Canada: The Evolving Scope Of Summary Judgment Applications In Alberta

Earlier this year, Stephen Mulrain wrote a blog post on the Supreme Court of Canada's (SCC) decision in Hryniak v Mauldin, 2014 SCC 7 (Hryniak). As discussed in that post, this decision expanded the interlocutory powers of the court under summary judgment with reference to Ontario's Civil Procedure Rules 20.04(2.1) and (2.2). At the time of this decision, it was unclear whether the other provinces would apply the same principles as were celebrated by the SCC regarding the expanding role summary judgment motions should take in our legal system. Alberta's Court of Appeal (ABCA) and Court of Queen's Bench (ABQB) have now considered the SCC's decision in Hryniak and have elucidated the evolving nature of summary judgment in Alberta.

Summary of Hryniak

In summary of the decision in Hryniak, the SCC outlined that the court process should promote and permit dispute resolution at the point when such just resolution is possible, which may well be prior to trial. The SCC held that an application for summary judgment should resolve an action before trial if the judge "is able to reach a fair and just determination on the merits" (para 49).

Interpretation in Alberta

In Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 (Windsor), the ABCA addressed the application of summary judgment motions in light of the SCC's recent decision on the matter in Hryniak. Although Hryniak was decided under Ontario's Rule 20.04, the ABCA in Windsor held that the principles in Ontario's Rule are consistent with Alberta's modern summary judgment practice as outlined in the Alberta Rules of Court, Rule 7.3. Both Ontario and Alberta's summary judgment rules are dispute resolution procedures aimed at avoiding entrance into the trial system. Alberta's Rule 7.3(1) states:

A party may apply to the Court for summary judgment in respect of all or part of a claim on one or more of the following grounds:

  1. there is no defence to a claim or part of it;
  2. there is no merit to a claim or part of it;
  3. the only real issue is the amount to be awarded.

The ABCA interpreted Rule 7.3 by applying the principles endorsed by the SCC in Hryniak, stating that the modern test for summary judgment is 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).

After Windsor was decided, Master Schlosser of the ABQB in 1214777 Alberta Ltd and Cathy Bujold v 480955 Alberta Ltd, 2014 ABQB 301 (1214777 Alberta), proposed a "roadmap approach" to be taken by the courts in summary judgment applications in Alberta. This approach clarifies the treatment of evidence in summary judgment applications in Alberta and involves 5 steps following the initial application of the test for summary judgment as outlined in Windsor, above. If the court determines that, upon examination of the record, a disposition that is fair and just to both parties can be made, Master Schlosser suggests that the court must then engage the following analysis (1214777 Alberta, para 17):

  1. The court is to presume that the best evidence from both sides is before the court, and the summary judgment application is to be made on the evidence before the court.
  2. The court must ask whether a negative inference can be drawn from the absence of evidence on certain points.
  3. The court must consider what evidence is admissible under summary judgment application.
  4. Where a conflict in the evidence is present, the court must consider if it can it be resolved on cross examination.
  5. The court must examine the evidence. In doing so, Master Schlosser cites the Ontario Superior Court decision in Pammett v Ashcroft, 2014 ONSC 2447, in which the court found that on summary judgment applications:

"The court may assess the sufficiency of the evidence, admissibility of evidence and reliability of evidence without access to enhanced fact finding powers. The court may also apply the law to the facts without deciding a genuine question of law." (para 28)

The Bottom Line

The decision in Windsor echoes the principles outlined in the Alberta Rules of Court favoring efficient dispute resolution. Rule 1.2(1) states, "the purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way." Moving forward, it will be interesting to see if, and how, the approach to summary judgment application evolves given the renewed focus on efficiency and the underlying principles of the Rules.

It is still to be seen whether Master Schlosser's "roadmap approach" will gain traction in the Alberta court system. However from the perspective of litigants, an argument can be made for its endorsement, as it would provide greater clarity and certainty in how the test for summary judgment is applied in practice by the courts.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Miller Thomson LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Miller Thomson LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions