5.31: Use of transcript and answers to written questions
6.7: Questioning on affidavit in support, response and reply to application
7.11: Order for trial
10.33: Court considerations in making costs award
13.12: Pleadings: denial of facts
13.6: Pleadings: general requirements

Case Summary

The Plaintiff applied for Judgment by way of Summary Trial in his wrongful termination Action against the Defendant.

The Court began by discussing the state of the evidentiary record. Justice Marion noted that the Plaintiff did not file the exhibits from the transcript of his Cross-Examination of the Defendants’ witness and was therefore directed to do so pursuant to Rule 6.7. Justice Marion also noted that the Defendant relied on read-in portions of the transcript from the Questioning of the Plaintiff, as permitted by Rule 5.31. Finally, Justice Marion explained that viva voce evidence had been given during the Summary Trial proceedings through in-Court Cross-Examinations pursuant to Rule 7.11(b).

As part of its case, the Defendant alleged that the Plaintiff had either resigned from or abandoned his employment, and was therefore not entitled to reasonable notice of his termination. The Plaintiff argued that the allegation of abandonment had not been properly pleaded by the Defendant in its Statement of Defence. Justice Marion held, however, that the issue had been anticipatorily raised by the Plaintiff in his Statement of Claim, and was therefore properly before the Court pursuant to Rule 13.12(1); Justice Marion observed that there was no risk of surprise which would lead to a breach of Rule 13.6(3).

In argument, however, the Defendant asserted that the Plaintiff’s alleged abandonment constituted just cause for his termination. Justice Marion found that a defence of just cause had not been properly pleaded, and that the Defendant was therefore not permitted to rely on that defence per Rule 13.6(3).

In terms of the substantive analysis, the Court began by considering whether Summary Trial was appropriate as guided by Part 7, Division 3 of the Rules. The Court cited the two-part test, which asks (1) whether the Court can decide disputed questions of fact by proceeding in a manner authorized by the Rules for Summary Trial; and (2) whether it would be unjust to decide the issues in that manner. The second part of this test, per the Court, is informed by a list of factors which seek to determine whether Summary Trial will provide a fair process while keeping in mind issues of proportionality related to the nature of the dispute. Justice Marion held that this matter was appropriate for Summary Trial.

In the result, the Court held that the Plaintiff had neither resigned from nor abandoned his employment. Justice Marion held that the Plaintiff had been wrongfully terminated and was entitled to damages in the amount of $11,250.00, representing a 2.5-month notice period.

Absent agreement by the parties, the Court directed submissions on Costs which would include their position with respect to the factors listed under Rule 10.33.

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