Peter John Cicak

Following the dismissal of a plaintiff’s motion for summary judgment, the responding defendants sought substantial indemnity costs.

The court considered Rule 20.06 of the Rules of Civil Procedure and rejected the argument that substantial indemnity costs should presumptively apply, noting the rule no longer creates such a presumption.

The court also held that the defendants’ Offer to Settle did not trigger Rule 49.10 because it lacked a genuine element of compromise and included a demand for substantial indemnity costs.

Given that the plaintiff would likely recover some damages at trial, the court determined that the most appropriate course was to reserve the costs of the motion to the trial judge for determination in the context of the overall proceeding.

In a wrongful dismissal action brought under the simplified procedure, the plaintiff moved for summary judgment seeking determination of the reasonable notice period and damages.

The court held that although reasonable notice issues may in appropriate cases be determined summarily using the Bardal factors, the case also raised a contested issue regarding whether the plaintiff reasonably mitigated her damages.

Evidence concerning the plaintiff’s job search and the availability of alternate nursing employment created a factual dispute that would benefit from oral evidence and cross‑examination.

Relying on guidance from Combined Air Mechanical Services Inc. v. Flesch regarding summary judgment in Rule 76 actions, the court found that deciding only the notice period would not promote procedural efficiency.

The motion was therefore dismissed and the matter directed to proceed toward trial.

The appellant employer appealed a summary judgment awarding a 62-year-old unskilled employee with 33 years of service 22 months' notice for wrongful dismissal.

The employer argued that multiple temporary extensions of employment constituted working notice and that notice for unskilled workers should be capped at 12 months.

The Court of Appeal dismissed the appeal, holding that the multiple extensions created uncertainty requiring fresh notice under the Employment Standards Act, and affirmed that there is no absolute 12-month cap on notice periods for unskilled employees.