Determination of Reasonable Notice is Not Appropriate for Summary Judgment, Alberta Court Determines

In Coffey v Nine Energy Canada Inc., 2018 ABQB 898, the Alberta Court of Queen’s Bench confirmed the master’s decision that summary judgment was inappropriate for the assessment of damages for pay in lieu of reasonable notice for wrongful dismissal.

Summary Judgment

A summary judgment application is a procedural tool that allows for a shortened and expeditious decision to be made on a case, without the normal length and costs associated with a full trial process.

In a typical wrongful dismissal case, the main issue between the employee and the employer is the determination how much, if any, pay in lieu of notice of termination is owed. Generally, if an employer fails to provide reasonable working notice of termination, an employee is entitled to pay in lieu of reasonable notice under the common law. Employers can contract out of the common law reasonable notice period with a clear and unambiguous termination clause. The reasonable notice period is determined on a case-by-case basis, using a well-recognized set of factors from Bardal v Globe and Mail Ltd. (the “Bardal Factors”). These factors include, the character of the employment, length of service, age, availability of similar employment, and the experience, training and qualifications of the employee.

Alberta masters are at odds with whether or not summary judgment is appropriate for the assessment of a reasonable notice period.[1] This issue was the central issue in Coffey v Nine Energy Canada Inc., 2017 ABQB 417 – whether or not assessment of a reasonable notice period is appropriate for summary judgment.

Master’s Decision

The Plaintiff had been employed by the Defendant employer for six and half years when he was terminated without cause. The Plaintiff sought summary judgment against the Defendant for wrongful dismissal seeking 12 months’ pay in lieu of reasonable notice.

Master Farrington reviewed the jurisdiction of the Master under section 9(3) of the Court of Queen’s Bench Act and summary judgment procedure under rule 7.3 of the Alberta Rules of Court. Master Farrington concluded that the assessment of a reasonable notice period was not appropriate in a summary judgment application and dismissed the Plaintiff’s application. In reaching his conclusion, Master Farrington provided the following reasons:

  • While the Ontario rule under consideration in the Supreme Court of Canada’s decision of Hryniak v. Mauldin, 2014 SCC 7 permits the weighing of evidence, Alberta’s summary judgment rule does not permit such weighing of evidence by the Court, whether before a master or judge.
  • When a master or judge hears a summary judgment application, they are determining whether a certain specific result is unassailable and therefore sufficiently certain that a trial is not worthwhile.
  • In a typical wrongful dismissal case, the Court must weigh the evidence to determine which Bardal Factors should be given greater weight in a particular case.
  • Different courts may reasonably come to different conclusions on the notice periods and still be correct in law. Therefore, the result cannot be said to be unassailable.

Appeal

On Appeal, Justice Nixon agreed with Master Farrington’s finding that summary judgment was inappropriate for the assessment of a reasonable notice period. However, Justice Nixon did not endorse the reasoning of Master Farrington, that a matter must be “unassailable” before an application for summary judgment may be granted. Justice Nixon reviewed the history of the jurisdiction of the master and the previous decisions on whether a reasonable notice period assessment involves weighing evidence. Ultimately, Justice Nixon concluded that the assessment involves the determination of contentious issues of fact that require evidence to be weighed. Therefore, the issue is outside the jurisdiction of the master and beyond the scope of the summary judgment rule.

What does this mean for Alberta employers?

  • Until further guidance from the Court of Appeal, summary judgment applications seeking assessment of a reasonable notice period may be less likely to succeed in Alberta.
  • Summary judgment may still be appropriate for issues of liability, or in determining just cause where there are no contentious issues of fact to be determined.
  • Summary judgment is not the only summary procedure under the Alberta Rules of Court. Summary trials under rule 7.5 are now seen as the more appropriate venue, as it allows a justice to weigh competing evidence and conflicting affidavits without the need for full, viva voce evidence. However, a summary trial will likely be more costly and time-consuming than a summary judgment.

[1] See for example: Harper v Lafarge Canada Inc, 2016 ABQB 586 (CanLII), Nixdorf v Broadstreet Properties Ltd, 2017 ABQB 132 (CanLII), Toole v Northern Blizzard Resources Inc, 2017 ABQB 760 (CanLII), Engelhardt v. Sunhills Mining Limited Partnership, 2018 ABQB 383 (CanLII), and Eberle v Sunhills Mining Limited Partnership, 2018 ABQB 389 (CanLII).

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