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Employment Law - Wrongful dismissal - Civil procedure

Thursday, November 24, 2016 @ 7:00 PM  


Appeal by Concept Plastics from orders granting summary judgment to the respondent employees, Gounder and Singh. In 2014, the appellant decided to relocate its plant from Mississauga to Brantford. Gounder, age 50, had 20 years of service with the appellant. Singh, age 51, was employed by the appellant for 24 years. In November 2013, each respondent received a letter advising of the proposed relocation. They were advised that they could continue their employment at the new location, or could regard the letter as notice of termination. Each respondent continued working at the Mississauga plant until its closure in June 2014. Thereafter, they commenced wrongful dismissal actions under the simplified procedure and brought motions for summary judgment. The appellant took the position that genuine issues for trial existed related to constructive dismissal and mitigation. The appellant submitted that the simplified procedure precluded it from putting its best foot forward on a summary judgment motion. The motion judge found that the November 2013 letter constituted termination without cause, which was subsequently extended in confusing piecemeal fashion until the plant closure. The judge awarded Gounder 18 months’ notice and Singh 20 months’ notice, with no failure to mitigate losses. Concept Plastics appealed.

HELD: Appeal allowed. The motion judge failed to assess the fairness of determining the matter by way of summary judgment in the context of the simplified rules procedural constraints under Rule 76.04. The appellant was significantly limited in its ability to prove its case, as it was precluded from cross-examining the respondents on their affidavits, particularly on the issue of whether they had requested an extension of their employment and were aware of developments related to the relocation. Credibility was a central issue on the motion and the parties’ evidence clearly conflicted. The motion judge failed to make credibility findings or explain how the conflicts in the evidence were resolved regarding the respondents’ termination and their efforts at mitigation. The appeal was allowed and the motions for summary judgment were dismissed.