Streamlined trials in Alberta – Appropriateness in employment matters

Recent amendments to the Alberta Rules of Court (the “Rules”)[1] have introduced a somewhat novel procedure called the streamlined trial. The procedure was developed to replace the previous summary trial process that was seldom used, and has now been repealed. In the lead-up to the amendments, the Alberta Rules of Court Committee identified two main problems with the previous Rule regarding summary trials. First, the summary trial process required significant preparation without any certainty that a summary trial would actually take place, due to objections from the non-moving party. Second, even if a summary trial was held, there was no guarantee the Judge hearing the trial would make a final ruling, resulting in the waste of significant time, effort, and cost.

The streamlined trial procedure was intended to avoid these problems, and give parties the ability to have a trial on the merits without having to expend all of the resources required by the traditional trial process. To accomplish this, the streamlined trial places restrictions on the trial process, including but not limited to:

• Requiring the parties to undertake significant pre-trial preparation, such as identifying issues in dispute, agreeing on relevant and material facts, and including only relevant and material evidence in the trial record;
• Requiring the parties to prepare written opening statements of not more than 5 pages, and closing briefs of not more than 15 pages; and
• Restricting the length of examination-in-chief and cross-examination (if any) to 10 and 30 minutes respectively.

In a December 22, 2023 Notice to the Profession and Public, streamlined trials were identified by the Court as being appropriate in certain scenarios, including wrongful dismissal actions.

Notwithstanding this indication from the Court, two recent applications for streamlined trials in wrongful dismissal actions were dismissed by the Alberta Court of King’s Bench. In the first of these decisions, Arsenault v Big Rock Brewery Limited Partnership by its general partner Big Rock Brewery Operations Corp. and Big Rock Brewery Operations Corp (“Big Rock”),[2] the plaintiff applicant filed a wrongful dismissal action against his employer. The employer defended the action by asserting just cause for termination. In his decision on the streamlined trial application, the Honourable Justice Armstrong considered the two-part test for a streamlined trial set out in the Rules:

The two-part test for a streamlined trial is set out in Rule 8.25(1). The Court must be satisfied that:

• A streamlined trial is necessary for the purpose of the action to be fairly and justly resolved; and
• The streamlined trial must be proportionate to the importance and complexity of the issues, the amounts involved and the resources that can reasonably be allocated to resolving the dispute.[3]

Justice Armstrong then identified a non-exhaustive list of factors that could result in a streamlined trial being necessary:

Some of the circumstances in which a streamlined trial may be found necessary include:

1. Where the streamlined trial will create a more efficient process by eliminating unnecessary steps and reducing overall delay in the resolution of the dispute.
2. Where the streamlined trial will result in a more cost-effective process for the parties.
3. Where the streamlined trial will enhance the administration of justice by making more efficient use of court resources and provide litigants with a more accessible and timely dispute resolution process.
4. Where the streamlined trial will result in a more sharply focussed process and the elimination of complexities in the form of interim applications that do not bear on the ultimate resolution of the real issues in dispute.
5. Where it would be unjust to require the parties to proceed to a full trial, considering the value and complexity of the dispute.
6. Where the streamlined trial process will simplify the proceeding to make it easier for the parties to assess the strengths and weaknesses of their positions and thereby potentially reach a resolution without the need for a trial.[4]

Based on these considerations, Justice Armstrong found that the applicant had failed to establish a streamlined trial was necessary or proportionate, where just cause was alleged.

Subsequently, in Bailey v Northern Alberta Institute of Technology (“Bailey”),[5] the Honourable Justice Mah took a similar approach and dismissed the plaintiff’s application for a streamlined trial in another wrongful dismissal action where just cause was raised as a defence.  In that decision, Justice Mah cited the Big Rock decision at length, and concurred with the approach taken by Justice Armstrong. Specifically, Justice Mah noted that while on their face the issues in Bailey might seem straightforward, the reality was much different:

While the presence of just cause or not is the overall looming issue, the pleadings and counsel submissions raise these questions for trial:

• Was there dishonest conduct consisting of the theft of chairs?
• What exactly was said during the conversation at the loading dock? Did Mr. Bailey deceive or attempt to deceive the movers?
• Was there a deliberate breach of NAIT’s policies and procedures?
• Did Mr. Bailey attempt to cover-up or downplay his actions? Did he engage in deception or misrepresentation in doing so?
• Is there an element of breach of trust involved?
• Was there a proper investigation?
• Was the decision-making process sound?
• If without cause dismissal is established, what are Mr. Bailey’s damages and did he discharge his duty to mitigate?

All of the foregoing issues can only be decided after assessing the credibility of several witnesses. While a streamlined trial should not be considered a disproportionate process solely because credibility issues exist, here the credibility of the plaintiff and almost all of the defendant’s 5-6 witnesses is put in issue by the nature of the questions that must be decided at the trial.[6]

As a result, Justice Mah was not satisfied that the streamlined trial process was necessary or proportionate in the circumstances, and dismissed the plaintiff’s application.

The take-away from the Bailey and Big Rock decisions is that notwithstanding the indication by the Court that wrongful dismissal actions may be appropriate for streamlined trials, this will only be the case where the process is both necessary and proportionate – and likely will not be available where complex issues of just cause are raised.

Miller Thomson’s Labour and Employment Team will continue to monitor recent developments in employment legislation and caselaw in Alberta and across Canada. If you require additional information or assistance, please do not hesitate to contact our Team.

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[1] Alberta Rules of Court, Alta Reg 124/2010.

[2] Arsenault v Big Rock Brewery Limited Partnership by its general partner Big Rock Brewery Operations Corp. and Big Rock Brewery Operations Corp, 2024 ABKB 387 (CanLII).

[3] Ibid at para 16.

[4] Ibid at para 22.

[5] Bailey v Northern Alberta Institute of Technology, 2024 ABKB 563 (CanLII).

[6] Ibid at paras 23 and 24.