On Feb. 6, 2019, the Alberta Court of Appeal released its decision in Weir-Jones Technical Services Incorporated v Purolator Canada Ltd., 2019 ABCA 49, wherein a panel of five justices clarified the test for summary judgment1 in that province.
Applicable rule
The following sections of Rule 7.3 of the Alberta Rules of Court, Alta.Reg. 124/2010, address summary judgment:
7.3(1) 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.
Historical context
This judgment was long-awaited in Alberta as, prior to the Weir-Jones decision, there were two competing lines of authority from the Alberta Court of Appeal regarding the standard of proof to be met by the moving party. The new line of authority, post-Hryniak, would impose a lesser standard on summary applications than had historically been required in Alberta. This new line of authority was adopted by the majority of the Court of Appeal in Weir-Jones, with substantial implications for practice on summary motions in Alberta as set out below. However, the concurring decision of Mr. Justice Wakeling offers a lengthy, erudite argument for continuing to apply the older line of authority (and continuing to impose a higher burden on summary motions). The interplay between the somewhat pragmatic written reasons of the majority and the extensive legal history set out in the concurring decision is a fascinating study in the development of civil procedure and illustrates the major tension between stare decisis and the issues of cost, access to justice, and other practical considerations.
The court was in agreement that the legal and persuasive burden remains with the moving party.2 The disagreement in the court stemmed from the standard of proof that is to be met by the moving party, be it the high bar of establishing that they have an "unassailable" position or the lesser standard of no "genuine issue meriting trial." The applicant must first meet this evidentiary burden before the onus shifts to the respondent to show why a trial is required.
In 330626 Alberta Ltd. v Ho and Laviolette Engineering Ltd., 2018 ABQB 478, when faced with the alternative tests for summary judgment, Feehan J. noted that "[I]t would be helpful if the Court of Appeal could definitely resolve this issue with a five-person panel in the near future" [paras. 39-41]. The Court of Appeal accepted this challenge in Weir-Jones.
The two decisions
The Hon. Mr. Justice Slatter wrote an 18-page majority decision, with which the Hon. Chief Justice Fraser, the Hon. Mr. Justice Watson and the Hon. Madam Justice Strekaf concurred. Mr. Justice Wakeling, who authored the Beier decision, often cited as the foundation for the Court of Appeal schism over the test for summary judgment for introducing the "unassailable position" criteria, issued his own 60 pages of concurring reasons in Weir-Jones.
Facts of the case
Briefly, the dispute arose from a contractual relationship under which Weir-Jones would transport packages on behalf of Purolator. Weir-Jones terminated the agreement. The parties then fought union grievances under a collective agreement and submitted other issues to arbitration. Weir-Jones took the position that some of its breach-of-contract claims were not covered by either the collective agreement or the arbitration, and sued Purolator claiming damages. Purolator applied to summarily dismiss Weir-Jones' claim on the basis that applicable limitation periods had expired, notwithstanding the alleged existence of a standstill agreement.
Chambers decision
The chambers judge, Justice Shelley, concluded that Weir-Jones had been aware of its claims for breach of contract more than two years before it commenced its claim for damages. She also found that there was no standstill agreement in place between the parties. As a result, Justice Shelley determined that there was no merit to Weir-Jones' claim and granted Purolator's application to have Weir-Jones' lawsuit summarily dismissed. Weir-Jones appealed the decision of the chambers judge at the Court of Queen's Bench to the Court of Appeal.
Appeal to the Court of Appeal
On appeal, the majority decision determined that Purolator had proved before the chambers judge that there was no genuine issue requiring trial, that Weir-Jones had failed to show any reviewable error in the chambers judge's decision, and accordingly dismissed Weir-Jones' appeal. Wakeling J.A. applied both of the tests for summary dismissal to come to the same result. The facts and result of this case are run-of-the-mill, however the content and interplay of the two supposedly concurring decisions is anything but ordinary.
The majority decision
To summarize, the majority decision does two things: first, it clarifies the test for and mechanics of a summary judgment application. Specifically, the court considered the principles of summary judgment, proof, the record and fairness. Second, the majority decision responds to the 60-page concurring decision, which is representative of the culture battle at the Court of Appeal over summary judgment.
The rift in the case law
The majority decision first recognized the jurisprudential divergence regarding the test for summary judgment:
A rift has recently emerged in the case law discussing the test for summary judgment in Alberta, and in particular the standard of proof that is required for summary judgment. The divergence can be illustrated by comparing Can v Calgary Police Service, 2014 ABCA 322 (CanLII), 584 AR 147 with Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 (CanLII), 67 Alta LR (6th) 215:
Can at para. 20: Summary judgment is appropriate if the nonmoving party’s position is without merit. Alberta Rules of Court, r. 7.3. “A party's position is without merit if the facts and law make the moving party's position unassailable … A party’s position is unassailable if it is so compelling that the likelihood of success is very high”. Beier v Proper Cat Construction Ltd., 2013 ABQB 351 (CanLII), 564 A.R. 357, 374 (Q.B. 2013). Mr. Can’s claims are without merit. Justice Bensler’s decision was correct and hence, reasonable.
Stefanyk at para. 17: Therefore, in this appeal the issue is not whether the appellant's position is "unassailable." The first question is whether the record is sufficient to decide if the appellant is liable for the plaintiff's injuries. There are no material facts in dispute, no overwhelming issues of credibility, and the court is able to apply the law to the facts. It is unlikely that the cost and expense of a trial is justified because of an expectation of a significantly better record. In this case summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result, and therefore it is an appropriate procedure. The ultimate issue is whether the appellant has proven on a balance of probabilities that it is not liable for the plaintiff's injuries.
