Earlier this year, Stephen Mulrain wrote a blog post on the Supreme Court of Canada’s (SCC) decision in Hryniak v Mauldin, 2014 SCC 7 (Hryniak). As discussed in that post, this decision expanded the interlocutory powers of the court under summary judgment with reference to Ontario’s Civil Procedure Rules 20.04(2.1) and (2.2). At the time of this decision, it was unclear whether the other provinces would apply the same principles as were celebrated by the SCC regarding the expanding role summary judgment motions should take in our legal system. Alberta’s Court of Appeal (ABCA) and Court of Queen’s Bench (ABQB) have now considered the SCC’s decision in Hryniak and have elucidated the evolving nature of summary judgment in Alberta.
Summary of Hryniak
In summary of the decision in Hryniak, the SCC outlined that the court process should promote and permit dispute resolution at the point when such just resolution is possible, which may well be prior to trial. The SCC held that an application for summary judgment should resolve an action before trial if the judge “is able to reach a fair and just determination on the merits” (para 49).
Interpretation in Alberta
In Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 (Windsor), the ABCA addressed the application of summary judgment motions in light of the SCC’s recent decision on the matter in Hryniak. Although Hryniak was decided under Ontario’s Rule 20.04, the ABCA in Windsor held that the principles in Ontario’s Rule are consistent with Alberta’s modern summary judgment practice as outlined in the Alberta Rules of Court, Rule 7.3. Both Ontario and Alberta’s summary judgment rules are dispute resolution procedures aimed at avoiding entrance into the trial system. Alberta’s Rule 7.3(1) states:
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.
The ABCA interpreted Rule 7.3 by applying the principles endorsed by the SCC in Hryniak, stating that the modern test for summary judgment is to “examine the record to see if a disposition that is fair and just to both parties can be made on the existing record” (para 13).
After Windsor was decided, Master Schlosser of the ABQB in 1214777 Alberta Ltd and Cathy Bujold v 480955 Alberta Ltd, 2014 ABQB 301 (1214777 Alberta), proposed a “roadmap approach” to be taken by the courts in summary judgment applications in Alberta. This approach clarifies the treatment of evidence in summary judgment applications in Alberta and involves 5 steps following the initial application of the test for summary judgment as outlined in Windsor, above. If the court determines that, upon examination of the record, a disposition that is fair and just to both parties can be made, Master Schlosser suggests that the court must then engage the following analysis (1214777 Alberta, para 17):
- The court is to presume that the best evidence from both sides is before the court, and the summary judgment application is to be made on the evidence before the court.
- The court must ask whether a negative inference can be drawn from the absence of evidence on certain points.
- The court must consider what evidence is admissible under summary judgment application.
- Where a conflict in the evidence is present, the court must consider if it can it be resolved on cross examination.
- The court must examine the evidence. In doing so, Master Schlosser cites the Ontario Superior Court decision in Pammett v Ashcroft, 2014 ONSC 2447, in which the court found that on summary judgment applications:
“The court may assess the sufficiency of the evidence, admissibility of evidence and reliability of evidence without access to enhanced fact finding powers. The court may also apply the law to the facts without deciding a genuine question of law.” (para 28)
The Bottom Line
The decision in Windsor echoes the principles outlined in the Alberta Rules of Court favoring efficient dispute resolution. Rule 1.2(1) states, “the purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.” Moving forward, it will be interesting to see if, and how, the approach to summary judgment application evolves given the renewed focus on efficiency and the underlying principles of the Rules.
It is still to be seen whether Master Schlosser’s “roadmap approach” will gain traction in the Alberta court system. However from the perspective of litigants, an argument can be made for its endorsement, as it would provide greater clarity and certainty in how the test for summary judgment is applied in practice by the courts.