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. 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. 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:
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.
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.” 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.
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 Court of Appeal has commented that Hryniak did not jettison the “made-in-Alberta” summary judgment rule. Alberta case law now presents something of a melting pot of summary judgment culture: it both adopts aspects of Hryniak and maintains aspects of the “made-in-Alberta” rule.
At present, there are at least two tensions within Albertan case law with respect to summary judgment. First, whether and to what extent Ontario’s Rule 20 holds sway in Alberta. Second, whether implementing the necessary culture shift and viewing summary judgment as an alternative to full trial means that the bar or threshold to obtain summary judgment remains as high as discussed by the Supreme Court of Canada in Canada v Lameman (“Lameman”):
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.
Lameman and Hryniak present meaningfully different views of summary judgment applications. Hryniak represents the modern approach where summary judgment is a viable alternative to a full trial, thereby making summary judgment more accessible and moving the threshold for obtaining summary judgment lower. In contrast, the view expressed in Lameman requires an applicant on a summary judgment motion to meet a much more stringent test—no chance of success for a claim or defence. The Lameman view is arguably reflected in Alberta’s summary judgment rule which reads:
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.
Against this backdrop, earlier this year the Alberta Court of Appeal in 776826 Alberta Ltd v Ostrowercha (“Ostrowercha”) considered the governing test for summary judgment and held:
From the process perspective, summary judgment can be given if a disposition that is fair and just to both parties can be made on the existing record by using that alternative method for adjudication: Hryniak v Mauldin.
From a substantive perspective, summary judgment can be granted if, in light of what that fair and just process reveals, there is no merit in the claim. No “merit” means that even assuming the accuracy of the position of the non-moving party as to any material and potentially decisive matters – matters which would usually require ordinary forensic testing through a trial procedure with viva voce evidence and which could not be resolved through the fair and just alternative – the non-moving party’s position viewed in the round has no merit in law or in fact.
Further Confusion – Amack
More recently, in Amack v Wishewan (“Amack”), the Alberta Court of Appeal considered whether a chambers judge erred when he determined he could not conclude, on a balance of probabilities, whether the limitations defences advanced could be made out in an application for summary judgment (the reverse of the Ostrowercha). Notably, a “balance of probabilities” is much lower threshold than finding that there is “no merit in law or in fact”.
Importantly, viewing summary judgment as an alternative to trial and conducting a merits-based analysis of the claim or defence is not necessarily mutually exclusive (as shown in Ostrowercha). The former may mean a greater willingness to entertain summary judgment applications, whereas the latter imposes a higher threshold for such applications to be successful. Nevertheless, if the culture shift as formulated in Hryniak is to be given full effect, viewing summary judgment as a legitimate alternative to trial (i.e., a valid means to justice) implies that the same threshold should be applied as at a full trial of the merits—whether the moving party establishes their case on the balance of probabilities. This view is impliedly supported in Amack. To hold an applicant to a higher threshold would arguably undermine a culture where summary judgment is a genuine alternative to trial. On the other hand, the approach to summary judgment reflected in Alberta’s Rules of Court, Lameman and Ostrowercha, reflects a different cultural approach where summary judgment is reserved for those claims or defences which have no chance of success in law or in fact. The real question for Albertan courts is how Hryniak has softened that higher threshold.
To confuse matters somewhat further, in Amack, the Court of Appeal re-stated the test for summary judgment as follows:
Following the recent Supreme Court of Canada decision in Hryniak v Maudlin, this Court has held that summary judgment can be granted if a disposition that is fair and just to both parties can be made on the existing record. This does not, however, detract from the requirement that there be “no genuine issue for trial”. Rather the two concepts are themselves linked, as noted in Hryniak.
Alberta’s summary judgment rule does not currently contain any language which refers to a “genuine issue for trial”. This formulation is found in Ontario’s Rule 20 (“the court shall grant summary judgment if, the court is satisfied that there is no genuine issue requiring a trial”) and thus is woven throughout the analysis in Hryniak. In fact, Alberta’s Rules of Court were amended in 2010, prior to which the rule for summary judgment referred to whether there was “no genuine issue for trial.” Such a change is tantamount to reform (i.e., a change in the law). Based on a strict reading of the Alberta Rules of Court according to canons of construction, whether there is a “genuine issue for trial” has been repealed and is now irrelevant. Recognition again by the courts in Alberta of a “genuine issue for trial” represents, in light of the changes to the Alberta Rules of Court, is both a reversal of the law (overriding legislation) and a confirmation of the existence of a melting pot for summary judgment applications in Alberta.
There can be no doubt that the Supreme Court of Canada has called on courts to be more willing to consider summary judgment as a viable alternative to a full trial. However, as can be expected, the practicalities of that shift in culture need to be worked out by lower courts, including those in Alberta. The melting pot approach to that culture shift in Alberta – with a little from Lameman, a little from Hryniak, a little from Ontario’s Rule 20, all grounded in Alberta’s Rule 7.3 – is an example of that work (still in progress).
Practically speaking, in Alberta, Hryniak cannot be ignored. Given the state of Albertan appellate case law, when faced with a summary judgment application, it would be useful to emphasize the clear merit-based wording in Rule 7.3 and the necessity of a higher threshold for such applications. On the other hand, when bringing a summary judgment application, the approbation given by the Supreme Court of Canada in Hryniak and impliedly by the Court of Appeal in Amack as a legitimate alternative to full trial supports a valid argument for a lower threshold for success on such applications. Regardless, summary judgment ought to be taken seriously, as there can be little doubt that the melting pot culture currently embraced in Alberta has shifted the presumption away from a full trial as the only means to justice for all parties.
Amack v Wishewan, 2015 ABCA 147
Date of Decision: April 29, 2015
776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49
Date of Decision: February 4, 2015