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Summary Judgment in Saskatchewan - Nolan Hand

The Availability of Summary Judgment in Saskatchewan Employment Law Matters

 

When the Supreme Court’s decision in Hryniak v Mauldin, 2014 SCC 7 [Hryniak] clarified the test for the availability of summary judgment broadly, courts across Canada were left with the task of determining how that test applies to each area of the law.   In Saskatchewan, two cases from the Court of Queen’s Bench recently shed some light on when summary judgment applies in employment law matters in the province.

We note that the test for summary judgment in Saskatchewan is different from other Canadian jurisdictions, and does allow the courts more flexibility in applying the summary judgment principles, making summary judgment in Saskatchewan a good option for employment law matters (from both the employer and employee perspective).

The Test in Saskatchewan

The test in Hryniak has been applied in a number of contexts in Saskatchewan courts, but the iteration in Tchozewski v Lamontagne, 2014 SKQB 71 [Tchozewski] has been endorsed by the Saskatchewan Court of Appeal on three occasions and is consequently the authority on summary judgment in the province.  In Tchozewski, Justice Barrington-Foote distilled the key principles into a roadmap based on the summary judgment rules in the province:

 

1.            The court must first decide if there appears to be a genuine issue requiring a trial within the meaning of Rule 7‑5(1)(a)), based solely on the evidence before the court, and without using the powers provided by Rule 7‑5(2)(b) to weigh the evidence, evaluate credibility and draw inferences. (Hryniak, para. 66)

 

2.            There will be no genuine issue requiring a trial if the judge is able to reach a fair and just determination on the merits based on the affidavit and other evidence. That will be so if the summary judgment process:

 

(a)        allows the judge to make the necessary findings of fact;

(b)        allows the judge to apply the law to the facts; and

(c)        is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. (Hryniak, para. 49)

 

3.            The issue is not whether the summary judgment process is as thorough or the evidence is as complete as at trial. It is whether the judge is confident he or she can find the facts and apply the relevant legal principles so as to fairly resolve the dispute. If the judge has that confidence, proceeding to trial is generally not proportionate, timely or cost effective. A process that does not give the judge confidence in his or her conclusions, on the other hand, is never proportionate.  (Hryniak, paras. 50 and 57)

 

4.            If there appears to be a genuine issue requiring a trial, the court should next determine if a trial can be avoided by using Rule 7‑5(2)(b) powers to weigh evidence, evaluate credibility and draw inferences, and whether it is in the interests of justice that those powers be exercised only at trial. (Hryniak, para. 56)

 

5.            In deciding whether there is a genuine issue requiring trial, and whether it is in the interests of justice to use the powers provided by Rule 7-5(2)(b) to avoid a trial, the court must consider the nature of the evidence and issues. It must also consider proportionality in the context of the litigation as a whole. The relevant factors may include, but are not limited to:

 

(a)        the complexity of the claim;

(b)        the amount at issue;

(c)        the importance of the issues;

(d)        the relative cost and speed of a summary judgment application, as compared to trial;

(e)        whether better evidence will be available at trial than on the application, and the nature and extent of the conflict in the evidence, including:

(i)       whether there is competing evidence from multiple witnesses, the evaluation of which would benefit from cross‑examination;

(ii)        whether credibility determinations are at the heart of the issues to be determined; and

(iii)      whether credibility determinations are made more difficult by the shortage of reliable documentary yardsticks.

(f)        whether the court is able to fairly evaluate the evidence, including the extent to which it would assist the court to have evidence presented by way of a trial narrative, to hear and observe witnesses and to have the assistance of counsel in reviewing the facts and the law within the conventional trial process;

(g)        whether summary judgment would resolve all claims against all parties, or whether a trial will be necessary in any event, raising, among other things, the possibility of duplicative proceedings or inconsistent findings of fact; and

(h)        whether the application could dispose of an important claim against a key party, thereby reducing cost and delay. (Rule 1-3, Hryniak, supra, paras. 58, 60 and 66, and Pervez, para. 48)

 

6.            The court also has the discretion to permit a party to present oral evidence pursuant to Rule 7-5(3) if it would allow the court to reach a fair and just adjudication on the merits and is the proportionate course of action. (Hryniak, para. 63)

 

 

Summary Judgment in Saskatchewan Employment Law

The issue of whether the Hryniak test would apply in employment law matters in Saskatchewan was a murky one until the early months of 2019, when the decisions in Ryhorski v Commercial Industrial Manufacturing Ltd., 2019 SKQB 85 [CIM] and McKercher v Stantec Architecture Ltd., 2019 SKQB 100 [Stantec] came down from the Court of Queen’s Bench.  While the facts of each case differ significantly, both cases include applications for summary judgment of wrongful dismissal claims. 

