Canada: Careful Putting Your Best Foot Forward: Alberta Court Of Appeal Eases Access To Summary Dismissal

The Albeta Court of Appeal strengthened the post-Hryniak judicial trend in favour of the summary disposition of litigation without trial by upholding the decision of a chambers judge to grant summary dismissal without strict adherence to the applicable Rules of Court. In Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA 12, the plaintiff applied for summary judgment but failed to make its case. It saw not just its application, but its entire claim, dismissed, even though the defendant had not brought a cross-application for summary dismissal.

Background and Decision Below

The plaintiff and defendant each manufactured and sold jewellery, and had entered into a settlement agreement whereby the defendant agreed to not sell jewellery with certain unique and protected characteristics. The plaintiff claimed that the defendant violated that agreement, sued and applied for summary judgment.

The defendant opposed the plaintiff's application for summary judgment, and in its brief asked for the plaintiff's claim to be dismissed in its entirety. However, the defendant did not bring a formal cross-application for summary dismissal.

The Chambers Judge found that the record was sufficient to determine the matter summarily, but, rather than giving judgment for the plaintiff, dismissed the plaintiff's claim. The plaintiff appealed, including on the basis that (1) it was an error to grant summary dismissal in the absence of a formal application for that relief, and (2) the matter was not amenable to summary disposition based on the record before the court.

The Appeal

The majority of the Alberta Court of Appeal, Justices Berger and Schutz, applied the reasonableness standard of review for both the summary disposition decision and the interpretation of the settlement agreement, and found no reviewable error.

With respect to the first issue, they held that the Chambers Judge did not err in granting summary dismissal in the absence of a formal application, including on the following basis:

  1. A judge in chambers is able to grant any appropriate remedy, including relief not sought in the action, pursuant to its inherent jurisdiction to control its process, s.8 of the Judicature Act and Rule 1.3 of the Alberta Rules of Court.
  2. Dismissal of the action was consistent with the approach to summary judgment urged by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7, as it was "a cost-effective, timely final resolution to this litigation which was fair and just to the parties."
  3. The plaintiff was not ambushed or prejudiced by the defendant's failure to file a cross-application, including because the Statement of Defence stated that the plaintiff's claim was "entirely without merit" and the defendant's brief expressly requested that the action be dismissed in its entirety on a summary basis. The failure of the defendant to swear positively in its affidavit material that there was no merit to the plaintiff's claim, as required by Rule 7.3(2), was rejected as an argument of form over substance.
  4. The plaintiff conceded that it put its "best foot forward" to the Chambers Judge, including by adducing photographic evidence substantiating the alleged breach of the settlement agreement. Therefore, the plaintiff could not have "proffered any additional evidence or made any different arguments had the respondents formally applied for summary dismissal."

With respect to the second issue, the majority of the Court of Appeal held that the Chambers Judge did not err by granting summary dismissal on the record, including because:

  1. The plaintiff was seeking to "entirely resile from the very firm position" taken during its summary judgement application, by arguing on appeal that the claim was never amenable to summary judgment.
  2. Contractual disputes "may lend themselves particularly well to summary judgment": Attila Dogan Construction v AMEC Americas Limited, 2015 ABQB 120.
  3. The Chambers Judge proceeded on the basis that both parties had put their "best foot forward" and properly decided the matter on the evidence before the Court. A "summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed": Canada (Attorney General) v Lameman, 2008 SCC 14.
  4. There was no genuine issue for trial because, as per Hryniak, the summary process: (1) allowed the Chambers Judge to make the necessary findings of fact; (2) allowed the Chambers Judge to apply the law to the facts; and (3) was a proportionate, more expeditious and less expensive means to achieve a just result.

Essentially, the plaintiff advanced its best evidence and arguments in support of its claim. The Chambers Judge "reached an opposite conclusion and found on the same evidence... that there was no merit to the appellant's claim." The Court of Appeal upheld the discretionary decision of the Chambers Judge to dismiss the entire action on the basis of her interpretation of the settlement agreement and review of the evidence.

The Dissent

Justice McDonald dissented on the basis of a lack of procedural fairness due to the respondent's failure to comply with the letter or spirit of the Rules regarding summary dismissal. He found that, at minimum, the respondent ought to have "specifically and unequivocally" advised the appellant of its intention to seek an order dismissing the entire claim. While Justice McDonald recognized the jurisdiction of the Chambers Judge to grant fair and appropriate relief, he argued that "the need for a proportionate approach to litigation does not come at the expense of procedural fairness and the fundamental adherence to the Rules of Court." He found that because the appeal raised matters of procedural fairness, the appropriate standard of review was correctness, and would have allowed the appeal.


This decision supports the jurisdiction of a judge in chambers to grant any appropriate relief, even if not specifically requested. It also highlights the importance for applicants for summary judgment – as well as respondents – to truly put their "best foot forward". An applicant who expects to be in a position to advance better evidence or arguments at trial if the application is dismissed may never get that chance, even if the respondent has not brought a formal cross-application for summary dismissal. Failure to establish the case on the merits may result in not just the dismissal of the application, but of the entire claim without trial. This decision may encourage courts in Alberta, and elsewhere, to continue to ease access to summary dismissal in appropriate cases.

Case Information

Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA 12

Docket: 1401-0232-AC

Date of Decision: February 9, 2016

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