In Carleton v Kootenay Wood Transport Ltd., 2026 ABKB 497 (Farrington, AJ), the Alberta Court of King’s Bench dismissed an employment law summary judgment application on the basis that a trial was required instead. The basis of this determination was that viva voce (verbal) evidence was required in order to make credibility findings on important issues.
This case is important because it’s a recent case in a long history of summary judgment cases that have tried to pin down the circumstances of when summary judgment is appropriate in employment law cases, and when it is not. The case is especially important because Applications Judge Farrington is one of the main contributors to the development of this body of law in Alberta, including in another case of his we summarized last year.
Facts
The following were the pertinent facts summarized by the ABKB:
- Carlton was employed as a truck driver for Kootenay Wood Transport
- He worked for the employer over 9 years as both an independent contractor and an employee
- In late 2021 he was assigned a load. The weather forecast was that there would likely be snow and difficult driving conditions. The employee did not actually state he was refusing to take the load, but ultimately cleaned out his truck and left
- The employee and employer had disputed whether the tires on the vehicle would be safe for the conditions. Additionally:
- In the prior year, there had been a significant vehicular accident at the employer
- At some point prior, someone in the plaintiff’s family had a car accident in poor driving conditions
- The defendant had a written policy about tread depth for tires. The parties did not agree whether the policy required a tire-change here
- The defendant had previously told drivers about safety being the most important thing, but there were disputes between the parties about whether that was happening in practice or not
- The defendant’s position was that where drivers made safety decisions these would be supported. However, those decisions needed to be made on the road while carrying out a load rather than in anticipation of difficulties
- There was evidence that the plaintiff made plans for Christmas and that these may have been part of the plaintiff’s refusal to take the load
- The employee sued for constructive dismissal, which included a claim for severance pay and punitive damages. The employer defended, alleging that the employee’s actions in cleaning out his truck was a resignation and that the assigned load was not a breach supporting a constructive dismissal.
Analysis / Conclusion
AJ Farrington helpfully summarized the tests for when a matter is appropriate for summary judgment, as contained in Hryniak v Mauldin, 2014 SCC 7, Coffee v Nine Energy, 2017 ABQB 41 (aff’d 2018 ABQB 898), Weir-Jones v Purolator, 2019 ABCA 49, McDonald v Sproule Management, 2023 ABKB 587, and several others.
Ultimately, the Court found that summary judgment was not appropriate in this case because viva voce evidence was required. The pertinent case-specific reasoning was as follows:
[18] The issue of refusing work on safety grounds, as pointed out in the defendant’s brief, has both objective and subjective tests. Each must be considered as part of the analysis. Here, I do not think that can be done without viva voce evidence. The Court must consider the entirety of the situation and the various influences on the parties in terms of their decision-making and how they affected the result and the choices made. Whether or not there was a dismissal or a constructive dismissal is squarely in issue. In addition, while both parties gave their views on the issue of the tires and their safety, no expert evidence is proffered from other lay witnesses or experts without a stake in the proceeding. In addition, punitive damages are claimed, and that requires a very close examination of the parties and their behaviour. All of that leads to the inevitable conclusion, in my view, that the only fair way to resolve this dispute is with a trial of some sort, be it a traditional trial or a streamlined trial with limited viva voce evidence. [underline added]
[19] We recall that the leading summary judgment authorities require a fair process before summary judgment is granted.
The application for summary judgment was accordingly dismissed.
My Take
I do not read this case as changing the law of summary judgment in Alberta, but it is an important addition.
I think its clear that every case will turn on its facts. Sometimes summary judgment will be available for wrongful dismissal and constructive dismissal. Sometimes it wont be available.
However, the reasoning in this decision does suggest that punitive damages claims will often not be appropriate for summary judgment because “… that requires a very close examination of the parties and their behavior”.
The availability of summary judgment in wrongful dismissal cases is different in each province. In Alberta, there have been lots of cases on this in recent years, including the cases discussed in Carleton and cases like Rodriguez v Fort McKay Strategic Services, 2025 ABKB 414, another case we summarized last year.
Many of the cases in recent years have trended towards allowing summary judgment where there are disputes in the evidence. This trend is helpful for plaintiffs in potentially bringing down the cost of litigating disputes, where appropriate.
To me, AJ Farrington’s decisions on the subject have tended to highlight an important fairness counterpoint to that general efficiency trend.
