A recent decision of the Ontario Court of Appeal highlights the risk of attempting to have a simplified procedure action decided by way of a summary judgment motion.

In Singh v. Concept Plastics Limited, 2016 ONCA 815 [“Singh”] the Court allowed the appeal of the respondent employer dismissing two motions for summary judgment brought by former employees. The Court found that the motion judge failed to assess the fairness of deciding the actions by way of summary judgment in the context of the simplified rules procedural constraints under Rule 76.04 of the Rules of Civil Procedure (“Rules”).

A party may have an action, or part of an action, decided by way of summary judgment motion if there is no genuine issue for trial. Evidence is generally put before the court by way of affidavit rather than oral testimony.

Simplified Procedure, under Rule 76, applies to civil actions in Ontario claiming less than $100,000.00. Its purpose is to reduce the cost of litigation by eliminating or reducing certain procedural steps. The following are not permitted in an action under Rule 76.04 (1):

1. Examination for discovery by written questions and answers under Rule 35.
2. Cross-examination of a deponent on an affidavit under rule 39.02.
3. Examination of a witness on a motion under rule 39.03.

In Singh, the Court found that credibility was a central issue on the motion. The positions set out by the employees in their affidavits conflicted with the employer’s evidence on the main points at issue. Rule 76.04(1) establishes significant limitations on the employer’s ability to prove its case because it precluded the employer from cross-examining the employees on their affidavits regarding key issues in dispute. This prevented the employer from putting its best foot forward on the motion. As a result, summary judgment was unfair in the circumstances.

The Facts

The two plaintiffs were informed by letter dated November 21, 2013 that their employer would be moving its plant and would cease operations in Mississauga by January 17, 2014. They were invited to continue their employment at the new location or to consider the letter a termination notice. Ultimately, the plant closure did not occur until June 30, 2014. Both worked at the Mississauga plant up to and including that day.

The plaintiffs claimed that the cumulative effect of the notices and updates sent by the employer was to create confusion and uncertainty, and that the employees “had no idea” when their employment would end until June 30, 2014.

It was central to the employer’s central case that the plaintiffs were well aware of their termination date, and as a result, the employer should have been credited with providing notice as of December 31, 2013. The employer’s evidence was that it extended the original January 17, 2014 termination date to June 30, 2014 in response to a request from a group of employees that included the plaintiffs. Moreover, the employer alleged that the plaintiffs, as senior employees, were at all times aware of the developments concerning the move, having both assisted with the move and elected to stay until the end of June 2014. In short, it was the employer’s position that there could be no confusion as to the date when the plaintiffs’ work was going to end.

The parties also disputed whether the plaintiffs took reasonable steps to mitigate their losses. The plaintiffs offered no explanation for failing to actively look for new employment during the first six months following their termination. There was also a dispute about whether one of the plaintiffs was in Fiji, and therefore unable to mitigate and conflicting evidence about whether the other plaintiff had been employed as a truck driver.


The Court of Appeal found that motion judge failed to assess the fairness of deciding this matter by way of summary judgment given the conflicting evidence and the fact that Rule 76.01 prohibited from cross-examining the plaintiffs on their affidavits.

A summary judgment motion for wrongful dismissal actions under the simplified rules is appropriate for very straight forward terminations without cause where the evidence is not in dispute. However, if there are significant material facts in dispute it is much safer, and probably just as cost effective, to have the action decided by way of a summary trial under Rule 76.