In Burton Canada Company v
Coady ("Coady"), the Nova
Scotia Court of Appeal offers helpful insights into the world of
the summary judgment application, including problems to avoid, what
requirements must be met, and what the proper analytical framework
In Coady, the plaintiff sued in negligence after being
paralyzed while snowboarding. Both defendants, the snowboard maker
and the ski resort, brought summary judgment applications on the
grounds that the plaintiff could not mount a proper case for trial.
The chambers judge refused to grant summary judgment. In a 4-1
decision, the NSCA upheld the chambers judge's decision because
there were "material facts" in dispute.
Although the facts of the case were not unusual, Mr. Justice
Saunders took the opportunity, at paras 22-45, to canvass the
overall purpose of summary judgment and the proper framework for
The purpose and scope of summary judgment
The Court held that summary judgment plays a key role in civil
litigation by "weeding out" certain cases from the system
so that cases with true merit can be heard: Coady at 22.
The Court noted that there was nothing "summary" about
the case before the Court. In fact, the initial application lead to
a complicated appeal, with a 5-member panel, with 6 lawyers arguing
their positions "fighting over a record comprising 11 volumes
and forming a pile a foot high."
Justice Saunders reiterated the legal principle governing
summary judgment applications as stated by the Supreme Court of
Canada in Guarantee Co. of North America v Gordon
Capital Corp., which discussed Ontario's Rule for
summary judgment, where the Court affirmed, at para 27, that:
"The appropriate test to be applied on a motion for summary
judgment is satisfied when the applicant has shown that there is no
genuine issue of material fact requiring trial".
Justice Saunders also discussed Canada (Attorney General) v Lameman,
which discussed Alberta's Rule for summary judgment, where the
Court affirmed, at para 11, that: "[...] the bar on a motion
for summary judgment is high. The defendant who seeks summary
dismissal bears the evidentiary burden of showing that there is
'no genuine issue of material fact requiring
Justice Saunders notes that both lawyers and judges have
experienced difficulty in apply the test: "It appears to me
that some of the difficulty experienced by counsel and judges in
this area of the law may arise because the Rule does not accurately
track the test established by the Supreme Court in
Part of this difficulty also comes from the different wordings
of the test in the various Rules of Court and Civil Procedure.
While the SCC employed the phrase "genuine issue of material
fact requiring trial", both Nova Scotia and Alberta use
slightly different language.
The proper analytical framework to summary judgment
Justice Saunders explains that the test for summary judgment has
two distinct stages.
At the first stage, the applicant must show that there are no
genuine issues of material fact that would require a trial. At this
point, there is no burden on the respondent to do anything:
Coady at para 38. Accordingly, once a chambers judge
decides that the applicant has failed to meet its burden, the
analysis must end. There should be no inquiry into the
respondent's case, "tangentially or otherwise":
Supra, at para 39.
In summary, "the judge's focus is concerned only with
the important factual matters that anchor the cause of action or
defence. At this stage the relative merits of either party's
position are irrelevant.": Supra, at para 42.
Justice Saunders continues, "Instead, the judge's test is
to decide whether the responding party has demonstrated on the
evidence (from whatever source) whether its claim (or defence) has
a real chance of success": Supra.
At the second stage, the chambers judge is required to enter
into a consideration of the merits of both sides, after it has been
shown that there are in fact disputed facts. The second stage is
only engaged where the applicant has shown that there are no
disputed material facts.
Counsel in Alberta should be mindful of the two-stage analysis
in Coady because it sets out a clear and concise procedure
to use in chambers when making a summary judgment application.
Since all actions are grounded upon facts, if these facts are in
dispute then it will be difficult to prove that there is no genuine
issue for trial.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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