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Access Granted – Rules 7.3 Applications in Alberta

By: Kunal Nand and Kelly Robinson

There has always been some difficulty finding a balance between providing adequate prosecution and defense of civil files versus the trend towards early dispute resolution (and alternate dispute resolution). Recently, our highest court has espoused the benefits of a culture shift from the traditional litigation paradigm. The mechanism of this shift seems to be the summary judgment application process; something that has been lauded by the Highest Court as an alternative to the hefty costs of full trials.

The impetus for the shift follows the numerous movements towards the proportionality of justice and access to the civil justice system itself. Traditionally, Rule 7.3 (and its predecessor) was used to weed out meritless claims as the Court exercised its gatekeeper function. While historically this involved a high standard of proof in order to debar a litigant’s day in Court, the Supreme Court of Canada has signalled that perhaps those days have now passed.

The decision in Hryniak, infra. has now revamped the test for summary judgment in Alberta, and has been fully embraced by our Court of Appeal. The decision however considered a different civil procedure (Ontario) and Alberta Courts are now left to try and reconcile binding direction to an imperfect parallel in the Alberta Rules. The result is discretion by Courts to address the substantive merits of claims earlier in the litigation process under limited circumstances. The questions that remain focus on how this has affected the traditional burdens in a summary judgment context and how that will affect litigants going forward.

The Supreme Court of Canada

The Supreme Court of Canada reconsidered the summary judgment vehicle in Hryniak v. Mauldin [Combined Air Mechanical Services Inc. v. Flesch], 2014 SCC 7. In that decision, the recently amended Ontario Summary Judgment rule was considered, however, the Court provided additional guidance with respect to the procedure in general. Interestingly, the Court framed its analysis as one of access to justice in light of trial costs [see paras. 1 & 23, Hryniak, supra. for example].

Madame Justice Karakatsanis, delivering the unanimous decision of the Court, made the following comments:

[2] Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

Hryniak, supra. at para. 2

The Supreme Court, while agreeing in the result, disagreed with the Ontario Court of Appeal regarding the interpretation of the Summary Judgment Rules:

[4] In interpreting these provisions, the Ontario Court of Appeal placed too high a premium on the “full appreciation” of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants. In my view, a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary finding of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
[5] To that end, I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

The Court in discussing what it termed the “necessary culture shift” stated beginning at paragraph 27, ibid.:

[27] There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.
[28] This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.

While the Court acknowledged that the Ontario Rule is more comprehensive than those in other jurisdictions, “the value and principles underlying its interpretation are of general application” [ibid. at para. 35]. The Ontario Amendments specifically changed the requirement to ask “whether there is a ‘genuine issue requiring a trial’” [ibid. at para 43]. While traditionally, the Alberta test has been synthesized as inquiring whether there was an issue “for trial” [the wording of the old Ontario Rule], the change in wording does not affect the test [ibid. at para.35].
Madame Justice Karakatsanis stated beginning at paragraph 49, ibid.:

[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.

[…]

[57] On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute…

The shift in the Summary Judgment procedures, both in the Ontario rules, and the grander underlying principles espoused by her Ladyship should be considered through the rubric of ever improving citizens’ access to justice. As Madame Justice Karakatsanis noted at paragraph 24, ibid.:

However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes. The full trial has become largely illusory because, except where government funding is available, ordinary Canadian cannot afford to access the adjudication of civil disputes. [emphasis in original]

Her Ladyship noted the following in support of her views [footnote 2, Hyrniak, supra.]:

Although Canada scored among the top ten countries in the world in four rule of law categories (limited government powers, order and security, open government, and effective criminal justice), its lowest scores were in access to civil justice. This ranking is “partially explained by shortcomings in the affordability of legal advice and representation, and the lengthy duration of civil cases” (p. 23).

While the access to justice component may not remain at the forefront of the Alberta jurisprudence, as will be discussed in detail below, the shift towards early adjudication on the record has resulted in a number of summary judgment applications being heard and reported in Alberta. What remains to be seen is whether the proliferation of summary judgment applications (or the expansion of the process itself) actually results in any improvement to an ordinary citizen’s access to civil justice.

Historically, the summary judgment process has been more attuned to serve as a gatekeeper function in the courts to filter out meritless claims, rather than to allow a meritorious plaintiff to proceed to judgment more quickly. In fact, summary judgment applications brought early in the litigation process may have the effect of denying the Plaintiff access to the discovery process which may bolster the claim. As a result, access to justice is not directly improved per se, though eliminating claims earlier in the process may free up already scarce judicial resources. While being beneficial for all stakeholders in the judicial system, this does not address what her ladyship cited as being the primary difficulty in access to civil justice: the “affordability of legal advice and representation and the lengthy duration of civil cases”. So for her ladyship’s message to have any force, summary judgment should be utilized as a more substantive tool for resolution of claims, rather than only a filter for meritless ones.

While there remain a number of hurdles to effectively applying the Hryniak principles in this jurisdiction, the recent jurisprudence makes it clear that Her Ladyship’s principles of a fair and just resolution upon the appropriate record has gained traction in Alberta.

ALBERTA
Hryniak was released by the Supreme Court of Canada on January 23, 2014. At the time of this writing, it had been cited in over 45 written decisions in Alberta alone, at both the Queen’s Bench and Court of Appeal level. While it is not possible to discuss each case in detail, there are a number of them which warrant particular consideration.
The relevant Alberta Rule is 7.3 of the Alberta Rules of Court, Alta. Reg. 124/2010, which states as follows:

(1)  A party may apply to the Court for summary judgment in respect of all or part of a claim on one or more of the following grounds:

(a) there is no defence to a claim or part of it;
(b) there is no merit to a claim or part of it;
(c) the only real issue is the amount to be awarded.

