Effecting a cultural shift, a new summary judgment test has been
embraced by the Alberta Court of Appeal in Windsor v
Canadian Pacific Railway Ltd, 2014 ABCA 108
[Windsor]. This new test will make it easier to obtain
summary judgment, which is a final disposition of a lawsuit without
having to go through a full trial.
Windsor follows the Supreme Court of Canada's
recent ruling in Hryniak v Mauldin, 2014 SCC 7
[Hryniak]. In Hryniak, the Supreme Court
considered the Ontario summary judgment rule and overruled earlier
authority that largely restricted the availability of summary
judgment. The Supreme Court described summary judgment as a
legitimate alternative model of dispute adjudication, rather than
simply a method of weeding out unmeritorious claims. The procedure
is intended to provide litigants with a less expensive and more
timely method of obtaining access to justice, and dispose of the
need for a full trial in appropriate cases.
Until now, it was unclear to what extent the Supreme Court's
decision was confined to the Ontario rules and if (and how) it
would apply outside of Ontario (see, for example, Orr v Fort
McKay First Nation, 2014 ABQB 111). The Alberta Court of
Appeal has confirmed that these principles apply to Alberta and has
given an illustration as to how.
In Windsor, the Court held that summary judgment is an
appropriate procedure if there is "no genuine issue requiring
a trial". The test for whether there is "a genuine issue
requiring a trial" is whether the chambers judge is able to
reach a fair and just determination on the merits on a motion for
summary judgment. This will be the case if the summary judgment
allows the judge to make the necessary findings of fact;
allows the judge to apply the law to the facts; and
is a proportionate, more expeditious and less expensive means
to achieve a just result.
According to the Court, "[t]he modern test for summary
judgment is therefore to examine the record to see if a disposition
that is fair and just to both parties can be made on the existing
record" (para 13). No longer will civil litigants have to
prove it is "plain and obvious", "beyond doubt"
or "clear" that summary judgment should be granted. The
Court explained that "[m]odern civil procedure has come to
recognize that a full trial is not always the sensible and
proportionate way to resolve disputes" (para 12). Recognizing
that trials in civil litigation are becoming increasingly rare, the
Court warned that "the myth of trial should no longer govern
civil procedure" (para 15). Instead, "[i]nterlocutory
decisions that can resolve a dispute in whole or in part should be
made when the record permits a fair and just adjudication"
(para 15). In the result, the Court overturned the chambers judge
and granted summary judgment on appeal for a portion of the
Windsor clearly confirms that Hryniak is a
landmark case. It reinforces the notion that under modern civil
procedure, a full trial is not always the most appropriate method
of resolving disputes. It further indicates that there will be a
much greater role for summary judgment in the future, and follows
the Supreme Court's direction that summary judgment is to be
used as a way to provide litigants with less expensive and timelier
access to justice.
The full effect of Hryniak and Windsor on
summary judgment practice will be seen as future cases are decided.
Interesting implications of these decisions and issues that may
whether chambers judges in Alberta will use expanded
fact-finding powers when hearing summary judgment applications, as
contemplated in Hryniak, if needed;
whether Alberta will embrace the Supreme Court's suggestion
that motion judges who dismiss applications for summary judgment
should, absent compelling reasons to the contrary, seize themselves
of the matters as the trial judges;
the heightened need for respondents to put their "best
foot forward" on summary judgment applications and consider
whether to bring cross summary judgment applications
the timing of summary judgment applications, in part due to an
inability to rely on evidence that may be elicited later in the
the impact this procedure will have on settlement discussions,
including the timing of any such discussions; and
the frequency of summary judgment applications and whether cost
savings will actually be realized in practice.
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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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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