Case is shining example of efficiency, proportionality post-Hryniak

Toronto civil and corporate-commercial litigator Bruce Baron says a recent motion for summary judgment is a “shining example” of how the courts are favourably interpreting the Supreme Court of Canada’s decision in Hryniak v. Mauldin and providing “efficient justice.”

In the matter of Paes v. Cascades Canada ULC, 2015 ONSC 7346, Baron successfully represented the plaintiff, Agnello Paes, in his wrongful dismissal suit.

Paes worked for Cascades as a machinist for 26 years, until November 2014, at which time he was terminated without cause. Paes was provided just over four months of working notice, plus his 26-week statutory severance pay.

Baron, principal of Gaertner Baron Professional Corporation, brought a motion for summary judgment on behalf of his client, seeking a reasonable notice award closer to 24 months. Cascades sought to dismiss Paes’ motion for judgment on the basis that Paes intended to retire, did not make reasonable efforts to mitigate his losses, and that Cascades was entitled to conduct a discovery examination prior to the hearing of Paes’ summary judgment motion.

More specifically, Cascades served Paes with a Notice of Examination for Discovery prior to the motion, but Baron refused to produce his client. Baron says the defendant took the position that the motion should be dismissed on the basis that Cascades ought to be entitled to first conduct an examination for discovery.

However, Baron notes: “There are no cross-examinations on affidavits for simplified procedure motions, including summary judgment, and I felt counsel was attempting to make use of a pre-motion examination for discovery to, in effect, conduct a cross-examination. So I objected. I took the position that, in accordance with the principles of ‘proportionality’ (as set out in Kotecha v. Affinia Canada) this was a straightforward wrongful dismissal action where cause was not in issue, and my client was entitled to summary adjudication.”

Baron, tells that he requested that his client attend court to witness his proceeding, “and as it turns out, I’m glad I did.”

During the hearing of the motion Baron submitted that Paes should not be deprived of summary adjudication to permit the defendant to turn over every possible stone. Justice Mario D. Faieta, noticing Paes was in the courtroom, called the plaintiff to testify and be cross-examined by the defendant following a recess.

“The judge gave us a lunch break and when we returned, my client was examined as a live witness to provide viva voce evidence in respect of his mitigation activities. I felt this was a very pragmatic and proactive step for the court to take,” Baron says.

“The court provided the defendant an opportunity to have its examination, but in a highly efficient and proportionate manner. My client’s evidence was accepted, his mitigation activities were deemed reasonable, my motion succeeded, and the plaintiff was awarded 21 months notice, less a one-per-cent contingency for re-employment, net 20.8 months.”

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