Canada’s judicial system is under a constant strain of people awaiting to proceed through trials. One way to alleviate this pressure is through summary judgments, which serve to avoid unnecessary trials or parts of trials. One party might apply for summary judgment if they think the outcome is obvious (in their favour or not) or perhaps when a party feels there is no real dispute over the facts. In Alberta, the courts have been debating what the test to allow summary judgement is. In a very recent decision the Alberta Court of Appeal has confirmed how the province’s courts will decide whether an issue is appropriate for summary judgment.

Unassailable vs. A balance of probabilities

The Alberta Court of Appeal had until recently issued contradictory decisions about the test for summary judgment. One specific area of dispute was around the standard of proof that must be met by the party moving, or applying for, summary judgment. Some decisions have held that the applying party must demonstrate an “unassailable” position while other decisions settled for a lower standard of the balance of probabilities, which is used in civil cases. Of course, the former standard has a much higher threshold, leaving many issues outside of what is appropriate for summary judgment. A threshold of a balance of probabilities would allow more decisions to be decided by summary judgment.

The test

The court, referencing a 2014 decision from the  Supreme Court of Canada, agreed “The conventional trial no longer reflects the modern reality and needs to be re-adjusted.” The court added,

“It comes down to whether summary disposition is possible, considering the record, the evidence, the facts, and the law that must be applied to them. If the record allows the judge to make the necessary findings of fact and apply the law, then the summary procedure should be used unless there is a substantive reason to conclude that summary disposition would not ‘achieve a just result.’”

The court summarized the goals of the test, stating it “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.” It then outlined the key principles as follows:

1. Having regard to the state of the record and the issues, 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 requiring a trial?
2. Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the factsof the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for summary adjudication.
3. If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial, summary disposition is not available.
4. In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute.

To summarize, the test first requires the court to ask if it’s appropriate to resolve the issue by way of summary judgment. This is achieved by assessing the facts and the issues at hand. The second step requires the moving party to show the non-moving party has “no merit” or “no defence” with the facts before the court establishing this “on a balance of probabilities.” This is important, because it means there can be some dispute over facts.

Following the first two steps, the non-moving, or resisting party, must show there is a genuine issue requiring a trial. Finally, the court must exercise its discretion to determine if it is sufficiently confident that a summary judgment will resolve the dispute.

At HMC Law  we practice across a broad spectrum of the law, including civil litigation, employment law, insurance law, construction law, and personal injury law. We also work with parties going through mediation or arbitration. We offer strategic advice designed to anticipate roadblocks and any other delays in resolution to your matter. Please call us at 403-269-7220 or reach us online to discuss your issue today.