In CIM, the plaintiff employee was away from work on medical leave for a significant period of time and was incommunicative through much of it, despite attempts by the defendant company to contact him.  The plaintiff filed a statement of claim alleging wrongful dismissal and the defendant applied to have it dismissed via summary judgment on the basis of either abandonment or frustration of the employment contract.  In the decision, Justice Hildebrandt finds that the evidentiary materials filed, including questioning transcripts that would potentially be unavailable to the trial judge, are sufficient to conclude there is no genuine issue requiring a trial, and that “uncontroverted facts may be readily distilled” from the exhibits and affidavits.[1]  With no genuine issue requiring a trial, and with sufficient facts available to determine frustration or abandonment, Justice Hildebrandt deems that “it would not be proportionate, fair, timely or cost-effective to set the matter down for trial.”

Worth noting on the CIM case is that the Court granted summary judgment on the issues of abandonment, and frustration of contract, which can be more complex legal principles in the employment context.

In Stantec, the application for summary judgment by the plaintiff is effectively unopposed, though Justice Elson notes the defendant’s lack of enthusiasm at the prospect.  In light of the both parties’ agreement that summary judgment is suitable for the matter, Justice Elson eschews the lengthier roadmap of Tchozewski, though he acknowledges its authority, and opts instead to paraphrase the more succinct wording of Justice Smith in Auchstaetter v Evolution Homes, 2016 SKQB 360, stating that:

“[T]he issues raised must be sufficiently focused and the material sufficiently detailed so as to allow the Court to do four things: 1) make the necessary findings of fact; 2) apply the law to those findings; 3) conclude that summary judgment is a  proportionate, more expeditious and less expensive means to achieve a just result; and 4) determine whether there appears to be a genuine issue requiring a trial.”

While obviously a much shorter version than Tchozewski, the same key principles are there.  However, in order to address the defendant’s contention that its defence requires more evidence, evidence which would be brought in at trial, Justice Elson relies on the “best foot forward principle” as expressed in the Supreme Court’s per curiam decision in Canada (Attorney General) v Lameman, 2008 SCC 14 [Lameman].  In Lameman, the Court stated that “It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage.”[2]  In that spirit, the Court states that “each party must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried.”[3] 

Justice Elson notes that “If [the defendant] even remotely entertained the thought that its defence required more evidence, the best foot forward principle demanded that it file such evidence in response to [the summary judgment] application.”[4]  Because the defendant did not file such evidence, and because the evidence it did file did not suggest the possibility of such evidence being presented at trial, Elson J found that it would be fair and proportionate to proceed by summary judgment.

 

Conclusion

The decisions in CIM and Stantec both affirm unequivocally that summary judgment is available in employment matters in Saskatchewan.  The Court in both cases notes and makes use of “the enhanced fact-finding powers,”[5] as Justice Elson calls them, set out in Rule 7-5 of The Queen’s Bench Rules.  In CIM, Justice Hildebrandt utilizes these fact-finding powers to distill the uncontroverted facts out of the exhibits and affidavits filed by both parties and determined from there that summary judgment was appropriate.  Justice Elson does the same, albeit in less detail, in Stantec.

Having matters decided by summary judgment is beneficial across the board – it saves clients money, time, and stress, and allows lawyers to run an efficient and effective practice.  These two decisions show that the Court is willing to exercise considerable latitude in granting applications for summary judgment, especially in the realm of wrongful dismissal claims.  If there is no genuine issue requiring a trial, and if the parties to an action are able to either agree on the substantive facts of a matter or if the facts are robust enough to be distilled according to relevance, then, like the views province is known for, the road to summary judgment in employment law appears to be wide open in Saskatchewan.


[1] Ryhorski v Commercial Industrial Manufacturing Ltd., 2019 SKQB 85 at para 34.

[2] Canada (Attorney General) v Lameman, 2008 SCC 14 at para 10.

[3] Ibid at para 11.

[4] McKercher v Stantec Architecture Ltd., 2019 SKQB 100 at para 28.

[5] Ibid at para 27.

Steve Seiferling