Canada: What Stefanyk hath wrought: a review of recent applications of the Alberta Court of Appeal decision in Stefanyk v Sobeys Capital Incorporated on summary judgement applications

Last Updated: October 4 2018
Article by Duncan Taylor

In March of 2018, the Alberta Court of Appeal released its decision in Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 (Stefanyk). The claim was for injuries suffered by a customer at a Sobeys store in Calgary after she was startled by a dog tied up outside the store, causing her to fall. In their decision dismissing the Plaintiff's claim, the Court made several strong statements about the Court's power to grant summary dismissal.

The first statement concerned the standard of proof required of moving parties in applications for summary dismissal. Until recently, the standard for moving parties has been a high one. Applicants must have demonstrated that their position was "unassailable", or that the likelihood of success at trial was "very high". The court in Stefanyk affirmed that neither of these are recognized standards of proof in Canadian civil law. The only applicable standard engaged on summary judgement applications is that of a "balance of probabilities". If the moving party can prove their case on a balance of probabilities, summary judgement should be granted.

The second statement within the Stefanyk decision affirmed the process of summary judgement as a fair and equitable way of resolving disputes. Rather than presuming that every case should go to trial, the Court recognized in many instances, a fair and just adjudication of the matter can be made on summary judgement without hearing viva voce evidence on the matter. This does not alter the legal maxim that "everyone deserves their day in court", but rather recognizes that in many cases that day is the day of the summary judgement application. Given the shortage of judges and long wait times for trial in Alberta, applications for summary judgement can be an effective means of clearing the backlog of cases, as well as allowing for a just resolution of disputes.

Read together, the above two principles from Stefanyk appear to signal a changing mentality on the Albertan benches when it comes to summary dismissal applications. The decision in Stefanyk grants both judges and counsel a wider range of flexibility to resolve disputes, and makes the success of summary dismissal applications significantly more likely. This changing attitude can be felt already in two cases which considered the Stefanyk decision: Remple v Shawcross, 2018 ABQB 582 (Remple) and Woitas v Tremblay, 2018 ABQB 588 (Woitas).

The Remple decision involved an altercation outside the Medicine Hat Lodge and Casino in October of 2009. The Plaintiff, John Remple, assaulted his wife in the parking lot of the casino while intoxicated. When a security officer employed by the Casino placed himself between Mr. Remple and his wife, Mr. Remple attempted to push his way past the officer, resulting in the officer taking him to the ground. Mr. Remple sued the officer and the Casino for assault and battery, as well as two police officers who later appeared and attempted to assist him in to a waiting ambulance where he could receive medical care.

In opposing the application for summary dismissal, Mr. Remple attempted to instill doubt in to the material facts of the case. The Casino's security footage showed neither the altercation between the security officer and Mr. Remple, nor the subsequent efforts of the police to assist Mr. Remple to the ambulance. Somewhat predictably, both the security officer and Mr. Remple gave conflicting versions of the altercation, with Mr. Remple swearing an affidavit asserting that the security guard "tackled" him without provocation, and when there was no immediate danger to his wife.

In coming to her decision, Madam Justice Kubik made a finding as to the credibility of Mr. Remple's affidavit. Justice Kubik noted a "remarkable" improvement in Mr. Remple's memory between statements made to medical staff in October 2009, and in his affidavit sworn 8 years later. Justice Kubik determined that Remple's testimony was clearly self-serving, and that it did not create a triable issue. Both the security officer and police enjoyed the protection of section 25 of the Criminal Code and the claims against them were .

Woitas related to a multivehicle collision involving 4 vehicles on Highway 2 near Nisku, Alberta in January of 2012. Noticing traffic in front of her coming to a sudden stop, the driver of vehicle 1 stopped abruptly and was rear ended by the driver of vehicle 2. Vehicle 3, immediately behind vehicles 1 and 2, noted the collision and was able to come to a stop before colliding with vehicle 2. Unfortunately, vehicle 4, the vehicle in which the Plaintiff was a passenger, was not able to stop in time and rear-ended vehicle 3. The Plaintiff sued the drivers of vehicles 1, 2, and 3 for negligence, relying on the doctrine of "the agony of collision". The defendants jointly applied for summary dismissal of the Plaintiff's claim.

Like Justice Kubik, Master Wacowich relied on the Stefanyk decision in his reasons for dismissing Plaintiff's claim, finding that the evidence before him allowed him to make necessary findings of fact on the civil standard of the "balance of probabilities". The Plaintiff alleged that the Defendants applied their brakes excessively, creating a situation that was impossible for the Plaintiff's vehicle to avoid. While this would normally be a complicated mixture of fact and law requiring a trial and viva voce evidence, Master Wachowich was able to rely on an accident reconstruction expert report provided by the defendants, as well as the fact that both vehicles 1 and 3 were able to avoid the collision to determine that they were driving responsibly. As vehicles 1 and 3 were able to stop without colliding with the vehicles in front of them, Master Wachowich found that (despite the Plaintiff's evidence to the contrary) vehicle 4 should have been able to avoid the collision as well, essentially treating the incident as two separate collisions.

Both the Remple and Woitas decisions may well have been decided differently had they been argued a few years earlier. However, in the wake of Stefanyk, Albertan courts appear to be more willing to conduct a limited credibility analysis. In both instances, the court determined that the Plaintiffs' testimony was incongruent with the factual record, and applied the "balance of probabilities" standard in dismissing the claims. Presently, the Alberta Court of Appeal is looking to clarify the test for summary judgement, and the above decisions may hopefully indicate a changing attitude towards summary judgement applications. These decisions should be view positively by both plaintiff and defence counsel, as they signal a willingness of the Court to expedite the resolution of disputes through the use of summary judgement, thereby avoiding a multiyear wait for a trial date.

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Brownlee LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms .

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