On February 6 2019, the Court of Appeal issued an important 5-judge decision settling the tests for summary judgment (and commenting on summary trial). It is called Weir-Jones Tech. Services v. Purolator Courier 2019 ABCA 49, Edm 1703 0218 AC (affg 2017 ABQB 491). Any lawyer should read it who does much litigation, or who has to consider whether to bring or oppose an application for summary judgment, summary dismissal, or summary trial. A lawyer who does not do much litigation should read this summary.
Earlier Court of Appeal decisions had split on whether there was still a test requiring a very high degree of likelihood in order to get such summary relief. With one judge dissenting on this point (though not in the result here), the short answer was no.
However, that “short answer” is somewhat misleading. A big point made by the majority decision, is that standard or level of proof is not the only issue or test, and indeed probably not the main one. Standard or degree of proof is a test only for how to decide contested facts; it is not the test for whether summary adjudication would be fair and just (Weir-Jones ¶ʼs 29 and 34 and 47(b)), nor is it a freestanding test for whether to give summary adjudication (¶ 30). The word “no” in Rule 7.3 cannot be read too literally or out of context (¶ʼs 31-33). There are several questions which a judge or master must decide when asked for one of these kinds of summary relief. The order in which the court goes through them does not matter (¶ 47 end), but they should not be confused. These are the basic questions or tests for summary judgment (or dismissal):
Can the judge or Master make fact findings? That facts are disputed does not dictate the answer to this. If the judge cannot, summary disposal is impossible (Weir-Jones ¶ 21(a));
Is the serious dispute about applying the law to facts which are not really disputed? Then summary disposition is usually appropriate: that is essentially a contest about the law (¶ 21(b));
Is summary disposition proportionate, quicker, and less expensive? (¶ 21(c) beginning). (Presumably the answer to this is usually yes, unless maybe court chambers lists are badly clogged.);
Would summary judgment achieve a just result? (¶ʼs 21(c) end, and 25)).
Summary judgment or dismissal obviates any trial, whereas summary trial is a kind of trial (Weir-Jones, ¶ 18). But summary judgment or dismissal is no less a legitimate way of ending a suit (¶ 20).
Obviously the big question is #4 above; what is or is not a just result? The majority decision goes into how to decide that.
Sometimes a dispute on material facts, or on issues of credibility, or uncertainty as to the record, can leave a genuine issue or issues requiring a trial, providing that the evidence in chambers shows that; mere speculation on this is not enough (¶ 35 end, and 38 end and 47(b),(d));
Not all conflicting evidence bars summary disposition, and summary disposition is not confined to documentary evidence cases, nor cases where the facts are essentially admitted, nor cases where the evidence is equivalent to that at trial (¶ 36 first part, and ¶ 38);
A conflict of evidence may not matter if the facts asserted against summary disposition would not support that party’s position (¶ 38 end);
Important is sufficiency of the record, which depends on the issues, the source and continuity of the evidence, and other relevant considerations (¶ 36 end and 47(a));
Both parties ordinarily must put their best evidence forward in chambers, and not just speculate about what might turn up at trial (¶ʼs 37 and 47(c)), unless maybe one party controls all the records and evidence (¶ 40);
The process at summary disposition must be fair (¶ 46 beginning);
Complex factual issues, especially involving highly technical expert evidence, will often bar summary disposition (¶ 45 end);
In a close case, probably the chambers judge will not be able to have enough confidence in reaching a just result (¶ 46 end);
Presumably proportionality is also relevant here, as the judgment stresses it: if the lawsuit had huge consequences for the public or one or both parties, that might make it easier to deny summary disposition and hold a traditional trial, at least on certain issues (¶ʼs 43-44);
Occasionally the law is so complex or unsettled that a full trial record is needed, barring summary disposition (¶ 45 beginning).
That summary disposition is denied does not always bar a second request for it later, if the record is then clarified and the issues maybe narrowed (¶ 49 end).
With acknowledgment to the judge who dissented about the proper test or degree of proof, it seems to me that his main points were possibly arguable a few years ago. But the law laid down by the Supreme Court of Canada in 2014 (in Hryniak v. Mauldin 2014 SCC 7) closed that door. The Supreme Court decreed a new philosophy and removed the full-scale trial as the default mode for deciding lawsuits, and emphasized proportionality and economy, as do Alberta’s Rules of Court (say the majority in Weir-Jones, ¶ʼs 14-16, and 26 and 43-44). .
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.