Court of Queen ’ s Bench of Alberta Citation: Bonsma v. Tesco Corporation, 2011 ABQB 620 Date: 20111007 Docket: 0503 13423 Registry: Edmonton Between: Clarence Bonsma Plaintiff/respondent - and - Tesco Corporation Defendant/applicant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R. A. Graesser _______________________________________________________ I. Introduction [ 1 ] The Defendant Tesco Corporation applies for an order directing that this matter be heard by way of

summary trial pursuant

Part 7, Division 3 of the Alberta Rules of Court . II. The Action [ 2 ] Tesco employed the Plaintiff Clarence Bonsma as a top drive technician. Mr. Bonsma resigned on November 18, 2004. Mr.

Bonsma claims $210,000, plus interest under the headings of general, aggravated, punitive and special damages, on the basis that he was constructively dismissed due to a decrease in work opportunity from July 2004 to November 2004. Mr. Bonsma alleges that Tesco used its ability to restrict the provision of work to him to punish him for making a successful claim through the Alberta Human Resources and Employment, Employment Standards Office for outstanding general holiday pay that Tesco owed him. [ 3 ] Mr. Bonsma commenced this action on August 4, 2005. Tesco filed a Statement of Defence on August 25, 2005.

The parties exchanged affidavits of records. [ 4 ] Questioning of Bradley James Bullick, Tesco's corporate representative, was held on March 6, 2007 and March 7, 2007. Questioning of Lina Runquist, a former employee of Tesco in Tesco's human resources department, was held on May 19, 2011. Questioning of Mr. Bonsma, was held on March 7, 2007. [ 5 ] Both parties have complied with their undertakings arising from the questioning. Questioning on undertakings of Mr.

Bullick was held on June 18, 2009 and June 19, 2009, and on May 19, 2011. [ 6 ] On June 28, 2011, it was determined that this matter was ready to be set down for trial. The case management judge on this file, Justice E.F. Macklin, ordered that this application be scheduled for one (1) day in September, 2011, to determine whether the claim as a whole is appropriate for judgment by way of

summary trial. Macklin J.’s order further directed the parties to arrange 3 or 4 days in November or December, 2011 “in the event that the matter is deemed appropriate for judgment by way of

summary trial”, and 3 weeks in the spring of 2012 for full trial of the matter “in the event that it is determined by the Court that a full trial is required.” [ 7 ] In support of this application, Tesco relies on Mr. Bullick’s Affidavit, which was filed March 10, 2011, and excerpts from the transcripts from Mr. Bonsma’s questioning. III. Material Facts [ 8 ] Tesco argues that all of the relevant facts on this matter are contained in Mr. Bullick’s Affidavit. The key facts from Tesco’s point of view are summarized as follows: (

a) Tesco employed Mr. Bonsma for approximately 4 years from August 25, 2000 until his resignation on November 18, 2004. While Tesco employed him, Mr. Bonsma held the position of top drive technician and was based in Edmonton, Alberta; (

b) Mr. Bonsma signed an employment agreement on his commencing his employment with Tesco on August 25, 2000. Mr. Bonsma understood the terms of this Employment Agreement at the time of he executed it. The terms included, among other things: (

i) Mr. Bonsma would receive pay for work he performed but would not be paid when he was not assigned a job or was not in training ; (ii) the availability of work for Mr. Bonsma would depend on the needs of clients and there was no commitment, guarantee or representation on Tesco’s part to provide any determinate amount of work; (

c) Tesco regarded Mr. Bonsma, at all times, as a competent and capable employee;