[…]

(3)  If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following:

(a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount…

It should be noted that while Hryniak does purport to widen the scope of the summary judgment vehicle, the fundamentals of Justice Karakatsanis’ message existed in Alberta already. After the Alberta Rules of Court were amended in 2010, there was a question as to whether older jurisprudence was still applicable in light of the rule changes, especially in light of the summary judgment procedure.

The Court in Encana v. ARC Resources Ltd., 2011 ABQB 431 noted that the old authorities remained applicable with respect to summary judgment applications and discussed summary judgment generally at paragraph 8:

The Court noted at paras 11-12 that “trials are primarily to determine questions of fact” and that a trial is therefore not required if the facts are not in dispute and the legal issues involved are sufficiently settled that they can be “fairly decided on the record before the court”. [Referring to the decision of the Alberta Court of Appeal in Tottrup v. Clearwater (Municipal District) No. 99, 2006 ABCA 380].

When viewed in light of this jurisprudence, Madam Justice Karakatsanis simply affirms the principles which were the hallmark of summary judgment applications in Alberta for several years, though perhaps not as widely utilized. There has however historically been a higher standard applied in Alberta with respect to summary judgment, a test which also arises from the decision in Tottrup, supra. The confusion arises from a citation used by Mr. Justice Slatter in Tottrup, supra. at paragraph 10 citing the decision of Pioneer Exploration Inc. (Trustee of) v. Euro-Am Pacific Enterprises Ltd., 2003 ABCA 298 at paras. 18-19:

[18] First, the plaintiff bears the evidentiary burden of proving its cause of action on a balance of probabilities. Each and every fact necessary to support the claim must be proven: Bank of Montreal v. Kalin (1992), 131 A.R. 397 (C.A.).
[19] After the plaintiff has proved its case on a balance of probabilities, the evidentiary burden shifts to the defendant but the ultimate burden remains, as always, with the plaintiff. The defendant can avoid a summary judgment in favour of the plaintiff by proving that there is a genuine issue for trial. If the defendant meets this evidentiary burden, the plaintiff fails to meet its ultimate burden. It must be beyond doubt that no genuine issue for trial exists.

However, a closer reading of Tottrup reveals that this higher standard is not necessarily endorsed. Justice Slatter continued at paragraph 10 in Tottrup, supra.:

[10] An analogous approach is used where the defendant applies for summary dismissal. It is in the context of this type of summary judgment application that the cases sometimes say it must be “plain and obvious”, or “clear” or “beyond real doubt” that the action should be summarily disposed of [citations omitted]…
[11] There are, however, other types of summary judgment applications. In some cases the facts are clear and undisputed. The ultimate outcome of the case may depend on the interpretation of some statute or document, or on some other issue of law that arises from undisputed facts. In such cases the test from summary judgment is not whether the issue of law is “beyond doubt”, but whether the issue of law can fairly be decided on the record before the court. If the legal issue is unsettled or complex or intertwined with the facts, it is sometimes necessary to have a full trial to provide a proper foundation for the decision. In other cases it is possible to decide the question of law summarily.

[Emphasis added]

In situations where there is no factual issue before the Court, Slatter J.A. specifically rejects this higher standard or burden of proof in a summary judgment application. The Court found at paragraph 12:

[12] Trials are primarily to determine questions of fact. Here there was an Agreed Statement of Facts for the purposes of the application. There are no further relevant facts that would be found at a trial. Trials are not generally held to find out the answers to questions of law. This is not a case where the question of law is so fact specific and nuanced that a trial is necessary. This is a pure question of law about the meaning of s. 56, and there is no reason why summary judgment is not appropriate. The chambers judge accordingly applied the wrong legal test when he held the point of law before him had to be beyond doubt before summary judgment could be granted.

It is the focus on a fair decision based upon the record before the Court that is the hallmark of the case, and this notion that was eventually echoed by the Supreme Court in Hryniak. Therefore, summary judgment is available only where there are clear and undisputed facts and there is no reason for importing a higher standard of proof.

Subsequent to the Tottrup decision however, references to a higher standard resurfaced in the decision of the Alberta Court of Appeal in Condominium Corporation No. 0321365 v. 970365 Alberta Ltd., 2012 ABCA 26. In that decision, Fraser C.J.A., in delivering the majority decision (the dissent of Justice McDonald took no issue with the test for summary judgment), outlined the legal test as follows:

[43] In the first instance, a summary judgment application involves two steps. First, the moving party must adduce evidence to show there is no genuine issue for trial. This is a high threshold. If there is no genuine issue for trial, then there will be no merit to a claim. Accordingly, if the evidentiary record establishes either that there are missing links in the essential elements of a cause of action or that there is no cause of action in law, then there will be no genuine issue for trial. The fact there is no genuine issue for trial must be proven; relying on mere allegations or the pleadings will not suffice: Canada (Attorney General) v Lameman, 2008 SCC 14 at para 11, [2008] 1 SCR 372. Second, once the burden on the moving party has been met, the party resisting summary judgment may adduce evidence to persuade the court that a genuine issue remains to be tried: Murphy, supra at para 25. That effectively means showing that the claim has what is often referred to as “a real chance of success”. This may be accomplished by establishing the existence of disputes on material questions of fact, including inferences to be drawn therefrom, or on points of law that cannot be readily resolved given the factual disputes. [Emphasis added]

Considering her Ladyship’s decision, it does not seem likely that her comments were intended to affect the legal burden in the application process, but rather, act as a reality check for litigants contemplating a summary judgment application. That is, convincing a court that there is no merit to a claim is difficult; not that the legal burden to be met for each fact is something higher than a balance of probabilities and closer to a criminal standard of beyond a reasonable doubt. As noted previously, Justice Slatter already rejected this notion of a higher burden, focusing on whether there is a clear record before the Court. Chief Justice Fraser notes that a summary judgment application can be defeated “by establishing the existence of disputes on material questions of fact, including inferences to be drawn therefrom, or on points of law that cannot be readily resolved given the factual disputes” [Para. 43, ibid.]. This should be distinguished from the failure to meet some elevated burden of proof.

