The Evolution Of The Test For Summary Judgment: Old Habits Die Hard

Abstract/Introduction

In this article we explore the evolution of the test for summary judgment in Alberta over the past five years. In 2014, the Supreme Court of Canada issued its decision in Hryniak v Mauldin, 2014 SCC 7, which called for a culture shift. Instead of spending exorbitant amounts of resources and time on cases that did not warrant it, the Court asked litigators to use summary judgment as a dispute resolution mechanism more often. When there was no genuine issue requiring a trial (when a judge was able to reach a fair and just determination on the merits of the motion) summary judgment motions should be granted. Before Hryniak, if a party attempted to apply for summary judgment, all the respondent had to do was indicate there was a triable issue (even a minor one) and the application for summary judgment would fail. The case law had set a very high standard of proof on the moving party. Post 2014, the courts have, in a general sense, adopted the culture shift called for by the Supreme Court. However, Alberta courts have struggled with applying Hryniak to the summary judgment procedure laid out in the Alberta Rules of Court which requires a party to demonstrate that there is no defence or no merit to a claim. In particular, the courts have struggled with the burden of proof the moving party must meet to demonstrate there is no merit.

In 2018, the Alberta Court of Appeal released two decisions which iterated competing tests for summary judgment applications. In Sobeys v Stefanyk, 2018 ABCA 125, the Court said summary judgment applications required the moving party to prove its case on a balance of probabilities. A months later, a different panel of the Alberta Court of Appeal stated in Rotzang v CIBC World Markets Inc., 2018 ABCA 153, the test required the moving party to demonstrate its case had a "high likelihood of success" and was "unassailable" which harkened back to words used before Hryniak. After these decisions, the courts struggled with what standard should be applied. In 330626 Alberta Ltd. v Ho & Laviolette Engineering Ltd, 2018 ABQB 478 at para 41, the Court noted that "it would be helpful if the Court of Appeal could definitively resolve this issue with a five person panel in the near future."

On February 6, 2019, the Alberta Court of Appeal did just this when it decided Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49 and provided a reconciliation of the competing tests. The Court indicated the moving party must first prove the facts on a balance of probabilities and then demonstrate there was no genuine issue for trial. The onus would then shift to the non-moving party to show gaps in the evidence or that there was a genuine issue for trial. The chambers judge would then be left to exercise discretion in granting the summary judgment application. The Alberta Court of Appeal refused to impose standards like "high likelihood of success", "obvious", "unassailable", "beyond doubt", or "highly likely".

The courts are more inclined to grant summary judgment since Hryniak, however there have been challenges in defining when summary judgment should be granted. Hopefully Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., has clarify some of the issues that have arisen to make the process easier, more predictable and more accessible as the Supreme Canada directed in Hryniak.

Pre-Hryniak

Before Hryniak, summary judgment was somewhat of a rarity in litigation. The test for summary judgment was very high and the chances of success were very low. Essentially, the matter had to be absent of any triable issue in order for summary judgment to be appropriate. All the facts would essentially be agreed upon such that the application was an academic debate on the law. However, if facts were in dispute or the law itself was unsettled, the application for summary judgment would face an uphill battle. The respondent would simply argue that either the disputed facts or the law presented a triable issue and the summary judgment application would fail.

Hryniak

The Supreme Court of Canada called for a culture shift. The facts in Hryniak were...