Careful Putting Your Best Foot Forward: Alberta Court Of Appeal Eases Access To Summary Dismissal

The Albeta Court of Appeal strengthened the post-Hryniak judicial trend in favour of the summary disposition of litigation without trial by upholding the decision of a chambers judge to grant summary dismissal without strict adherence to the applicable Rules of Court. In Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA 12, the plaintiff applied for summary judgment but failed to make its case. It saw not just its application, but its entire claim, dismissed, even though the defendant had not brought a cross-application for summary dismissal.

Background and Decision Below

The plaintiff and defendant each manufactured and sold jewellery, and had entered into a settlement agreement whereby the defendant agreed to not sell jewellery with certain unique and protected characteristics. The plaintiff claimed that the defendant violated that agreement, sued and applied for summary judgment.

The defendant opposed the plaintiff's application for summary judgment, and in its brief asked for the plaintiff's claim to be dismissed in its entirety. However, the defendant did not bring a formal cross-application for summary dismissal.

The Chambers Judge found that the record was sufficient to determine the matter summarily, but, rather than giving judgment for the plaintiff, dismissed the plaintiff's claim. The plaintiff appealed, including on the basis that (1) it was an error to grant summary dismissal in the absence of a formal application for that relief, and (2) the matter was not amenable to summary disposition based on the record before the court.

The Appeal

The majority of the Alberta Court of Appeal, Justices Berger and Schutz, applied the reasonableness standard of review for both the summary disposition decision and the interpretation of the settlement agreement, and found no reviewable error.

With respect to the first issue, they held that the Chambers Judge did not err in granting summary dismissal in the absence of a formal application, including on the following basis:

A judge in chambers is able to grant any appropriate remedy, including relief not sought in the action, pursuant to its inherent jurisdiction to control its process, s.8 of the Judicature Act and Rule 1.3 of the Alberta Rules of Court. Dismissal of the action was consistent with the approach to summary judgment urged by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7, as it was "a cost-effective, timely final resolution to this litigation which was fair and just...