In Coffey v. Nine Energy Inc., 2017 ABQB 417, the plaintiff Nathan Coffey sought summary judgment in a wrongful dismissal action. The defendant employer conceded that there was no cause for dismissal but also counterclaimed for damages relating to the plaintiff’s alleged after-dismissal conduct, which allegations included disparaging the industry and using confidential information to compete against the defendant.

In response to the application, the defendant raised the issue of the Master’s jurisdiction under s. 9(3) of the Court of Queen’s Bench Act, and the availability of summary judgment in the context of a wrongful dismissal case.

The court noted the Supreme Court of Canada’s decision of Hryniak v. Mauldin, [2014] 1SCR 87, which “encouraged lower courts to be more receptive to granting summary judgment in appropriate cases”. The court reasoned that while the rule under consideration in the Ontario case of Hryniak permits the weighing of evidence (Rule 20.04 [2.1]), Alberta’s summary judgment procedure under Rule 7.3 does not permit such weighing of evidence by the court. Significantly, Master Farrington further held that the determination of the appropriate notice period involved weighing evidence, and it was therefore beyond his jurisdiction to make such a determination. As the court stated (at paragraph 23):

A court must decide which factors should be given greater weight in a particular case. In my view, that involves weighing evidence, as the Court must decide in a given case how much weight to give any particular fact in the consideration of the reasonable notice period, and it must do so in a way that is not capable of precise quantification.

Dismissal of summary judgment application goes beyond question of jurisdiction

In deciding that wrongful dismissal damages were not an appropriate matter for summary judgment, the court’s reasoning expressly went beyond the question of the jurisdiction of a Master under the Court of Queen’s Bench Act, but rather was based upon “the purpose and nature of summary judgment applications, trials and summary trials” (at paragraph 31). Because different courts might hypothetically award different amounts in different cases with identical facts, all of which might be right, the results are not sufficiently certain to warrant summary judgment. The potential for somewhat different results meant that a moving party cannot show an “unassailable” case, using the language from the Alberta Court of Appeal’s decision in Ghost Riders Farm Inc. v. Boyd Distributors Inc., 2016 ABCA 331. In the court’s view, the more appropriate procedure would have been a summary trial, or a full trial.

In making his decision, Master Farrington was aware of several recent summary judgment decisions issued by other Masters of the Court, specifically finding jurisdiction existed and determining the appropriate notice period. Master Farrington respectfully disagreed with those decisions.

Based on a conflict in the evidence, the court was unable to dismiss the defendant’s counterclaims, and further declined to grant partial judgment in respect of liability. Because cause was not being alleged, making such a finding would serve “no purpose”.

The impact on employment litigation in Alberta

Summary judgment (or partial summary judgment) remains available to determine whether cause exists, if there is no conflict in the evidence. It also may be appropriate where notice periods are set out in an enforceable contract. Nevertheless, if followed, this case could have significant impact for employment litigation in Alberta, particularly given the lack of judicial resources and the long wait for trial dates. The consequences potentially reach beyond employment practice and may restrict the availability of summary judgment more generally. Until the question is resolved at a higher level, the disagreement between the Masters of the Court of Queen’s Bench creates uncertainty for litigants.