The Court of Appeal considered the issue in Windsor v. Canadian Pacific Railway, 2014 ABCA 108, and expressly endorsed the Hryniak model with respect to summary judgment in Alberta. The Court (per curiam) noted that that summary judgment was traditionally only available “when it was ‘plain and obvious’, or ‘clear’ or ‘beyond doubt” that there was no issue that should or could be put to trial”. The Court also reinforced the gatekeeper function of summary procedures, citing for authority the Supreme Court of Canada decision in Papaschase Indian Band No. 136 v. Canada (Attorney General), [Canada (Attorney General v. Lameman] 2008 SCC 14 where the Court noted at paragraph 10:

This appeal is from an application for summary judgment.  The summary judgment rule serves an important purpose in the civil litigation system.  It prevents claims or defences that have no chance of success from proceeding to trial.  Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system.  It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage.  Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial.

The Court in Windsor, after quoting from Hryniak confirmed that summary judgment is appropriate where is there no genuine issue requiring a trial and outlined the ‘modern test’ as “[examining] the record to see if a disposition that is fair and just to both parties can be made on the existing record” [para. 13, Windsor, supra.]. This signals a wider scope beyond the traditional gatekeeper function.

In applying Hryniak to Rule 7.3, the court noted that both the Alberta rule and the amended Ontario Rule are aimed at avoiding trial procedures in an effort to resolve disputes, as compared with Rule 7.5 in Alberta which is a form of trial procedure. As a result, the comments in Hryniak were embraced by the Court which called for a “more holistic analysis of whether the claim has ‘merit’ [which is] not confined to the test of ‘a genuine issue for trial’” [Windsor, supra. at para. 15].

Justice Burrows in AT Films Inc. v. AT Plastics Inc., 2014 ABQB 422, while following the principles in Windsor, supra. noted that the Court of Appeal did not directly consider the issue of how or if an Alberta Court in a summary judgment situation is to “weigh evidence, evaluate credibility, or draw inferences from evidence”. His Lordship noted however that in Windsor, supra. the facts related to the subject application were essentially un-contradicted and therefore there were no evidentiary issues at the foundation of the summary judgment application [AT Films, supra. at paras. 19-20]. Justice Burrows continued at para 22:

I conclude that in Windsor, the Alberta Court of Appeal has changed the formulation of the test for summary judgment in Alberta. The summary judgment court is to assess whether there is “in fact any issue of ‘merit’ that genuinely requires a trial.” This is a less stringent test than the traditional “plain and obvious or clear or beyond doubt” test. A party can deflect a summary judgment application by showing the existence of evidence that could be sufficient to defeat the applicant at trial. The judge on the summary judgment application does not determine whether that party’s evidence actually proves the fact sought to be proved. Such weighing of the evidence remains a trial function.

The factual foundation of the summary judgment application is of course significant. As mentioned earlier, Rule 7.3 best operates to eliminate meritless claims. Where there is no cause of action present, no evidence to establish a claim against the Defendant, or a limitations defense, summary judgment is an appropriate step to resolve the litigation early on and avoid the protracted process which is becoming a hallmark of the civil justice system. However, as pointed out by Justice Burrows, if this involves the weighing of evidence, or in fact, unreconciled and competing affidavits, the Court in a summary judgment setting should be not be rendering judgment. That is, where the record before the Court is not in fact clear or complete, summary judgment should not be available.

In considering the record before it, a Court is bound to the process of an interlocutory application versus the expanded evidentiary processes of a complete Trial. This presents its own set of pitfalls. The Applicant under rule 7.3 must present Affidavit evidence swearing positively to the facts in support of the Application; however, there are further materials that a Court may rely upon in deciding such applications. Rule 6.11 of the Alberta Rules of Court states the following:

6.11(1) When making a decision about an application the Court may consider only the following evidence:

(a) affidavit evidence, including an affidavit by an expert;
(b) a transcript of questioning under this Part;
(c) the written or oral answers, or both, to questions under Part 5…
(d) an admissible record disclosed in an affidavit of records…
(e) anything permitted by any other rule or by an enactment;
(f) Evidence taken in any other action but [on certain conditions]…
(g) with the Court’s permission, oral evidence, which, if permitted, must be given in the same manner as at trial.

