In Hryniak v. Mauldin
(Hryniak), the Supreme Court of Canada (SCC) opened the
door for courts to grant summary judgment whenever the record
provides "the evidence required to fairly and justly
adjudicate the dispute[.]" In Alberta, however, neither judges
nor masters are permitted by the Rules of Court to weigh
evidence on summary judgment applications, so the approach to a
motion for summary judgment provided by the SCC in Hryniak is of
limited use in Alberta. As a result, Alberta courts have developed
their own approach to determine summary judgment applications.
The plaintiff claimed that the defendant paid only part of the
amount owing for advertising and communication services, leaving a
balance of C$102,264.45. The defendant argued it was not obliged to
pay the balance because the plaintiff did not perform all of the
work it was hired to perform.
The plaintiff's application for summary judgment was
dismissed by Master R.P. Wacowich. The plaintiff appealed to
Justice R. A. Graesser, who applied the summary judgment approach
developed by Alberta courts following the release of
Justice Graesser first looked to the record before him and asked
whether it was essential to the resolution of the dispute that the
court see the witnesses. Had the answer been yes, Justice Graesser
would have dismissed the appeal. The answer in this case was no, so
Justice Graesser engaged in a multi-step reasoning process, by:
Presuming that the best evidence from
both sides was before the court
Asking whether a negative inference
could be drawn from the absence of evidence on certain points
Determining whether all of the
evidence was admissible
Asking whether there was a conflict
in the evidence and if so, whether the conflict had been resolved
on cross-examination, or whether the evidence giving rise to the
conflict was purely self-serving and was otherwise unsupported
Examining the evidence
Applying this approach, Justice Graesser found that there was no
genuine issue requiring a trial as the defendant failed to provide
evidence sufficient to support any of its defences. He concluded
that because the defendant did not raise complaints about the
plaintiff's services until after the plaintiff withdrew its
services, either the defendant had lain in the weeds and therefore
acted in bad faith, or its complaints had no merit.
ROLE OF CROSS-EXAMINATION IN SUMMARY JUDGMENT APPLICATIONS
In Sticks and Stones, the Master at first instance
dismissed the summary judgment application in part because the
plaintiff did not cross-examine on the defendant's affidavit.
The plaintiff did so prior to the appeal to Justice Graesser, whose
decision was based in part on evidence obtained on the
cross-examination. The Sticks and Stones decision shows
that if the affidavit of a respondent to a summary judgment
application creates a conflict in evidence on a relevant issue, the
applicant will almost certainly lose unless they have resolved the
conflict by cross-examining on the respondent's affidavit, or
the conflicting evidence is "purely self-serving and is
This does not mean that the applicant must cross-examine on each
and every allegation made by the respondent. Justice Graesser
declined to overrule the general proposition that the trier of fact
should accept a witness' evidence on a particular issue if the
other side has not cross-examined the witness on that issue.
Because they are unable to weigh evidence on summary judgment
applications, Alberta judges and masters have created their own
approach to determining summary judgment applications in the wake
of Hryniak. This approach is based on an amalgamation of
case law on particular evidentiary points, underpinned by the
proportionality principle now coming to the forefront in judicial
If there is a conflict in evidence, the judge or master must
determine whether the conflict has been resolved by
cross-examination or should be disregarded because the evidence
giving rise to the conflict is self-serving and unsupported.
Accordingly, applicants should give careful consideration to
cross-examining on respondents' affidavits whenever they
introduce a conflict in evidence on a relevant issue, or where the
grounds for self-serving statements can be undermined.
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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