Following the Weir-Jones decision which set out the most recent test in Alberta for summary judgment, there has been some confusion in the legal community as to how the Weir-Jones test is to be applied. The recent decision of Hannam v. Medicine Hat School District No. 76, 2020 ABCA 343 [Hannam] clarifies the law as it relates to summary judgment, as well as the meaning of the phrase “genuine issue requiring trial”.
The factual matrix in Hannam involved a slip and fall injury that occurred on a school sidewalk that had recently been sanded by the school custodian. The Defendants brought an application for summary judgment on the basis that the steps taken by the custodian were reasonable such that the standard of care required in the circumstances was met. Master Robertson found as a fact that reasonable steps had been taken by the custodian and that the conflicting evidence at issue was not sufficient to require the matter be heard at trial. However, on appeal, Justice Miller reversed the decision on the basis that, due to the conflicting evidence, the outcome at trial was not obvious and therefore the matter should proceed to trial. The Defendant subsequently appealed the matter to the Alberta Court of Appeal.
Notably, both decisions predated the Alberta Court of Appeal decision of Weir-Jones Technical Services Inc v Purolator Courier Ltd, 2019 ABCA 49 [Weir-Jones] which arguably made significant changes to the law of summary judgment. In confirming Master Robertson’s initial decision and ultimately dismissing the Plaintiff’s claim, the Court of Appeal in Hannam clarified the elements of summary judgment previously addressed in Weir-Jones.
Recent Approach to Summary Judgment
Rules 7.2 and 7.3 of the Alberta Rules of Court set out the requirements for summary judgment. As noted by the Court of Appeal in Hannam, the purpose of the Rules permitting summary judgment is to bring about timely resolutions of actions, reduce costs of litigation, provide certainty in law and business and encourage resolution of disputes. In light of this purpose and in considering the appropriate test to be applied with respect to summary judgment, the Court of Appeal referenced recent authorities including the Supreme Court of Canada decision of Hryniak v. Mouldin, 2014 SCC 7 [Hryniak] and the subsequent Court of Appeal decision of Stefanyk v Sobeys Capital Inc., 2018 ABCA 125 [Stefanyk].
Notably, in Hryniak, the Supreme Court of Canada provided direction as to when summary judgment would be appropriate:
[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.
In Stefanyk, the Alberta Court of Appeal determined that summary judgment was appropriate if the applicant had proven on a balance of probabilities that it was not liable, and marked the first time that the Court acknowledged the adjudicator in a summary judgment application is permitted to resolve material facts in dispute. Regardless, there was a period of uncertainty in Alberta as to the test for summary judgment, particularly in light of decisions that suggested Hryniak had no impact on how summary judgment law applied in Alberta (see for example Can v. Calgary Police Service, 2014 ABCA 322).
Clarification of Weir-Jones
Weir-Jones was intended to resolve the uncertainty with respect to the test for summary judgment. In essence, Weir-Jones confirmed that summary judgments are no longer granted only if the outcome is obvious. The Court of Appeal in Hannam summarized the findings in Weir-Jones at paragraph 145 as follows:
a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?
b) Has the moving party met the burden on it to show that there is either "no merit" or "no defence" and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for summary adjudication.
(c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party's case, by identifying a positive defence, by showing that a fair and just summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial, summary disposition is not available.
(d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute.
The Court in Hannam recognized this position as a departure from Alberta’s traditional interpretation of summary judgement, specifically because it allows the adjudicator of the summary judgment application to dismiss an action even when material facts are in dispute, and more importantly to make material findings of fact. However, the Court of Appeal confirmed it remains the moving parties’ burden to prove the facts upon which they rely on a balance of probabilities The Court of Appeal further explained that the phrase “genuine issue requiring trial” no longer refers to a measuring of the merits of each party’s claim, but rather refers to procedural fairness.
The Court of Appeal in Hannam summarized and evaluated the current law after Weir-Jones at paragraph 171 as follows:
An Alberta court may grant summary judgment even if the applicant has not convinced the court that the strength of the applicant's case is so much greater than the respondents that the ultimate trial outcome is obvious. Weir-Jones allows the summary judgment adjudicator to make contested finding of facts on a balance of probabilities when it is fair and just to do so.
Key Takeaways
The test set out in Weir-Jones was not altered by the decision in Hannam. The test remains whether there is a genuine issue for trial such that it would not be procedurally fair to determine the matter on a summary basis. As such, the moving party has the burden of establishing on a balance of probabilities that there is no merit to a claim or defence available. The responding party then has the ability to challenge the moving party's case by identifying a positive defence, showing that a fair and just summary disposition is not realistic, or otherwise demonstrating that there is a genuine issue requiring a trial.
The key takeaways from Hannam are pointedly emphasized by the Court at paragraphs 147 to 151:
A summary judgment adjudicator can make contested findings of material facts, and therefore summary judgment may be appropriate even where facts are in dispute.
The adjudicator should not be reluctant to make material findings of fact and are encouraged to hear oral testimony in order to do so.
Before the adjudicator resolves a material factual dispute, it should ask if the factual dispute constitutes a genuine issue for trial - a dispute on material facts, or a material fact depending on an issue of credibility, may establish a genuine issue for trial.
The moving party has the burden of establishing a threshold level of facts (i.e. the facts on which it relies) on a balance of probabilities.
If there is a genuine issue for trial, disposition on the basis of a summary application is not available.
Of interest, the Court acknowledges this updated test and procedure for summary judgment applications has begun to resemble the procedure currently in place in the Alberta Rules of Court with respect to summary trials. Accordingly, the Courtencouraged the Rules of Court Committee to revisit summary trial procedural rules, especially as now adjudicators are invited to hear oral testimony to decide factual controversies where it is fair and just to do so. The Court further invited the Rules of Court Committee to remove many of the procedural impediments associated with summary trials. While the Court did not outright indicate that summary trials should be eliminated, it was noted at paragraph 208:
A revitalized summary trial protocol may cause the Rules of Court Committee to reconsider the features of summary judgment. It would not make a lot of sense to have two components of Part 7 that are virtually the same.
Article prepared by Celeste Small and Joelle Plumer.