Ontario Employment Law: Employer's Reliance on Termination Provisions Limiting Notice In Summary Judgment Motions

In McKinstry v. Stone, decided September 20, 2011, Pollak J. considered the burden of proof upon an employer seeking summary dismissal of an employee's wrongful dismissal claim, where the employer is seeking to rely on a termination provision in an employee's contract of employment::

To succeed on this motion, the Defendants have a burden of proving that they are entitled to a dismissal of Mr. McKinstry’s claims for damages in wrongful dismissal arising from the failure to provide reasonable notice or pay in lieu thereof. I agree that they cannot satisfy this burden of proof without establishing what the terms of employment were with respect to termination of employment. This is a basic requirement that the Defendants must meet and they have not done so. This is particularly so, in light of the conflicting evidence and submissions of the parties with respect to the effect that two employee manuals distributed after the date of the Agreement may have on the Agreement, as they contain what appear to be different termination of employment provisions. The entire manuals were not produced by the Defendants. Mr. McKinstry produced only excerpts of these manuals. I find that the Defendants have not satisfied their burden of proof on this summary judgment motion with respect to wrongful dismissal claim regarding the failure to provide reasonable notice. The motion for summary judgment on the wrongful dismissal claim is therefore denied.

If you have been wrongfully dismissed, please contact a lawyer who can advise as to your rights and entitlements.

- Robert Tanha , Toronto

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