Wayne Arsenault (“Arsenault”), commenced an action against his former employer, Big Rock Brewery, alleging wrongful dismissal. Arsenault sought damages for wrongful dismissal pursuant to a written employment agreement. In its Statement of Defence, Big Rock Brewery asserted it had just cause to terminate Arsenault’s employment. Affidavits of records were exchanged but questioning had yet to commence. Arsenault filed an Application for a Streamlined Trial under the new streamlined trial process. A streamlined trial can provide an alternative process for litigants to have their case determined compared to a full trial and is a compromise between the benefits of a full trial and the expediency of a truncated process. However, the Court can only order a streamlined trial process where the test in Rule 8.25 has been met.

Analysis

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

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

8.25(1)(a) - Necessary

The Court noted that 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 use of the word “necessary” in the new streamlined trial rule reinforces that the default process will be a regular trial unless the party moving for a streamlined trial is able to establish that the streamlined trial process is required or essential for the action to be fairly and justly resolved.”

In the application, both parties provided an outline of the evidence required to determine the action. Since the defence included allegations of financial misrepresentation and mismanagement, a significant number of financial records were in issue. Big Rock Brewery also anticipated needing a number of witnesses to prove its allegations of just cause for dismissal.

The Court noted that proceeding with a streamlined trial would require all witnesses to file and serve affidavits, which the other party would be entitled to question on. The Court opined that adducing affidavit evidence from Arsenault and multiple witnesses for Big Rock Brewery, followed by questioning on each witness on their affidavits, would be less efficient and more costly than simply conducting questioning.

The Court also commented on the impact an action not suited for a streamlined trial may have on judicial resources. Preparing for a streamlined trial with multiple affidavits and transcripts of questioning would be a very intensive process, requiring significant judicial resources. If it is not readily apparent to the judge hearing the application that “the streamlined trial is necessary to achieve a fair and just result through a more efficient or cost-effective process for the parties or a more efficient use of judicial resources, it should not typically be allowed”. The Court directed that the “overall fairness, efficiency, cost-effectiveness, and impact on the allocation of court resources ought to be considered”. In the absence of any of these types of benefits, a streamlined trial application will generally fail at the necessity stage of the two-part test.

8.25(1)(b) – Proportionate

Once a court is satisfied that a streamlined trial is necessary pursuant to Rule 8.25(1)(a), it must then consider whether a streamlined trial would be proportionate to the importance and complexity of the issues, the amounts involved, and the resources allocated to the dispute pursuant to Rule 8.25(1)(b).

At this stage of the analysis, the Court noted that the jurisprudence relating to the old summary trials is instructive. Factors such as the amount involved, the complexity of the matter, the urgency, any prejudice likely to arise by reason of delay, the cost of a trial, the course of the proceedings, the need to cross examine witnesses in court, the necessity of questioning for discovery and whether resolution of the matter will depend on findings of credibility, are all potentially relevant. However, these factors need to be considered in the context of Rule 8.25(3) which states a streamlined trial should not be considered disproportionate solely because issues of credibility could arise, or some oral evidence may be required, or expert evidence adduced.

In the present matter, it was found that the just cause defence raised by Big Rock Brewery posed some complexity, as it stemmed not from a single course of conduct but from multiple grounds for cause. Much of the evidence relating to the allegations of just cause will require evidence coming from multiple witnesses where credibility will be an issue, and through financial records. The Court also did not believe a regular trial would cause any prejudice from delay, nor would a streamlined trial present any cost savings to the parties given the requirement for multiple affidavits and questioning on those affidavits.

Overall, as in this case, a streamlined trial will not be a proportionate process where it is likely to complicate, prolong or otherwise impede the path to a final determination of a matter.

Takeaways

Field Law's Frank Molnar, KC successfully represented the employer in this landmark decision, providing significant insights into the new streamlined trial rules.

• Although the December 22, 2023 Notice to the Profession and Public (NPP#2023-02) lists wrongful dismissal actions as a type of case that will often be suitable for the Streamlined Trial process, the necessity and proportionality of the streamlined trial remain the focus.
• The default process remains a regular trial unless the party moving for a streamlined trial can satisfy its onus that the streamlined trial is required or essential for the action to be fairly and justly resolved.
• Conserving judicial resources and judicial time remains a pivotal consideration at the outset of a streamlined trial application. Where it is not readily apparent to a judge hearing an application for a streamlined trial that it is necessary to achieve a more efficient use of judicial resources, it should not typically be allowed.
• Even though the Rules express that a streamlined trial shall not be considered disproportionate solely because issues of credibility may arise, where there are several witnesses required to prove claims, the result becomes, in essence, a full trial and a streamlined trial order would become disproportionate.
• Some of the jurisprudence relating to summary trials can be instructive at the proportionality stage of the two-part test. Many of the factors that were considered in relation to the suitability of a summary trial remain applicable to determine the suitability of a streamlined trial.

Navigating the newly minted streamlined trial process can be challenging. Contact Frank Molnar, KC or Anthony Burden in Calgary, Jeremy Taylor in Edmonton, or any member of Field Law’s Litigation or Labour + Employment groups for advice and guidance.

Link to Decision: Arsenault v Big Rock Brewery Limited Partnership, 2024 ABKB 387