The ABCA in a five-justice panel has confirmed the test for summary judgment in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49.

The ABCA has now outlined a four-part test for summary judgment. In short, the test has reverted back to whether there is a genuine issue for trial, but with a lot of nuances and “blasts from the past”:

  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.

The rift between the two tests for summary judgment (i.e. balance of probabilities vs. high likelihood of success/unassailable) has been somewhat reconciled.

The ABCA has said that first, the moving party must prove the factual elements of its case on a balance of probabilities. Then it must prove there is no genuine issue for trial. This goes for plaintiffs and defendants alike.

Then, the onus shifts. The non-moving party, to successfully resist a summary judgment application, does not have to prove its case on a balance of probabilities, but merely has to demonstrate that the record, the facts, or the law preclude a fair disposition, or that the moving party has failed to establish there is no genuine issue requiring a trial.

Proving your case on a balance of probabilities is only the first part of the test. Also, the ABCA does not wish to impose standards like “high likelihood of success”, “obvious”, “unassailable”, “beyond doubt”, or “highly likely”.

The overall assessment of whether summary judgment is an appropriate remedy has been left to the discretion of the chambers master/judge to determine if summary disposition is a “suitable means to achieve a just result”.

It is ok for there to be conflicts in the evidence, but to be successful in summary judgment, you have to provide the master/judge enough confidence in your evidence that a trial is not required and a fair and just disposition can be achieved summarily.