January 2015 marked the one-year anniversary of the Supreme Court of Canada’s landmark decision inHryniak v. Mauldin, which clearly articulated a cultural shift aimed at facilitating a fair process for the just adjudication of disputes, with simplified and proportionate procedures that are accessible, timely and affordable. In other words, the Supreme Court of Canada (“SCC”) made summary judgment much easier.
With the exception of Québec, all Canadian provinces have incorporated a revised summary judgment mechanism into their procedural rules to facilitate the resolution of disputes at the earliest opportunity. In an earlier decision, the SCC described the purpose of such a mechanism:
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.
Previously, a party would only be successful on a motion for summary judgment if it could prove that there was “no genuine issue for trial.” In Hryniak, the SCC lowered the bar: a party will be granted summary judgment if there is “no genuine issue requiring a trial.” In other words, if a trial is not required, then the moving party will be granted summary judgment. In terms of when that would be, the SCC said,
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
Currently, Rule 7.3(1) of the Alberta Rules of Court provides:
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:
there is no defence to a claim or part of it;
there is no merit to a claim or part of it;
the only real issue is the amount to be awarded.
Previously, before this rule was amended in 2010, a motion for summary judgment required a motions judge to consider whether a “triable issue” existed, or whether a “genuine issue for trial” prevented the summary disposal of a claim. Now, the Rule requires the court to take a more holistic approach and enquire whether there is merit to the claim(s) advanced:
…A party’s position is without merit if the facts and law make the moving party’s position unassailable and entitle it to the relief it seeks. A party’s position is unassailable if it is so compelling that the likelihood of success is very high.
Thus, summary judgment will be granted if, in light of what a fair and just process reveals, there is no merit to the claim. It is not sufficient for the responding party to resist a motion for summary judgment by advancing the mere assertion of its position in a pleading, or by speculating over evidence to defeat the moving party’s claim, which might be available at trial.
The Alberta Court of Appeal has considered the impact of the Hryniak decision, several times over the past year. One appellate judge has said that, as far as Alberta’s superior courts are concerned, Hryniak was preaching to the converted. Indeed, the overall approach has been codified in the Alberta Rules of Court, which provide that the Rules should be applied in such a way as to facilitate the quickest and least expensive means of resolving a claim.
While Alberta’s approach to summary judgment essentially mirrors that of Ontario (which was the subject of the SCC’s analysis in Hryniak), a key difference should be noted: Unlike Ontario, Alberta’s summary judgment rule does not explicitly permit the use of oral evidence on a motion. Since Hryniak, there has been speculation that Alberta may expand the type of evidence that could be led on a motion, in keeping with the goal of expedited justice, but this issue remains unsettled. The earliest endorsement of Hryniak by the Alberta Court of Appeal seemed to suggest that viva voce evidence may be permitted. More recently, however, the court has suggested that oral evidence is not permissible.
Regardless of how the issue of oral evidence is ultimately determined, the decisions of the Alberta Court of Appeal, over the past year, demonstrate that Hryniak does not necessitate a need to revisit the existing principles governing Alberta’s summary judgment rule, and that the other protocols under Part 7 of the Alberta Rules of Court, together with Rule 7.3, provide the necessary tools to achieve the SCC’s aims.
Insurers should certainly take advantage of the easier process for summary judgment, in order to dispose of claims summarily. A key issue to keep in mind, however, is whether the circumstances would require live evidence in order to properly dispose of the claim. If so, summary judgment in Alberta may not be appropriate, and other methods for adjudicating claims summarily under Part 7 of the Alberta Rules of Courtshould be considered.