The Plaintiffs in a wrongful dismissal sought damages against their former employer and applied for Summary Judgment.

Master Robertson noted that, generally in a Summary Judgment Application, if the Applicant meets the initial burden of proof, the onus shifts to the Respondent to present evidence which refutes that of the Applicant. Master Robertson noted that only one of the Plaintiffs had filed an Affidavit in support of the Summary Judgment Application. No Affidavit was filed by the individual Defendant, who was a director and officer of the corporate Defendant and had personal knowledge of the facts of the Plaintiffs’ dismissal, but was not a Respondent to the Application. Instead, the corporate Defendant’s Affidavit was sworn by another director, who did not have any first-hand knowledge of the Plaintiffs’ dismissal.

Master Robertson considered the parties’ evidence and arguments, and stated that Rule 7.3 did not require each Applicant in a Summary Judgment Application to swear an Affidavit. Instead, the Applicants may proffer Affidavit evidence from one deponent in order to give the necessary evidence to satisfy the Applicants’ collective burden of proof. In this case, the requirements under Rule 7.3 had been satisfied. Master Robertson observed further that Rule 13.18 allows the use of hearsay evidence in an Affidavit response to a Summary Judgment Application.

Master Robertson stated that each party in a Summary Judgment Application must put their best foot forward. The lack of evidence from the individual Defendant entitled the Court to draw an inference that the individual Defendant would not have contradicted the Plaintiffs’ evidence, and that the Defendants did not put their best foot forward. It was not enough for the corporate Defendant to argue that more evidence would be heard at Trial.

Despite the corporate Defendant’s argument that the Plaintiffs had not properly pleaded estoppel, Master Robertson held that the Plaintiffs had done so in the Reply to the Statement of Defence. In accordance with Rule 13.6 and prior leading authority, the Plaintiffs were not required to plead responses to hypothetical defences in their Statement of Claim. The reason for specifically pleading estoppel is to avoid surprise, pursuant to Rule 13.6(3). In this case, the Defendants could not complain that they were surprised when the issue was raised in the pleadings. The Court ultimately held that the evidence did not support the Defendants’ arguments that the Plaintiffs were dismissed with just cause. The corporate Defendant had not satisfied its burden of proof; the Plaintiffs’ Application for Summary Judgment was accordingly granted.