(

d) In January 2004, Mr. Bonsma claimed general holiday pay owed to him by Tesco through the Alberta Human Resources and Employment, Employment Standards Office; (

e) Mr. Bonsma was successful in his claim and Tesco paid outstanding general holiday pay to Mr. Bonsma in July 2004; (

f) On his receipt of the general holiday pay, Mr. Bonsma signed an Irrevocable Release and Discharge in favour of Tesco; (

g) Between July 29, 2004 and the day of his resignation, November 18, 2004, Mr. Bonsma did not work and received 4 days of paid training in September 2004; (

h) Tesco argues that the reduction in work available for Mr. Bonsma between July 29, 2004, and November 18, 2004, correlates with the cyclical nature of Tesco's business and the domestic oilfield drilling industry as a whole. Mr. Bonsma understood prior to, and during the tenure of his employment with Tesco, that more work would be available during fall and winter than during spring and summer, and Mr. Bonsma, throughout his employment with Tesco, like the vast majority of Tesco's field personnel, experienced long periods without work when Tesco's business was slow; (

i) On July 24, 2004, Tesco offered Mr. Bonsma an overseas assignment in the Czech Republic which ended on October 13, 2004. Mr. Bonsma refused to take that assignment; (

j) On September 23, 2004, and October 21, 2004, Tesco left Mr. Bonsma messages offering him work assignments, which assignments were taken by other employees of Tesco before Mr. Bonsma contacted Tesco; (

k) On October 25, 2004, Mr. Bonsma informed Tesco that he was undertaking a new business venture and requested 3 weeks' vacation time commencing immediately to pursue that venture. Tesco granted that request; (

l) On November 18, 2004, Mr. Bonsma contacted Tesco and resigned; (

m) Had Mr. Bonsma continued his employment until the end of 2004, his earnings in 2004 would have been substantially similar to his earnings from Tesco in previous years; and (

n) Mr. Bonsma made no efforts to secure alternate employment between the date of his resignation and the date on which he was questioned by Tesco's counsel, March 7, 2007. [ 9 ] Mr. Bonsma challenges many of these alleged material facts. He alleges that there has been a lack of disclosure, and the disclosure that Tesco has provided is inaccurate and incomplete and, in some cases, falsified. As well, Mr. Bonsma contests the fact that he was offered assignments, as Tesco has suggested. He intends to call witnesses to “flesh-out” the gaps in the disclosure. [ 10 ] Mr. Bonsma also questions Mr.

Bullick’s credibility, both with respect to his Affidavit from which the foregoing material facts emanate, along with the transcript of his questioning. IV. Issue [ 11 ] The only issue to be determined in this application is whether this matter is appropriate for judgment by way of

summary trial. While Macklin J.’s June 28, 2011 order directed a 3 or 4 day hearing for a

summary trial, or 3 weeks for a full trial, I do not see that

the effect of his order is to fetter my discretion (as the judge hearing the application for

summary trial) or the eventual trial judge (whether at a

summary or regular trial) to order viva voce [1] evidence or receive whatever evidence (in any form) that may be determined relevant to any of the issues to be resolved at trial. V. Argument [ 12 ] Tesco frames the issues to be determined in this action as follows: (

i) whether Mr. Bonsma was constructively dismissed by Tesco; and (ii) if so, Mr. Bonsma’s entitlement to damages and the quantum of damages, if any, arising from his alleged constructive dismissal. [ 13 ] Mr. Bonsma frames the issues differently. He says the issues in the trial are as follows (taken directly from his brief): The issues to be determined in this action relate to the termination of the Plaintiff’s employment from the Defendant after 69 consecutive days of no job assignments. The issues are as follows: (

i) whether the Plaintiff was wrongfully dismissed by the Defendant on the basis that the Plaintiff was not allocated job assignments by the Defendant in retaliation for the Plaintiff having made a complaint to Alberta Immigration and Employment under the Employment Standards Code ; (ii) whether the Defendant properly applied the Code's Temporary Layoff Provisions; (iii) whether the Defendant complied with Code sections 16 and 19 in the allocation of job assignments to field employees in general and during the period of time that the Plaintiff was not awarded any job assignments; (iv) whether Tesco's termination policies as they relate to their oilfield rental division employees complies with the intentions and mandate of the Code ; (

v) whether the Temporary Layoff Provisions of Alberta's Labour Code are legally acceptable under common law; (vi) whether Alberta Employment Standards has a legal obligation to enforce Code sections 89 and 125 and inform claimants of their rights when employees make claims while still employed or after termination if the claimant expresses concerns about retaliation; (vii) whether the Defendant's representatives committed perjury; and (viii) the Plaintiff's entitlement to and quantum of damages arising from his constructive dismissal. [ 14 ] As is often the case, the real issues for trial may not be exactly as described by the parties.