A respondent may file materials in opposition to the summary judgment application, but those materials must conform to the guidelines in Rule 6.11 and must be admissible evidence before the Court. Bearing this in mind, a recommended framework for a summary judgment analysis was synthesized by Master Schlosser, Q.C. in 1214777 Alberta Ltd. v. 480955 Alberta Ltd., 2014 ABQB 301 beginning at paragraph 17 (worth quoting at length):

[17]           The starting point (as found in the Windsor decision para. 13 and Hryniak at para. 49) is ‘to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record’. The court is to look at the record and the dispute to decide whether it is essential to the resolution of the dispute that the court see the witnesses. If the answer is yes, the matter must go to trial. If the initial answer is ‘no’, the court is to engage in a six step process:

1.                  The court is to presume that the best evidence from both sides is before the court. (e.g. Canada v. Lameman, 2008 SCC 14, 2008 1 SCR 372, at 378 and 382). The decided cases tell us that summary judgment applications have to be decided on the evidence before the court and not on what the evidence might be. Parties are required to put their best foot forward. This reinforces the importance of treating summary judgment applications advisedly and with due caution. The only caveat that might apply here is that if the summary judgment application is before a Master and the losing party does not like the Master’s opinion, it is not so difficult to patch up the evidence on appeal.
2.                  As a corollary to number 1, the court is to ask whether a negative inference can be drawn from the absence of evidence on certain points.
3.                  Next, the court should look at the complete package and ask whether all of the evidence is admissible. Rule 13.18 (3), for example, tells us that we can’t use hearsay for a final application.
4.                  Next, the court should ask whether there is a conflict in the evidence and, if so, whether, (a) the conflict has been resolved on cross examination: Janvier v 834474 Alberta Ltd., 2010 ABQB 800, or, (b), whether the evidence giving rise to the conflict is purely self-serving and is otherwise unsupported: Guaranty v. Gordon, 1999 SCC [sic]. Self serving evidence does not give rise to a triable issue.
5.                  The next step is to examine the evidence. As Master MacLeod said in the Pammett decision [2014 ONSC 2447]:

[28]      There are subtle distinctions here. The court may assess the sufficiency of the evidence admissibility of evidence and reliability of evidence without access to enhanced fact finding powers. The court may also apply the law to the facts without deciding a genuine question of law. [emphasis by Master Schlosser, Q.C.]

Assessing the sufficiency of the evidence will also involve considering whether the issue can fairly be decided on the factual record before the court (Tottrup v. Clearwater Municipal District (99) (2007) 2006 ABCA 380, 68 Alta L.R. (4th) 237 at 242 and Gayton v. Lacasse, 2010 ABCA 123 at para. 11).
6.                  Having performed that evidentiary exercise, as Master MacLeod further says in the Pammett case: (and see Proper Cat at paras. 61-64, 69):
[31]      A plaintiff will be entitled to judgment if the plaintiff can prove all elements of the cause of action and the defendant either has no defence or is missing critical elements of proof necessary to maintain that defence. A defendant will be entitled to judgment if the plaintiff cannot prove an essential element of its cause or if the defendant has a complete defence.

Master Schlosser raises the issue of the burden of proof at paragraph 21 (obiter to the decision) as he rightly notes that Hryniak suggests the test for summary judgment is not a high standard of plain and obvious, but rather the civil standard. Master Schlosser was of the opinion that until this tension between the Hryniak standard at the traditional “plain and obvious” threshold is specifically addressed or modified, the threshold to be met by applicants is still “plain and obvious” or “beyond doubt”; much higher than the traditional civil standard.

With respect, the higher threshold language applied to a different framing of the summary judgment test, that is, whether it was plain and obvious, or beyond doubt that a claim would succeed (or fail). The “modern” test, as outlined in Hryniak and Windsor is to determine whether there is an issue that requires a Trial. If a Court determines that a Trial is not required in order to adjudicate the matter (on the record before it), then the case may be decided summarily, but that decision (whether or not to grant summary judgment) must then import whatever legal standard applies to the issue before the Court (to the cause of action or the defense itself). Therefore, if a Court finds that the uncontested evidence lends itself to a summary determination, it may decide the case (for a plaintiff for example) on a balance of probabilities. Admittedly, this is a rather nuanced distinction.

It is easy to consider summary judgment applications from the point of view of the Defendant, as it is more often the case that an application is brought to dismiss a claim rather than seek judgment (as a Plaintiff). Where the Defendant is applying, it may be tempting to import a higher standard on the applicant (defendant) to ensure that only the truly meritless claims are dismissed without trial. However, a different standard cannot apply to a defendant’s application versus one by a plaintiff for judgment.

In Agricultural Financial Services Corp. v. Felker, 2014 ABQB 587, the plaintiff sought judgment on a loan that went into default which provided security against a flock of sheep (which were subsequently sold). The Court considered the Affidavit evidence of all sides and made the following findings:

[19] I am persuaded that a trial judge, particularly because fraud and trust principles were not pled which might require an assessment of credibility determinable only by seeing and hearing the witnesses, would not be in a better position to assess the evidence in this case than a motions judge reviewing the extensive material filed. That material allows me to make the necessary findings of fact, to apply the law to those facts, and to determine that Rule 7. 3 is the appropriate mechanism for a timely and just adjudication of this claim. The Defendants may continue to litigate their differences in their Saskatchewan actions. In the interim, the Plaintiff as an arm’s length party should be removed from the equation.
[20] The Plaintiff has met its burden of proof that, on a balance of probabilities, the Defendants in 2007 were carrying on business as partners and that the security agreement witnessed by Erikson and executed by Felker in favour of a lender introduced to him by Erikson bound both of them as partners. The sheep were a co-mingled flock of sheep purchased by the two partners beginning at least in 2006.

The Court granted judgment in favour of the Plaintiff after briefly quoting from Windsor and Hryniak. Justice Little, without delving into a lengthy analysis, simply considered the Plaintiff’s cause of action (on a debt). Of course, had this been a trial, the Court would have considered whether the Plaintiff had proven each element of its cause of action on a balance of probabilities. However, as per Hryniak and Windsor, Justice Little examined the record before the Court and determined firstly, whether there were issues that required a full trial. Deciding there were not, the Court considered the Plaintiff’s cause of action based on the record before it and granted judgment using the same standards of proof as would a Trial court.

Using this case as an example, it is unclear where the higher standard or threshold would apply. The Plaintiff sought judgment based upon a secured debt. Each element in this cause of action must be established on a balance of probabilities at trial in order to succeed to judgment. It cannot be correct that if a party then seeks summary judgment that they must then prove each element of their cause of action to some higher standard. That would be counter-intuitive to the purposes of the rule (to expedite the adjudication of claims).

The key determination is the sufficiency of the record before the Court in order to proceed with the summary judgment analysis. It is conceivable that a Court could find that a plaintiff has established all the elements of its cause of action with insufficient (or contradictory) evidence as to damages. Summary Judgment could then be granted with a referral to a referee as to the amount to be awarded (Rule 7.3(3)(b)).

A difficulty arises where there are competing affidavits. Summary judgment should not be granted in any case where there is a material factual discrepancy. Master Schlosser in his roadmap in 1214777 Alberta Ltd., supra. noted that conflicts on the evidence may be resolved with reference to cross-examinations or determining that evidence is simply self-serving. However, the Court must decide whether there is a material conflict of the evidence. If there is, summary judgment cannot be granted. As stated above, the weighing of evidence is a trial function, even if that is the weighing of competing affidavits. That cannot be the function of the summary judgment court.

It would not be contrary to the functions of the Applications judge however to consider two pieces of seemingly contradictory evidence and find one to be inadmissible, self-serving, or defeated through cross examination. The obligation is upon the parties to ensure that proper materials are filed with the Court in support (or opposition) of a summary judgment application, lest they face the consequences. A respondent who files no materials takes a significant risk on any such application.

It is at this stage that the high threshold may sometimes be conflated with the true test; whether there is an evidentiary conflict on the record. If there is no material conflict on the evidence, then the question to be answered is the same one as at the end of the Trial. As will be discussed below, this has sometimes been referred to as being an “unassailable” position. However, the Court should still focus on whether the Plaintiff has proven their cause of action on a balance of probabilities for any final determination. Even in applications by a Defendant, the Defendant is actually saying that the Plaintiff has not proven an element of their cause of action based on the evidence before the court and therefore their claim should be dismissed.

The Summary Judgment process is intended to provide an alternative to trial; used when the evidence does not require a full trial. Therefore, it must be said that the same standards and burdens of the parties apply during a summary judgment procedure; otherwise, it cannot be a legitimate alternative to trial for litigants. As was stated by Madame Justice Karakatsanis:

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 [emphasis added].

Perhaps the sentiment would have been clearer had the passage read on the merits of the action on a motion for summary judgment, but in any event, the summary judgment court must be in a position to decide the action based on the record, but it must decide the action to the same standard as the trial court would have. It is unclear as to where any higher threshold is properly applied during the summary judgment analysis under the modern framework, and as a result, it may be more appropriate to simply let that language be put to rest in light of Hryniak and Windsor. The higher threshold may simply be a practical one in that a case in which there is no conflict on the evidence is a rarity, and therefore summary judgment cannot be an ordinary part of the litigation process but rather an extraordinary remedy.

This issue was briefly considered by Madame Justice Pentelechuk in Bernum Petroleum Ltd. v. Birch Lake Energy Inc., 2014 ABQB 652 who reviewed both the AT Films, supra. and 1214777 Alberta Ltd., supra. and concluded at paragraph 20:

With respect, I agree with Burrows J. [in AT Films, supra.] that the test for summary judgment is now less stringent, but the test does not require the judge to weigh the evidence or “determine whether that party’s evidence actually proves the fact sought to be proved”. This approach, in my view, best encapsulates the goals of proportionality, increased expediency and decreased cost if the matter can be determined on the existing record, in a manner that is fair and just to both parties.

The Alberta Court of Appeal recently heard another appeal on a summary judgment application in Can v. Calgary Police Service, 2014 ABCA 322. Wakeling, J.A. delivered a lengthy concurring decision in which he discussed the summary judgment process in detail (as obiter), cited extensively from the decision of Beier v. Proper Cat Construction Ltd., 2013 ABQB 351 (Wakeling, J. as he was then). His Lordship stated at paragraph 80 of Can, supra.:

[80] I adopt as the correct statement of principles governing the application of R. 7.3 of the Alberta Rules of Court those formulated in Beier v. Proper Cat Construction Ltd. (2013), 564 A.R. 357 (Alta. Q.B.), 374-78:

[61] Rule 7. 3 of the new Alberta Rules of Court allows a court to grant summary judgment to a moving party if the nonmoving party’s position is without merit. A party’s position is without merit if the facts and law make the moving party’s position unassailable and entitle it to the relief it seeks. A party’s position is unassailable if it is so compelling that the likelihood of success is very high.
[62] This may exist in a number of scenarios.
[63] First, the moving party is entitled to summary judgment if, as a plaintiff, it presents uncontroverted facts and law which entitle it to judgment against the nonmoving party. The court must be satisfied that the plaintiff has presented uncontested facts which establish all the essential elements of the action. …
[64] Second, the moving party is entitled to summary judgment if, as a defendant, it presents uncontroverted facts and law, which makes it highly unlikely the plaintiff will succeed. Again, the court must conclude that the uncontested facts before it do not establish an essential element of the plaintiff’s action or do establish all the essential elements of a defence. …

With respect, there is one point of potential confusion that should be addressed when considering his Lordship’s comments, and that is of the recurring issue of the standard of proof required on a summary judgment application. Justice Wakeling makes reference to the applicant’s position being unassailable but that should not be read as requiring the applicant to meet some higher standard of proof regarding the merits of the claim itself, but rather should be read as indicating that there is no dispute with respect to the facts or the law. As Justice Wakeling noted, “uncontested facts” or “uncontroverted facts and law” are the key requirements.

