Summary Judgment: A Tale Of Two Tests

A panel from the Alberta Court of Appeal recently issued their split decision in Whissell Contracting Ltd. v. Calgary (City), 2018 ABCA 204, on May 25, 2018. In that decision, the Court said summary judgment may be appropriate, "if the moving party's position is unassailable or so compelling that its likelihood of success is very high and the nonmoving party's likelihood of success is very low." This case came out less than two months after Stefanyk v. Sobeys Capital Inc., 2018 ABCA 125 was decided. In Stefanyk, the Court said, "there is only one civil standard of proof, and it is proof on a balance of probabilities... unassailable and very high likelihood are not recognized standards of proof." Therefore, it appears two separate tests for summary judgment have been enunciated by the Alberta Court of Appeal which may present an inconsistency in the law.

In Whissell Contracting, the plaintiff applied for summary judgment with respect to the interpretation of a construction contract. After hearing two days of argument, Justice McLeod ruled that several important facts were left unresolved on the record. Accordingly, the plaintiff's summary judgment application was dismissed. The plaintiff appealed. The panel consisting of Justice O'Ferrall, Justice Wakeling and Madam Justice Schutz, dismissed the appeal and upheld the reasoning of Justice McLeod. Given there were unresolved facts before Justice McLeod, the panel agreed that it was not possible for the learned justice to grant summary judgment on the record before him.

However, the majority, made up of Justice O'Ferrall and Justice Wakeling, indicated that summary judgment could only be granted if the moving party's position was unassailable or its likelihood of success was very high. In addition, in order to grant summary judgment, there must be an incontrovertible factual foundation. Therefore, it appears the majority outlined two pre-conditions for a successful summary judgment application. First, there must be no material facts in issue. Second, there must be a marked disparity in the relative strengths of the parties' positions. In a concurring minority decision, Madam Justice Schutz agreed with the majority's outcome...