It is not uncommon for one of the parties to frame the issues narrowly, and the other party to perceive an advantage to raising a number of issues (whether by way of multiple claims or alternative defences). That appears to be the case here. Tesco frames the issues very narrowly: the

interpretation of the

Employment Agreement, whether it was breached by Tesco, and whether Mr. Bonsma has suffered any recoverable loss. To them, this is a narrow dispute between it and a former employee. [ 15 ] Mr. Bonsma sees the dispute much more broadly and considers that it goes beyond his differences with Tesco and raises policy and legislative validity issues. [ 16 ] From my reading of the materials submitted by the parties in respect of this application is that to adjudicate Tesco’s defences, the trier of fact will have to: (

a) interpret the Employment Agreement - did it give Tesco the unfettered right to assign work to Mr. Bonsma or not, even in a discriminatory, arbitrary or unfair manner? (

b) decide if there were limits on Tesco’s assignment rights, Tesco exceeded those limits by retaliating against Mr. Bonsma for the holiday pay issues he took to Alberta Employment Standards; (

c) determine the applicability of various provisions of the Employment Standards Code ; (

d) determine if Tesco breached the Employment Standards Code in any way as it relates to Mr. Bonsma; (

e) decide if any contractual limitations were exceeded, whether Mr. Bonsma was entitled to consider that he had been constructively dismissed; (

f) decide if Mr. Bonsma was offered assignments by Tesco in good faith between July 29, 2004 and November 19, 2004; (

g) decide if Mr. Bonsma resigned from Tesco on November 19, 2004 to pursue other opportunities as opposed to being constructively dismissed by Tesco; (

h) determine whether Mr. Bonsma fail to mitigate his damages by refusing contract employment with Tesco, or by failing to seek out alternate employment; (

i) assess Mr. Bonsma’s damages, if any; and (

j) determine the effect on Mr. Bonsma’s claim, if any, of the release he signed in favour of Tesco when he was paid the monies determined to be owed to Mr. Bonsma arising out of the holiday pay dispute. [ 17 ] There may be more issues, but these are the ones that strike me as relevant from my limited involvement in this matter. [ 18 ] Tesco denies that it constructively dismissed Mr. Bonsma; it denies retaliating against him; it alleges that Mr. Bullick offered him a significant work assignment in the Czech Republic which Mr. Bonsma declined to accept; it alleges that Mr.

Bullick offered him other assignments, but that those opportunities were gone by the time Mr. Bonsma returned Mr. Bullick’s calls; it alleges that Mr. Bonsma resigned and told Mr. Bullick that he was starting his own business; and it alleges that Mr. Bullick offered him a contract position for the winter of 2004-2005 but Mr. Bonsma turned that down, thereby failing to mitigate his damages.

[ 19 ] Mr. Bonsma, as plaintiff, bears the onus of establishing that he was constructively dismissed, and if he succeeds in doing so, he must prove his damages. Tesco bears the onus of establishing that Mr. Bonsma has failed to mitigate his damages, and to quantify any such failure. [ 20 ] Mr. Bonsma differs with Tesco on the

interpretation of the Employment Agreement, and in particular argues that it yields to the provisions of the Employment Standards Code . He challenges the validity of portions of the Code. He maintains that Tesco had an obligation to provide him with work, and that it could not decline to offer him work in retaliation for his having taken Tesco to Alberta Employment Standards to resolve a holiday pay dispute. [ 21 ] Mr. Bonsma disputes that he was treated in accordance with Tesco’s work assignment policies, which were described by Mr.

Bullick in para. 24 of his Affidavit as including skill, experience, equipment knowledge, availability, performance, rotation and client requests. Mr. Bonsma argues that he has a number of witnesses (past and present Tesco employees) who will testify about Tesco’s policies and how they were treated during the relevant period. He also intends to call several senior Tesco managers as to this policy and its application. [ 22 ] He disputes that any offers of work to him during the relevant period were made in good faith by Mr. Bullick, and he disputes telling Mr.