The difficulty is that Justice Wakeling also states the following at paragraph 104:

[104] To summarize, in Alberta summary judgment is appropriate if the moving party’s position is so compelling that the likelihood of success is very high. Beier v. Proper Cat Construction Ltd. (2013), 564 A.R. 357 (Alta. Q.B.), 374.

As noted previously, and mentioned by our Court numerous times, the role of the summary judgment court is not to weigh evidence [Beier, supra. at paragraph 80]. Considering whether the evidence has proven a fact “beyond real doubt” versus on a balance of probabilities (or anywhere in between) necessarily requires the weighing of evidence. Focusing on a determination of whether there is any conflict in the evidence or the state of the law should be the primary focus of any summary judgment application, rather than determining the quality of the evidence to some higher standard.

Consider the following scenario:

Katrina is stopped at a red light when she is rear-ended by Jeff on August 1, 2012. At the time of the collision, Jeff was looking down at his phone. Katrina suffered a concussion and a broken arm and seeks legal counsel immediately. Katrina files her Statement of Claim September 1, 2014. Jeff files his Statement of Defense stating the claim is barred by operation of the Limitations Act, RSA 2000, c. L-12. Jeff brings an application under Rule 7.3 stating the claim was filed out of time. His Affidavit deposes the date of the collision and includes a copy of the statement of claim as an exhibit. Katrina does not file any materials in response.

The Court in considering the application should consider the underlying issue: Does the defendant have a complete defense based upon the Limitations Act? If the Court considers the facts to be undisputed (here there is only one version), and the law to be resolved (a claim filed outside of two years shall be struck), then a Court may consider the merits of the Action (in this case the limitations defense) and grant the application. The standard of proof required of the Applicant is not the criminal standard, or some hybrid standard; that cannot be the state of the law. The standard remains a balance of probabilities, but the manner in which it may be presented in a summary judgment setting can only be through uncontested facts and law. Any unresolved (and material) conflict of the evidence required for the limitations defense to succeed would prevent the application from being granted.

With respect, if a Court is considering the quality of the burden of proof to be met, that necessarily involves a weighing of the (competing) evidence before it, a task that is inappropriate in a summary judgment context. If there is only one version of the facts, the Court is not required to weigh the evidence but simply to address its mind to the admissibility of the same and render judgment if the evidence satisfies the requirements of the cause of action (or defense); that is, apply the law to the facts before it.

Justice Wakeling in Can, supra. commented on this notion at paragraph 96:

[96] The wisdom of converting a protocol designed to remove disputes from the active file list because the nonmoving party’s position is without merit into one which resolves legitimate issues — both the moving and nonmoving parties’ positions have merit — is not clear. Other components of the Part 7 suite of expedited dispute resolution tools are available to resolve disputes the outcomes of which are not obvious.

The question may become whether differing standards must therefore apply to the two fundamentally different types of summary judgment: one where an applicant seeks to strike a claim, and one where the applicant seeks final judgment (such as Felker, supra.). Justice Wakeling in Can, supra. noted at paragraph 80, where “[a defendant] presents uncontroverted facts and law, which makes it highly unlikely the plaintiff will succeed…that the uncontested facts before it do not establish an essential element of the plaintiff’s action” summary judgment should be granted.

As Professor Miller notes in his article [Infra. at 1091]:

Thus, there is a significant difference between allowing a judge to dispose of a case by applying a determinative legal principle to undisputed facts and allowing a judge to decide a factual issue because he or she believes the evidence allows only one conclusion. A judge always decides the former. As to the latter, if one or more facts are in dispute or different inferences may be drawn from undisputed facts, a jury [read Trial Court] should be allowed to find for either party.

On November 17, 2014, the Alberta Court of Appeal released the decision in Maxwell v. Wal-Mart Canada Corp., 2014 ABCA 383, where the Court (per curiam, including Fraser C.J.A., Slatter J.A. and Bielby J.A.) considered an appeal from a summary dismissal of the Plaintiff’s Action. The Appellant in that case took no issue with the requirement of Rule 7.3 as outlined by the Court below, rather the factual findings themselves. The Court phrased the legal test as follows:

This test has been recently interpreted to be somewhat wider than the rule it replaced, which required an applicant to demonstrate that there was no genuine issue which could or should be put to trial. Under the new Rule, no genuine issue for trial exists where the judge is able to make a fair and just determination on the merits without a trial, because the summary judgment process allows him or her to make the necessary findings of fact, to apply the law to those facts and is a proportionate, more expeditious and just means to achieve a just result. Under the new Rule, summary judgment may be granted if a disposition that is fair and just to both parties can be made on the existing record: see Windsor v. Canadian Pacific Railway, 2014 ABCA 108 (Alta. C.A.) at para 13; Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (Ont. C.A.) at paras 45-55, (2011), 108 O.R. (3d) 1 (Ont. C.A.).

The confusion centers on the findings of facts allowable by the Chambers Judge. As the Summary Judgment Court essentially stands in the place of a Trial Court, then each fact as found by the Court must be on the same standard as at trial, that is, on a balance of probabilities. The distinction between the summary judgment court and the trial court is simple in that the latter is the only one poised to weigh competing evidence to decide a fact, not that the facts required a higher standard of proof at the chambers level.

