After a number of open questions, Alberta Courts have continued to clarify the law of summary judgment, particularly as it applies to wrongful dismissal. In Rudichuk v. Genesis Land Development Corp, 2019 ABQB 133, the Court addresses evidence and burden of proof.

The plaintiffs, Rudichuk and Scott, were executives with Genesis Land Development (“Genesis”). On termination of employment, Genesis alleged the employees had breached a non-solicitation provision contained in each of their employment agreements. The employees countered that the Chairman of the board of directors was aware of the alleged solicitation and had, in fact, approved of it.

The employees applied for summary judgment and were successful before the Master. On a de novo appeal before Justice Marriott, the employer filed a fresh affidavit from the Chairman contradicting the evidence of the employees that he was aware of or had approved the solicitation.

The Court had to consider the Court of Appeal’s decision in Weir-Jones, the last word on the summary judgment test in Alberta. She noted that summary judgment is still possible even when there is some conflict in the affidavit evidence of opposing parties — provided it is possible to fairly resolve the dispute summarily.

Justice Marriott noted that a court can only weigh evidence at trial, but it can reduce the weight of affidavit evidence — for example if it was not consistent with other evidence or known circumstances. The difference is a fine one, but important: a respondent to an application for summary dismissal cannot resist the application by a self-serving affidavit that bears no relation to the rest of the evidence. Of course, if the conflict in the evidence does not relate to an essential fact in dispute, a court can also make a determination on a summary basis.

A central dispute between the parties in this case was the onus for proving or disproving the employer’s defence that there was just cause for dismissal on application for summary judgment.

The employees claimed that it was the employer’s onus to prove that just cause exists. Purporting to cite Ontario case law, the employer claimed that the onus is on the plaintiff to establish that there is no triable issue with respect to the defence.

Justice Marriott rejected the employer’s approach. She reasoned that this approach would put the employees in the position of disproving a negative — an impossible task. Putting the onus of disproving cause for dismissal isn’t reasonable, and would discourage employees from making summary judgment applications. However, once a respondent provides evidence of a dispute that cannot be fairly resolved summarily, the moving party bears the burden of countering.

Unsurprisingly, the evidence of the chairman left a material dispute on the key question of whether there was cause for dismissal. The matter had to be determined at trial.

As a final matter of interest, Justice Marriott did not award costs to the employers despite their success. She also did not disturb the Master’s award of costs in favour of the employees. She reasoned that the employer did not provide the evidence of the chairman until the appeal, and had therefore failed to put its “best foot forward” as it was obliged to do.

There may be strategic reasons to hold back the evidence in an application before a master, however, it’s important to know that this decision may have cost consequences.