Bullick that he was resigning to pursue other opportunities. [ 23 ] Mr. Bonsma alleges that during the relevant period, Tesco had ample work available to it; he could have been assigned to work; Tesco favoured some employees; and Tesco breached various provisions of the Employment Standards Code (in particular hours of work, time off and temporary lay-off provisions) and if Tesco had obeyed these statutory obligations it could have provided ample shifts for other workers such as himself. VI. Law [ 24 ]

Summary trials are dealt with in Rule 7.5. It provides: 7.5(1) A party may apply to a judge for judgment by way of a

summary trial on an issue, a question, or generally.

(2) The application must (

a) be in Form 36, (

b) specify the issue or question to be determined, or that the claim as a whole is to be determined, (

c) include reasons why the matter is suitable for determination by way of

summary trial, (

d) be accompanied with an affidavit or any other evidence to be relied on, and (

e) specify a date for the hearing of the

summary trial scheduled by the court clerk, which must be one month or longer after service of notice of the application on the respondent.

(3) The applicant may not file anything else for the purposes of the application except (

a) to adduce evidence that would, at trial, be admitted as rebuttal evidence, or (

b) with the judge’s permission.

[25] The respondent can either agree with the process and file materials under R. 7.6, or object under R. 7.8: 7.8(1) The respondent to an application for judgment by way of a

summary trial may object to the application at or before the hearingof the application on either or both of the following grounds: (

a) the issue or question raised in the claim, or the claim generally, is not suitable for a

summary trial; (

b) a

summary trial will not facilitate resolution of the claim or any part of it.

(2) Notice of the objection and anything on which the objector intends to rely must be filed and served on the applicant 5 days ormore before the objection is scheduled to be heard.

(3) The judge must dismiss the objection if, in the judge’s opinion, (

a) the issue or question raised in the claim, or the claim generally, is suitable for a

summary trial, and (

b) the

summary trial will facilitate resolution of the claim or a part of it. Mr. Bonsma elected the latter course. [26] From the wording of R. 7.8, it appears that an applicant is entitled to apply for

summary trial, and the issue, question or claimas a whole is to be determined at

summary trial unless the judge is of the opinion that the matter is suitable for

summary trial and the

summary trial will facilitate resolution of the claim R.7.8(3). [27] I do not see that the new Rules have done anything to make the previous case law inapplicable to the determination as tosuitability. If anything, with the foundational rules emphasizing proportionality, efficiency, economy and expedience, processes likesummary trials should be encouraged. Nevertheless, the process must still be suitable and likely to facilitate resolution of the claim. [28] Counsel for Tesco has put various cases on point before me, being Pecek v. Fedun, 2007 ABQB 133, Duff v.

Oshust, (2005),2005 ABQB 117 , 381 A.R. 386, Compton Petroleum Corp. v. Alberta Power Ltd., (1999), 1999 ABQB 42 , 242 A.R.3 and 590988 Alberta Ltd. v. 728699 Alberta Ltd., 1999 ABQB 227. [29] In Duff v. Oshust, Read J. summarized the factors to be considered on an application for

summary trial: 1. the amount involved; 2. the complexity of the matter; 3. its urgency; 4. any prejudice likely to arise by reason of delay; 5. the cost of taking the case forward to a conventional trial in relation to the amount involved; 6. the course of the proceedings; 7. whether all witnesses or only some were (will be) cross-examined in court; 8. whether there is a real possibility that the defendant can bolster its evidence by discovery of the plaintiff's documents andwitnesses; and

9. whether the resolution will depend on findings of credibility. (at para. 24) [30] There, Read J. held at para. 30: [30] While I have taken into consideration all of the factors listed above, in my view, the critical factor in this case is the credibility andreliability of the Applicant and her experts. That the resolution of the dispute depends on credibility does not preclude it from precedingby way of

summary trial: see J.N. supra at para. 43; Compton supra at para. 15. However, if a

summary trial potentially involvesextensive cross-examination of the Applicant and her expert, one must consider if the

summary trial process will assist in the efficientresolution of the matter. [31] She held at para. 38: [38] As a consequence, I have concluded that in the within case, a