In WP v. Alberta, 2014 ABCA 404 (released November 28, 2014), the Court (Costigan J.A., Watson J.A., and Brown J.A.) made the following comments:

[25] We note at the outset that the chambers judge, and the parties, applied the traditional test for granting summary judgment, being whether the evidence disclosed a triable issue. Following the adoption of Rule 7.3 of the Rules of Court, which permits a party to apply for summary judgment on (inter alia) the ground that there is no merit to a claim, this Court clearly rejected the threshold of “triable issue” or “a genuine issue for trial” in favour of a merit-based test:

New R. 7.3 calls for a more holistic analysis of whether the claim has “merit”, and is not confined to the test of “a genuine issue for trial” found in the previous rules…

(Windsor at para 14).

Rule 7.3 of the new Alberta Rules of Court allows a court to grant summary judgment to a moving party if the nonmoving party’s position is without merit. A party’s position is without merit if the facts and law make the moving party’s position unassailable and entitle it to the relief it seeks. A party’s position is unassailable if it is so compelling that the likelihood of success is very high.

(Access Mortgage Corporation (2004) Limited v Arres Capital Inc, 2014 ABCA 280 at para 45, [2014] A.J. No. 1032 (QL) [Access Mortgage], citing Beier at para 61.)

[26] Summary judgment is therefore no longer to be denied solely on the basis that the evidence discloses a triable issue. The question is whether there is in fact any issue of “merit” that genuinely requires a trial, or conversely whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily: Windsor at para 16; Beier at paras 56, 59-68 and 70.

The decision below in WP, supra. was decided before the decision in Windsor, supra. was released, and the Court of Appeal considered the record in its entirety before determining whether summary judgment was appropriate. Respectfully, the language of the holistic analysis that should be undertaken runs contrary to requiring a party’s position to be unassailable which in and of itself heralds a higher standard of proof.

Admittedly, the reality of the situation is that the role of the summary judgment vehicle may pre-dominantly work to eliminate a meritless claim where the plaintiff has no evidence to support an element of the cause of action, or where there is a complete defense (statutory or legal). As a result, there is some emerging consistency from the Court of Appeal.

In Larouche v. Alberta (Former Court of Queen’s Bench Chief Justice), 2015 ABQB 25, Watson J. (ex officio) made the following comments:

[12] …From the process perspective, summary judgment can be given if a disposition that is fair and just to both parties can be made on the existing record: [Hryniak, supra.] [13] From the substantive perspective, summary judgment can be granted if, in light of what that fair and just process reveals, there is no merit to the claim. No ‘merit’ in my view means that, even assuming the accuracy of the position of the non-moving party as to any material and potentially decisive matter – matters which would require ordinary forensic testing through a full trial procedure and which cannot be resolved through the fair and just alternative – the non-moving party’s position viewed in the round has no merit.
[14] …the mere assertion of a position by the non-moving party, or the mere hope of the non-moving party that something will turn up at a trial, does not suffice. The key is whether the circumstances require a full regular trial on that issue in order to properly resolve the case…

These comments were repeated almost verbatim in 776826 Alberta Ltd. v. Ostrowercha, 2015 ABCA 49 at paragraphs 9 through 13.

ACCESS AND FAIRNESS

The comments of Madame Justice Karakatsanis do not limit the process to the gatekeeper function it has traditionally been considered to be in Alberta as she states “[on] a summary judgment motion [the evidence]… must be such that the judge is confident she can fairly resolve the dispute” [Hryniak, supra. at para. 57]. That language signals a broader purpose beyond a simple gatekeeper, heralding her comments regarding access to justice and fair dispositions.

There is an election involved with any summary judgment application that is significant: whether to bring the application before a Master or a Justice. The secondary issue is whether this type of application can be heard in morning chambers (at either level). Since Hryniak, applications have been brought at both levels. Legal convention holds that where a Master has jurisdiction to hear a matter, that is the appropriate level for the application, but that may only be part of the solution.

Considering the analysis the Court is to undertake, that is, determining the sufficiency of the record to decide the merits of the application, in order to properly consider the application, the Court must have an opportunity to properly consider the evidence in relation to the matter at bar, whether it simply be the Affidavits, or other materials as contemplated by Rule 6.11. The morning Chambers list in Alberta however is often times lengthy, and the sitting Master may not (often does not have an opportunity) to review the filed materials in relation to an application prior to its hearing. In those circumstances, it may be unfair to call upon a Master in morning Chambers to make a final determination (potentially) on a case without an opportunity to evaluate the quality (read admissibility and sufficiency) of the evidence before her. In some instances, such an expedited disposition may be had, the limitations scenario discussed earlier for example. Otherwise, it may seem contrary to the intentions of the expanded summary judgment procedure to pigeon-hole applications to be heard in under 20 minutes.

The other issue to consider is bringing such applications before a Master at all. As Justice Brown (as he was then) previously pointed out in Orr v. Fort McKay First Nation, 2014 ABQB 111, the fact finding powers of a Master are limited, which means that it may be within a Master’s jurisdiction to determine a limitations issue (for example), but an application such as what was brought in Felker, supra. may only be brought before a Justice (issuing a substantive judgment upon the merits). Secondly, there is the related issue of appellate review of a summary judgment decision.

An appeal to a Justice is to be heard on the record, however, the parties are free to file further evidence, and therefore the parties are free to re-argue the case in its entirety, rather than focus on any actual errors of law or fact. This allows a party to test their application before a Master and shore up deficiencies in their position prior to the hearing before the Justice. That is contrary to the pith of appellate review and disregards judicial efficiency by allowing for the complete re-hearing of an entire application.

