Summary Trial and your Employment Matter

The oft cited Rule 1 – 3 of the British Columbia Supreme Court Civil Rules states that the object of the Rules is “to secure the just, speedy and inexpensive determination of every proceeding on its merits.”

When there is a discrete issue which may be fairly adjudicated through fact-finding through written documents alone, applying for a determination of your proceeding by way of summary trial may be the best path forward for your employment matter.

A Summary Trial, or a “9-7” under the BC Supreme Court Civil Rules, is a final adjudication without a “real” trial. Counsel may elect to proceed by way of summary trial in situations where the court can obtain and assess all the facts of a matter through documentary evidence alone, without the cross examination of witnesses. For example, an action that only involves a determination of what, if any, reasonable notice a plaintiff is entitled to may be suitable for this mode of trial.

Summary trial may not appropriate in cases where, for example:

  • a case involves irreconcilable facts;
  • a case involves credibility issues (though our appellate court in MacMillan v. Kaiser Equipment Ltd. noted that a mere conflict in evidence does not necessarily mean the trier of fact would not be able to adjudicate the matter);
  • there are multiple parties;
  • the case is complex;
  • the documentary record you intend to rely on is lengthy and unmanageable; and
  • it would be inefficient way to proceed.

Even if the trier of fact is able to decide on the facts and legal issues via summary trial, they may decline to give judgement if it would be unjust to do so (Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd.)

When counsel has determined that summary trial is the best way to proceed, they begin preparing the evidentiary record. This may include the notice of application, a lengthy affidavit, answers to interrogatories, transcripts from examinations for discovery, and all evidence which may assist the trial judge in determining the facts of the matter.

At the summary trial application, the parties must first establish that the matter is suitable to be tried in this expedited way. If they are unable to establish this because, for example, the matter is more suitable for a full trial, then the summary trial will not proceed.

If the court allows the application, the parties proceed to the hearing and make their case in chambers by relying on their documentary record.

Following the summary trial, the court may grant judgment in favour of any party, on either part of the claim or all of the claim; impose terms about enforcement of the judgment (such as when it must be paid), or award costs.

In the alternative, if after hearing the facts the court is unable to grant judgment, they may order that a full trial be held, or that the parties attend a case planning conference, or make any other order that furthers the object of the Rules.  

Is your employment matter right for summary trial? Call Inlet Law today at 604-39-INLET (604-394-6538) for a free initial consult.

Martin Sheard assisted me, and his work was first-rate. He was knowledgeable, efficient, and made me absolutely confident that I had received exactly the legal services I needed.
— Joe Broadhurst / Managing Partner, Broadhurst Kooy Family Law

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Martin Sheard has advocated at the Supreme Court of Canada on behalf of financially marginalized Canadians. Only about once every two years does the Supreme Court of Canada hear an employment law case, so this was a special moment for Martin.