McDonald v Sproule Management GP Limited, 2023 ABKB 587 (M.A. Marion, J) is a new Alberta Court of King’s Bench decision where a plaintiff was awarded a substantial reasonable notice period (severance) through the summary judgment process. This was despite that the employer alleged it had just cause to dismiss the employee, and that it was otherwise improper for the Court to decide the matter using summary judgment, because (it alleged) there were material facts in dispute that required credibility issues and weighing of evidence.
For non-lawyers, “summary judgment” is a simplified procedure where a party seeks a final judgment by using only evidence from affidavits and cross-examinations, and without actually having to go through an expensive trial process.
This case is important in Alberta because there are few decisions where just cause has been alleged that summary judgment has been allowed, and the state of the law of summary judgment in Alberta has been somewhat unclear for several years.
Facts
The following were the facts summarized by the Alberta Court of King’s Bench:
- The Plaintiff employee Kevin McDonald worked for the Defendant employer Sproule Management GP Limited
- McDonald was a chartered accountant
- McDonald joined Sproule as Controller in 2003, and became its CFO in 2010, and in late 2015 it changed back to Controller
- McDonald’s employment was terminated in February of 2016, purportedly for cause
- At the time of termination, Mr. McDonald was 56 years old
- The employee sued for wrongful dismissal, and filed an application for summary judgment
- The employer defended the application for summary judgment, alleging it had just cause for dismissal and that summary judgment was not appropriate way to decide this case
- The employer’s just cause allegations included incompetence, insubordination, insolence, etc.
Analysis / Conclusion
Justice Marion started the analysis by noting that the proper approach to assessing the availability of the summary judgment procedure is the test from Weir-Jones. Essentially, summary trial will not be appropriate where there is a genuine issue requiring trial, but the “Court has a duty to take a “hard look” at the merits of the claim or defence on a summary judgment application”.
In order to determine if there was a genuine issue requiring a trial in this case, this was essentially Justice Marion’s approach:
[103] I have screened the affidavit evidence and Transcript pursuant to the principles noted above, to disregard inadmissible or inappropriate evidence. Even after doing so, credibility issues and significant evidentiary conflicts remain on numerous matters, including McDonald’s alleged conduct and performance.
[104] In these circumstances, to determine whether there is a genuine issue requiring trial, I must disregard McDonald’s evidence where there are disputed material facts and assume Sproule’s evidence is correct. […]
This framework led Justice Marion to focus primarily on whether Sproule’s “just cause” defence was a genuine issue requiring trial, with a view to the evidence which favored Sproule’s version of events when there was a conflict in the evidence.
Justice Marion found that while there was some evidence of sporadic misconduct and performance problems, Sproule’s just cause argument was not going to succeed in this case, noting as follows:
[116] McDonald’s performance and conduct were certainly becoming serious, but over that same period he was sent positive messages about his performance, given feedback of things to work on, issued a significant bonus, redesignated as Controller, and later told it would be a good idea to change his attitude. After his inappropriate conduct at the January 2016 Board Meeting, he was not terminated, but then was immediately warned to “begin acting” differently and that, at some undescribed point in the future, his employment might be at risk […]
[117] In all the circumstances, I find that, on this undisputed and assumed record, termination was not a proportionate response to either his performance issues or his attitudinal issues, whether taken alone or considered together.
[118] With respect to his performance, the new Controller role had only begun in late 2015 and, if there were issues, a proportionate response would require a description of expectations, which expectations were not being met, and then facilitating his improvement, including providing him time to address the feedback and improve. […]
[119] With respect to his insolent or insubordinate behaviour, the January Advice confirms matters had not yet reached the level of seriousness such that his employment as Controller could no longer viably subsist, that his conduct was not reconcilable with sustaining the employment relationship, or that the relationship had broken down or was destroyed. Sproule chose not to terminate him but instead gave him a vague reconfirmation of his employment with, at best, a conditional warning […]
Ultimately, Justice Marion found that it was appropriate to determine this wrongful dismissal matter by way of summary judgment.
Regarding notice period (severance), the Court relied on many cases, including substantively on Rice v Shell, 2010 ABQB 977 (I was the lawyer for Ms. Rice!).
The Court found that this 56 year old Controller with about 13 years of service was entitled to 18 months reasonable notice (severance).
My Take
This case is a win for employees, because the summary judgment procedure is a cheaper and more efficient mechanism to get in front of a judge for final determination than the ordinary civil litigation route, which requires more fulsome discoveries and a trial. Employer counsel often claim a matter is not appropriate for summary judgment because of contested facts and credibility. In litigation it is common for there to be contested facts and credibility, and while employers are sometimes using this as a tactic to make litigation expensive and unappealing for plaintiffs, in many cases this is a legitimate employer concern: employers are asking for a fair chance to challenge the evidence of the plaintiff.
There are also several really interesting and important aspects of this decision that I have not summarized, but that are of general importance to practitioners. One important aspect is the consideration of the question, “what is included in a transcript” for the purposes of summary proceedings? More particularly, in what instances does it include exhibits and answers to undertakings? This case provides some guidance to practitioners on these topics.
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