The Alberta Court of Appeal in its recent decision, 776826 Alberta Ltd. v. Ostrowercha, 2015 ABCA 49, discussed the recent changes to the direction of the law on summary judgment applications. It confirmed that the decision of the Trial Judge as to whether or not summary judgment is a fair and appropriate means of adjudication is discretionary and is entitled to deference. The Court of Appeal stated: “In practical terms, this means that appeals from denials of motions for summary judgment will be difficult to establish.” [emphasis added]
The Court of Appeal went further to discuss the test for summary judgment. Summary judgment can be granted if there is no “merit” to the claim. No “merit” means that even assuming the non-moving party’s position is accurate on material and divisive matters (which are typically matters that may require forensic testing, viva voce evidence and are matters not usually decided in a summary judgment venue), viewed in the whole, the non-moving party’s position has no merit in law or fact. Put another way, the Court of Appeal stated that “..in order for the non-moving party’s case to have merit, there must be a genuine issue of a potentially decisive material fact in the case which cannot be summarily found…” against the non-moving party based on the summary judgment process of fair and just adjudication.
The Alberta Court of Appeal referred to its 2014 decision of W.P. v. Alberta, 2014 ABCA 404 to summarize where it was stated that:
“Summary judgment is therefore no longer to be denied solely on the basis that the evidence discloses a triable issue. The question is whether there is in fact any issue of “merit” that genuinely requires a trial, or conversely whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily.”
Clearly, summary judgment as an expanded tool for the adjudication of disputes remains a viable option in Alberta.