Canada: "Fair And Just Result" Or "Unassailable"? Alberta Court Of Appeal Issues Competing Decisions On The Test For Summary Judgment

Just as it appeared our Court of Appeal had clarified the test for summary judgment, several recent and seemingly incongruous decisions may have just taken us a step back.

Following the Supreme Court of Canada's landmark decision in Hryniak v Mauldin, the test for summary judgment in Alberta became an issue that quickly landed before the Alberta Court of Appeal. In Windsor v Canadian Pacific Railway, the court unanimously adopted and affirmed Hryniak, holding that:

[13] ...Summary judgment is now an appropriate procedure where there is no genuine issue requiring a trial:

49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

The modern test for summary judgment is therefore to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record.

More recently, the Court of Appeal again considered the test for summary judgment in Stoney Tribal Council v Canadian Pacific Railway. Justice Paperny, in the majority, reiterated the test from Hryniak and Windsor. She wrote:

[12] In my view, the descriptions of the summary judgment test set out in [Hryniak and Windsor] are clear and easily applied. Other expressions of the test, such as those that call for an assessment of the relative strength of the positions of the moving and non-moving party, add an unnecessary gloss and risk confusing the issue. I would not adopt them.

The "other expressions of the test" referred to are found in Composite Technologies Inc v Shawcor Ltd, and Stout v Tack.

In Stout, Justice Wakeling, in dissent, proposed that the test for summary judgment is as follows:

[48] Rule 7.3... allows a court to dismiss a plaintiff's claim if it has no merit The non-moving party's position is without merit if the likelihood the moving party's position will prevail is very high. The likelihood the moving party's position will prevail is very high if the comparative strengths of the moving and non-moving party's positions are so disparate that the likelihood the moving party's position will prevail is many times greater than the likelihood that the non-moving party's position will carry the day.


[50] ...[T]he comparative strengths of the moving and non-moving party's positions need not be so disparate that the non-moving parties' prospects of success must be close to zero before summary judgment may be granted...

[51] ...[I]f the comparative strengths of the moving and non-moving parties' positions are just about equal, so that the best one can say is that the moving party's position is marginally stronger than the non-moving party's position, summary judgment is not appropriate. In other words, if the likelihood the moving party will prevail at trial is only fifty-one percent, the moving party will not be granted summary judgment...

In the majority reasons in Stout, Justices Rowbotham and Sulyma disagreed with the proposed mathematical formula for assessing the merits of a claim on a summary judgment application, and saw "no need to inject these formulas into the analysis of the law."

In Composite Technologies, Justices Wakeling, Watson, and Schutz held that a non-moving party's claim is without merit if the moving party's position is unassailable, and that "[a] moving party's position is unassailable if its likelihood of success is very high and the non-moving party's prospects of success are very low."

In his dissent in Stoney Tribal Council, Justice Wakeling reiterated and expanded on his proposed test for summary judgment from Stout and Composite Technologies.

Three months later, in Stefanyk v Sobeys Capital Incorporated, Justices Slatter, Veldhuis and Schutz held that the lower court had erred in applying the test of "unassailable" and "very high likelihood" of success in an application for summary judgment. The court held that (1) there is only one civil standard of proof, and it is proof on a balance of probabilities; "unassailable" and "very high likelihood" are not recognized standards of proof, and (2) the test for summary judgment is stated in the binding cases of Hryniak and Windsor.

Stefanyk was clear that the majority decisions in cases like Stout and Stoney Tribal Council were the binding law for the test for summary judgment, and that the dissenting reasons in those decisions were not to be followed.

Conflicting decisions

However, on May 25, 2018, Justices Wakeling and O'Ferrall released their majority reasons in Whissel Contracting Ltd v Calgary (City), holding that:

[2] Summary judgment may be appropriate "if the moving party's position is unassailable or so compelling that its likelihood of success is very high and the non-moving party's likelihood of success is very low. This is an onerous standard and rightly so...

[3] While summary judgment is a superb protocol for disputes if there is a marked disparity in the strengths of the parties' cases, it is not the appropriate methodology for resolving disputes that do not display this feature...

Justice Schutz, concurring in the result, dissented regarding the test for summary judgment and the standard of proof that must be established.

The bar and the lower courts are now faced with competing majority Court of Appeal decisions, issued only months apart, on the proper test for summary judgment. Whissel Contracting is so recent it has not yet been cited by any case authorities, and how the lower courts will reconcile these conflicting Court of Appeal decisions remains to be seen.

Which decisions will lower courts follow?

With the greatest respect to the majority in Whissel Contracting, we suspect the lower courts will prefer and apply the majority decision in Stoney Tribal Council and the unanimous decision in Stefanyk, if only because those decisions track the Supreme Court of Canada's guidance in Hryniak, and do not require the judge hearing the application for summary judgment to calculate what percentage of certainty of success or unassailability the moving party must achieve, and has achieved.

We note that in all of Stoney Tribal Council, Stout, and Whissel Contracting, the majority and dissent came to the same conclusion on the disposition of the appeals, despite differing views as to the proper test.

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