Court Finds Summary Judgment Not Appropriate For Assessing Damages for Reasonable Notice feature image

Court Finds Summary Judgment Not Appropriate For Assessing Damages for Reasonable Notice

Laws in Canada are informed and updated primarily though both legislators (whether provincial or federal) as well as through common law (the courts). Occasionally, the law might say one thing while a decision from a court reaches a contrary conclusion. This has been the case in Alberta where there has been some question about whether masters serving Alberta’s Court of Queen’s Bench can assess damages for reasonable notice via summary judgment. Those in the camp arguing summary judgment is appropriate rely on an Ontario decision from 1960, while those in opposition rely on the Court of Queen’s Bench Act, RSA 2000, c C-31 which prevents masters from making a “determination of disputed or contentious questions of fact….”

These competing opinions have left things unclear. However, a recent decision from the Court of Queen’s Bench of Alberta has attempted to bring a clear ruling on the matter.


The issue began when an employee sought summary judgment against his former employer for both reasonable notice as well as compensation based on 1% of revenue from a product he claims to have co-invented while working with the employer.

The master considered the appropriateness of summary judgment, and decided summary judgment was not appropriate. The master wrote, “ In my view, when a master (or a judge for that matter) hears a summary judgment application, they are determining whether the result of a case appears sufficiently certain that a trial is not worthwhile,” and continued “There is a place for summary judgment applications in employment law matters. For example, the issue of liability can certainly be determined in appropriate cases pursuant to the summary judgment rule and the matter can referred to a justice for an assessment of the damages and the notice period. Similarly, an employer could deal with the issue of cause if it wished. The process of considering the evidence, the law, and arriving at a specific award from a choice of a continuum of possible awards, however, falls outside the scope of a summary judgment application for the reasons set out above. That must be done either at some form of trial process or a damages assessment hearing before a judge, because it involves the weighing of evidence.”

On appeal

On appeal, the court was asked to determine if the assessment of damages for reasonable notice is appropriate for summary judgment.

The court agreed that “he Master was correct to find that the assessment of damages for pay in lieu of reasonable notice is not appropriate for summary judgment.”

The court began to explain its decision by highlighting a number of decisions where courts incorrectly granted summary judgment for the assessment of damages for reasonable notice. After reviewing common law and statutes, the court found that the test to determine “the true test is whether a justice or master is weighing evidence to determine the appropriateness of summary judgment.” In assessing whether an assessment of damages for notice requires the weighing of evidence, the court wrote “an assessment of damages for notice is not a mechanical or algorithmic exercise, but rather involves the weighing of evidence. At issue in determining damages in a wrongful dismissal action is the determination of a question of fact – the reasonable notice period.”

The exceptional and experienced employment law team at HMC Law represents employers and employees in all matters of employment law, including cases of  wrongful and constructive dismissal. We help employers ensure they follow the law as well as their contractual obligations when making decisions around the termination of employees. We also assist employees in determining whether or not their rights may have been violated, as well as what their obligations to employers are. Contact HMC Law online or by phone at 403-269-7220 if you have an employment law issue.



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