This appeal and the companion appeal in Brookfield Residential (Alberta) LP v Imperial Oil Limited, 2019 ABCA 35 (CanLII) were set down to settle the law (PARA 12).
It is interesting to note that Wakeling J.A. wrote the decision in Can but also concurred in the conflicting Stefanyk decision.
The majority in Weir-Jones determined that the source of this jurisprudential divergence came from the decision in Hryniak v Mauldin, 2014 SCC 7. In Hryniak, the Supreme Court of Canada called for a "shift in culture" with respect to litigation resolution that supported summary adjudication and more proportionate, timely and affordable procedures. Reinforcing the principles underlined for summary judgment in Hryniak, the majority decision noted the overriding goal of "proportionality" in civil procedure. Notwithstanding the Supreme Court's clear edict in Hryniak, subsequent case law regarding summary judgment was inconsistent. As the majority decision noted, "old habits die hard" (para. 22), and the present inconsistency is so inescapable that "[t]he result is that it is now possible to find a quote in the case law to support virtually any view of the test to be used in summary judgment" (para. 23). The first pages of the concurring decision do precisely that.
The concurring decision contains extensive citations to a huge variety of cases from across the Commonwealth with different tests for summary judgment.
Rules of court and principles of proof
The majority decision then went on to review the Rules of Court and observed that proportionality drives this cultural shift from Hryniak, which is also a principle behind the new Alberta Rules of Court (para. 15), including Part 7 with respect to resolving claims without full trial.
The concurring decision goes to the text of Part 7, covers its historical development, compares it to other jurisdictions, includes lengthy, detailed footnotes that capture the historical antecedents to the current Alberta Rules, and engages in a comparative study with Australia, the UK and elsewhere.
The result of this analysis is that Wakeling J.A. considers the language of the Alberta Rules to be binding: where Rule 7.3 says "no defence" or "no merit," that has to be given meaning. However, and as is pointed out later in his decision, "no" does not mean "close to zero" (para. 137).
The majority decision seizes on this internal inconsistency: "The word 'no' can in some contexts be taken to mean 'a complete absence,' but if that standard of proof was required for summary judgment, summary judgment would never be possible" (para. 31). An unintended consequence of this dialogue is that neither the majority decision nor the concurring decision are really adhering to the wording of Rule 7.3, and the Alberta Rules have a bit of a "living tree" moment.
Regarding the standard of proof to be met by the moving party on a summary judgment application, the concurring decision states that the test is that the facts are incontrovertible and the law is clear. Wakeling J.A. then goes on to give an example of a fact pattern that warrants summary judgment based on a promissory note debtor (para. 154). Conversely, the majority decision acknowledges that while there used to be different standards of proof, now there is only one; balance of probabilities (para 28).
Significance of Hryniak, in context
In his decision, Wakeling J.A. acknowledges that the common law world approves of summary judgment in huge footnotes. He then repeats the example of a promissory note debtor (para 180). The concurring decision argues that Hryniak has not changed the test of the rule for summary judgment in Alberta. Instead, Hryniak has changed what that rule means, and, specifically, has changed r. 7.3 to mean a moving party has no chance of success. As such, Hryniak is of little precedential value to Wakeling J.A.
The majority decision reinforces that Hryniak marked a cultural shift, consistent with the principle of proportionality. Slatter J.A. wrote, "There is no policy reason to cling to the old, strict rules for summary judgment" (para. 48). The majority goes on to engage with Hryniak at every step of the test that it sets out for summary judgment. As a result, Hryniak now informs how to bring this application in Alberta:
The proper approach to summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:
- Having regard to the state of the record and the issues, 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 requiring a trial?
- Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for summary adjudication.
- If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial, summary disposition is not available.
- In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute.
To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding judge may determine, during any stage of the analysis, that summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are not amenable to summary disposition, a summary disposition may not lead to a “just result,” or there is a genuine issue requiring a trial (para. 47).
Summary judgment is not summary trial
Of note is the majority decision's statement that, although similarly named, there is a fundamental difference between "summary judgment" and "summary trial:" "Summary disposition is a way of resolving disputes without a trial; summary trial is a trial" (para. 18). As noted in Hryniak, these options are not on a continuum nor are they part of a suite remedies, but rather each is a distinct process (paras. 18-20).
Effect of Weir-Jones
Given the lower standard adopted by the majority, it seems reasonable to expect an increase in the number of applications with a lower likelihood of success, adding further burden to an already overtaxed court system and potentially contributing to overall delay in proceedings. While summary applications can potentially resolve matters short of trial, there is no question that waiting months for a special application and then potentially longer for a decision can substantially increase the time required to resolve a matter that requires a trial. In particular, defendants keen to avoid trial would appear to have little downside in bringing a summary dismissal motion even where the chances of succeeding are limited. Under these highly constrained circumstances, where a summary motion can take months or a year to resolve, expanding access to summary procedure will not obviously result in either faster resolution of claims or any relief to the backlog in the court's docket.
Courtney Kachur's practice focuses on construction litigation, construction contract drafting and commercial litigation in Calgary with Rose LLP. She is currently the Secretary on the CBA's National Construction and Infrastructure Law Executive.
Josh Fraese practices construction law and commercial litigation with Rose LLP in Calgary. He has represented clients at all levels of court in Alberta and drafted contracts for major Canadian projects.
End notes
- This article refers to summary judgment, the rule for which, r. 7.3, applies to both summary judgment and summary dismissal applications.
- Sobeys, para 56.