Ambiguity in employer’s vacation policy could not be resolved on summary judgment motion
By Kevin MacNeill
In a brief endorsement, the Court of Appeal for Ontario recently set aside a decision of the Superior Court of Justice, which had granted summary judgment for the employer in a wrongful dismissal action.
Although the details in the endorsement are scanty, it appears that a key issue in the action was whether the employer was entitled to direct the appellant to take his vacation during the notice period.
According to the Court of Appeal, if it was not entitled to do so, the employer may not have accepted the employee’s resignation and may have constructively dismissed him. Alternatively, the employer may have breached the contract as the employee pleaded.
The Court of Appeal found that the vacation policy was ambiguous and accordingly the employer’s entitlement to direct the employee as it did could not be resolved by way of summary judgment, at least until there was a fuller record following examinations for discovery.
Finding there was a genuine issue for trial, the employee’s appeal was allowed and he was granted $37,500 costs.