In this article we explore the evolution of the test for summary judgment in Alberta over the past five years. In 2014, the Supreme Court of Canada issued its decision in Hryniak v Mauldin, 2014 SCC 7, which called for a culture shift. Instead of spending exorbitant amounts of resources and time on cases that did not warrant it, the Court asked litigators to use summary judgment as a dispute resolution mechanism more often. When there was no genuine issue requiring a trial (when a judge was able to reach a fair and just determination on the merits of the motion) summary judgment motions should be granted. Before Hryniak, if a party attempted to apply for summary judgment, all the respondent had to do was indicate there was a triable issue (even a minor one) and the application for summary judgment would fail. The case law had set a very high standard of proof on the moving party. Post 2014, the courts have, in a general sense, adopted the culture shift called for by the Supreme Court. However, Alberta courts have struggled with applying Hryniak to the summary judgment procedure laid out in the Alberta Rules of Court which require a party to demonstrate that there is no defence or no merit to a claim. In particular, the courts have struggled with the burden of proof the moving party must meet to demonstrate there is no merit.
In 2018, the Alberta Court of Appeal released two decisions which iterated competing tests for summary judgment applications. In Sobeys v Stefanyk, 2018 ABCA 125, the Court said summary judgment applications required the moving party to prove its case on a balance of probabilities. A month later, a different panel of the Alberta Court of Appeal stated in Rotzang v CIBC World Markets Inc., 2018 ABCA 153, the test required the moving party to demonstrate its case had a “high likelihood of success” and was “unassailable” which harkened back to words used before Hryniak. After these decisions, the courts struggled with what standard should be applied. In 330626 Alberta Ltd. v Ho & Laviolette Engineering Ltd, 2018 ABQB 478 at para 41, the Court noted that “it would be helpful if the Court of Appeal could definitively resolve this issue with a five person panel in the near future.”
On February 6, 2019, the Alberta Court of Appeal did just this when it decided Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49 and provided a reconciliation of the competing tests. The Court indicated the moving party must first prove the facts on a balance of probabilities and then demonstrate there is no genuine issue for trial. The onus would then shift to the non-moving party to show gaps in the evidence or that there is a genuine issue for trial. The chambers judge would then be left to exercise discretion in granting the summary judgment application. The Alberta Court of Appeal refused to impose standards like “high likelihood of success”, “obvious”, “unassailable”, “beyond doubt”, or “highly likely”.
The courts are more inclined to grant summary judgment since Hryniak, however there have been challenges in defining when summary judgment should be granted. Hopefully Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., has clarified some of the issues that have arisen to make the process easier, more predictable and more accessible as the Supreme Canada directed in Hryniak.
Before Hryniak, summary judgment was somewhat of a rarity in litigation. The test for summary judgment was very high and the chances of success were very low. Essentially, the matter had to be absent of any triable issue in order for summary judgment to be appropriate. All the facts would essentially be agreed upon such that the application was an academic debate on the law. However, if facts were in dispute or the law itself was unsettled, the application for summary judgment would face an uphill battle. The respondent would simply argue that either the disputed facts or the law presented a triable issue and the summary judgment application would fail.
The Supreme Court of Canada called for a culture shift. The facts in Hryniak were so straightforward that the Supreme Court indicated the matter should not have taken so long to proceed to trial. Summary judgment should have been used earlier in the process and litigators were encouraged to use summary judgment as a dispute resolution mechanism. Litigators were asked to use summary judgment to either achieve judgment or dismissal of claims based on the merits. As a result, the test for summary judgment no longer required a triable issue but rather an issue that genuinely required a trial to resolve. The genuine issue would have to arise from an issue of merit or potentially decisive material fact in the matter. A non-moving party could no longer resist the application with a mere assertion of a position in a pleading or the hope that something would turn up at the time of trial.
In Alberta, the courts interpreted the call for the culture shift from the Supreme Court to mean that while a matter may have some issues in dispute, if those issues were relatively minor, and the key issue at the heart of the matter could be resolved through a review of affidavit evidence alone without a credibility contest, then the matter should be resolved. Hence, the courts looked at the merits of each party's position, assessed the merits, and if one party's position had a high likelihood of success at trial, or was in other words "unassailable", then the courts would resolve the issue through summary judgment.
The Alberta Court of Appeal went through several permutations of the test for summary judgment iterating terms like "high likelihood of success", "unassailable", and "without merit". The main case from the Court of Appeal was the Whitecourt case which was cited in almost every written decision for a summary judgment application. That case supported the "unassailable" and "high likelihood of success" standards for a summary judgment application until March 2018.
