A little less than a month ago, I wrote about Summary Judgment, Retirement and Statutory Severance Pay and the Ontario case of Kimball v Windsor Raceway Inc, 2014 ONSC 3286 (CanLII). This is not the first time I have written about this on this blog:
Late last week the British Columbia Supreme Court considered whether an employment matter was amenable to summary trial under the BC Supreme Court Rules in Younger v. Canadian National Railway Company, 2014 BCSC 1258 (CanLII).
Before the court was a constructive dismissal case. The defendant argued that the case was not suitable for summary trial because of “conflicts in the affidavit evidence, the complexity of the case, and the fact that there is no urgency to hear this case immediately.”
The court disagreed and held that the case should proceed as a summary trial. The court recognized that the summary trial procedures “is not limited to simple or straightforward cases. Many complex cases properly prepared and argued can be resolved summarily without compromising justice in any way.”
Further, the court relied on the Supreme Court of Canada case of Hryniak v. Mauldin 2014 SCC 7 (CanLII) (discussed in my earlier post) and, more particularly, the following statement of Justice Karakatsanis:
 Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.
 Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
The court in Younger opined that “the Supreme Court of Canada recognizes the increasing importance of summary procedures, which should be used whenever possible.”
Many employment law cases should be dealt with under summary procedures. The run-of-the-mill “how much” case, for example, where the underlying facts are not in dispute certainly can and should proceed in an abbreviated and cost effective manner.
Justice Kevin Whitaker and Michael Comartin reviewed the cases between January 1, 2009 and October 18, 2011 in their presentation Summary Judgment Motions in Wrongful Dismissal Cases: Trends and Observations at a 2011 Law Society of Upper Canada conference. Their concluding comment:
“If you show up at pre-trial or trial on a notice or mitigation issue, may have to explain why it was not dealt with on [a summary judgment].”
I recently discussed a number of recent employment contracts cases at the Law Society of Upper Canada’s Six Minute Employment Lawyer conference. What seems to be a trend, is that a growing range of employment law cases are proceeding under the summary judgment rules and this trend will certainly continue. As the court said in Young the summary procedures should be used “whenever possible”, and why not?