November 22, 2018

Author: Dylan Snowdon

Changes to Employment Law Summary Judgment in Alberta

On November 2, 2018 the Court of Queen’s Bench of Alberta issued a decision that may impact how many employment disputes are heard by the Court.

In 2014, the Supreme Court of Canada, in Hryniak v Mauldin, relaxed the standard of proof for summary judgment and encouraged litigants to use it to achieve timely and affordable access to justice where material facts were not in dispute. For dismissed employees seeking a determination of a reasonable notice period, summary judgment represented a cost-effective and significantly faster route to a decision when compared to a full trial.

However, the decision in Coffey v Nine Energy Canada Inc. sets out that summary judgment is not appropriate to determine a reasonable notice period in a without cause termination of employment. The Court reasoned that under Alberta law (unlike Ontario, where the Hryniak case originated from), a Court in a summary judgment application cannot weigh evidence to assess of damages for pay in lieu of reasonable notice. Therefore, the Court reasoned, the more appropriate expedited procedure available to have a reasonable notice period determined by the Court is a summary trial before a Justice. Unfortunately, the summary trial process can become significantly more complex than summary judgment if the parties do not agree to narrow the issues to be determined, providing the opportunity for litigants to be obstructionist.

In my view, determining a notice period does not involve weighing evidence. I note the following:

1.              The Supreme Court of Canada states in Honda Canada Inc. v. Keays that “no one factor [in determining a notice period] should be given disproportionate weight” meaning that once the facts are determined, such as type of position, length of service, age of worker, etc, those factors are weighed equally, applying the law to determine a notice period.

2.              Master Schlosser in the 2015 case of O’Donnell v. Soldan Fence and Metals (2009 Ltd.) stated:

There may be another sense in which evidence might be weighed. Bardal [the seminal Supreme Court of Canada case written in 1960] sets out a non-exhaustive list of factors for determining the length of reasonable notice. It might be said that ranking the factors (by attaching more weight or importance to length of service than to age, for example) is, in some sense, weighing or weighting evidence. However, (and subject to what follows), the law of reasonable notice is so well travelled, the determination is largely a question of attaching equal weight to what the decided cases tell us are the important points and then applying the decided cases to them like an algorithm. There might be an unusual case that takes us outside this exercise. But this is not one of them.

Because the law on summary judgment is conflicting on other issues too (see here), this case may be a good candidate for appeal to allow the Alberta Court of Appeal to clarify the procedures available for employment disputes to be resolved efficiently.

If you are an employee or an employer seeking advice on how to manage a dispute, please contact the lawyers at Carbert Waite LLP to discuss all of your options.