Kilpatrick v. Peterborough Civic Hospital
44 O.R. (3d) 321
 O.J. No. 1505
Docket No. C29743
Court of Appeal for Ontario
Catzman, Borins and O’Connor JJ.A.
May 5, 1999
Employment — Wrongful dismissal — Practice — Summary judgment — Motions judge erring in granting summary judgment under Rule 20 in action for damages for wrongful dismissal — Genuine issue for trial existing with respect to appropriate notice period — Defendant’s appeal allowed and action directed to proceed to trial — Rules of Civil Procedure, Rule 20.
The plaintiff brought an action against the defendant for damages for wrongful dismissal. He moved under rule 20.01 of the Rules of Civil Procedure for summary judgment on the ground that the only issue before the court was the reasonable notice period. The defendant was not arguing that the plaintiff was dismissed for cause, and the parties consented to the issue of the proper notice period going before the motions judge on a motion for summary judgment as the most cost-effective way of deciding it. In setting the notice period at 30 months, the motions judge gave considerable weight to his finding that the plaintiff had been induced by the defendant to leave a secure position on the basis that he would be secure in his new position until he reached retirement age. As well, the motions judge placed considerable weight on the conduct of the defendant in discharging the plaintiff without cause or notice. The defendant appealed.
Held, the appeal should be allowed.
The reasonableness of notice in the context of a wrongful dismissal action involves a finding of fact based on the circumstances of each case. A genuine issue for trial existed with respect to the appropriate notice period in this case. In deciding that issue, the motions judge conducted a trial on the basis of a paper record, which is not contemplated or permitted by Rule 20 of the Rules of Civil Procedure.
Transamerica Occidental Life Insurance Co. v. Toronto- Dominion Bank (1999), 44 O.R. (3d) 97,  O.J. No. 1995 (C.A.), apld
Other cases referred to
Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161, 156 D.L.R. (4th) 222, 17 C.P.C. (4th) 219 (C.A.); Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.J.); Golden Gate Seafood (Vancouver) Co. v. Osborn & Lange Inc. (1986), 1 B.C.L.R. (2d) 145, 13 C.P.C. (2d) 227 (C.A.); Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207, 26 C.P.C. (4th) 1 (Ont. C.A.) (sub nom. Pacific & Western Trust Co. v. Carroll); Wallace v. United Grain Growers Ltd.,  3 S.C.R. 701, 123 Man. R. (2d) 1, 152 D.L.R. (4th) 1, 219 N.R. 161, 159 W.A.C. 1,  4 W.W.R. 86, 36 C.C.E.L. (2d) 1, 97 C.L.L.C. 210-029, 3 C.B.R. (4th) 1
Rules and regulations referred to
British Columbia Supreme Court Rules, Rule 18A Manitoba Court of Queen’s Bench Rules, Rule 20A
Newfoundland Rules of the Supreme Court, Rules 17.02(g), 17A Nova Scotia Civil Procedure Rules, Rule 13.02(g)
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 20, 76.06(14), (16)
APPEAL by the defendant from a summary judgment of Wilkins J. (1998), 38 O.R. (3d) 298, 36 C.C.E.L. (2d) 265, 98 C.L.L.C. 210-21 (Gen. Div.) for the plaintiff in a wrongful dismissal action.
John R. Sproat, for defendant/appellant.
Chris G. Paliare and Karen Jones, for plaintiff/respondent.
The judgment of the court was delivered by
BORINS J.A.: — In 1991 the plaintiff, William Kilpatrick, was hired as the executive director of the Peterborough Civic Hospital. Previously, Mr. Kilpatrick had been in the employ of the Moncton Hospital in New Brunswick for 29 years. In 1970, he became president of that hospital and held that position at the time he was recruited by the Peterborough Civic Hospital (“the hospital”). The plaintiff’s employment with the hospital was terminated effective April 21, 1997. Shortly thereafter he commenced an action against the hospital for damages for wrongful dismissal.
On December 11, 1997, the plaintiff moved under rule 20.01 for summary judgment “granting the plaintiff 30 months salary and benefits in lieu of notice”. The grounds for the motion were as follows:
1. The only issue before the court is reasonable notice period to be provided by the defendant to plaintiff;
2. There is no genuine factual issue for trial with respect to the claim;
3. It would not otherwise be unjust to decide the issue by summary judgment.
It would appear that it was common ground at the time the motion was brought that the plaintiff had been dismissed without cause. On April 17, 1998, Wilkins J. decided the motion in favour of the plaintiff [reported 38 O.R. (3d) 298, 36 C.C.E.L. (2d) 298]. At the outset of extensive reasons for judgment, the motions judge stated [at p. 300], “The only issue to be determined was the appropriate length of notice to which would be applied monthly salary and benefits”. He found that [at p. 313], “the proper notice period should have been 30 months”.
