What’s in a Name? The Alberta Court of King’s Bench Replaces Summary Trial Procedures with a new Streamlined Trial Process

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The new Streamlined Trial Process is an alternative method litigants may use to advance their claims in a more timely, efficient, and potentially more cost-effective way than a traditional trial.

Following review of the little used summary trial procedures, the Alberta Court of King’s Bench issued a Notice to the Profession and Public of a change to the Alberta Rules of Court in December of 2023.¹ This notice states that effective January 1, 2024, the Summary Trial Process will be replaced with the “Streamlined Trial Process”.²

The Summary Trial Process had been scarcely used as it allowed for either party to unilaterally end the process at any time before the summary trial, resulting in uncertainty and inefficiency.³ Further, a Judge could decline to resolve a matter after a Summary Trial, undermining the utility of the process.⁴

Application for the Streamlined Trial Process

To apply for the Streamlined Trial Process, litigants are to file an application requesting a Streamlined Trial Process, and obtain an order permitting the parties to use the process.⁵ The Streamlined Trial Process is available to litigants where “an Action can be fairly and justly resolved by the streamlined process, and that process is proportionate to the importance and complexity of the issues, the amounts involved, and the resources that can reasonably be allocated to resolving the dispute.”⁶

An application for the Streamlined Trial Process can be completed by submitting a written request to the Court with or without consent from all the parties.⁷ The Streamlined Trial Process may also be initiated through a case management process or by the Court, at its own discretion and on its own motion.⁸

The Court has suggested that the following types of actions may be suitable for summary trials:

1. Actions for the recovery of a liquidated sum;
2. Actions for the recovery of real or personal property;
3. Actions that depend primarily on the interpretation of documents;
4. Actions for damages for personal injury where the damage award would likely be under $100,000; and
5. Wrongful dismissal actions.⁹

Streamlined Trial vs a Traditional Trial

A Streamlined Trial is considered a full trial on the merits of the action and the decision the Judge renders is final, but still subject to normal rights of appeal.¹⁰

The primary difference between a traditional trial process and the Streamlined Trial Process is the form of evidence given to the Court. In a Streamlined Trial Process, evidence is proffered primarily by written affidavits, and affidavit evidence is tested by way of questioning on that affidavit.¹¹ While the Court in a streamlined trial can direct or permit oral (viva voce) evidence, the presumption is that the vast majority of the evidence will be submitted by affidavit.¹² By relying on written evidence, streamlined trials reduce trial hearing time required for hearing direct oral evidence and cross examination, leading to lower costs for litigants, and greater access to justice.¹³

The Streamlined Trial Process also places an obligation on both parties to meet specific deadlines in preparing the evidentiary record to minimize oral evidence and prevent delay.¹⁴

Implications

The Court’s implementation of the Streamlined Trial Process increases a litigant’s options to have their claims fairly and justly resolved in a timely and cost-effective way.¹⁵ While this process is new and how Courts will apply these rules in practice is still uncertain, the amendments are a welcome replacement to the little used summary trial procedures.

Walsh LLP would be pleased to provide further information on how Alberta’s new Streamlined Trial Process may impact your current or future disputes, please reach out to our Litigation Group for more further information.

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1 Notice to the Profession and Public: Streamlined Trial Process – Civil (Non-Family) Actions, Alberta Court of King’s Bench, December 22, 2023 [Notice to the Profession, December 22, 2023].

2 Ibid.

3 Ibid.

4 Ibid.

5 Alberta Rules of Court, AR 124/2010, rule 8.26 [Rules].

6 Ibid. at r 8.25.

7 Ibid. at r 8.26.

8 Ibid. at r 8.26.

9 Notice to the Profession, December 22, 2023, supra note 1.

10 Rules, supra note 6 at r 8.31.

11 Notice to the Profession, December 22, 2023, supra note 1.

12 Ibid.

13 Ibid.

14 Ibid.

15 Rules, supra note 5 at r 1.2(1).

Did You Know – Bonus Season

Did you know .…

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Did you know .…

Employees may be entitled to have bonus compensation included in their termination payments.

Regardless of whether a bonus program is characterized as discretionary, if annual bonus payments are the norm, regardless of performance, the bonus may be considered an integral part of the employee’s compensation and therefore should be included in a termination payment. Employers have sought to address this concern by adding wording in bonus plans and employment agreements requiring the employee to be actively employed on the date the bonus payment is made to be eligible. The courts have addressed this issue. If the notice period extends to or beyond the payment date, the bonus should be included in a termination payment.

Employers can add clear and unambiguous language to their bonus plans to limit or remove the employee’s common law right of payment of bonus in a termination payment.

