Melting Pot Or Mosaic? The Ongoing Culture Shift Since Hryniak

Over the past year, courts across Canada have responded to the Supreme Court of Canada's clarion call in Hryniak v Mauldin ("Hryniak") for a culture shift to promote access to justice including through summary judgment.[1] The latest word on this front has come from the Alberta Court of Appeal in two recent decisions which seemingly conflict on the threshold to be applied to summary judgment applications.[2] The inherent tension created by Hryniak in Alberta is that the summary judgment rule (Rule 7.3) reflects the 2006 views of the Supreme Court of Canada: that such applications should be used to weed out claims with no chance of success. Post-Hryniak, courts are to consider summary judgment as a legitimate alternative to trial which impliedly sets a lower bar or threshold. An interesting mélange of Ontario and Albertan law has become the order of the day in Alberta - a true cultural melting pot for summary judgment.

Hryniak and Its Legacy

As previously discussed, Hryniak calls on courts to use summary judgment as a legitimate alternative to trial to enhance access to justice and do away with unnecessary expense and delay:[3]

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

Summary judgment motions provide one such opportunity.

Because the decision in Hryniak was focused on Ontario's procedure for summary judgment, courts across the country have since been addressing whether, and to what extent, Hryniak bears upon their summary judgment procedures. Notably, Nova Scotia, British Columbia and the Federal Courts have expressly rejected the direct application of Hryniak in their respective jurisdictions while generally acknowledging the values and principles discussed in Hryniak, a form of common law cultural mosaic.[4]

In Alberta, it is increasingly apparent that aspects of Ontario's Rule 20 - as applied in Hryniak - have influenced the approach taken to summary judgment. Alberta was an early adopter of Hryniak: "the Supreme Court of Canada is preaching to the converted, if part of its target audience includes Alberta's superior courts."[5] Indeed, following on the heels of the decision in Hryniak, the Alberta Court of Appeal stated that it was consistent with Alberta's summary judgment practice.[6]

Alberta: A Melting Pot of Summary Judgment Culture

However, the jurisprudence in Alberta with respect to summary judgment is not a straightforward application of Ontario's Rule 20. Justice Wakeling of the Alberta...