master farrington

6.44: Persons who are referees
6.46: Referee’s report
7.3: Summary Judgment (Application and decision)
7.5: Application for judgment by way of summary trial

Case Summary

The Plaintiff applied for Summary Judgment against the Defendant employer for wrongful dismissal. At issue was the nature of Summary Judgment Applications, and whether Masters have jurisdiction to decide on them in the context of a wrongful dismissal Action.

The Court first noted that, among other things, actions may end by a successful Summary Judgment Application under Rule 7.3, or by a Summary Trial under Rule 7.5. Master Farrington noted that, pursuant to prior authorities and the Court of Queen’s Bench Act, RSA 2000, c. C-31, even with the consent of the parties, Masters cannot try actions or resolve disputed questions of fact if oral evidence is required.

The Court noted that a common theme that has developed in leading cases such as Hryniak v Mauldin, 2014 SCC 7 (CanLII), is that in order to succeed at a Summary Judgment Application, a party must show an “unassailable” case. Master Farrington noted that the Court should not weigh evidence in a Summary Judgment Application brought under Rule 7.3, unlike applications under Ontario’s Rule 20.04(2.1), as considered by the Court in Hryniak v Mauldin, which was more comparable to Alberta’s Rule 7.5. The Court summarized the nature of Rule 7.3 Summary Judgment Applications:

[…] when a court grants summary judgment, it is finding that the probability distribution for the possible set of results in a matter is skewed so significantly in favour of a certain result (either in favour of the plaintiff or the defendant), that a trial is not a worthwhile exercise. In other words, the moving party has shown an “unassailable” case in which a trial would very likely lead to the same result.

Most wrongful dismissal cases, including this case, involved the consideration and weighing of various factors in determining the appropriate notice period, which was akin to a Trial. Given the Court’s conclusion that a decision maker at a Summary Judgment Application would be determining whether the result of a case appears “sufficiently certain that a trial is not worthwhile”, it would be inappropriate to assess notice periods on Summary Judgment Applications. While Summary Judgment Applications may be used in employment law matters to determine issues of liability, the actual assessment of damages fell outside the scope of a Summary Judgment Application. Instead, notice periods were more appropriately determined under the Summary Trial process.

Master Farrington noted the express wording of Rule 7.3(3)(b) “issue to be tried” in relation to the amount of an award, and stated that this language was an “acknowledgment that a determination of damages in that context is in the nature of a trial”. Further, although Rule 7.3(3)(b) allowed a Referee to assess damages under Rules 6.44, the Referee had no ability to finally dispose of the matter, and in any event, the Referee’s report must go back to the referring party for consideration and adoption under Rule 6.46. As a result, the Court would be unable to delegate tasks to a Referee beyond its own jurisdiction. Master Farrington ultimately held that it was inappropriate to grant Summary Judgment, and dismissed the Plaintiff’s Application.

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