In Summary: It's Still A Balance Of Probabilities

On February 6, 2019, the Alberta Court of Appeal released the Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd. 2019 ABCA 49 ("Weir-Jones") decision. This decision was the result of a panel of 5 judges convened to hear two summary judgment appeals, Weir-Jones and Brookfield Residential (Alberta) LP v. Imperial Oil Limited, 2019 ABCA 35. It was anticipated that this decision would provide clarification on the test for summary judgment in Alberta in light of numerous contradictory cases regarding the appropriate burden of proof.

The Court of Appeal upheld the Court of Queen's Bench decision wherein the Chambers Judge granted summary dismissal to the Defendant Purolator Courier Ltd., on the basis that the Plaintiff, Weir-Jones Technical Services Incorporated's claim was statute barred from bringing their claim as a result of the Limitations Act.

The Majority Decision

The four member majority of the panel acknowledged that since the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7 ("Hryniak"), the test for summary judgment in Alberta has been unclear. The majority cited the Can v. Calgary Police Service, 2014 ABCA 322 ("Can") and Stefanyk v. Sobeys Capital Incorporated, 2018 ABCA 125 ("Stefanyk") decisions as illustrative of this riff discussed at paragraph 12:

In Can, at paragraph 20, the Court of Appeal described the test for summary judgment as when "A party's position is without merit if the facts and law make the moving party's position unassailable...A party's position is unassailable if it is so compelling that the likelihood of success is very high."

In Stefanyk, at paragraph 17, the Court of Appeal stated that, "the issue is not whether the appellant's position is "unassailable"... The ultimate issue is whether the appellant has proven on a balance of probabilities that it is not liable for the Plaintiff's injuries."

Decisions following the analysis in Can held on to the pre-Hryniak analysis that required a higher standard of proof. The majority held that this approach is inconsistent with Hryniak because requiring a claim to be irrefutable defeats the whole purpose of the "culture shift" that was called for.

The majority clarified that the only standard of proof in civil proceedings is "on a balance of probabilities." The majority noted that the real question is not whether on the facts alone the "standard of proof" has been met, but rather if the factual basis of the claim is proven on a balance...