Summary Judgment: It’s the “New Black”
Posted in Civil Procedure

In an earlier blog post, we reviewed what the Supreme Court of Canada heralded as a “shift in culture” in Hryniak v. Mauldin, 2014 SCC 7 with respect to the availability of summary judgment.  While we had expected BC Courts to therefore be even more receptive to summary adjudications than they had in past, there was some initial hesitation in Alberta given the difference between the Ontario rules at issue in Hryniak and those in Alberta (see, eg. Orr v. Fort McKay First Nation, 2014 ABQB 111).

The Alberta Court of Appeal first considered the impact of the Supreme Court of Canada’s call for a “shift in culture” in Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108 and applied its principles to summary judgment applications notwithstanding differences in the Ontario and Alberta rules.  Whereas such applications were previously unsuccessful if a “triable issue” existed (often a very low bar), the new focus was to be on the process for resolution, namely whether there was a genuine issue that required a trial or whether a fair and just adjudication could be accomplished on the record before the court to accomplish the SCC’s urging for courts to find a proportionate, more expeditious, less expensive means to nonetheless achieve a just result.

As three recent decisions clearly demonstrate, there is little doubt that Alberta Courts have since fully embraced the concept of adjudication by summary means, without the need for trial – even where extensive factual, even contradictory, evidence was led, where factual determinations were required (including assessment of expert evidence), and where only some of the claims and/or parties were the subject of the summary judgment application, leaving other issues and parties to proceed to trial.

On October 28, 2014, in Bernum Petroleum Ltd. v. Birch Lake Energy Inc., 2014 ABQB 652, Madam Justice Pentelechuk of the Court of Queen’s Bench granted summary judgment in favor of Bernum for a little over $1M payable by Birch Lake in relation to cash calls related to the drilling of two wells.  Birch Lake resisted Bernum’s application on the basis of Bernum’s alleged gross negligence in the operation of the wells.  The Court had before it factual evidence which was opposed by an expert opinion.  It assessed that evidence (and its admissibility) and ultimately held in favor of Bernum.  Nonetheless, the Court declined to summarily deal with Birch Lake’s counterclaim alleging that Bernum had breached various other duties owed to it and instead directed those issues for trial.

On November 7, 2014, in Ernst v. EnCana Corporation, ERCB, and Her Majesty the Queen in Right of Alberta, 2014 ABQB 672 Chief Justice Wittmann of the Court of Queen’s Bench dismissed Alberta’s request for summary dismissal.  He held that evidence in support of such an application was required under the Alberta Rules and that Alberta’s choice not to file any was fatal given the absence of any “other evidence” in support of the motion.  In the alternative, he held that, even though able to make findings of fact on such applications, “it would not be fair or just for me to determine the merits of this action by way of summary judgment” absent evidence on the record that would “enable me to do so in this case.”  Once again, the absence of any evidence was fatal in the circumstances of that case.

On November 20, 2014, the Alberta Court of Appeal dismissed the appeal of Chief Justice Wittmann’s decision to grant summary dismissal in a different case, CCS Corporation v. Pembina Pipeline Corporation, 2014 ABCA 390.  In that case, the essential issue was whether one aspect of CCS’ claim should be dismissed against Pembina, who was only one of the defendants in the action.  At issue was CCS’ allegation that Pembina had misappropriated a corporate opportunity when Pembina built a plant to remove water from crude oil before the latter was shipped in its pipeline.

Contrary to the situation before the Chief Justice in Ernst, there appears to have been a wealth of evidence before both he and the Court of Appeal (indeed, there was an extensive striking application at first instance, in which many parts of CCS’ evidence were struck).

Even though related issues would be going to trial against the other parties, apparently including overlapping evidence, and even though there were still extant claims against Pembina which would similarly proceed, the Court of Appeal allowed Pembina’s application for summary dismissal on the appropriation/competition issue.  In so doing, the Majority emphasized the importance of proportionality and the benefit of summary judgment in accomplishing that goal.  It concluded that “summary dismissal here is likely to shrink the trial” in respect of the evidence, issues, and length of testimony, even though it was unknown as to whether the trial would be shortened “dramatically”.  Nevertheless, it ultimately held that: “Pembina will not have to spend a fortune taking full part in a long trial which largely or entirely does not concern it.  Litigation is supposed to be adversarial and implicate only those who wish to sue, and those arguably liable, and then only on arguable topics. (Here we use the word ‘arguable’ loosely.)”

As such, even though initially surrounded by some uncertainty, it is now well established that, like one of the staples of a good wardrobe, summary judgment is indeed the “new black” for parties and their counsel in Alberta.


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