by M. Norman Grosman
There are those who are cynical about the judicial process. Some believe that justice is like a chameleon constantly changing its true colours depending on the circumstances. For example, many employers believe that in dismissal cases, in particular, the natural sympathies lie with the terminated employee and, as a result, it is difficult to obtain a fair and balanced outcome in a dispute with a former employee. A recent Ontario Superior Court of Justice decision, Montague v. Bank of Nova Scotia (unreported, October 19, 2001, Chapnik J., supplementary reasons unreported, October 23, 1001, Chapnik J.), affd 180 O.A.C. 381, 30 C.C.E.L. (3d) 71 (Ont. C.A.) [*004012025 – 10 pp.], is bound to stoke the fires of cynicism.
Ms. Montague was employed for over 15 years by the bank as a Data Entry Operator when, following a series of workplace injuries, the bank summarily terminated her employment. As a result, she brought an action for wrongful dismissal and, at the end of four days of evidence, the trial judge concluded that Montague was entitled not only to a reasonable period of notice, in the circumstances, but an increase in that notice period as a result of the bad faith exhibited by the bank in the course of the termination of her employment.
In fixing the period of reasonable notice, the trial judge concluded [at p. 384]:
In the circumstances, I award her damages at the high end of the scale, in effect raising the notice period pursuant to the Wallace decision by finding the period reasonable notice to be 12 months.
That’s my decision.
Immediately after the decision had been read, counsel for the bank drew to the attention of the trial judge that in fact an earlier offer to settle put forward by the bank actually exceeded the monetary award made by the trial judge to Mrs. Montague. In the circumstances, where an employer’s offer to settle the entire case exceeds the award received by the terminated employee, it is common for the trial judge to limit or deny the terminated employee costs of the litigation process.
Having had the fact that the offer to settle exceeded the monetary award drawn to her attention, the trial judge immediately stated [at p. 385]:
Did I say 12 months including the increase because of the Wallace decision? . . . .
No, I meant at least another month.
As a result, the trial judge increased her award, on the spot, to 13-months’ compensation in lieu of notice. Counsel for the bank then drew to the trail judge’s attention the fact that even with the increase of the award to 13 months, the bank’s offer to settle the entire case, which had been made prior to the commencement of the trial, still exceeded the monetary award to Mrs. Montague. Consequently, while awarding Montague 13-month’s compensation, the trial judge, in turn, awarded the bank $5,000 in costs based upon the fact that its offer to settle the case had exceeded the award which Montague obtained after four days of trial.
As bizarre as it may seem to the reader that the trial judge changed her mind after apparently clearly articulating her decision, that was not the last twist in the saga between Montague and the bank. Four days later, a formal judgment in the case not having been entered in the court records, the trial judge summoned the parties back to court and, to the surprise of all, commented as follows [at p. 385]:
On further reflection, I think that I should have dealt with this period of reasonable notice separately from the Wallace factors. And, in my view, the thirteen months is a bit low. To properly reflect my findings regarding the Wallace factor, that is, the improper manner of dismissal, the knowledge of its probable effect on the plaintiff, the withholding of the letters and the whole picture… I should have added instead of one month four months to the period of reasonable notice…. So that the appropriate notice period should be twelve months plus four months or sixteen months in all.
As a result of the recasting of the decision, the monetary award to Montague now, by some measure, exceeded the bank’s earlier offer. Subsequently, the judge simply flipped the costs award, ultimately awarding Montague the sum of $5,000 in respect of costs, in addition to the 16 months compensation in lieu of notice.
Montague launched an appeal of the decision and, not surprisingly, the bank cross-appealed, amongst other reasons, on the basis that the trial judge had, without proper authority, changed her mind and therefore the decision, on two separate occasions, each to the disadvantage of the bank. The bank argued that the changes made by the trial judge constituted a reversible error because the only reasons she made the changes was to avoid the cost of consequences which otherwise would have ensued against Montague.
The Ontario Court of Appeal declined to conclude that the change, on two separate occasions, by the trial judge of her decision constituted a reversible error. In reaching this conclusion the court commented, as follows [at p. 388]:
The trial judge candidly acknowledged that her first decision (twelve months) was not what she intended and that she had meant at least thirteen months. Then, when she made the second change four days later (to sixteen months), she explained why in her view the Wallace factors warranted an additional four months, not just an additional one month. Had the trial judge simply wished to alleviate the consequences of [costs] for Mrs. Montague, she could have done so by using the residual discretion given to her by [the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 49]. There was no need to change her judgment. The timing of events in this case was clearly unfortunate, as the trial judge recognized. However, this is no reason not to take the trial judge’s conclusions at face value.
The Court of Appeal, however, recognizing that its support for the awkward changes in the trial judge’s decision, on two separate occasions, might well be viewed cynically by some, chose to end its decision by commenting upon the process in the following terms [at p. 388]:
Any change to a judgment once given, no matter how soundly based, runs the risk of evoking suspicions of abuse on the part of those adversely affected. It is at least disquieting, and to that extent can put a cloud over the administration of justice. A judge exercising this discretion bears a significant onus to explain the change. Giving clear reasons for decisions is always a profoundly important part of judging…. It is never more important than in this circumstance.
The case of Montague v. Bank of Nova Scotia was indeed remarkable, not so much for the fact that the trial judge concluded that Montague was wrongfully terminated and was therefore entitled to a proper notice period, but for the fact that on two separate occasions the trial judge changed her decision, which had the net effect of benefiting Montague and disadvantaging the bank. If one were cynical, one might conclude that because in the trial judge’s eyes the bank had mistreated Montague, it was essential for a fair and judicial outcome that Montague not suffer by facing an award of costs made against her personally. Perhaps those with a less cynical point of view might conclude that there is nothing wrong and, in fact, it is quite proper for a trial judge to ensure that in the course of determining the outcome of any case that the correct and intended decision be rendered, no matter how awkward or unsettling the process.
This article is excerpted from The Employment Bulletin.
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