Alberta Courts Provide Clarity regarding the Use of Streamlined Trials in Employment Litigation

by: Julia Pratt

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In January 2024, the Alberta Rules of Court were amended to replace the previous summary trial process with a new streamlined trial process, outlined in Rule 8.25. Three recent decisions from the Alberta Court of King’s Bench have served to clarify the application of the newly amended Rule in the employment context.  

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1.       Arsenault  v Big Rock Brewery

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In Arsenault v Big Rock Brewery[1], the Plaintiff commenced an action against the Defendant, Big Rock Brewery, alleging that it had wrongfully terminated his employment as President and Chief Executive Officer. The Defendant alleged that the Plaintiff had been terminated for just cause for several instances of misconduct and dishonesty. The Plaintiff applied to have the action determined by way of streamlined trial. In considering the Plaintiff’s application, the Justice Armstrong turned to the two-part test for granting a streamlined trial, which is met where the Court is satisfied that:

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1)   “A streamlined trial is necessary  for the purpose of the action to be fairly and justly resolved; and

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2)   The streamlined trial is proportionate to the complexity of the issues, the amounts involved, and the resourced that can reasonably be allocated to resolving the dispute.”[2]

Rule 8.25(3) clarifies that a streamlined trial is not to be considered disproportionate solely because the trial may require adjudication of a witness’s credibility, oral evidence may be required, cross-examination may be required, or expert evidence may be introduced.

Justice Armstrong held that the inclusion of the requirement that a streamlined trial be necessary for a fair and just resolution reinforced that a standard trial continues to be the default procedure, and the applicant must therefore establish that the streamlined trial is required or essential. In this case, Justice Armstrong reviewed the procedure for preparing for a streamlined trial, which would include introducing affidavits from all witnesses (the Defendant had indicated that it would call at least five witnesses), cross-examination of all witnesses on their affidavits, and oral evidence at trial, which the Plaintiff had contemplated in his proposed streamlined trial order. Justice Armstrong held that, given the volume of evidence which would be put before the Court, the purpose of a streamlined trial, which is to promote efficiency in both time and costs, would not be met. As a result, it was concluded that a streamlined trial was not necessary in this case.

With respect to the proportionality requirement, Justice Armstrong noted that while Rule 8.25(3) states that credibility issues in and of themselves should not be a bar to granting a streamlined trial, in this case, the credibility of all witnesses would have to be scrutinized, and the result would essentially be a standard trial. Because a streamlined trial was unlikely to render the process less complicated or more efficient, the proportionality requirement was not met. As a result, the Plaintiff’s application was dismissed.

2.       Hou v  Canadian North Inc

In Hou v Canadian North Inc[3], two Plaintiffs brought actions against their employers for wrongful dismissal, and subsequently applied to have their actions determined by streamlined trial. The underlying actions raised several issues, including whether the Plaintiffs were employees or independent contractors, whether the Defendants were common employers, the Plaintiffs’ entitlement to notice, vacation, holiday and overtime pay, whether the Plaintiffs had appropriately mitigated their damages, and whether their actions were barred by the relevant limitation period. Justice Renke held that, given the number and the complexity of issues to be determined, the relatively few agreed upon facts, the lack of a “lead affiant” from one of the Defendants, and the number of witnesses whose credibility was in issue, the matter was unsuitable for streamlined trial, and the streamlined trial process was therefore not necessary. Further, the streamlined trial process was not proportionate to  the complexity of the issues to be determined and the volume of evidence to  be considered. The Plaintiffs’ applications were dismissed.

3.       Bailey v  Northern Alberta Institute of Technology

Most recently, in Bailey v Northern Alberta Institute of Technology[4], the Plaintiff brought an application for his wrongful dismissal action against his former employer to be determined by streamlined trial. Gab Joshee-Arnal of Neuman Thompson successfully opposed the Plaintiff’s application on behalf of the Defendant.

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Notably, while the Plaintiff had submitted extensive affidavit evidence in support of this application, Justice Mah held that, pursuant to the relevant Notice to Profession, he would decide the application with consideration only to the factual allegations of the claim and defense as outlined in the pleadings and the parties’ submissions.

The underlying facts in Bailey involved a senior employee, the Plaintiff, taking chairs from his employer which he believed to be set aside for disposal and selling them online for his personal gain. Following an investigation into this incident, the Plaintiff was terminated with cause. While the Plaintiff argued that the only issue to be determined was his state of mind at the time of the incident, the Defendant argued that the issues at play were significantly more complex, and raised concerns regarding a cover-up, minimization, and misrepresentation. The Defendant argued that they would be calling 5-6 witnesses, and Justice Mah determined that credibility of these witnesses would be required in determining several, if not all, of the issues identified.

Justice Mah determined that, in the circumstances, a streamlined trial would not promote efficiency of time or costs and would not be necessary to adjudicate the action fairly. Further, while a streamlined trial would be proportionate to the amount claimed, it would not be proportionate to the complexity of the issues and the judicial resources which would be expended. As a result, the Plaintiff’s application was dismissed.

Conclusion

The streamlined trial process offers a more efficient and cost-effective means of adjudicating an action and may be an excellent option where the issues to be determined are relatively straightforward and the record is not significant. However, it is important to be mindful of the potential to oversimplify an action which may require a full trial for the Court to reach a just decision. In a wrongful dismissal action, where a Plaintiff indicates an intention to apply to have the action determined by streamlined trial, it is important to identify the issues raised in the action and the complexity of the same, the number of witnesses who will need to give evidence and whether one or more witnesses’ credibility is in issue, and the volume of documentary evidence to be considered. Employers should ensure that they seek advice before agreeing to any such processes.

[1]  Arsenault v Big Rock Brewery, 2024 ABKB 387

[2]  Alberta Rules of Court, Alta Reg 124/2010, Rule 8.25

[3]  Hou v Canadian North Inc, 2024 ABKB 549

[4] Bailey v Northern Alberta Institute of Technology, 2024  ABKB 563

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This information is not provided as legal opinion or advice. For further information or assistance with applying or interpreting the new rules, please contact Julia M. Pratt or any of the lawyers at Neuman Thompson.