earned approximately $120,000 in salary. Absent a signed employment agreement, Mr. Skov's position was that he should receive 24 months' reasonable notice at common law. In response, G & K argued that 15 months of reasonable notice was appropriate. G & K also argued that the amount should be reduced to 10 months because Mr. Skov failed to mitigate his damages by searching for comparable alternative employment. Mr. Skov sought to have his action for wrongful dismissal decided by way of summary judgment.

Decision

Ontario's Rules of Civil Procedure require a court to grant summary judgment if there is no genuine issue requiring a trial. Summary judgment is appropriate if there is sufficient evidence to justly and fairly adjudicate the dispute, and if summary judgment would be an affordable, timely and proportionate procedure. Because this method produces quick results for employees and reduces the strain on judicial resources, summary judgment motions have become an increasingly popular means of adjudicating wrongful dismissal actions in Ontario. 2

In the present case, however, the evidence regarding Mr. Skov's character of employment was less than straightforward. In argument, Mr. Skov pointed to his title and salary as evidence that he held a management position with G & K. In response, G & K produced evidence that Mr. Skov was never a member of senior management, did not act as a mentor or supervisor, and held a management title "in name only".

Further, Mr. Skov's "updated resume" on LinkedIn stated that his position with G & K was "Director of Process Improvement and Customer Development" - a title that he admittedly never held. G & K made much of the fact that Mr. Skov's purported attempts to mitigate the loss...

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