summary trial is not appropriate. The laudable goal of shortening andsimplifying the trial will not result if a

summary trial is ordered in this matter. I therefore dismiss the application. The matter willproceed by jury trial as previously ordered. [32] Wachowich A.C.J. (as he then was) considered Oshust in Pecek v. Fedun, although on the facts of that case, WachowichA.C.J. allowed the

summary trial to proceed in the face of conflicting evidence. [33] He noted at paras. 13 and 14: [13] I do not agree. Despite the Defendants’ arguments to the contrary, the courts have often allowed actions to proceed by

summarytrial despite the presence of conflicting affidavit evidence. In my view, a

summary trial is appropriate in the face of conflicting evidenceprovided that the Court is presented with a factual matrix on which it can justly prefer one party’s evidence over that of the other: 590988Alberta Ltd. v. 728699 Alberta Ltd., 1999 ABQB 227 , [1999] A.J. No. 329. [14] Support for my position is also found in the decision of my predecessor, Moore C.J., in Adams, supra. In that case, the former ChiefJustice ruled (at para. 26) that: Although the

summary trial process permits a judge to make findings of fact on conflicting evidence, the findings of fact must be inaccordance with general principles which govern judges in their daily task of ensuring that justice is done and in accordance with theRule itself. [34] He noted that the primary issue there was a contest between 2 financial experts on the calculation of the plaintiff’s damages. [35] Shortly after the Rules of Court were amended to introduce

summary trials to Alberta, Paperny J. (as she then was) discussedthis process in Compton v. Alberta Power. It is clear that the process she considered involved the evidence being presented by way ofaffidavits. Paperny J. noted that the new practice expressly allowed the

summary trial judge to grant judgment in the face of conflictingevidence (at para. 14), also noting that the court “can order the deponents to be cross-examined before it”. [36] At para. 24, she dealt with the conflicts in the evidence in the case before her, and concluded that she had “sufficient evidencebefore me to determine the issues. Accordingly, not hearing oral evidence on the point in conflict does not render the process unjust.”She went on to deal with the matter on the merits and granted judgment on all issues. [37] In 590988 Alberta v. 728699 Alberta, another early case dealing with

summary trials, Belzil J. held at para. 22:

[22] It seems to me that the British Columbia authorities dealing with British Columbia Rule 18A essentially stand for the proposition that a

summary trial disposition ought not to be granted unless there is essentially a factual matrix within which a judge can prefer one set of facts over the other and come to factual findings. In the case before me, it is apparent, when I examine the Affidavits and the Discovery transcripts that the parties are not in agreement factually as to what transpired other than the fact that discussions took place. [ 38 ] He continued at para. 23 and 24: [23] It seems to me, accordingly, that it would be premature to make a finding on this evidence, and, moreover, it becomes apparent when one examines the nature of this dispute, that credibility will play a key

part in ultimately deciding liability. Moreover, other witnesses, including Roland Bilodeau, may have important evidence to give to the Court, and for the purposes of the

summary trial, nothing was presented from them. As such, the evidence before me is not complete in material respects. [24] There are a number of significant issues to be decided in this litigation including whether there was an agreement, and if so, what were the terms, whether the Statute of Frauds applies, and if so, whether the doctrine of part performance applies. In addition, there are damages issues to be addressed which cannot be resolved on this evidence. [ 39 ] Much was made before me as to the difference between

summary trial and full trial. It was conceded by Mr. Corry on behalf of Tesco that there might have to be some viva voce evidence to resolve credibility issues between Mr. Bullick and Mr. Bonsma. I confess to being unable to make a bright line distinction between a

summary trial where there will be some viva voce evidence in addition to the parties’ affidavit evidence, and a full trial where the evidence will often go in with an agreed statement of facts, agreed documents and viva voce evidence to supplement those. [ 40 ] Essentially, the difference here is that Tesco wants to limit the witnesses to Mr. Bullick and Mr. Bonsma and to have a 3 or 4 day process; Mr. Bonsma wants no particular limit on the number of witnesses he can call. [ 41 ] Indeed, from the number of witnesses proposed by Mr.