Express language indicating the employee waives their right to any claim to a bonus, or a portion of it, if their employment is terminated before the payment date of the bonus, even the day immediately before the payment date, may be sufficient to remove this employee right.

Our employment lawyers can review your bonus plan and employment agreements. As experienced legal counsel, we can help you draft clear and unambiguous terms in these documents to protect your company

For more information and insights, please see Carmelle Hunka’s full article, “Bonus Season is Coming: Are You (And Your Documents) Ready?“

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Carmelle has extensive experience in all areas of employment law including policies and plan documents, employment agreements, executive compensation including public disclosure, incentive plans, terminations, human rights matters, ethics and business conduct matters including investigations and anti-corruption and anti-bribery matters, and advising companies regarding employment law matters in merger and acquisition activity.

Carmelle Hunka
Senior Counsel
403.267.8457 • chunka@walshlaw.ca
https://www.walshlaw.ca/practice-area/employment-law/

Bonus Season is Coming: Are You (And Your Documents) Ready?

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Each year companies reward their employees with payments under their “discretionary” bonus  (or short-term incentive) programs. The intent of these programs is to incent and improve  employee performance during the year with the outcome of paying bonuses reflecting annual  performance. 

While most employers characterize bonus programs as discretionary, implementation can result  in these payments becoming an integral element of the employee’s compensation. And this can  become a bone of contention when an employee leaves the organization, whether voluntarily or  involuntarily.  

A carefully drafted bonus program can assist employers in maintaining the discretionary nature of  the programs and protecting the company from larger payouts on termination of employment. 

What’s the issue?

You include wording in your employment agreements and offer letters that your bonus program is  “discretionary”. Your bonus plan goes on to say that employees must be “actively employed” on  the payment date to be eligible for the payment. 

Over the past several years, the courts have been asked to confirm what these terms mean when  employees are terminated and entitled to payment in lieu of notice of termination. Is bonus  included in this payment? 

First, courts will consider whether the bonus program is really discretionary. Has discretion  actually been exercised historically or are payments made each year? Where annual payments  are the norm, it is likely the bonus will be considered an integral part of the employee’s  compensation. And therefore, must be included in a payment in lieu of notice of termination. 

The matter is further complicated if a portion of the bonus is based on corporate performance and  not employee performance. The corporate portion of the bonus becomes payable on a termination  where corporate targets are being met, regardless of the reason for termination of the employee. Employers seek to address these issues by including language in their bonus plans saying the  employee must be “actively employed” on the date payment is made to receive it. Again, the  courts have interpreted this wording to be insufficient to exclude bonus in a payment in lieu of  termination where the bonus payment would be made during the reasonable notice period.

So, what can companies do? 

The most recent decisions of the courts impose a two-part test to determine if a company has  done enough to preclude damages for bonus from being included in a termination payment. 

First, would the employee have been entitled to the bonus payment as part of their compensation  during the reasonable notice period? 

For example, a 10-year employee is terminated on November 1^st. The reasonable notice period  is determined to be 10 months and bonus is payable on March 31 of each year. In this case, the  employee would be entitled to the bonus payment as it would have been paid during the 10 month notice period, which ends August 31. If the employee had 3 years of employment and the  reasonable notice period is determined to be 4 months, a bonus payment on March 31 would not  be included as March 31 is after the end of the reasonable notice period.  

The second question is, do the terms of the bonus plan or agreement unambiguously limit or  remove the employee’s common law right to payment of the bonus in lieu of working notice? 

This is a more difficult question to answer. The courts have been clear, merely saying an employee  must be actively employed on the payment date is not sufficient to limit or remove the employee’s  right to payment of the bonus on termination. The employer’s obligation is to give notice of  termination and if they had done so, the employee may be actively employed when the payment  date occurs. Recent decisions have found that more language is required in the employment  agreement or bonus plan. 

More specifically, employers are advised to add extra language to their bonus plans stating that  the employees waive their right to any claim to a bonus, or a portion of it, if their employment is  terminated on the day prior to the payment date of the bonus. Another option is to state that active  employment does not include any notice period on termination of employment. 

When making annual bonus payments, employers have the opportunity to clarify the language of  their bonus plans in annual compensation letters, to protect the employer in the event of  termination of their employees. 

Canadian employers are well advised to seek legal advice when drafting bonus plans and entering  into employment agreements. As experienced legal counsel, we can help you draft clear and  unambiguous terms in plan documents and employment agreements and work with you to  determine what, in your specific circumstances, is most effective and enforceable to protect the  company. 

Before you make your bonus payments for the 2023 performance year, our employment lawyers  are ready and available to work with you. 

