Summary Judgment in Wrongful Dismissal Action in IT Sector

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer and ArbitratorBusiness Litigation, Civil Litigation, Commercial Litigation, Contract Disputes, Contract Termination, Employment, Employment & Wrongful Dismissal, Information Technology, Start-Up Disputes, Summary Judgment, Technology and Internet, Wrongful Dismissal0 Comments

The plaintiff in Wellman v. The Herjavec Group Inc., 2014 ONSC 2039, whose employment with the defendant was terminated without cause after one week short of a year, was granted summary judgment and found to be entitled to damages from the defendant for wrongful dismissal on the basis of a reasonable notice period of four months. The parties had agreed that the issue of a reasonable notice could be properly considered on a motion for summary judgment and the court agreed that such a motion is more proportionate, more expeditious less expensive means than a trial to achieve a just result (citing Hryniak v. Mauldin, 2014 SCC 7)

In considering the issue the court considered the:

Bardal factors; the age of the employee (including when considering mitigation it is reasonable to assume that at the plaintiff’s age there could have family responsibilities that might make him less mobile); length of service (just one factor to be taken into account); experience, training and qualifications of the employeecharacter of the employment (including that the plaintiff was to manage key accounts and to take a leadership role, even though at the time of dismissal was not supervising anyone, and was found to be middle to senior management, on the basis of considerations including, his benefits and that he was to be reimbursed for a variety of activities such as golf, lunches and dinners with clients or potential clients); availability of similar employment and mitigation efforts (it was reasonable to spend five months seeking replacement employment in the Ottawa area); and

Other factors – including the nature of the IT industry, that employees within the IT sector are used to changing jobs on a frequent basis  – may reduce the length of a reasonable notice period by a certain amount, though not in the context of this case, not by very much (here the court found that it was not an unreasonable expectation of the plaintiff that he would be with the defendant for a minimum of three years).

The full reasons of the court are here.

If you require advice about employment law or representation in a wrongful dismissal action, please call us for an initial consultation.


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About the Author
David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer and Arbitrator

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer and Arbitrator

David has practiced over 35 years as a commercial and business litigator in diverse matters in the courts and in domestic and international arbitration proceedings in Ontario, England & Wales, Bermuda and Dubai. Also admitted in New York. He also accepts appointment as a commercial and marine arbitrator. Bio | Lawyer | Arbitrator | Contact

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