Reasonable Notice Damages For Wrongful Dismissal Cannot Be Determined Via Summary Judgment

The decision from of the Court of Queen's Bench of Alberta in Coffey v. Nine Energy Canada Inc., 2018 ABQB 898 [Coffey], provides clarity amidst the conflicting jurisprudential landscape regarding whether the assessment of damages for a termination without cause is appropriate for summary judgment.

In Coffey, the Plaintiff had commenced a claim for wrongful dismissal and applied for summary judgment against his former employer, alleging entitlement to damages for a reasonable notice period and a percentage of revenue. The Defendant counterclaimed, alleging the Plaintiff made disparaging remarks and improperly used confidential information. The Master found that summary judgment was inappropriate for the assessment of damages for pay in lieu of reasonable notice for wrongful dismissal. Summary judgment was also not suitable for the Plaintiff's claims for punitive or aggravated damages, or for the counterclaim. The Plaintiff appealed.

The Court dismissed the appeal, judging that the assessment of damages for pay in lieu of reasonable notice for wrongful dismissal is outside of a Master's jurisdiction and beyond the scope of summary judgment. Because the assessment of reasonable notice requires weighing evidence, the appropriate summary procedure is via summary trial, not summary judgment.

The Court acknowledged that the question of the appropriate test for summary judgment in ascertaining whether a claim has "merit" was presently before the Court of Appeal for determination. However, the Court found that it was not necessary to decide that issue in order to find that it is not appropriate to determine reasonable notice damages by way of summary judgment. The Court noted that both the Court of Queen's Bench Act, s.9, and the Constitution Act, 1867, s.96, preclude Masters from weighing evidence to determine damages. The summary judgment rule must be interpreted within the context of a Master's jurisdiction and is not intended to determine the parties' rights; rather, the rule requires an examination of the evidence to find whether there is an issue to be tried. Thus, when evidence must be weighed and contentious issues of fact determined, summary judgment is inappropriate. Instead, the correct procedure is summary trial, regardless of whether the summary judgment application is before a Master or a Justice.

The Court commented that the assessment of damages for reasonable notice is not a mechanical exercise. It involves the weighing of evidence...