As a general rule, employers can terminate an employee so long as they provide reasonable notice and comply with statutory obligations. Is providing reasonable notice and complying with statutory obligations enough to dispense with a matter on summary judgment? Apparently, not always.In a February 2013 endorsement from the Ontario Superior Court of Justice, Brownson v. Honda of Canada Mfg, the court said that if the termination came “out of the blue” the defendant might be successful having the claim tossed by summary judgment, but:
… the juxtaposition of the termination with a contemporaneous investigation of misconduct colorus the ordinary procedures, such as escorting the terminated individual out of the workplace, with an innuendo that could give rise to the mental suffering alleged by the Plaintiff particular to the circumstances of the termination rather than the fact of being terminated.
Because of this, the court found a triable issue as to whether the employer intentionally terminated with reasonable notice to side step “the criteria for fair treatment of an employee against whom cause is alleged”. Notably, the former employee had medical evidence of a “contemporaneous distress” when an allegation of misconduct was made and he was the first of 23 employees in his department interveiwed in an investigation into that alleged misconduct. This, the court said, raised a triable issue on other heads of damage available in a wrongful dismissal action.
The court asked for submissions on cost from the plaintiff (“no more than two pages together with a bill of costs”) at the end of the decision. In its subsequent costs decision the court said the issue was whether the defendant had been unreasonable bringing the summary judgment motion. The court awarded the plaintiff $14,000 in solicitor client costs saying:
I agree with the Plaintiff’s submission that the Defendant was myopic. The Defendant saw only its point of view of the issues. Since one head of damage was amenable to Summary Judgment, the Defendant sought judgment on all. However, I found the issues could not be viewed in separate silos.
This will be a case employers will want to follow closely as it evolves.