'It gives employees another process, a way to get their matter concluded quicker and more cost effectively'
The Alberta Rules of Court were amended in January to introduce a new streamlined trial process, and the first decision considering these rules set an unexpected precedent for wrongful dismissal trials.
The new rules replace the former summary trial application rules which required a full consideration of affidavits, evidence and witnesses before proceeding to a summary or civil trial; a process that was costly and time consuming for all parties involved, especially employees bringing claims against employers.
“It gives employees another process, a way to get their matter concluded quicker and more cost effectively,” says Frank Molnar, partner at Field Law in Calgary. “If an employee's counsel can accomplish that, that's really big for employees that are suing for wrongful dismissal.”
The case in question, Arsenault v Big Rock Brewery Limited Partnership, 2024 ABKB 387, saw the former CEO and president of Big Rock suing the company for wrongful dismissal, then applying for the case to be judged under the province’s newly-minted streamlined trial rules.
Big Rock argued that it had just cause to terminate due to a list of grievances against him, including disobeying the board of directors, gross negligence, dishonesty, incompetence and misrepresenting financial information. It also submitted that it would need five witnesses and substantial financial documentation to prove the just cause.
The Court decided the case was not suitable for a streamlined trial, finding it “more likely than not that a streamlined trial will result in a lengthier pre-trial process, a duplication of efforts to adduce evidence by way of affidavit and then again at a streamlined trial and it will result in a less efficient use of judicial resources.”
Alberta streamlined trial process meant to make trials more fair
The main purpose of the new streamlined rules is to save time and resources – but it will also potentially make it easier for employees to sue for wrongful dismissal; rather than the extensive preparation required to apply for summary judgment under the previous rules, Molnar explains, this new simplified process essentially places a judge in a “gatekeeper role,” with only two steps to get to the decision of either a streamlined or a civil trial.
“Does this or does it not meet the test for a streamlined trial? And then, this is how we're going to move forward,” Molnar says. “It's just an easier process and easier application for employees’ counsel to make. That's why I'm expecting that there's going to be more of these applications.”
The Alberta Rules of Court section 8.25 lays out that a streamlined trial may be ordered by a court if it is deemed “necessary for the purpose of the action to be fairly and justly resolved, and … is proportionate to the importance and complexity of the issues.”
The new rules, which were amended in January of this year, relate to statements made in the 2014 Supreme Court of Canada decision Hryniak v. Mauldin, 2014 SCC 7 about the fairness and efficiency of Canada’s civil justice process, says Stephen Torscher, partner at Carbert Waite in Calgary.
That decision stated that “undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. The full trial has become largely illusory because, except where government funding is available, ordinary Canadians cannot afford to access the adjudication of civil disputes […] other dispute resolution mechanisms such as mediation and settlement are more likely to produce fair and just results when adjudication remains a realistic alternative.”
This streamlined process in Alberta is meant to do exactly that, Torscher says, as historically the summary process is not commonly used in the province.
‘Necessary’ stipulation in streamlined trial rules creates higher bar for applicants
However, Torscher adds that this Court’s interpretation of the streamlined trial rules sets an unexpected precedence, by stating the “test for a streamlined trial is no longer whether the matter can be decided using a streamlined process; it is whether it is necessary to use a streamlined process to have the matter fairly and justly resolved."
The Court also outlined that the party applying for the streamlined process – in this case, the employee alleging wrongful dismissal – bears the onus of establishing the case for a streamlined trial.
Justice Armstrong rejected the appellant’s application for a streamlined trial due to the high number of witnesses and evidence the employer submitted as possible defense, stating that a streamlined process would still be work-intensive and complicated to adjudicate: "Given the nature of the allegations in this case, the evidence that will be adduced and the fact that there are no apparent efficiencies or economies to be gained from a streamlined trial process.”
In a lot of respects, that decision caught a lot of people by surprise, Torscher says. “His emphasis on the word ‘necessary’ sort of flips the script from what the Supreme Court was saying. … by his analysis, it wasn't necessary to go ahead with that, so the default kicked in, and that's where you go to a civil trial.”
Future decisions will be fact-specific – documentation remains important
Citing another decision in Alberta which saw another judge approve a streamlined trial application without as strong an emphasis on how “necessary” such a trial would be, Torscher explains that the advice remains the same when employers are navigating just cause terminations, or any actions that might result in litigation.
“Documentation lends itself very well to being put into an affidavit,” he says, adding that streamlined trials will be a “different experience” for HR professionals and employers to navigate than what they are used to.
“If there's sufficient documentation, and the documentation is really, really clear and thorough, that makes for a great affidavit. If it's lacking, then your affidavits are not going to be as good, you're going to have to supplement it with more testimony from the witnesses instead of the documents, and so it might be less compelling. So having more and better documentation, if streamlined trials are going to be used more in the future, is probably going to be helpful.”