Sources: 
Matthews v. Ocean Nutrition Canada Ltd. (SCC, 2020) 
Paquette v. TeraGo Networks Inc. (ONCA, 2016) 

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After 25 years advising large companies as inhouse legal counsel, Carmelle Hunka has joined Walsh to bring her business and employment law experience and practical approach to our  clients. Carmelle has extensive experience in all areas of employment law including policies and  plan documents, employment agreements, executive compensation including public disclosure,  incentive plans, terminations, human rights matters, ethics and business conduct matters  including investigations and anti-corruption and anti-bribery matters, and advising companies regarding employment law matters in merger and acquisition activity. 

Carmelle Hunka
Senior Counsel
403.267.8457 • chunka@walshlaw.ca
https://www.walshlaw.ca/practice-area/employment-law/

An Injection of Clarity: A Look at Recent Employment Law Decisions Regarding Mandatory Mask and Vaccination Policies

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Introduction

Over the last three years, everyone has used the word “unprecedented” an unprecedented number of times. A once-in-a-century pandemic will do that. But as we move beyond the emergency phase of the pandemic and into a more stable sort of normal, precedent has started to build around the policies and actions of the last few years, specifically COVID-related corporate policies regarding mandatory vaccination and mask wearing.

This shift from the urgent, medical perspective to a legal one can be confusing – and we predict that in the coming months there will be a growing amount of focus and legal scrutiny put on these policies. With that in mind, let’s take a look at recent decisions from the Courts in Alberta and British Columbia regarding mandatory masking and vaccination policies (“MVP”), constructive dismissal and what you need to know as a business leader.

Mandatory Masking Policies

While mask mandates seem to be behind us, the debate continues and has made its way into our courts. In the recent case of Benke v Loblaw Companies Limited, the Alberta Court of King’s Bench was asked to decide whether placing an employee on unpaid leave because of the employee’s refusal to wear a mask without a medical justification constituted constructive dismissal. Ultimately, the Court held that the employee’s inability to work was a consequence of a voluntary choice that he made, and therefore the employee was not constructively dismissed. In other words, the only thing standing in the way of the employee working was the employee’s own decision.

Specifically, the Court found that putting the employee on unpaid leave did not amount to constructive dismissal for two primary reasons:

1. The Mask Policy was neither a substantial change nor breach in the employment contract
   
2. While unpaid leave is a substantial change in the employment contract, the employee was choosing not to work so it was reasonable for the employer not to pay them.

While we surely haven’t seen the end of challenges to mask mandates and policies, the Court in Benke was clear in this case: in the absence of any proof that an employee is exempt from a mask policy on any of the acceptable grounds (ie, medical or religious), then there is no discrimination in the enforcement of an employer’s masking policy and an employee’s refusal would make repudiating the employment contract or unpaid leave justified.

Mandatory Vaccine Policies

Unlike masking mandates, many mandatory vaccine policies (“MVPs”) are still in effect – and have also started to have their day in court. We’ll no doubt continue to see additional cases, but last year’s Parmar v Tribe Management Inc, 2022 BCSC 1675. case provides an instructive example of what to expect moving forward. Ultimately, the British Columbia Supreme Court decided that the specific employee making the complaint was not constructively dismissed – but also found the MPVs must be decided on a case-by-case basis.

While the case-by-case ruling may seem vague, there are very clear factors the support the upholding of the validity of a MVP:

1. At the time of enactment of the MVP, was the employer relying on recommendations, information or orders from the Provincial Government, Federal Government, Public Health Officer’s, the Centre for Disease Control or other reputable agencies which would lead the employer to concluding that MVP’s were required to maintain a safe workspace?
2. Did the MVP apply to all employees, contractors and visitors who entered the workplace?
3. Was a MVP necessary for the employer to comply with their statutory obligations to protect the health and safety of all employees?
4. Did the policy contemplate exemptions on legitimate medical or religious grounds?

On the other side, there are also very clear factors that suggest the MVP is unreasonable:

1. Provisions of the MVP allowed for discipline, up to and including discharge, of employees who decided to remain unvaccinated;
2. The MVP applied to unvaccinated employees who worked exclusively from home where there was no reasonable expectation of them returning to the workplace; and
3. The MVP applied to employees who worked exclusively outside.
   

Ongoing Considerations

Just when you thought we’d moved from the unprecedented to the beginning of precedent, everything could change again. The current Premier of Alberta, Danielle Smith, has made numerous comments about protecting the rights of the unvaccinated and suggested future legislative efforts to do so. Should any future legislation be passed to do such a thing, the law as it relates to everything we’ve covered here may be subject to change through further judicial consideration and challenges.

