While employment lawyers do not ponder the same life or death issues as Hamlet in his famous soliloquy, they face difficult issues about how to approach employment litigation. In particular, employment lawyers must consider whether they should bring a summary judgment motion to seek a quick resolution to their clients’ cases or proceed through the lengthy litigation process to trial. The consequences of this decision may have a huge impact on the duration and cost of litigation.

The main appeal of a summary judgment motion is clear: it can be a faster and cheaper route to obtaining a judgment from the court. The mere threat of such a motion may bring the parties together to negotiate an even faster and cheaper resolution to the dispute.

In practice, it is not easy to successfully reach the threshold of “no genuine issue requiring a trial” in these motions [Rule 20.04(2) of the Rules of Civil Procedure (the “Rules”)]. There are often complicating factors, such as conflicting “he said/she said” testimony, that make it difficult for a court to make a summary decision on the merits.

While there is an unavoidable, indeterminate risk that a court will not agree with a lawyer’s assessment of the case, no matter how apt, there are some cases that are clearly not appropriate for a summary judgment motion, as highlighted in these recent decisions involving motions brought by former employees:

• An ex-employee was accused of breaching a non-competition agreement.  The court held that the ex-employee’s behaviour (including allegations that he stole the non-competition agreement) and concerns regarding credibility (he fell from a ladder and lost all memory relating to his previous employment) made it “impossible…to have a full appreciation of the facts”.  The court required a “full trial narrative so that things [could] be put in context” and dismissed the employee’s motion.

• In another decision, the court held that there were “crucial” issues in dispute, including the length of employment (the employee said she was hired in 1988 but the employer and her record of employment referred to 1992), continuity of employment (there was an undefined sale of the business during the term of her employment) and whether she was induced to leave secure employment. The judge held that without “sufficient evidence” on these pertinent issues, he “[could not] possibly conclude that there is no genuine issue for trial as required by [the Rules]” and thus dismissed the employee’s motion.

The facts in these cases are unusual. Nonetheless, the harsh consequences to the ex-employees are the same: they lost their summary judgment motions because there were serious issues in dispute that could not be resolved in a summary fashion. The ex-employees were responsible for their employers’ legal costs as well as their own costs for the failed motions.

Sometimes, it is appropriate to choose to “summary judgment”.  For example:

• In a recent motion by a former employee who received only the minimum statutory notice entitlements from her employer, the court held that there was “no actual evidence – either direct or indirect – on the Defendant’s side which [it] would have to weigh against the direct evidence on the Plaintiff’s side.” Since the employer did not submit any evidence to displace the entitlement to the longer common law notice period, there was no “genuine issue requiring a trial” and judgment was granted in favour of the former employee.

• In another motion, the employer admittedly provided an employee with a letter terminating his employment and offering the statutory minimum amount of notice (although the employer omitted to continue some of his benefits) plus ¼ week of additional pay in exchange for a signed release. The employee signed the release on the spot. The court held that the circumstances surrounding the signing of a release were unanimously “unconscionable” and that the release should not be enforced.  Since the only outstanding issue was the length of the notice period, the court determined the appropriate amount of notice and granted summary judgment in favour of the employee.

As the legal (and less eloquent) versions of Shakespeare’s famed protagonist, employment lawyers must ponder whether ’tis nobler in the mind to suffer the slings and arrows of a failed, costly motion, or to take arms against a sea of litigious troubles. If there are pertinent facts in dispute or serious credibility issues, it is likely appropriate to follow the standard litigation route.  Notably, due to the backlog in some Ontario courts, it may actually be quicker to obtain a trial date than a motion date. However, if the issues in dispute are narrow and can be resolved by limited written or oral evidence, a summary judgment could be the answer to the summary judgment dilemma.

Jennifer Heath