Contrast this with the standard of appeal applied by our Court of Appeal considering a decision of a Justice, who is entitled to deference on a summary judgment decision and therefore is reviewed on a standard of palpable and overriding error. The exception of course is an issue of pure law, which is always reviewed on a correctness standard. The utility of allowing litigants the ability to argue the same application twice from inception seems ill suited to principles of efficiency when it comes to scarce judicial resources. However, to ensure an effective mechanism for appellate review, litigants and the Court must ensure the record itself is adequately created and preserved.

Professor Arthur R. Miller commented on these pitfalls in his article “The Pretrial Rush to Judgment: Are the ‘Litigation Explosion,’ ‘Liability Crisis,’ and Efficiency Clichés Eroding our Day in Court and Jury Trial Commitments?” [New York University Law Review, Vol. 78:982; June 2003] where he opined at page 1076:

…This means that the question of when a court may determine a case before trial “as a matter of law” has taken on greater significant – one that reaches some of our system’s most cherished traditions. Absent sensitivity to the appropriate judge-jury balance, lower courts may curtail litigants’ access to trial – and obviously a jury – through arbitrary, result-oriented, of efficiency-motivated determinations at the pretrial motion stage.
Using conclusory labels raises concerns not only because it may intrude on the trial and jury rights, but also because the action basis for terminating an action may not be articulated clearly enough to permit effective appellate review, which is an essential safeguard against an improper pretrial disposition…a motion grant should be accompanied by a clear and reasoned analysis of why, under the relevant standard, a particular pleading does not state any claim for relief or why the district judge believes that she, rather than a jury, and without live testimony subject to cross-examination, should decide one or more issues as a matter of law. Moreover, it is essential to provide litigants an opportunity to develop a full record through discovery before deciding a rule 56 [Summary Judgment] motion to ensure that their appellate rights are viable and meaningful.

Litigants in light of the encouraged approach towards summary judgment must be aware that the facts (or evidence) supporting allegations of negligence (or a positive defence) must be properly before the Court in order to allow a fair disposition in a summary judgment context. The “best foot forward” analogy has been used in the past; the Court may presume as much when faced with a party who has failed to file, or filed inadequate materials in support of, or in opposition to a summary judgment motion. Without this presumption, and truly an obligation upon Counsel on any side of a motion, the Courts run the risk of denying parties’ right to the full litigation process on insufficient grounds. This pitfall is potentially avoided through an efficient appellate process, but even that requires a presumption that there is an adequate record before the Court with which to render a decision, and adequate reasons from the court below to consider.

Bearing that in mind, and based upon the review of the emerging jurisprudence in the area, the goal of any Counsel bringing a summary judgment application is to create a clear record for the Court from which to decide the merits of the action (whether for the Plaintiff or the Defendant). This is achieved in cases where there is a singular version of events (perhaps only the Plaintiff’s version of an assault), where there is a statutory defense (the Limitations Act for example), or no defense available (deficiency judgments under an insured mortgage). Counsel are well advised to bear in mind the limits of documentary evidence that may be properly before the Court (avoiding hearsay for example), but should consider the additional evidence allowable under an application due to the operation of Rule 6.11 (any producible document listed in the affidavit of records for example).

The process should be avoided where there are any material disputes as to the facts, or where issues of credibility are necessarily tied to the ultimate issue (fraud, defamation, breach of trust, etc). Parties should also avoid arguing novel points of law which are inappropriate for a summary judgment court, however, where the law is settled, a motions court may be in a position to decide the matter.

Conclusion

Despite the numerous decisions that have been released considering Hryniak, supra. there remain a number of legal issues without clear direction, the most obvious being whether there is a higher standard of proof required in a Rule 7.3 application. As the jurisprudence continues to develop, it will be interesting to see how Justice Wakeling’s comments in Beier, supra. and Can, supra. will be interpreted going forward.

What is clear is that the Supreme Court of Canada and the Alberta Court of Appeal have both endorsed the Rule 7.3 mechanism as a means of resolving litigation early. History has shown that the process may lend itself more to a gatekeeper function to eliminate meritless claims, but there is the ability for a plaintiff to proceed to final judgment without trial there as well.

Litigants and their Counsel would be wise to bear in mind the pitfalls of having to respond to a summary judgment application without having proper evidence before the Court. Suggestions that evidence may arise as the litigation proceeds is insufficient to ward off the application, meaning parties must ensure there is sufficient (and early) production in the litigation to raise issues of fact or law that require a trial. Failing to ensure proper response materials are filed may signal the death knell for a claim under the revised analysis whereas before a respondent could cling to the high standard an applicant had to achieve before they were successful.

Moving parties must practice diligence and restraint when considering bringing a Rule 7.3 application lest the goals of preservation of judicial resources fall prey to overzealous use of the process to pressure plaintiffs who have failed to provide adequate disclosure.

Courts ideally will exercise the appropriate judicial restraint when considering when to deny litigants full access to trial procedures. While access to justice is an omnipresent consideration, the adequate evolution of jurisprudence requires legal and factual issues to proceed to adjudication for appropriate judicial opinion (and Appellate opinion). While it is laudable to reduce the number of trials via summary judgment, summary trial, and alternate dispute resolution, there is a concern that avoiding trial at all costs will hinder the development of the common law. As a result, while there is an increase in the summary judgment procedure itself, it remains to be seen whether that will have any appreciable effect on the access to civil justice problem.