Weilers LLP

Sometimes You Need a Full Factual Record

Sometimes You Need a Full Factual Record

August 5, 2022

By Brian Babcock

Everybody involved in a lawsuit should want to resolve it as quickly and simply and cheaply as possible. In the area of wrongful dismissal litigation, there has been a strong movement in that direction, using summary judgment motions under Rule 20 of the Rules of Civil Procedure to resolve cases. Although a few employers still prefer to take the scorched earth approach, most realize that is ultimately better to spend less time and less money on lawyers.


The summary judgment process involves a requirement for a full factual record. That requires preparing affidavits, often several, sometimes lengthy, which may have a significant number of documents attached as exhibits. There is usually then the cost and delay of cross examination on these affidavits followed by a wait for transcripts, which also cost money. Preparing the factum then requires extensive review and recitation of these facts in addition to the argument of law.

It was probably only a matter of time before some creative lawyer or client decided to try a motion under Rule 21 of the Rules of Civil Procedure. Rule 21 is designed to determine issues of law in cases where there are no significant factual disputes. In the employment law area, an example is jurisdiction motions. The motions judge assumes that all the allegations and the statement of claim are correct, listens to the legal arguments from both sides, and makes a decision. Quick, relatively easy, and relatively cheap.


Taylor v. Hanley Hospitality Inc. potentially offered the employer the added advantage that they could obtain a legal ruling on the applicability of amendments to the Employment Standards Act and regulations related to COVID-19 and their effect on actions for constructive dismissal. This ruling of law could be applied to other cases.

The employee had been an assistant manager at a Tim Hortons franchise affected by the state of emergency and emergency measures. She was placed on a “temporary layoff”. The employer continued operations and the statement of claim alleged that the layoff was therefore a business decision in response to economic conditions and not a consequence of COVID-19. The employee sued for constructive dismissal, bad faith, loss of benefits and vacation entitlements, plus costs. The employer’s defense relied on the COVID-related amendments as the reason for the layoff. They argued that these amendments barred the claim for constructive dismissal as a matter of law.

The Superior Court motions judge ruled in favor of the employer and dismissed the action. In doing so, the judge accepted the employer’s submissions in their defense as to the reason for the layoff.


The Court of Appeal focused entirely on the approach to the motion and the use of Rule 21.

They ruled that the motions judge erred in considering the employer’s factual allegations, as the approved procedure on a Rule 21 motion is to assume the facts pleaded in the statement of claim to be true, but not the facts in the statement of defense. It was also not appropriate for the motion judge to take judicial notice of facts not set out in the statement of claim regarding the impact of COVID-19 and the emergency measures. Although the fact of the pandemic is notorious and uncontroversial, which is the test for judicial notice, as was the fact that the government had declared a state of emergency, the legislative context necessary to interpret the amendments to the law was not a subject of judicial notice.

Therefore, there was no proper basis for the motions judge dismissing the action. There was also no basis for that judge to undertake an interpretation of the amendments.


In the result, the Court of Appeal sent the case back to be resolved by a different Superior Court judge. The issues of the interpretation of the amendments have not been resolved at this stage. The Court of Appeal refused to undertake that analysis because they say that a full factual record is required. That would suggest at least a summary judgment motion.


Whether you are a dismissed employee, or the employer being sued, you want to save time and cost. However, selecting the wrong procedure accomplishes neither objective. It also will not obtain a determination of any new points of law.


Although there are times that you want lawyers to be creative and daring, you also want lawyers who are knowledgeable, experienced, and have sound judgment. At Weilers LLP, we have a track record of over 75 years in employment law in Thunder Bay and throughout Northwestern Ontario. Our progressive approach melds with this proud tradition to put our clients’ best interests first. We have successfully brought or defended motions under Rule 20, Rule 21, and taken cases to trial. This equips us to give you the sound advice you need. You can then decide how much risk and cost you want to assume. If this sounds like an approach that would interest you, give us a call. Weilers LLP may be the lawyers for you.