The Alberta Court of Appeal in its recent decision, 776826
Alberta Ltd. v. Ostrowercha, 2015 ABCA 49, discussed the
recent changes to the direction of the law on summary judgment
applications. It confirmed that the decision of the Trial Judge as
to whether or not summary judgment is a fair and appropriate means
of adjudication is discretionary and is entitled to deference. The
Court of Appeal stated: "In practical terms, this means that
appeals from denials of motions for summary judgment will
be difficult to establish." [emphasis added]
The Court of Appeal went further to discuss the test for summary
judgment. Summary judgment can be granted if there is no
"merit" to the claim. No "merit" means that
even assuming the non-moving party's position is accurate on
material and divisive matters (which are typically matters that may
require forensic testing, viva voce evidence and are
matters not usually decided in a summary judgment venue), viewed in
the whole, the non-moving party's position has no merit in law
or fact. Put another way, the Court of Appeal stated that
"..in order for the non-moving party's case to have merit,
there must be a genuine issue of a potentially decisive material
fact in the case which cannot be summarily found..." against
the non-moving party based on the summary judgment process of fair
and just adjudication.
The Alberta Court of Appeal referred to its 2014 decision of
W.P. v. Alberta, 2014 ABCA 404 to summarize where it was
"Summary judgment is therefore no longer to be denied
solely on the basis that the evidence discloses a triable issue.
The question is whether there is in fact any issue of
"merit" that genuinely requires a trial, or conversely
whether the claim or defence is so compelling that the likelihood
it will succeed is very high such that it should be determined
Clearly, summary judgment as an expanded tool for the
adjudication of disputes remains a viable option in Alberta.
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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