Alberta Court of Appeal Restates the Test for Summary Judgment

On February 6, 2019, a five-justice panel of the Alberta Court of Appeal (Court) issued its eagerly awaited decision in Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd. (Weir-Jones). The Court restated the test for summary judgment in Alberta, providing much needed certainty to litigants seeking a proportionate and timely end to disputes.

BACKGROUND

The Alberta Court of Appeal has recently issued contradictory decisions regarding the test for summary judgment. Specifically, a rift emerged in the jurisprudence of the Court regarding the standard of proof that must be met by the party moving for summary judgment.

Some cases previously held that a moving party must demonstrate an "unassailable" position to obtain summary judgment while others cited the requirement to establish a civil standard of proof on the balance of probabilities.

The state of the law was uncertain and, in order to settle the law in Alberta, a five-justice Court was impaneled to hear Weir-Jones.

DECISION

The majority rejected the “unassailable” standard and restated the law in Alberta regarding the availability of summary judgment pursuant to Rule 7.3 of the Alberta Rules of Court. In doing so, the majority returned to the principles from the Supreme Court of Canada’s landmark decision in Hryniak v. Mauldin, which called for a shift in culture in favour of more proportionate, timely and affordable procedures.

The majority held that for a fair and just determination to me made, the record and issues must allow the motions judge to make the necessary findings of fact and apply the law to the facts. Moreover, summary disposition must be a proportionate, more expeditious, and less expensive means to achieve a just result.

After a review of the core principles relating to summary judgment, the majority delineated the key considerations in determining whether summary judgment is appropriate, as follows:

1. Genuine Issue Requiring a Trial. Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?
2. Standard of Proof. Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level, the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for summary adjudication.
3. Shifting Burden. If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial, summary disposition is not available.
4. Judicial Discretion. In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute.

The majority clarified that the above criteria are not sequential in nature. The presiding judge may determine that summary adjudication is inappropriate or unfair at any stage of the analysis.

CONCLUSION

Summary judgment is a critical tool for litigants seeking an early resolution to disputes. This decision provides much needed certainty regarding the availability of summary judgment in Alberta and, in doing so, permits litigants to develop a proactive and proportionate dispute resolution strategy.

For further information, please contact:

Dalton W. McGrath, Q.C.            403-260-9654
Michael O’Brien                         403-260-9753
Geoff Adair                               403-260-9601

or any other member of our Litigation & Dispute Resolution group.