The Bottom Line

The last few years have been a challenge for everyone in many different ways, but just as things are beginning to feel “normal” again, the legal system is also beginning to grapple with the polices borne of the pandemic. Right now, one thing is clear: each case involving an employee claiming constructive dismissal due to the enactment of an MPV or mask policy must be analyzed on its specific facts – but the precedents will only grow and provide more clarity in the future.

As more employees begin to return to the office and pandemic policies evolve, issues related to the pandemic and measures taken to keep your workplace safe will surely continue arise – and that’s where we come in. Our team is experienced in handling all employments matters and together, we can help safeguard your business from any employment claims.

Feel free to get in touch with any questions you may have about COVID-19 policies, employment law or anything else you may need by calling our office at (403) 267-8400.

Cody Olson joins Walsh LLP

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We are excited to announce that Cody Olson will be joining Walsh LLP as an Associate primarily located in our new Claresholm office.

Cody has worked to build his practice in Claresholm for the last few years and previously worked in litigation/arbitration with a large national firm in both Calgary and Qatar.

We are excited to draw on Cody’s experience and deep connection to the Claresholm community to provide even better advice and solutions to our clients.

Robert Stemp joins Walsh LLP

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Please join us in welcoming Robert Stemp as the newest member of our Corporate Commercial team here at Walsh LLP!

Bob brings more than 40 years of practice and has extensive experience with commercial real estate transactions and banking as well as foreclosure and debtor-creditor matters.

We are excited to draw on Bob’s wide range of knowledge and experience to provide even better advice and solutions to our clients.

Brendan Hill has been called to the Bar

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Walsh LLP is proud to announce that Brendan Hill has been called to the Bar! Congratulations Brendan! A life long dream has now become a reality with hard work and determination! Brendan will continue with Walsh as an Associate and we are very excited to join him on his journey, we know that you will have a long and rewarding career!

Brody Sikstrom has been called to the Bar

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Walsh LLP is beyond proud of our newest Associate, Brody Sikstrom.

Today, Brody was called to the Bar, experiencing one of the proudest moments in the life of a lawyer. We thank you Brody for your dedication to Walsh and the years you have already provided to Walsh as both a Summer Student, Articling Student and now as an Associate. It has been a pleasure for all of us here at Walsh to watch you grow into the amazing person and lawyer you are today. We look forward to many more years of success together and wish you nothing but the best. Congratulations on your admission to the Bar Brody!

YOU DID IT!

An Employer’s Guide to Bill 32: Restoring Balance in Alberta’s Workplace Act

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An Employer’s Guide to Bill 32

The Alberta Government’s new Bill 32: Restoring Balance in Alberta’s Workplace Act proposes significant changes to both employment standards and labour relation laws in the province. The Bill was introduced on July 7, 2020 with the intention of providing clearer and more transparent rules, and reducing red tape for employers bringing employees back to work. It contains noteworthy changes to laws on termination and layoff restrictions, payroll deductions and pay calculations, youth employment, union dues and disclosure requirements, and strikes, lockouts and picketing.

As an employer, it is important to be mindful of these changes as, if passed, they will have a significant impact on your workplace. In an effort to prepare you for the proposed changes, we briefly highlight some key areas that will be affected.

Changes to Employment Standards

Hours of work: An hours of work averaging agreement (HWAA) allows employers to average an employee’s hours of work over a period of one to 12 weeks for the purpose of determining the employee’s entitlement to overtime pay or, instead of overtime pay, time off with pay. Under the proposed changes, an employer will be able to change or start an HWAA without an employee’s consent, provided they give the employee 2 weeks’ notice. The averaging period for an HWAA will increase from 12 to 52 weeks with the ability to request a further extension. With this change, an employer will still be required to ensure an employee receives 8 hours rest between shifts.

Additional changes include, an HWAA no longer requiring an end date, and more flexibility to employers to determine how and if daily overtime applies. Employers will not have to provide daily overtime, unless it is included as part of the HWAA. When included, daily overtime will be calculated based on the greater of weekly or daily overtime hours. A weekly overtime threshold will still apply regardless of whether daily overtime is included in the arrangement. Overtime must be paid out to the employee no later than 10 days after the pay period that the averaging period ends (which may be as long as 52 weeks).

Final pay upon termination: The Bill proposes extending the deadline for termination payments from the current obligation that an employer must pay a terminated employee no later than 3 or 10 days after the last day of employment depending on whether notice was required. The changes will no longer differentiate between termination of employment by employer or employee, or whether termination notice or pay was required. Instead, employers would be required to pay an employee within either, 10 consecutive days after the end of the pay period  in which termination occurred, or 31 consecutive days after the last day of employment. The choice will be up to the employer and can be made based on what would better align with their respective pay cycles.

