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Alberta Court of Appeal Encourages Use of Summary Judgment Rules

This post discusses the Alberta Court of Appeal's recent decision in Hannam v. Medicine Hat School District No. 76,[1] which stands as an emphatic reminder that the Supreme Court of Canada has directed courts to grant summary judgment when a fair and just determination can be made without a trial.

Although Hannam does not change the law of summary judgment, it conveys the Court's view that, in many cases, Alberta courts have been underutilizing this important tool for enhancing access to justice. The decision provides clear direction for the proper adjudication of summary judgment motions, and includes helpful guidance for litigants considering an application for summary judgment.

Facts

The facts are simple. The plaintiff slipped and fell on the main entrance sidewalk of an elementary school after dropping off her daughter. The school custodian had sanded the sidewalk seconds before the incident. The plaintiff sued the defendant school board, alleging negligence and breach of the Occupiers’ Liability Act. The school board applied for summary dismissal. For purposes of its application, the school board conceded that the sidewalk was slippery before the custodian sanded it, and that the custodian sanded the sidewalk moments before the plaintiff slipped and fell.

The Chambers Judge refused to grant summary judgment, holding that there were "conflicting bits of evidence" and that a finding of no negligence by the defendant was not obvious. The defendant appealed. The majority of the Court of Appeal overturned the Chambers Judge's decision and granted the defendant's application. The majority was satisfied that a trial would not produce a more complete factual record and held, based on the factual record and applicable law, that the defendant did everything it could have or should have done to make the sidewalk safe.[2] Although the majority did not say so expressly, its reasons reveal its view that the Chambers Judge erred in considering whether the ultimate disposition if there was a trial was obvious, rather than considering whether the facts could be decided on a balance of probabilities.[3]

Summary Judgment Principles in Alberta

In 2019, the Alberta Court of Appeal released its decision in Weir-Jones Technical Services Inc. v. Purolator Courier Ltd,[4] which sought to clarify the law of summary judgment in Alberta following the Supreme Court of Canada's 2014 landmark decision in Hryniak v. Mauldin.[5] Specifically, the Court's reasons addressed the apparent uncertainty about whether the modern approach to summary judgment espoused in Hryniak compelled a new interpretation of summary judgment rules in Alberta. The Court held that it did.

While Weir-Jones did not change the basic test for summary judgment—whether there is a genuine issue requiring a trial—it established that determining the existence of a genuine issue requiring a trial concentrates on whether the summary disposition procedure allows the judge to reach a fair and just determination on the merits:

If the record allows the judge to make the necessary findings of fact and apply the law, then the summary procedure should be used unless there is a substantive reason to conclude that summary disposition would not "achieve a just result."[6]

By embracing the "cultural shift" espoused in Hryniak, the Court in Weir-Jones confirmed that old interpretations of the summary judgment rules requiring the moving party to show that its position is "unassailable" or that its likelihood of success at trial is "obvious" are no longer applicable. Moreover, it firmly established that conflicting evidence on the record does not disqualify summary disposition, and summary judgment courts can and should make findings of fact.

Although Hannam does not change the law of summary judgment, it conveys the Court of Appeal's assessment that many lower courts have clung to old interpretations of summary judgment rules and, as a result, have underutilized this important tool for enhancing access to justice. In an effort to clarify the governing principles for proper adjudication of summary judgment motions post‑Weir‑Jones, the majority's reasons emphasize the following points:[7]

  • Disputes about material facts will not disqualify an action from the summary judgment process.
  • Summary judgment courts are allowed to make contested findings of material fact, and should not be reluctant to do so.
  • The moving party is required to prove the facts on which it relies on a balance of probabilities, not on some higher standard.
  • The concept of a "genuine issue requiring a trial" concentrates on procedural fairness—whether the record allows the judge to make the necessary findings of fact and apply the law—and no longer measures the merits of the parties' positions.

A Lesson for Counsel and Litigants

Hannam also illustrates the value in conceding facts that might otherwise preclude summary disposition. The defendant school board strategically conceded that the sidewalk was slippery before the custodian sanded it. This concession narrowed the issues for determination to one: whether sanding the sidewalk met the applicable standard of care. That, in turn, narrowed the scope of relevant facts, effectively reducing the plaintiff's opportunity to adduce evidence that could potentially give rise to a material factual dispute constituting a genuine issue requiring a trial.

For counsel and litigants, this is a lesson about the importance of analyzing one's case critically at the outset to determine if there are any dispositive issues for which there is little factual dispute. If so, narrowing the focus of a summary judgment application to only those issues, and conceding facts that are not necessary to prove those issues, may increase the likelihood of a successful motion for summary judgment.

Conclusion

The Alberta Court of Appeal is clearly encouraging use of summary judgment rules to resolve actions without a full trial and litigants with a strong case should seriously consider applying for summary judgment. However, Hannam likely is not the end of this story. The Court of Appeal's ruling that summary judgment courts can make contested findings of material fact reveals a tension between the modern interpretation of summary judgment rules, on the one hand, and the limited statutory jurisdiction of Masters, on the other hand. Specifically, Masters' statutory jurisdiction does not include "the determination of disputed or contentious questions of fact unless the parties agree to the disposition of the questions in chambers on affidavit evidence[.]"[8] Because of this tension, there is likely to be further litigation clarifying Masters' authority to grant summary judgment when there are disputed facts on the record. Stay tuned.

[1] Hannam v. Medicine Hat School District No 76, 2020 ABCA 343.

[2] Hannam at paras 211-217.

[3] Hannam at para 210.

[4] Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd, 2019 ABCA 49.

[5] Hryniak v. Mauldin, 2014 SCC 7.

[6] Weir-Jones at para 25.

[7] Hannam at paras 146-161.

[8] Court of Queen’s Bench Act, RSA 2000, c C-31, s 9(3)(b).

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  • Jennie  Buchanan
    Associate

    Jennie Buchanan is an associate in the Commercial Litigation and Dispute Resolution Group in Calgary. Jennie has a general commercial litigation practice, with a focus on commercial arbitration, employment litigation, and ...

  • Jahaan  Premji
    Articled Student

    Jahaan Premji is an articled student in the Calgary office of Lawson Lundell LLP. She is interested in exploring all areas, and is drawn toward commercial real estate and commercial litigation.

    Jahaan completed her Juris Doctor at ...

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