Bonsma and his estimate of time for direct examination and cross- examination, the 3 weeks ordered to be set aside for full trial of the matter may be inadequate, subject to pre-trial management of the matter. [ 42 ] The issue for me really boils down to whether

summary trial is appropriate or suitable here, and whether it is likely to resolve some or all of the issues between these parties. VII. Analysis [ 43 ] It is clear that the matter is not as simple as Tesco suggests. Mr. Bullick’s credibility is critical to some of their defences. Tesco could likely eliminate the need for Mr. Bullick to testify if the only issue to be determined at trial was the

interpretation of the Employment Agreement. Tesco does not need Mr. Bullick’s evidence if the Employment Agreement permitted Tesco to do anything it wanted, fair or not, with respect to assigning work to Mr. Bonsma. But Tesco also relies on its alternative argument: that it complied with its policies in how work was assigned to its employees and to Mr. Bonsma in particular. [ 44 ] During the relevant period, Tesco had 43 employees (para. 27 of Mr. Bullick’s affidavit) and according to Mr.

Bullick, had some 770 operating days to be divided amongst those employees between the beginning of July and the end of November, 2004. [ 45 ] This information is disputed by Mr. Bonsma, who argues that these figures do not include foreign work which forms a large part of Tesco’s business. He also takes issue with the assignments to his co-workers during this period, claiming that his knowledge, experience, equipment knowledge, performance and rotation should have resulted in some assignments going to him.

[ 46 ] With these issues, which clearly arise from the pleadings and the parties’ stated positions, I cannot imagine that the trial, in whatever format, could not allow Mr. Bonsma (in some fashion) to question Mr. Bullick about each work assignment during that period, and compare his own knowledge, experience, equipment knowledge, performance and rotation with the assigned employee’s. This issue alone is not consistent with a

summary trial process, which is intended to avoid, or at least minimize, viva voce evidence and extensive cross-examinations. [ 47 ] It is notable that Mr. Bonsma appears to intend to partly prove his case (and rebut Tesco’s defences) through current or former Tesco employees. Only one of his intended witnesses is not a current or former Tesco employee. Mr. Bonsma says that he intends to refute Mr.

Bullick’s evidence that he was treated in accordance with Tesco’s policy by calling a number of these witnesses to demonstrate how they were treated by Tesco, and what their qualifications, experience and performance were. He intends to call others to challenge Mr. Bullick’s evidence about Tesco’s policies; and he intends to call others to challenge Mr. Bullick’s credibility, especially with respect to document production issues during this lawsuit. [ 48 ] Mr. Corry argues that document production issues are irrelevant and res judicata [2] because production is complete and the matter has been case managed.

I do not disagree with that position as it relates to requiring Tesco to produce more documents or records. But I do not see that a determination by the case management judge that there need be no further production of documents and that the matter should proceed to trial precludes one of the parties from raising production issues in the context of credibility or spoilation, for example.

Document production during the course of the litigation may also be relevant to the determination of costs following the trial, as litigation conduct is a factor in assessing costs. [ 49 ] Parties often are able to (or must) prove their cases through cross-examination of the other party or the other party’s witnesses. Sometimes, they must call employees of the opposing party to prove elements of their case. Mr. Bonsma does not have to accept Mr. Bullick’s evidence as to what Tesco’s policies are, or the extent to which Tesco follows that policy. Mr.

Bullick saying it is so doesn’t necessarily make it so. [ 50 ] To the extent that Tesco’s notion of a

summary trial is one where there is no viva voce evidence, or viva voce evidence is limited to that of Mr. Bullick and Mr. Bonsma, that is too narrow a view of the issues in this matter, and would deprive Mr. Bonsma of the opportunity to present evidence to contradict that of Mr. Bullick. [ 51 ] Indeed, it seems to me that apart from the

interpretation of the Employment Agreement, the issues as to Tesco policy and whether Mr. Bullick followed Tesco policy, and otherwise treated Mr. Bonsma in accordance with its obligations under the Employment Agreement and at law will be highly dependent on the trier of fact’s views on Mr. Bullick’s credibility. And issues surrounding the offers of assignments made to Mr. Bonsma, his responses and whether Mr. Bonsma told Mr. Bullick he was quitting to pursue other opportunities will turn on Mr. Bullick’s and Mr. Bonsma’s credibility. [ 52 ] Tesco is not prepared to defend the case solely on its

