Recent Developments on the Test for Summary Judgment in Canada Peter Banks, BLG Thursday, May 30, 2019

Traditional test A “culture shift” called for by SCC in Hryniak v. Mauldin, 2014 SCC 7 Post-Hryniak fall out Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd., 2019 ABCA 49 – panel of 5 Court of Appeal to clarify test Outstanding issues

Traditional Test

Traditional Test Rule 7.3 of Alberta Rules of Court 7.3(1) A party may apply to the Court for summary judgment in respect of all or part of a claim on one or more of the following grounds: (a) there is no defence to a claim or part of it; (b) there is no merit to a claim or part of it; (c) the only real issue is the amount to be awarded. 7.3(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

Traditional Test Canada (Attorney General) v. Lameman, 2008 SCC 14 “10 […] The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. 11 For this reason, the bar on a motion for summary judgment is high.”

Traditional Test For example: Case law set a very high standard of proof For example: “plain and obvious” “clearest of cases” “beyond doubt” “obvious” “incontrovertible” “no triable issue” “bound to fail”

A “culture shift” called for by Supreme Court of Canada: Hryniak v A “culture shift” called for by Supreme Court of Canada: Hryniak v. Mauldin, 2014 SCC 7

A “culture shift” called for by Supreme Court of Canada: Hryniak v A “culture shift” called for by Supreme Court of Canada: Hryniak v. Mauldin, 2014 SCC 7 Landmark case “Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted.” (para 1) “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.” (para 2) Culture shift

A “culture shift” called for by Supreme Court of Canada: Hryniak v A “culture shift” called for by Supreme Court of Canada: Hryniak v. Mauldin, 2014 SCC 7 “Canadians cannot afford to access the adjudication of civil disputes.” (para 24) “The full trial has become largely illusory” (para 24)

A “culture shift” called for by Supreme Court of Canada: Hryniak v A “culture shift” called for by Supreme Court of Canada: Hryniak v. Mauldin, 2014 SCC 7 “When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective.” (para. 50) “It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute”(para. 50)

A “culture shift” called for by Supreme Court of Canada: Hryniak v A “culture shift” called for by Supreme Court of Canada: Hryniak v. Mauldin, 2014 SCC 7 Road Map for Summary Judgment The test for summary judgment must focus on whether there is a genuine issue that requires a trial There is no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits This will be the case when the summary judgment process: allows the judge to make the necessary findings of fact; allows the judge to apply the law to the facts; and is a proportionate, more expeditious and less expensive means to achieve a just result

Post-Hryniak Fall Out

Post-Hryniak Fall Out Example #1 - Can v. Calgary Police Service, 2014 ABCA 322 – the standard is “unassailable” “Summary judgment is appropriate if the nonmoving party’s position is without merit. Alberta Rules of Court, r. 7.3. “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.” (para 20)

Post-Hryniak Fall Out Example #2 - Stefanyk v. Sobeys Capital Incorporated, 2018 ABCA 125 – the standard is not unassailable “17 Therefore, in this appeal the issue is not whether the appellant’s position is “unassailable”. The first question is whether the record is sufficient to decide if the appellant is liable for the plaintiff’s injuries. There are no material facts in dispute, no overwhelming issues of credibility, and the court is able to apply the law to the facts. It is unlikely that the cost and expense of a trial is justified because of an expectation of a significantly better record. In this case summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result, and therefore it is an appropriate procedure. The ultimate issue is whether the appellant has proven on a balance of probabilities that it is not liable for the plaintiff’s injuries.”

Post-Hryniak Fall Out Example #3 - Whissell Contracting Ltd. v. Calgary (City), 2018 ABCA 204 O’Ferrall and Wakeling JJ.A.: “2 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 is an onerous standard and rightly so. A grant of summary judgment ends a dispute without affording the litigants full access to the civil procedure spectrum.” Schutz J.A.: “15 I have had the benefit of reading the majority opinion. I agree with the outcome; it is correct. 16 I find myself unable to endorse, however, the dicta concerning the correct test for summary judgment, or the standard of proof required to be established for the moving party to succeed on an application for summary judgment. In particular, I decline to endorse paragraphs 2 and 3 (and related footnotes). 17 In my view, the proper test will have to be set when it is necessary to resolve the issue.” Whissell applied for leave to the SCC

Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd., 2019 ABCA 49 – panel of 5 Court of Appeal to clarify test

Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd., 2019 ABCA 49 – Five Person Panel Slatter J.A.: “[…] it is now possible to find a quote in the case law to support virtually any view of the test to be used in summary judgment.” (para 23)

Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd., 2019 ABCA 49 – Five Person Panel Culture shift Proportionality The applicable standard of proof is balance of probabilities

Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd., 2019 ABCA 49 – Five Person Panel Four considerations for summary judgment: Is it possible to fairly resolve the dispute on a summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities. The party resisting summary judgment must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by: challenging the moving party’s case, identifying a positive defence, showing that a fair and just summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. (see para 47)

Outstanding issues

Outstanding Issues Inappropriate summary judgment applications can actually lead to increased cost and delay Partial summary judgment Summary judgment is still a one way street

Peter Banks Partner 403.232.9781 PBanks@blg.com