Myth of Trial No Longer Governs: Alberta Embraces New Summary Judgment TestWindsor v Canadian Pacific Railway Ltd., 2014 ABCA 108 (CanLII)
Effecting a cultural shift, a new summary judgment test has been embraced by the Alberta Court of Appeal in Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 [Windsor]. This new test will make it easier to obtain summary judgment, which is a final disposition of a lawsuit without having to go through a full trial.
Windsor follows the Supreme Court of Canada's recent ruling in Hryniak v Mauldin, 2014 SCC 7 [Hryniak]. In Hryniak, the Supreme Court considered the Ontario summary judgment rule and overruled earlier authority that largely restricted the availability of summary judgment. The Supreme Court described summary judgment as a legitimate alternative model of dispute adjudication, rather than simply a method of weeding out unmeritorious claims. The procedure is intended to provide litigants with a less expensive and more timely method of obtaining access to justice, and dispose of the need for a full trial in appropriate cases.
Until now, it was unclear to what extent the Supreme Court's decision was confined to the Ontario rules and if (and how) it would apply outside of Ontario (see, for example, Orr v Fort McKay First Nation, 2014 ABQB 111). The Alberta Court of Appeal has confirmed that these principles apply to Alberta and has given an illustration as to how.
In Windsor, the Court held that summary judgment is an appropriate procedure if there is "no genuine issue requiring a trial". The test for whether there is "a genuine issue requiring a trial" is whether the chambers judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case if the summary judgment procedure:
- allows the judge to make the necessary findings of fact;
- allows the judge to apply the law to the facts; and
- is a proportionate, more expeditious and less expensive means to achieve a just result.
According to the Court, "[t]he 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" (para 13). No longer will civil litigants have to prove it is "plain and obvious", "beyond doubt" or "clear" that summary judgment should be granted. The Court explained that "[m]odern civil procedure has come to recognize that a full trial is not always the sensible and proportionate way to resolve disputes" (para 12). Recognizing that trials in civil litigation are becoming increasingly rare, the Court warned that "the myth of trial should no longer govern civil procedure" (para 15). Instead, "[i]nterlocutory decisions that can resolve a dispute in whole or in part should be made when the record permits a fair and just adjudication" (para 15). In the result, the Court overturned the chambers judge and granted summary judgment on appeal for a portion of the case.
Windsor clearly confirms that Hryniak is a landmark case. It reinforces the notion that under modern civil procedure, a full trial is not always the most appropriate method of resolving disputes. It further indicates that there will be a much greater role for summary judgment in the future, and follows the Supreme Court's direction that summary judgment is to be used as a way to provide litigants with less expensive and timelier access to justice.
The full effect of Hryniak and Windsor on summary judgment practice will be seen as future cases are decided. Interesting implications of these decisions and issues that may arise include:
- whether chambers judges in Alberta will use expanded fact-finding powers when hearing summary judgment applications, as contemplated in Hryniak, if needed;
- whether Alberta will embrace the Supreme Court's suggestion that motion judges who dismiss applications for summary judgment should, absent compelling reasons to the contrary, seize themselves of the matters as the trial judges;
- the heightened need for respondents to put their "best foot forward" on summary judgment applications and consider whether to bring cross summary judgment applications themselves;
- the timing of summary judgment applications, in part due to an inability to rely on evidence that may be elicited later in the litigation process;
- the impact this procedure will have on settlement discussions, including the timing of any such discussions; and
- the frequency of summary judgment applications and whether cost savings will actually be realized in practice.