Employer deductions: Employers will be allowed to correct payroll errors and recover vacation pay paid in advance without an employee’s written authorization to deduct the amount from their paycheck. Employers will still be required to notify employees prior to any other deduction.

Holiday pay & wage calculations: While employees are still entitled to general holiday pay, employers will no longer have to include vacation pay and general holiday pay in the average daily wage calculation. The employer can choose between two options on how an employee’s average daily wage is calculated, depending on which calculation period best aligns with their respective payroll cycle. The calculation can either be the total wages averaged over the number of days they work in (a) the four weeks immediately before the general holiday, or (b) the four weeks ending on the last day of the pay period that occurred just before the general holiday.

Layoffs: Employers will be able to lay off employees for a longer period of time, increasing the time from 60 to 90 days within a 120 day period. Note that COVID-19 related layoffs are a separate issue and will continue to be up to 180 consecutive days.

Rest periods: Employers will be required to provide at least 30 minutes of rest every 5 hours for shifts that are longer than 5 hours. The rest period can be within or immediately after the 5 hours of work, or at any time mutually agreed upon by the employer and employee.

Group Termination Rules: There will no longer be different rules for terminations depending on the number of staff being terminated. The Bill proposes one set of rules for all terminations of 50 or more employees in a four-week period. Employers will still be required to give the Minister 4 weeks’ notice, or as much time as is reasonable when they terminate more than 50 employees at a single location.

Youth in the Workplace: The list of jobs available to youth aged 13-14 years old will expand to include positions in the restaurant industry, light janitorial work, coaching and tutoring and will no longer require a permit, provided the youth workers are working with someone at least 18 years old.

Penalties: The Bill proposes a reduction on a case-by-case basis for administrative penalties imposed on employers that contravene employment standards and will give the employer more time to make the payment. It will also make it easier for employers to get approval for a variance or exemption to an employment standard.

Changes to Labour Relations

Alter Employment Standards Rules: Under an HWAA, employers and unions will be able to agree to alter employment standard rules for hours of work, notice of work times, days of rest, and overtime hours.

Certification & Revocation Timelines: Specific timelines for union certification and revocation processes will be removed and replaced with a more general rule that applications should be processed as soon as possible, no later than 6 months after the date of application. The legislation will also specify when remedial certification can be used, as in instances when no other remedy is sufficient to counteract the impacts of the employer’s misconduct and the true wishes of employees can’t be determined.

Collective Agreements: Employers and unions will be able to renew a collective agreement before it expires if employees give their informed consent. And, if employees choose a new union, the existing collective agreement would still apply until it expires.

Opt-in Portion of Union Dues: The proposed changes mandate greater transparency for union spending and give employees the ability to opt-in to pay the portion of union dues that may go towards funding political parties and causes.

Complaints: When a complaint is made against an employer about an employee being unfairly terminated, the employer will be responsible for proving they did nothing wrong. The same responsibility will be placed on unions in cases of alleged coercion or intimidation.

Strikes, Lockouts and Picketing: The proposed changes will require the immediate filing of a Labour Relations Board’s order on a strike, lockout or picketing, at the request of one of the parties. During an illegal strike the Board may order employers to suspend union dues. During an illegal lockout, they may also order employers to continue to pay employees’ union dues.

Additionally, there are stricter rules proposed for picketing. Picketing would be deemed wrongful when it obstructs or impedes a person from crossing a picket line. Unions would also be required to get approval from the Labour Relations Board before picketing somewhere other than the employer’s business.

Construction Sector Changes: The Bill introduces more flexible rules for construction unions to organize their members, in an effort to help reduce employers’ administrative work associated with unionized employees. Industrial unions will be able to form “all employee units” by representing all employees who work for the same employer, regardless of their trade. This change will not affect building trade unions who will continue to certify their members on a craft-by-craft basis and international unions who will still follow existing rules in provincial collective agreements.

Conclusion

The changes detailed above are only a highlight of the total changes proposed under Bill 32 and do not represent a comprehensive list. The team at Walsh LLP is experienced in all these matters and together we can help ensure your business practices are aligned with the new changes if or when they are approved.

Questions

If you have any questions, please do not hesitate to contact Walsh LLP and speak to one of the members of our employment law team.

How to Resolve Your Case During COVID-19

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Walsh LLP’s counsel discuss how to resolve your case, even during covid-19, through court-approved means outside of court. Mediation and Arbitration are tools available to have a meeting/hearing to solve the case. Please watch and follow up with any questions: +1 (403) 267-8400.