Courts in Canada have for some time been interested in facilitating access to justice. There is an inherent inequality in bargaining power between employers and employees. Employers usually have deeper pockets. The Supreme Court of Canada in Hryniak v. Mauldin called for a change in how litigation is to work in Canada. The Supreme Court calling for the frequent use of a process called summary judgment, which allows decisions to be made quickly with affidavit evidence. You can read that case here: https://www.canlii.org/en/ca/scc/doc/2014/2014scc7/2014scc7.html
Litigation is expensive, to the extent that individuals often cannot afford litigation. This puts employees at a huge disadvantage from the outset, one that employers sometimes use to their advantage.
In the Alberta Court of Queen's Bench decision Coffey v. Nine Energy, 2018 ABQB898, Madam Justice K.D. Nixon set forth some guidance with respect to Employment matters. The Court found that assessment of damages for pay in lieu of reasonable notice for wrongful dismissal is not appropriate for summary judgment. In the Court's opinion, employment matters can be decided summarily through the Summary Trial process, finding that the Summary Trial process was a summary process available to employees. You can read Coffey here:
In our respectful opinion, Coffey is contrary to the policy objective of facilitating access to justice in employment matters set out in Hryniak, and actually sets back the cause of access to justice substantially.
In the subsequent case of Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd, the Alberta Court of Appeal said: Despite the similarity in the names, there is a fundamental difference between “summary judgment” and “summary trial”. Summary disposition is a way of resolving disputes without a trial; a summary trial is a trial… You can read Weir-Jones here: https://www.canlii.org/en/ab/abca/doc/2019/2019abca49/2019abca49.html
We shall watch the courts eagerly for any developments in this area. In the mean time, summary trials seem to be the only outlet available to employees in these situations.
If you require assistance with your employment matter, please feel free to contact us.
The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.