interpretation of the Employment Agreement and abandon alternate defences. They argue that the Employment Agreement gives them a completely free hand in work assignments to Mr. Bonsma because of the specific wording in it. That issue would be amenable to

summary trial as it would involve limited facts and would turn on principles of

interpretation and the interplay between a private employment agreement and the Employment Standards Code . But they also want to argue the alternative position that Tesco followed its policies, suggesting that its policies may bear on the

interpretation of the Employment Agreement and their rights and obligations under it. The latter position requires evidence to establish the policies, and evidence to establish compliance with those policies. [ 53 ] Testing credibility is not simply about pitting one witness against another. A witness’s evidence can also be tested against the evidence of other witnesses and against documentary evidence. Mr. Bonsma believes that he has evidence to present, through other witnesses and documents, that will be relevant to Mr.

Bullick’s credibility. [ 54 ] In my view, and I hold, that this case does not have a “factual matrix within which a judge can prefer one set of facts over the other and come to factual findings” as was considered essential to a

summary trial by Belzil J. in 590988 Alberta v. 728699 Alberta .

[ 55 ] As was the case in Duff v. Oshust , the trial will require extensive cross-examination of Mr. Bullick, and likely of Mr. Bonsma. These cross-examinations are likely to be lengthy, and not amenable to a brief cross-examination on only one of the issues. Virtually all facts are in issue, and it would be impractical if not impossible to require Mr. Bonsma to put his entire case in affidavit form, or to require that Tesco put all of its responses to Mr. Bonsma’s allegations and evidence in affidavit form. [ 56 ] As noted by Moore, C.J. ( quoted by Wachowich A.C.J. in Pecek v.

Fedun ) “the findings of fact must be in accordance with general principles which govern judges in their daily task of ensuring that justice is done”. I do not see how justice can be done in this case if there are artificial limits imposed on the manner in which the parties (or either of them) may present their cases, or limit their ability to make their cases through witness testimony and cross-examination of opposing witnesses. [ 57 ] As a result, this is not a case that is suitable for

summary trial.

Summary trial is not a procedure which will result in the resolution of the issues in a fair or reasonable manner. [ 58 ] Answers to the tests set out in Duff are instructive: 1. the amount involved: the amount involved here (over $200,000.00) is a significant amount for an individual, a factor favouring full trial; 2. the complexity of the matter: the matter is not particularly complex; it involves credibility issues, contract and statutory

interpretation issues, but no expert evidence, a factor favouring

summary trial; 3. its urgency: the matter is not urgent, a factor favouring full trial; 4. any prejudice likely to arise by reason of delay: no one will be prejudiced by any delay, a factor favouring full trial; 5. the cost of taking the case forward to a conventional trial in relation to the amount involved: this is a factor that usually favours

summary trial; here, many matters where the amount in issue is $200,000 or less (matrimonial property, personal injury) proceed to full trial; so long as the trial can be managed effectively and kept to 3 weeks or less, this is a neutral factor; 6. the course of the proceedings: the proceedings have been hotly contested; Mr.

Bonsma described difficulties in getting satisfactory document production; the matter has been case managed; the case management judge waived an alternative dispute resolution process; all of these factors suggest that a full trial will be necessary to resolve the issues in a fair and reasonable manner; 7. whether all witnesses or only some were (will be) cross-examined in court: Mr. Bonsma will undoubtedly cross-examine all Tesco witnesses; Tesco will undoubtedly want to cross-examine Mr. Bonsma extensively and will likely have questions of any Tesco personnel that Mr.

Bonsma subpoenas and examines; this is a factor favouring full trial; 8. whether there is a real possibility that the defendant can bolster its evidence by discovery of the plaintiff's documents and witnesses (and vice versa) (my addition): this is a factor Mr. Bonsma will rely on heavily to make his case, favouring full trial; and 9. whether the resolution will depend on findings of credibility: after

interpretation of the Contract of Employment, credibility will likely be the most important factor on the other issues in resolving the matter, a factor favouring full trial. [ 59 ] As noted above, I do not think it is appropriate to characterize a trial where there will be extensive viva voce evidence, even if it were limited to the parties, as a

summary trial.

