Introduction

In Burton Canada Company v Coady (“Coady”), the Nova Scotia Court of Appeal offers helpful insights into the world of the summary judgment application, including problems to avoid, what requirements must be met, and what the proper analytical framework looks like.

In Coady, the plaintiff sued in negligence after being paralyzed while snowboarding. Both defendants, the snowboard maker and the ski resort, brought summary judgment applications on the grounds that the plaintiff could not mount a proper case for trial. The chambers judge refused to grant summary judgment. In a 4-1 decision, the NSCA upheld the chambers judge’s decision because there were “material facts” in dispute.

Although the facts of the case were not unusual, Mr. Justice Saunders took the opportunity, at paras 22-45, to canvass the overall purpose of summary judgment and the proper framework for analysis.  

The purpose and scope of summary judgment

The Court held that summary judgment plays a key role in civil litigation by “weeding out” certain cases from the system so that cases with true merit can be heard: Coady at 22. The Court noted that there was nothing “summary” about the case before the Court. In fact, the initial application lead to a complicated appeal, with a 5-member panel, with 6 lawyers arguing their positions “fighting over a record comprising 11 volumes and forming a pile a foot high.”

Justice Saunders reiterated the legal principle governing summary judgment applications as stated by the Supreme Court of Canada in Guarantee Co. of North America v Gordon Capital Corp., which discussed Ontario’s Rule for summary judgment, where the Court affirmed, at para 27, that: “The appropriate test to be applied on a motion for summary judgment is satisfied when the applicant has shown that there is no genuine issue of material fact requiring trial”. Justice Saunders also discussed Canada (Attorney General) v Lameman, which discussed Alberta’s Rule for summary judgment, where the Court affirmed, at para 11, that: “[…] the bar on a motion for summary judgment is high. The defendant who seeks summary dismissal bears the evidentiary burden of showing that there is ‘no genuine issue of material fact requiring trial’”.

Justice Saunders notes that both lawyers and judges have experienced difficulty in apply the test: “It appears to me that some of the difficulty experienced by counsel and judges in this area of the law may arise because the Rule does not accurately track the test established by the Supreme Court in Guarantee.”

Part of this difficulty also comes from the different wordings of the test in the various Rules of Court and Civil Procedure. While the SCC employed the phrase “genuine issue of material fact requiring trial”, both Nova Scotia and Alberta use slightly different language.

The proper analytical framework to summary judgment

Justice Saunders explains that the test for summary judgment has two distinct stages.

At the first stage, the applicant must show that there are no genuine issues of material fact that would require a trial. At this point, there is no burden on the respondent to do anything: Coady at para 38. Accordingly, once a chambers judge decides that the applicant has failed to meet its burden, the analysis must end. There should be no inquiry into the respondent’s case, “tangentially or otherwise”: Supra, at para 39.

In summary, “the judge’s focus is concerned only with the important factual matters that anchor the cause of action or defence. At this stage the relative merits of either party’s position are irrelevant.”: Supra, at para 42. (Emphasis added) Justice Saunders continues, “Instead, the judge’s test is to decide whether the responding party has demonstrated on the evidence (from whatever source) whether its claim (or defence) has a real chance of success”: Supra.

At the second stage, the chambers judge is required to enter into a consideration of the merits of both sides, after it has been shown that there are in fact disputed facts. The second stage is only engaged where the applicant has shown that there are no disputed material facts.

Counsel in Alberta should be mindful of the two-stage analysis in Coady because it sets out a clear and concise procedure to use in chambers when making a summary judgment application. Since all actions are grounded upon facts, if these facts are in dispute then it will be difficult to prove that there is no genuine issue for trial.