ENERFLOW INDUSTRIES INC v SUREFIRE INDUSTRIES LTD, 2013 ABQB 196
7.6: Response to application
7.8: Objection to application for judgment by way of summary trial
The individual Defendant commenced employment with Enerflow in 2007. In 2008,Enerflow and the individual Defendant executed a non-compete agreement. The individual Defendant left Enerflow in 2011, accepting a position with the other Defendant, Surefire. Enerflow commenced an Action against the individual Defendant, alleging a breach of the non-compete agreement. Enerflow also named Surefire, alleging that it induced the individual Defendant to breach the non-compete agreement. Surefire and the individual Defendant brought an Application for Summary Trial of the matter. Enerflow objected.
The first issue was whether theAffidavit evidence of the Plaintiff should be allowed. The Plaintiff’s evidence was filed before the Hearing, at some point after the 10 day period required by Rule 7.6, but before the 5 day period required by Rule 7.8. The Court concluded that the evidence was admissible, stating:
Enerflow asserts that it did not at any time consent to the summary trial process; the Defendants do not dispute that assertion. Therefore, I think Enerflow may be taken to have objected to the summary trial process, with the result that Rule 7.8 is applicable to its response. As Rule 7.8(2) requires a respondent objecting to a summary trial process to file and serve “anything on which the objector intends to rely” 5 or more days before the hearing, the Williamson Affidavit was filed on time, albeit barely.
The next issue the Court considered was whether the Application should be adjourned pending Questioning. McCarthy J. determined that the Court does have jurisdiction to permit a Summary Trial prior to Questioning. McCarthy J. cited Discovery RidgeDevelopment Corporation v Well International Holdings Corporation, 2003 ABQB 406, as authority for when a Summary Trial can proceed prior to Questioning. McCarthy J. concluded that, the Defendants having offered to make themselves available, and the Plaintiff not having taken them up on that offer, the objection on this ground should be dismissed.
The Court then considered whether this was an appropriate instance for Summary Trial. The Court cited with approval the nine factors to be used in making this assessment, as enumerated in Duff v Oshust, 2005 ABQB 117. After considering the relevant factors, the Court concluded that the Summary Trial should proceed, stating:
I find that this matter is suitable for summary trial and I dismiss Enerflow’s objection thereto. In arriving at this conclusion, I am mindful that Rule 7.8(3) provides that I must dismiss the objection if I am of the view that the issue or question is suitable for summary trial and that the summary trial will facilitate resolution of the claim or a part of it. As noted above, I find that, at a minimum, the enforceability of the Non-Compete Agreement can be determined in a summary trial process… [Emphasis in original]View CanLII Details