Recent Rift: Balance of Probabilities versus Unassailability
In the March 2018 decision of Stefanyk, the Court of Appeal granted summary dismissal of all claims against Sobeys indicating it was not negligent. Specifically, the Court said negligence against Sobeys had not been proven. However, more importantly, the Court indicated there was only one civil standard of proof on a balance of probabilities. The Court said "unassailable" and "high likelihood of success" were not recognized burdens of proof. Essentially, the panel who decided Stefanyk told the legal community that the test for summary judgment is the same as it would be for trial. A party needs to prove on a balance of probabilities their position either at trial or in a summary judgment application to be successful. Sobeys was a landmark case that caused much debate within the judiciary.
A month later, a different panel of the Court of Appeal in Rotzang, simply noted that summary 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.” The Court found the respondent’s position was unassailable and the decision to dismiss the case was upheld. The Court did not mention the Stefanyk case, and the parties likely did not have the advantage of the decision when making its arguments.
Given these two decisions came out virtually at the same time, the courts struggled with which to follow. There was a discord within the Alberta Court of Appeal as to what the standard of proof for the moving party should be for summary judgment applications. We reviewed the reported summary judgment cases after Stefanyk and Rotzang. In the 48 cases reviewed fourteen of those clearly followed Stefanyk and three clearly followed Rotzang. Most of the case law that came out immediately after Stefanyk favored its approach, and even if it did not clearly follow it, the cases were citing it most often. After the dispute between the competing tests was fully acknowledged and the judiciary knew there was a Court of Appeal panel convened to resolve the dispute, most cases cited both standards and tried to avoid the conflict. They either did not consider which standard was appropriate, said the case did not even meet the first step of determining whether the evidentiary record was sufficient to consider the matter, conflated the two standards, or said the application met or did not meet both standards so it was unnecessary to resolve the conflict. However, the majority of the decisions favored the principles advocated in Stefanyk and it appeared that the courts would be more likely to follow Stefanyk if an application was brought.
It is interesting to note some of the Court of Appeal decisions that came out after Stefanyk and Rotzang but before the Weir-Jones Technical Services Incorporated decision was made. There was an obvious division amongst the Court of Appeal over which standard should be applied.
On May 25, 2018, Whissell Contracting Ltd. v Calgary (City), 2018 ABCA 204, followed Rotzang finding that "unassailable" and "high likelihood of success" was still the test for summary judgment. However, Madam Justice Schutz, who was on the Stefanyk panel, wrote a concurring decision. In her decision she indicated that while the result in Whissell was correct and that summary judgment should be granted, she was unable to agree with her fellow justices that the test for summary judgment required either a high likelihood of success or an unassailable position. Instead, balance of probabilities was the only recognized civil standard of proof.
On June 1, 2018, Angus Partnership Inc. v Salvation Army (Governing Council), 2018 ABCA 206, followed the Stefanyk decision and stated the chamber’s judged erred when it required the moving party to present uncontroverted facts which made it “highly unlikely” that the non-moving party will succeed at trial.
On September 4, 2018, in 898294 Alberta Ltd v Riverside Quays Limited Partnership, 2018 ABCA 281, the same panel who decided Rotzang, followed the standard set in Rotzang and did not cite Stefanyk.
On November 21, 2018, the majority in the Geophysical Service Incorporated v Murphy Oil Company Ltd, 2018 ABCA 380, cited Stefanyk, and noted merit in a summary judgment applications means proof on a balance of probabilities. The dissent, written by Justice O’Ferrall, who was on the Rotzang panel, quoted the earlier cases that noted the moving party’s position must be unassailable.
On January 22, 2019, in Lay v Lay, 2019 ABCA 21, the majority of the Court upheld the dismissal of a plaintiff’s action and did not cite either Stefanyk or Rotzang. Justice Wakeling (also on the Rotzang panel), wrote a concurring decision and also upheld the dismissal, but cited Rotzang as the applicable law.
On February 6, 2019, the Albert Court of Appeal released the decision in Weir-Jones Technical Services Incorporated and tried to reconcile the two competing tests from Stefanyk and Rotzang. The Court recognized that a rift recently emerged in the case law when discussing the standard of proof required for a summary judgment application. The uncertainty arose from the interpretation and application of the new principles governing summary judgment since Hryniak. In considering how the rift was formed, the Court believed it was multifactorial, one of those factors being “old habits die hard.” The stern vocabulary that was used before Hryniak continued to be used. The solution to this issue was to go back to first principles.
