Earlier this year we discussed
on this blog the new "sufficient appreciation test"
set out by the Supreme Court in Hryniak v.
Mauldin, which really represents a cultural shift in the
availability of summary judgment to the parties.
The appellant, Canadian Pacific Railway Ltd. ("CPR"),
has operated a locomotive repair facility for over a century. Until
the mid-1980s, a degreasing solvent consisting mainly of
Trichloroethylene (TCE) was used in its facility. In 1999, it was
discovered that TCE had leaked into the groundwater underneath the
facility, and varying levels of TCE had migrated into the
groundwater under the surrounding properties. The appellant
installed sub-slab depressurization systems under some of these
properties in order to reduce the TCE concentrations below the
Health Canada thresholds and did not take any actions regarding the
The respondents brought an action for diminution in property
values and losses of rental income allegedly caused by the presence
of TCE in the groundwater underneath their homes. This action,
based on negligence, nuisance, trespass and strict liability (under
Rylands v. Fletcher), was subsequently certified
as a class proceeding.
The appellant then applied to summarily dismiss the claims based
on strict liability and nuisance. The case management judge
summarily dismissed the claim for nuisance by the class members
without sub-slab depressurization systems, because any damage to
these lands was trivial or nonexistent. However, he declined to
dismiss the strict liability claim by all class members and the
nuisance claim by class members with sub-slab depressurization
systems because there was a triable issue in each case. The
appellant appealed this part of the ruling.
The Court of Appeal Decision
First, the Court stressed that the modern test for summary
dismissal is whether there is "a reasonable prospect that the
claim will succeed." Applying the principles set out in Hryniak v.
Mauldin, 2014 SCC 7, a genuine issue requiring a trial
does not exist if the motion process (1) allows the judge to make
the necessary findings of fact; (2) allows the judge to apply the
law to the facts; and (3) is a proportionate, more expeditious and
less expensive means to achieve a just result than going to
The Alberta Court of Appeal confirmed that the principles set
out in Hryniak v. Mauldin (Ontario) are consistent with
modern Alberta summary judgment practice:
"While Hryniak v
Mauldin applied Ontario R. 20, the principles stated in it are
consistent with modern Alberta summary judgment practice as set out
in Alberta R. 7.3... New R. 7.3 calls for a more holistic analysis
of whether the claim has "merit", and is not confined to
the test of "a genuine issue for trial" found in the
previous rules. Since one of the objectives of class proceedings is
to provide affordable access to justice, these principles relating
to summary judgment are applicable to the class procedure as
The Court of Appeal reiterated the need for a change in
"Interlocutory decisions that
can resolve a dispute in whole or in part should be made when the
record permits a fair and just adjudication."
The Alberta Court of Appeal has confirmed the presence of a
cultural shift by making summary judgment more available to
parties; the Hryniak test for summary judgment applies in
Alberta, despite the differences in wording as between the Ontario
and Alberta summary judgment rules.
More importantly, the Alberta Court of Appeal clarified that
indeed the Hryniak test set out by the Supreme Court shows
that summary judgment is an appropriate alternative to a trial in
many cases, beyond just facially meritless claims.
With respect to class actions, this ruling demonstrates that the
summary judgment test can be used to defeat all or part of a class
action prior to the common issues trial. This is significant
since the SCC has in recent cases arguably made the test to certify
a class action in the common law provinces easier (and certainly
not more difficult) to meet.
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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