Summary trial suggests that presenting the necessary evidence can be accomplished mainly through affidavits and agreed facts. Limited cross-examinations might be possible, still within the framework of a

summary trial. But where credibility affects most of the issues, and can only be fairly resolved by examination in chief and cross-examination,

summary

trial would be such in name only and not in substance. [ 60 ] This is not one of those cases where credibility findings affect only one issue and can be resolved through brief viva voce testimony, or comparing expert reports (as was the case in Pecek v. Fedun ). [ 61 ] “Full trial” does not mean that there can be no restrictions on the number of witnesses, or the issues which may be discussed and argued at trial. Only relevant evidence is admissible, and relevance is determined by the pleadings, and the real issues in dispute, in keeping with Rule 1.2(3):

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, [ 62 ] Mr. Bonsma has raised a number of issues that do not appear relevant to the real issues in dispute, such as whether Alberta Employment Standards properly handles complaints generally or specifically against Tesco and whether Employment Standards properly enforces the Code against employers generally or Tesco specifically.

The validity of provisions of the Code (as opposed to the applicability of various Code provisions to the manner in which Tesco treated Mr. Bonsma) is not likely to be a relevant issue at trial. Nor is the question of perjury. The trier of fact will undoubtedly have to make credibility findings, but it is for another court on another day and in another process to determine if anyone has perjured him or herself in these proceedings.

Those issues, witnesses relating to those issues, and questions relating to those issues, are unlikely to be dealt with at the trial. [ 63 ] This is a matter that will continue to require extensive case management to ensure the parties identify the real issues for trial, and deal only with those issues. A case management judge, as well as the trial judge, has the jurisdiction to order which issues are to proceed to trial, and which issues are not.

A case management judge, as well as the trial judge, has the jurisdiction to strike notices to attend, if the witness is not expected to provide relevant testimony. [ 64 ] Mr. Corry indicated that he would resist notices to attend on some of the Tesco personnel that Mr.

Bonsma intends to call at the trial, both as to relevance as well as solicitor-client privilege issues regarding in-house counsel. [ 65 ] The matter should proceed to a 3 week trial in the spring of 2012. [ 66 ] Until a trial judge has been appointed, the matter should be continued to be case managed by Macklin J. or any successor designated by the Associate Chief Justice. VIII. Comments on Self-represented Litigants and

Summary Trials [ 67 ] There is no reason why a self-represented litigant cannot adequately participate in

summary trials, where appropriate, and indeed be ordered to participate in a

summary trial process. The fact that Mr. Bonsma is self-represented is not of itself a reason to deny the other party the opportunity to resolve a matter using this process when it is suitable. And self-represented litigants have no more right to full trial than do represented litigants. All are subject to reasonable restrictions on the issues to be tried and the extent to which and manner in which those issues can be presented at trial. [ 68 ] Trial time is a limited resource that must be shared equitably amongst all litigants.

[ 69 ] Mr. Bonsma is aware of the cost risks he faces in the event he is unsuccessful in obtaining a damage award against Tesco. He is aware that he may be successful, but recover little by way of damages. He is also aware that he may be successful in establishing constructive dismissal, but be awarded no damages because of the failure to mitigate issue raised by Tesco. IX. Conclusion [ 70 ] Tesco’s application for

summary trial is dismissed. Mr. Bonsma should have costs of this application in any event of the cause, but in an amount to be determined by the trial judge and payable after trial. Heard on the 30 th day of September, 2011. Dated at the City of Edmonton, Alberta this 6 th day of October, 2011. Robert A. Graesser J.C.Q.B.A. Appearances: Clarence Bonsma, Respondent appeared on his own behalf David Corry and Ethan Sinclair Gowling Lafleur Henderson LLP for Tesco Corporation, Applicant [1] oral questioning of witnesses, oral examination or cross-examination [2] already decided