The Court first clarified that the terms from Rotzang like “high likelihood of success”, “obvious”, “unassailable”, “beyond doubt”, or “highly likely” are not the recognized standard of proof in civil proceedings. The standard of proof is on a balance of probabilities, as pointed out in Stefanyk, however the standard of proof only applied to findings of fact. It does not apply to whether, at the end of the day, it is possible to achieve a fair and just adjudication on a summary basis. It is necessary for a moving party to prove its case on a balance of probabilities but this is not sufficient (Stefanyk leaned towards saying this was sufficient). It is merely one step in determining if there is a genuine issue requiring trial. The resisting party has to demonstrate that on the record, the facts, or the law a fair disposition cannot be made, or in other words that the moving party has failed to establish there is no genuine issue requiring trial. A moving party does not have to demonstrate its position to an “unassailable” level though. The Court was clear that a consideration of the disparate nature between the positions of the moving party and the non-moving party was not part of the analysis (this is something Justice Wakeling advocated for in his concurring decision in Weir-Jones, Rotzang, and many other decisions he wrote in the post- Hryniak era).
It appears the Court melded the previous iterations of the test for summary judgment in order to reconcile them. As has always been the case, the court must be satisfied initially that it is possible to resolve the dispute on a summary basis based on the record before them. If there is uncertainty in the facts, record or law, an application will not proceed past this (and many summary judgment applications fail because of this). Once it has been determined that the application can proceed, the moving party must prove the factual elements of its position on a balance of probabilities and demonstrate holistically that there is no genuine issue for trial. If the moving party does this, then the resisting party must put its best foot forward and demonstrate there are genuine issues for trial (there are a number of ways outlined in the decision of how a resisting party can do this. The resisting party’s factual burden is also on a balance of probabilities). Finally, the presiding justice still has overall discretion to decide if he or she can summarily resolve the dispute.
Although the Court agreed with Stefanyk about the civil standard of proof, and clearly indicated the words “unassailable” should not be used, it remarked that a presiding judge can still use their discretion to decide either the moving party has not met its burden to show there is no genuine issue for trial or the action cannot be resolved summarily. This is an attempt to cover some of the concerns the Justices who followed Rotzang would have in ensuring there is overall fairness in the result.
In summary, the new four-part test for summary judgment is:
- 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?
- 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?
- 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.
- 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 Court noted the analysis does not have to proceed sequentially or in any particular order. The presiding judge may determine at any point that the application is inappropriate to be decided summarily.
- There have been only two reported decisions that have cited Weir-Jones Technical Services Incorporated so far, BF v BF, 2019 ABQB 102 and James L. Dixon Professional Corporation v Amundsen, 2019 ABPC 35. In Amundsen the court noted that the Court of Appeal had “clarified” the appropriate test to be applied when considering a summary judgment/dismissal application and they gave important direction regarding summary judgment applications. This decision avoided any language akin to unassailable, instead opting to comment that the defendant had demonstrated there was no genuine issue to be tried and this was a fair and just result of the outstanding claims. As advocated by Weir-Jones Technical Services Incorporated this language brings us back to first principles embraced in Hryniak.
- In BF v BF, even though the resisting party raised some conflicts in the evidence, the judge was satisfied that there was no genuine issue for trial. He found the moving party had established its case on a balance of probabilities.
- Although the panel in Weir-Jones Technical Services Incorporated said it is only the factual burden the moving party is proving on a balance of probabilities and not its entire position (which has to as a whole demonstrate there is no genuine issue for trial), it may become confusing for courts to determine if there is a distinction (like those that followed Stefanyk). When a moving party has met its factual burden on a balance of probabilities, given the nature of the matter, it might follow that there is no genuine issue for trial without any separate considerations of this (as in BF v BF). It will be interesting to see if a decision comes out where a moving party meets its factual burden on a balance of probabilities, but for some reason still does not demonstrate there is no genuine issue required for trial. This might add clarity to what standards or factors are applied when a court has to consider if after a moving party has met its burden, there are still issues that require a trial. Where this will likely become an issue is when the resisting party has raised enough issues, that even though the factual burden is met, there is still something that requires the matter to proceed.
It appears that the majority of the cases after Stefanyk and Rotzang favored the approach taken by Stefanyk. This approach was more favourable to the moving party as it did not require them to meet an impossibly high burden which was the norm before Hryniak.
Weir-Jones Technical Services Incorporated supports the idea that the moving party’s factual burden is only on a balance of probabilities but does add additional layers of precaution to the test to ensure that a moving party is still demonstrating overall that there is no genuine issue required for trial. Further, a judge still has discretion in deciding whether a matter should be dealt with summarily (even once a moving party meets its factual burden).
In our view, this decision is still favourable to applicants bringing summary dismissal applications as it makes clear that a moving party’s position does not have to be unassailable. It appears courts like in BF v BF, are still focused on factors emphasized in Stefanyk, those being whether the moving party has met its burden on a balance of probabilities, and whether the resisting party has provided enough to tip the scales to show there is a genuine issue. It will be interesting to see whether summary judgment applications become more predictable given we now have an outlined test.
In our view, this decision is still favourable to applicants bringing summary dismissal applications as it makes clear that a moving party's position does not have to be unassailable.