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
there is no defence to a claim or part of it;
there is no merit to a claim or part of it;
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,
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.
The court must ask whether a negative inference can be drawn
from the absence of evidence on certain points.
The court must consider what evidence is admissible under
summary judgment application.
Where a conflict in the evidence is present, the court must
consider if it can it be resolved on cross examination.
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
"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
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.
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