This resulted in a judgment for the plaintiff for damages of $232,010.42. It is from this judgment that the hospital has appealed.
The record before Wilkins J. consisted of affidavits from Mr. Kilpatrick; Mr. McMonagle, the person retained by the hospital to recruit a new executive director; Mr. Murphy, the chair of the hospital when the plaintiff was hired; Mr. Ayotte, the chair of the hospital when the plaintiff was terminated; documents referred to by the affiants; and the transcripts of the cross-examinations of Mr. Kilpatrick and Mr. McMonagle.
A review of the reasons of the motions judge discloses a number of factual findings which he made that informed his ultimate finding that the proper notice period to which the plaintiff was entitled was 30 months. For the purpose of these reasons, it is adequate to highlight only some of these findings.
Early in his reasons, the motions judge found on “the combined evidence in the affidavits” and “on a balance of probabilities”, that during the recruitment process both parties had in mind the plaintiff’s employment by the hospital until his retirement at age 65. He found that the hospital, through Mr. McMonagle, had induced the plaintiff to leave a secure position of 29 years with the Moncton Hospital by leaving him “with a real sense that the last 12 years of his working life would be at least as secure in the new job as they were in the old one”. He concluded that “any reasonable person in Kilpatrick’s position would have seen himself as being wooed in a courtship by McMonagle”. In regard to these findings, it is significant that Mr. Kilpatrick did not seek the job of executive director of the hospital. Rather, he was recruited by Mr. McMonagle.
The motions judge instructed himself, applying Wallace v. United Grain Growers Ltd.,  3 S.C.R. 701, 152 D.L.R. (4th) 1, that the weight to be given to an inducement to leave an established position to assume a new one as a factor in determining the proper notice period will vary with the circumstances of each case. The motions judge’s review of the evidence resulted in the judge placing significant weight on the fact that the plaintiff was induced by the hospital to leave his secure position in Moncton on the basis of his belief that he would be secure in his new position for a period of 12 years, until he reached retirement age. Consequently, Wilkins J. placed significant weight on the “inducement factor” in the result that he reached.
As well, the motions judge placed substantial weight on the conduct of the hospital in discharging the plaintiff without cause or notice. He characterized it as “unreasoned and cavalier” and said that “it ought not be countenanced by this court”. Later he said [at p. 313], “To discharge a highly successful and totally satisfactory chief executive officer without the expression of any explanation, excuse or cause, in my view, leaves it open to the court to consider that the conduct of the defendant is virtually tantamount to that of a capricious whim.”
The focus of the hospital’s appeal was an attack on the findings of fact made by the motions judge, including inferences which he drew from the evidence. In particular, the hospital took issue with the motions judge’s findings with respect to whether the hospital had induced the plaintiff to leave his previous position, the nature of the inducement and the weight given to the inducement. Generally speaking, the position of the hospital was that Wilkins J. made certain findings of fact, and reached conclusions, that were not founded on the evidence. Counsel for the hospital submitted that had Wilkins J. correctly found the facts, and had given appropriate weight to them, he would not have concluded that the proper notice period was 30 months.
However, significantly absent in the hospital’s appeal was any suggestion that Wilkins J. had exceeded the proper role of a motions judge in deciding a Rule 20 motion for summary judgment. This omission was of great concern to the court and we invited submissions from both counsel on this issue. We were advised by counsel that the parties consented to the issue of the proper notice period going before the motions judge on a motion for summary judgment as this was the most cost effective way of deciding it. We were told that to resolve the notice issue before a trial judge would likely require four or five days. It was submitted that a motions judge would be in as good a position as a trial judge to decide the proper notice to which the plaintiff was entitled.
Laudable as the motive of counsel was, it is my view that the motions judge was put in a situation where it was inevitable that he would exceed his proper role on a Rule 20 motion. As my analysis of his reasons has disclosed, he did so by evaluating credibility, weighing evidence and drawing factual inferences. In doing so, he acted as a trial judge and conducted “a paper trial”. He did what this court has criticized in a number of decisions, the most recent being Transamerica Occidental Life Insurance Co. v. Toronto-Dominion Bank (1999), 44 O.R. (3d) 97 [ante],  O.J. No. 1995.
In Transamerica, Osborne J.A. set aside a motions judge’s summary judgment dismissing the plaintiff’s action, except for one claim, on the ground that the findings of fact to be made from the evidence should take place at trial and not on a paper record. In doing so, he reiterated the proper role of a motions judge on a Rule 20 motion as follows [at p. 110]:
A motions judge, on a Rule 20 summary judgment motion, should not resolve issues of credibility, draw inferences from conflicting evidence, or from evidence that is not in conflict when more than one inference is reasonably available. As Borins J. (ad hoc) for this court, succinctly put it in Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 at p. 173, 156 D.L.R. (4th) 222 (C.A.):
Evaluating credibility, weighing evidence, and drawing factual inferences are all functions reserved for the trier of fact.
See, also, Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.).
In reviewing Mr. Kilpatrick’s notice of motion, the reasons of the motions judge, and the submissions of counsel on this appeal in respect to the conclusion reached by the motions judge, two things are clear. The first is that it is obvious that there was a genuine issue for trial, namely, the appropriate notice period in the particular circumstances of Mr. Kilpatrick’s employment.
The second is that in deciding the issue, the motions judge conducted a trial on the basis of a paper record. The duration of the proper notice period was an issue that was fact-driven. Central to its resolution was the need to determine whether the hospital induced Mr. Kilpatrick to leave his secure position of 29 years and, at age 53, take up a new position which required him to relocate from Moncton to Peterborough, and whether the inducement contained the assurance that the new position would continue until he reached age 65, when he would be required to retire.
Nowhere in the reasons of the motions judge did he instruct himself, as this court required in Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 at p. 173, 156 D.L.R. (4th) 222, that his role in hearing a Rule 20 motion was “narrowly limited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial”. It appears clear that he considered himself to be a trial judge as in the course of his reasons he commented that, “[l]ogic, common sense and life experiences must be applied to evidence tendered before a trial judge”.
Mr. Paliare submitted that Wilkins J., on the basis of the record before him, was in as good a position to decide the notice issue as a trial judge. This may have been true if Rule 20, and the cases which have interpreted it, enabled a motions judge to do so. Had this been a motion for summary judgment under rule 76.06(14), which applies to an action where the plaintiff’s claim does not exceed $25,000, the approach taken by the motions judge may not have been inappropriate: see, also, rule 76.06(16) which contains the procedure for a summary trial where the claim does not exceed $25,000, as well as the rules of several other provinces to which I will refer.
I am not unsympathetic to the desire of counsel to resolve the notice issue without the delay and expense of a trial. Unfortunately, as this requires the court to resolve factual issues, Rule 20 is not the appropriate vehicle to employ. The reasonableness of notice in the context of a wrongful dismissal action involves a finding of fact based on the circumstances of each case. This is evident from the necessity of applying the principles articulated in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.J.), and other cases, to the assessment of a dismissed employee’s notice period: Wallace, at pp. 737-38 S.C.R., pp. 29-30 D.L.R., per Iacobucci J.
In my view, to extend Rule 20 to the circumstances of this appeal on the ground that the motions judge was in as good a position as a trial judge to resolve the notice issue would be to read into the Rule a meaning unintended by the Civil Rules Committee. Other provinces have made provision for summary disposition of an action, or an issue in an action, by procedures which I would characterize as being between an Ontario type of a motion for summary judgment and a plenary trial. For example, Rule 18A of the British Columbia Supreme Court Rules provides for a summary trial, which is sometimes referred to as a “mini-trial”: see, e.g., Golden Gate Seafood (Vancouver) Co. v. Osborn & Lange Inc. (1986), 1 B.C.L.R. (2d) 145, 13 C.P.C. (2d) 227 (C.A.). A form of summary trial is available under Rule 20A of the Manitoba Court of Queen’s Bench Rules in actions where the relief claimed does not exceed $50,000. Rule 17A of the Newfoundland Rules of the Supreme Court also provides for a summary trial.
Provisions exist in the Newfoundland rules, as well as the Nova Scotia Civil Procedure Rules, which, were they contained in Rule 20, would have enabled the parties to this appeal to achieve the resolution of the notice issue without a trial. In Newfoundland, the relevant rule is rule 17.02(g). In Nova Scotia, the rule reads as follows:
13.02 On the hearing of an application [for summary judgment] under rule 13.01, the court may on such terms as it thinks just,
. . . . .
(g) with the consent of all the parties, dispose of the proceeding finally in a summary manner, with or without pleadings or affidavits and without appeal;
As the motions judge took on the role of a trial judge and, on the basis of a paper record, decided the issue of the proper notice which the defendant was required to give the plaintiff, his judgment cannot stand. In the circumstances, it would not be appropriate to express any opinion on the correctness of the decision which he reached.
In the result, I would allow the appeal of the hospital and set aside the judgment of Wilkins J. and direct that the action proceed to trial on the issue of the proper notice period. In the circumstances of this appeal, there will be no costs of the motion or the appeal.