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14 May 2019
The Alberta Court of Appeal has clarified the test for summary judgment applications in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd.(1) The court noted the rift that had emerged in case law while discussing the standard of proof that is required in a summary judgment application.(2) In particular, the decisions in Can v Calgary Police Service(3) and Stefanyk v Sobeys Capital Incorporated(4) demonstrate the divergence in the application of the standard of proof that is required for summary judgment.(5) The court mentioned 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".(6) Therefore, the Weir decision seeks to resolve the uncertainty surrounding the approach to a summary judgment application.
In coming to this decision, the Court of Appeal acknowledged the "shift in culture" in respect to the resolution of litigation, pursuant to the Supreme Court's decision in Hryniak v Mauldin.(7) In particular, the Court of Appeal noted that the "reliance on 'the conventional trial no longer reflects the modern reality and needs to be re-adjusted' in favour of more proportionate, timely and affordable procedures".(8) Further, "summary judgment procedures should increasingly be used, and the previous presumption of referring all matters to trial should end".(9) Consideration of this modern approach was a large part of the discussion, as the Court of Appeal established the test for summary judgment applications, summarised below.
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:
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.(10)
The recent decision in BF v BF(11) applied Weir in its analysis. Even though the summary judgment application in BF was heard before the decision in Weir, the written decision was issued afterwards and incorporated the Weir decision. In this estate matter, the applicant sought summary dismissal of a claim brought forward by his brother pertaining to certain pieces of farming equipment claimed to be jointly owned by the brothers. The court applied Weir in its analysis to the facts at hand. In particular, the court looked at the standard provided in Weir, that at the threshold stage the party must "prove the factual elements of its case on a balance of probabilities", as well as the requirement that there is "no genuine issue requiring a trial".(12) Further, the court noted that Weir held that where it is possible to make findings of fact, these should be made in an application for summary disposition.(13) The court determined that, even though there was contradictory evidence from a handwriting expert and an existing unsigned agreement, the remainder of the evidence was overwhelmingly in favour of summary dismissal.(14)
The court also cited Weir for its holding that summary dismissal should not necessarily be limited to uphold a plaintiff's right to go to trial.(15) The Court of Appeal in Weir commented that any "right of the plaintiff to have a trial" is equally offset by the "right of the defendant not to have a trial on an unmeritorious claim". "Fairness is a two-way street."(16) In BF, the Court of Queen's Bench acknowledged these comments by the Court of Appeal in its decision, and concluded that, where the applicant establishes their case on a balance of probabilities and no genuine issue for trial is found, the:
modern state of the law with respect to summary dismissal, and the requirement to use scarce judicial resources efficiently and effectively, requires [that] summary dismissal should be ordered.(17)
For further information on this topic please contact Robert Gilroy, Lovin Narula or Harkirat (Hanna) Teja at Dentons Canada LLP by telephone (+1 780 423 7100) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Dentons Canada LLP website can be accessed at www.dentons.com.
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