In Hryniak v. Mauldin (Hryniak), the Supreme Court of Canada (SCC) opened the door for courts to grant summary judgment whenever the record provides “the evidence required to fairly and justly adjudicate the dispute[.]” In Alberta, however, neither judges nor masters are permitted by the Rules of Court to weigh evidence on summary judgment applications, so the approach to a motion for summary judgment provided by the SCC in Hryniak is of limited use in Alberta. As a result, Alberta courts have developed their own approach to determine summary judgment applications.
The recent Alberta Court of Queen’s Bench decision in Sticks and Stones Communications Inc. v. Hole’s Greenhouses & Gardens Ltd. (Sticks and Stones) applies this approach and also provides valuable guidance on the role of cross-examination on affidavits in summary judgment applications.
The plaintiff claimed that the defendant paid only part of the amount owing for advertising and communication services, leaving a balance of C$102,264.45. The defendant argued it was not obliged to pay the balance because the plaintiff did not perform all of the work it was hired to perform.
The plaintiff’s application for summary judgment was dismissed by Master R.P. Wacowich. The plaintiff appealed to Justice R. A. Graesser, who applied the summary judgment approach developed by Alberta courts following the release of Hryniak.
Justice Graesser first looked to the record before him and asked whether it was essential to the resolution of the dispute that the court see the witnesses. Had the answer been yes, Justice Graesser would have dismissed the appeal. The answer in this case was no, so Justice Graesser engaged in a multi-step reasoning process, by:
- Presuming that the best evidence from both sides was before the court
- Asking whether a negative inference could be drawn from the absence of evidence on certain points
- Determining whether all of the evidence was admissible
- Asking whether there was a conflict in the evidence and if so, whether the conflict had been resolved on cross-examination, or whether the evidence giving rise to the conflict was purely self-serving and was otherwise unsupported
- Examining the evidence
Applying this approach, Justice Graesser found that there was no genuine issue requiring a trial as the defendant failed to provide evidence sufficient to support any of its defences. He concluded that because the defendant did not raise complaints about the plaintiff’s services until after the plaintiff withdrew its services, either the defendant had lain in the weeds and therefore acted in bad faith, or its complaints had no merit.
ROLE OF CROSS-EXAMINATION IN SUMMARY JUDGMENT APPLICATIONS
In Sticks and Stones, the Master at first instance dismissed the summary judgment application in part because the plaintiff did not cross-examine on the defendant’s affidavit. The plaintiff did so prior to the appeal to Justice Graesser, whose decision was based in part on evidence obtained on the cross-examination. The Sticks and Stones decision shows that if the affidavit of a respondent to a summary judgment application creates a conflict in evidence on a relevant issue, the applicant will almost certainly lose unless they have resolved the conflict by cross-examining on the respondent’s affidavit, or the conflicting evidence is “purely self-serving and is otherwise unsupported[.]”
This does not mean that the applicant must cross-examine on each and every allegation made by the respondent. Justice Graesser declined to overrule the general proposition that the trier of fact should accept a witness’ evidence on a particular issue if the other side has not cross-examined the witness on that issue.
Because they are unable to weigh evidence on summary judgment applications, Alberta judges and masters have created their own approach to determining summary judgment applications in the wake of Hryniak. This approach is based on an amalgamation of case law on particular evidentiary points, underpinned by the proportionality principle now coming to the forefront in judicial reasoning.
If there is a conflict in evidence, the judge or master must determine whether the conflict has been resolved by cross-examination or should be disregarded because the evidence giving rise to the conflict is self-serving and unsupported. Accordingly, applicants should give careful consideration to cross-examining on respondents’ affidavits whenever they introduce a conflict in evidence on a relevant issue, or where the grounds for self-serving statements can be undermined.