7.3: Summary Judgment (Application and decision)

Case Summary

Three former employees of Parkland School Division had brought an Action for wrongful dismissal and common law damages for pay in lieu of common law notice.

The Plaintiffs brought a Summary Judgment Application, and the Defendant brought a Summary Dismissal Application, both which centered around the interpretation of the termination provision, which read:

This contract may be terminated by the Employee by giving the Board thirty (30) days or more prior written notice, and by the Board upon giving the Employee sixty (60) days or more written notice.

The Plaintiff argued that the termination provision was ambiguous and did not limit the Plaintiffs’ entitlement to notice of termination without cause. In response, the Defendant argued that the clause was unambiguous and a full answer to the amounts owed for pay in lieu of notice upon termination without cause.

Justice Rothwell considered Rule 7.3(1) in determining whether the Plaintiff’s claim was appropriate for summary determination and cited to Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49 (“Weir-Jones”) as the leading authority, confirmed recently in Hannam v Medicine Hat School District No 76, 2020 ABCA 343.

Justice Rothwell found that the only real issue was the amount for severance to be paid by the employer upon termination without cause based on the interpretation of the termination provision. This satisfied Rule 7.3(1)(c), and Justice Rothwell found that summary determination would be fair having regard to the state of the record and issues and that the relevant facts were proven on a balance of probabilities. His Lordship further found no genuine issue requiring Trial and had sufficient confidence in the state of the record to decide the matter summarily. In other words, the Weir-Jones factors were satisfied.

Justice Rothwell considered the termination provision and found that it was not ambiguous, as there were not two or more reasonable interpretations arising from the wording. As found by His Lordship, “a plain reading yields one meaning: 60 days or something greater.” The “or more” did not create ambiguity in the contract but granted the Defendant discretion to provide lengthier notice if it so chose. Justice Rothwell concluded that “or more” did not equate to common law reasonable notice. Justice Rothwell also noted the “entire agreement” clause in the contract and gave it meaning to preclude the negotiations or discussions that were alleged by the Plaintiffs. The Defendant’s Summary Dismissal Application was granted on that basis, and the Plaintiffs’ Summary Judgment Application was dismissed.

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