Campbell J

7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff applied for certification of his Action as a class proceeding pursuant to the Class Proceedings Act, SA 2003, c C-16.5 (the “CPA”). The Action alleged that the directors of the plaintiff’s former employer were liable for unpaid wages to employees. The Defendants both cross-applied for Summary Dismissal of the Action pursuant to Rule 7.3 on the basis that it was time barred under the Limitations Act, RSA 2000, c L-12 and under the limitation set out in subsection 119(4) of the Alberta Business Corporations Act, RSA 2000 c B-9.

The Court held that the Action could not be dismissed on a summary basis, and that it should be certified as a class proceeding under the CPA.

With respect to the issue of Summary Dismissal, Justice Campbell first noted that under Rule 7.3(1)(b), Summary Dismissal should be granted where there is no “merit” to the Action. An Action has no “merit” where there is no genuine issue requiring a Trial, because the Judge can determine the issues justly and fairly on a summary basis, or where a defence is so compelling that its likelihood of success is very high. In making its decision, the Court should consider whether it is able to make a determination that is fair and just to all parties on the existing record. A Trial may be preferred where “there is a reasonable expectation that a better evidentiary record will be created by a trial”, in particular where facts are in dispute and issues of credibility cannot be determined summarily. Although the onus is on the Applicant to demonstrate that there is no genuine issue requiring a Trial, the Respondent is expected put its best foot forward or risk dismissal.

In assessing the defences raised by the Defendants, Justice Campbell noted that the Defendants’ evidence conflicted at times, and that credibility was a “central issue” in the Action. Campbell J. also found that the legal issues before the Court, including whether one of the Defendants had resigned as a director, and whether he had then become a de facto director, required a “contextual and fact-driven inquiry” and the weighing of evidence.

Justice Campbell concluded that a fair and just determination of the issues could not be made on the existing record, and therefore dismissed the Defendants’ Applications for Summary Dismissal. Her Ladyship went on to grant the Plaintiff’s Application to certify the Action as a class proceeding pursuant to the CPA. Costs were awarded to the Plaintiff in accordance with Column 5 of Schedule C.

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