Summary judgments: Old habits die hard

It wasn’t so long ago that a summary judgment, which allows a court to rule expeditiously on a case without the cost and expense of a full trial, was a rare occurrence in litigation.  But that changed following the 2014 ruling by the Supreme Court of Canada in Hryniak v Mauldin, which called for a culture shift that would promote “timely and affordable access to the civil justice system.” Since then, lower courts have been more inclined to grant summary judgment. Even so, they have also struggled with the burden of proof that the moving party must meet to demonstrate there is no there is no merit to the other party’s case, or defence, and that there is no genuine issue requiring a trial.

It appears now that a recent decision handed down by the Alberta Court of Appeal has clarified some of the issues that have arisen to make the process easier, more predictable and more accessible.

Before Hryniak, the test applied for summary judgment motions was very high and the chances of success were very low. But the Supreme Court’s message was clear: Instead of spending exorbitant amounts of resources and time on cases that did not warrant it, summary judgment should serve as a means to resolve disputes more often.

For the most part, the courts heeded the call of the Supreme Court. But some confusion remained over issues involving the burden of proof required to grant summary judgment. The problem came to a head in 2018, when the Alberta Court of Appeal released two decisions that iterated competing tests for summary judgment applications.

In Sobeys v Stefanyk, it ruled that summary judgment applications required the moving party to prove its case on a balance of probabilities – the only one recognized civil standard of proof, it pointed out, contrary to "unassailable" and "high likelihood of success."  Essentially, the panel that decided Stefanyk told the legal community that the test for summary judgment is the same as it would be for trial.

A month later, a different panel of the same court stated in Rotzang v CIBC World Markets Inc. noted that summary dismissal is appropriate “if the moving party’s position is unassailable or so compelling that its likelihood of success is very high and the non-moving party’s likelihood of success is very low.” This harkened back to words used before Hryniak.

It was no longer clear which standard should apply, even though most of the case law that came out immediately after Stefanyk favoured its approach. Still, the Albert Court of Queen’s Bench even noted in one of its rulings that “it would be helpful if the Court of Appeal could definitively resolve this issue with a five person panel in the near future.”

In February, the Court of Appeal did just that when it decided Weir-Jones Technical Services Incorporated v Purolator Courier Ltd. In considering how the rift preceding it’s ruling was formed, the court believed it was multifactorial, acknowledging, “old habits die hard.” It nevertheless managed to reconcile the competing tests. It indicated the moving party must first prove the facts on a balance of probabilities and then demonstrate there is no genuine issue for trial. The onus would then shift to the non-moving party to show gaps in the evidence or that there is a genuine issue for trial. A moving party does not have to demonstrate its position to an “unassailable” level though. The chambers judge would then be left to exercise discretion in granting the summary judgment application. The court refused to impose standards like “high likelihood of success”, “obvious”, “unassailable”, “beyond doubt”, or “highly likely.”

Although the Court agreed with Stefanyk about the civil standard of proof, it remarked that a presiding judge can still use their discretion to decide either the moving party has not met its burden to show there is no genuine issue for trial or the action cannot be resolved summarily. This is an attempt to cover some of the concerns the Justices who followed Rotzang would have in ensuring there is overall fairness in the result.

In summary, the new four-part test for summary judgment is:

1. Is it possible to fairly resolve the dispute on a summary basis or do uncertainties in the facts, the record, or the law reveal a genuine issue for trial?
2. Has the moving party met its burden of proof that there is no merit/defence and that there is no genuine issue requiring a trial?
3. If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate there is a genuine issue requiring a trial.
4. The presiding master/judge must be left with enough confidence in the record (facts, evidence, and law) to exercise judicial discretion and summarily resolve the dispute.

Ultimately, the Weir-Jones decision is, on balance, favourable to applicants bringing summary dismissal applications, as it makes clear that a moving party’s position does not have to be unassailable. It also offers some promise that judgment applications will become more predictable given we now have an outlined test.