Summary judgment has been a hot topic since the Supreme Court of Canada decision in Hryniak v Mauldin, 2014 SCC 7 [Hryniak]. Following Hryniak, the high standard of proof previously required for summary judgment was relaxed, and the importance of these applications as a method to achieve timely and affordable access to justice was emphasized.
Since Hryniak, the number of summary judgment applications in Alberta has increased. Parties wait in excess of a year for special chambers dates and with that comes correspondingly aggressive attempts by counsel and the courts to decide increasingly complex matters in morning chambers on little notice. Any practicing litigation counsel will tell you that daily chambers lists are packed, the decisions are unpredictable, and it is not uncommon to find yourself compelled to return the next day.
Three recent decisions of the Alberta Court of Appeal have added to this already unpredictable landscape: Stefanyk v. Sobeys Capital Inc., 2018 ABCA 125 [Sobeys]; Rotzang v CIBC World Markets Inc, 2018 ABCA 153 [Rotzang]; and Whissell Contracting Ltd. v. Calgary (City), 2018 ABCA 204 [Whissell].
Hryniak, Sobeys, Rotzang and Whissell are all clear that the first issue to be considered on any summary judgment application is whether or not a fair and just decision can be made on the existing record. This is an evidentiary inquiry. Once the court is satisfied that the existing record allows a fair and just decision, it can then determine whether or not summary judgment is appropriate on that record. This means examining the evidence presented to determine if it meets the appropriate standard of proof.
Traditionally, this approach has meant that the court must be prepared to find that the defence is “without merit” or, more recently, that the claim is “unassailable”. However phrased, the requirement was that the applicant convince the court of its case to a standard higher than a balance of probabilities (the recognized civil standard at trial).
The summary dismissal decision in Sobeys was released by our Court of Appeal on March 29, 2018. It stated:
- “First of all, it is now established that there is only one civil standard of proof and it is proof on a balance of probabilities.”
- “Summary judgment is one procedure for deciding whether the moving party has proven its case on a balance of probabilities. Summary judgment is appropriate where the procedure is such that a fair and just disposition can be made on it.”
Less than a month later, a separate Court of Appeal panel released the decision in Rotzang and repeated the traditional summary dismissal test apparently overturned by Sobeys: “[s]ummary dismissal is appropriate if the moving party’s position is unassailable or so compelling that its likelihood of success is very high and the nonmoving party’s likelihood of success is very low.” This test was set out again a month later in Whissell, but with additional reasons from the Honourable Madame Justice Schutz (a member of the Sobeys panel) specifically declining to endorse the test for summary judgment set out by the majority.
As it stands, the law in Alberta appears conflicted. The practical appeal of the reasoning set out in Sobeys is undeniable. It simplifies and clarifies an area that has become increasingly complicated. However, this interpretation may also act to rob the summary judgment rule of its meaning as a cohesive part of the Alberta Rules of Court. Specifically, Part 7: Division 3 of the Alberta Rules of Court sets out the procedure for summary trials. Summary trials occur with the Court’s permission, on affidavit evidence and on a balance of probabilities standard. If the test in Sobeys is widely accepted, summary judgment will be all but indistinguishable from a summary trial.
 Sobeys at para 14
 Sobeys at para 15
 Rotzang at para 15
 Whissell at para 2
 Whissell at para 17