COFFEY v NINE ENERGY CANADA INC, 2018 ABQB 898
6.14: Appeal from master’s judgment or order
6.46: Referee’s report
7.3: Summary Judgment (Application and decision)
7.5: Application for judgment by way of summary trial
The Plaintiff appealed a Master’s Decision denying Summary Judgment. The Master had held that an assessment of damages for pay in lieu of reasonable notice for wrongful dismissal could not be determined summarily, and that the employer’s counterclaim was also not suitable for Summary Judgment. The Defendant cross-appealed the Master’s Decision that its counterclaim was not suitable for Summary Judgment.
Justice Nixon first reviewed the Master’s Decision. The Master held that partial Summary Judgment was not appropriate in the circumstances, because Masters cannot weigh evidence. The Master therefore could not determine the appropriate amount of pay in lieu of notice.
On Appeal, Justice Nixon agreed that damages for pay in lieu of notice should not be assessed summarily. First, Her Ladyship reviewed the test for Summary Judgment and noted that, since the “culture shift” in the assessing matters on a summary basis resulting from the Supreme Court’s decision in Hryniak v Mauldin, 2014 SCC 7 (CanLII), Courts in Alberta are not in agreement about the standard of proof to be met by the moving party. However, Justice Nixon found that it was unnecessary to determine the standard of proof because the Master had correctly determined that a summary decision could not be made since Masters are precluded from weighing evidence. Although Masters are entitled to make summary decisions, those decisions must be made within the Master’s jurisdiction. When a Master makes a summary determination, “he is not trying the rights of parties. He is determining that there is no real issue to be tried. It is only when such a situation is found to exist that the Master is authorized to give a judgment in favour of the [P]laintiff”. Nixon J. then considered whether an assessment of reasonable notice requires the weighing of evidence, and determined that it did.
Her Ladyship explained that under Rule 7.3(1)(c), Summary Judgment is available where the only real issue is the amount to be awarded, and that under Rule 7.3(3), if the only issue is the amount of the award, the Court may refer the determination to a referee pursuant to Rule 6.46 or determine the amount itself. However, Masters cannot delegate tasks to a referee that are outside their jurisdiction, and Rule 7.3 must be considered “within the context of the jurisdiction of the [M]aster”. As such, Justice Nixon held that assessments of damages for pay in lieu of notice are not appropriate for Summary Judgment under Rule 7.3.
Given the importance of accessible, affordable, and timely summary procedures, Her Ladyship emphasized that parties may instead use the Summary Trial process to determine appropriate pay in lieu of notice before a Justice. Summary Trials, which are available pursuant to Rule 7.5, are appropriate where the Court is able to decide disputed questions of fact on affidavits or by other proceedings authorized at Summary Trial, and where it would not be unjust to decide the issue in such a way. In determining whether it would be unjust to proceed by Summary Trial, Courts may consider the complexity of the issues, the amounts involved, whether witnesses may need to be cross-examined in Court, whether additional evidence could be adduced through Questioning, and whether findings of credibility are required to reach a resolution. While viva voce evidence is not necessary to resolve all conflicting evidence, it may also be heard at Summary Trials. Taking the Summary Trial route may also be more efficient, because it could “avoid duplicative appeal proceedings” resulting from a Master’s Decision being appealed de novo before a Justice under Rule 6.14.
Finally, Justice Nixon also held that the Master was correct in determining that the Defendant’s Counterclaim contained genuine issues requiring Trial, and that Summary Judgment was inappropriate.View CanLII Details