6.6: Response and reply to application
7.3: Summary Judgment (Application and decision)

Case Summary

The Defendant employer in a wrongful dismissal Action applied for Summary Dismissal on the basis that the laws of Alberta did not apply to the Action. The Plaintiff was hired in Alberta, but then was transferred to Saskatchewan and Ontario. When the matter first came before the Court, the Plaintiff asked for an adjournment in order to provide evidence. The Master who heard the Application directed that it be done by an Affidavit filed and served by a certain date, which deadline was not met. The Affidavit was subsequently sworn and filed the day before the hearing. Counsel for the Defendant took objection to the late filing of the Affidavit. Counsel for the Plaintiff acknowledged that it was late, but noted that no formal Order had been prepared setting out the deadline.

Master Robertson stated that Rule 6.6(1) provides that a Reply Affidavit must be served “a reasonable time before the Application is to be heard or considered”, so the Plaintiff’s Affidavit was late in any event. When an Application has been adjourned in order for the Plaintiff to file and serve an Affidavit, it will be a rare occasion when it is appropriate to serve it only the day before the return date. Notwithstanding the delay in filing the Affidavit, the circumstances of the Application for Summary Judgment to finally terminate the Plaintiff’s Claim dictated that the Plaintiff’s evidence should be reviewed by the Court. The late filing and service could more appropriately be dealt with as a Costs factor. Master Robertson observed that, although some facts were in dispute, the facts and evidence relevant to the disposition of the Claim were not. The Court was therefore entitled to consider the Application for Summary Judgment.

Master Robertson reviewed and considered the Plaintiff’s Affidavit. In the result, the Application was allowed and the Claim was dismissed. The Plaintiff had attorned to the Jurisdiction of the Ontario Employment Standards Regulator and accepted that the Ontario legislation applied to her Claim, and by doing so she was barred from a civil Claim for further relief.

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