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Monday Morning Case Bites for October 5, 2020

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Steven Graham

Hannam v Medicine Hat School District No. 76, 2020 ABCA 343
Summary Judgment | Slip and Fall

The Court of Appeal permitted an appeal of a Chambers Judge’s decision overturning a Master’s summary dismissal of the Plaintiff’s slip and fall action. The Court of Appeal agreed with the Master that the action ought to be dismissed, and it was appropriate to do so summarily.  

The Court of Appeal summarized the historical evolution of summary judgment rules in Alberta: paras 37 to 39. 

The Court of Appeal also set out the justifications behind summary judgment: 

1 – Conventional Trials Are Expensive and Plagued by Delay

[46]           The value[47] of summary judgment and summary trial as dispute resolution processes increases as the amount of time[48] that separates the commencement of actions and their final trial resolutions and the costs associated with conventional trials escalates.[49] Business dislikes uncertainty that litigation delay inevitably introduces.[50] Uncertainty undermines the reliability of transactions and imperils investment returns.[51] Most litigants crave predictability,[52] finality and abhor delay.[53] The financial and emotional costs of unresolved disputes may be debilitating.[54] Prolonged delays also undermine public confidence in the administration of justice[55] and encourage disputants to utilize private mechanisms to resolve their differences.[56] An 1885 American Bar Association report laments that “[a]lready we see arbitration committees in large departments of business supplanting the courts”.[57] 

[47]           This has been the case in England and the United States for a very long time. 

[48]           It is certainly true in Alberta today and it has been for many years. Currently the amount of time that separates the date an action is commenced in Alberta and the date it is resolved by trial is trending upwards.[58] Until this trend is reversed, Alberta litigants will have a high interest in having access to a workable expedited dispute resolution procedure – summary judgment or summary trial. Or they will continue to take their commercial business elsewhere – private dispute resolution. 

2 – Alberta’s Response to the Undue Delay and High Cost Associated with Conventional Trials

[49]           The Alberta Rules of Court[59] that came into force on November 1, 2010 contained features that Lord Griffiths probably had in mind when he asserted that the civil process required a major overhaul.[60] 

[50]           The foundational rules collected in Part 1 exhort the court and litigants to search for a dispute resolution process that best suits the features of an action and that “facilitate the quickest means of resolving a claim at the least expense”.[61] 

[51]           Part 7 of the Alberta Rules of Court[62] gives the Court of Queen’s Bench the tools needed to fairly resolve disputes that do not require the parties and the court to devote the time and the resources associated with resolution by a traditional trial. 

[52]           In Weir-Jones Technical Services Inc. v. Purolator Courier Ltd.,[63] this Court resolved a conflict between two schools of thought and identified the core elements of the summary judgment protocol. 

[53]           To appreciate the full significance of this Court’s new summary judgment protocol, it is necessary to sketch the historical path that summary judgment has followed in England, United States and the common law jurisdictions. 

3 – Criteria To Evaluate the Merits of a Summary Judgment Protocol

[54]           The utility of summary judgment is a function of how its components measure against five distinct elements. 

[55]           The first element identifies who may apply for summary judgment. Rulemakers have three options – only the plaintiff,[64] only the defendant[65] or both.[66] If the rulemakers allow either the plaintiff or the defendant to apply for summary judgment, they maximize the likelihood summary judgment will be sought in appropriate cases.[67] 

[56]           The second element is the population of the set of eligible actions. Set size impacts the effect summary judgment will have on any civil procedure system. The first summary judgment protocol was available only for actions enforcing bills of exchange or promissory notes.[68] A protocol that may be invoked regardless of the nature of the action obviously increases the potential impact summary judgment may have on the volume of actions that are ultimately resolved by resorting to the conventional trial stream.[69] 

[57]           The third element records the procedure that an applicant must navigate to gain access to the summary judgment adjudication. A protocol that can be accessed early in the process[70] and is easy to complete – costs the parties less[71] – will increase the number of actions that are resolved by summary judgment and improve the case-closure ratio between summary judgment and conventional trial.[72] Suppose a rule denied access to the summary judgment protocol until the parties have completed discovery. This might deter some litigants from applying for summary judgment.[73] 

[58]           The fourth element focuses on the necessary disparity between the strength of the moving and nonmoving parties’ cases in order to grant summary judgment. Summary judgment is less likely to be invoked if the degree of disparity between the strength of the moving parties’ position must be at its greatest – the nonmoving party has no chance of success.[74] For example, Judge Jerome Frank, of the Second Circuit Court of Appeals and an opponent of summary judgment,[75] favored the maximum degree of disparity: “We … suggest that trial judges should exercise great care in granting motions for summary judgment. A litigant has a right to a trial where there is the slightest doubt as to the facts”.[76] Some courts would grant summary judgment only if the disparity between the strength of the two parties’ cases was so marked that the result was obvious.[77] If a rulemaker adjusts the tipping point so that the requisite degree of disparity is less, the number of actions resolved by the summary judgment methodology should go up.[78] 

[59]           The fifth element measures access to an appeal court. May a party only appeal if summary judgment was granted? Or may a party also appeal if summary judgment was not granted? Obviously, a protocol that allows appeals against orders granting summary judgment but not orders refusing summary judgment is a barrier undermining the utility of the summary judgment methodology.[79] 

The Court of Appeal also provided a historical analysis of summary judgment procedures in other common law countries (paras 60 to 97) and specifically in Alberta (paras 98 to 208). The Weir-Jones standard is summarized as follows: 

[142]      The Chief Justice of Alberta convened a five-judge panel to hear the appeal in Weir-Jones Technical Services v. Purolator Courier Ltd. and to determine the law of summary judgment in Alberta post Hryniak v. Mauldin. 

[143]      The pivotal issue presented to the five-judge panel was the impact Hryniak v. Mauldin had on rule 7.3 of the Alberta Rules of Court. The Stefanyk[214] school of thought was that the 2014 Supreme Court judgment was a game changer. The Can v. Calgary Police Service[215] view was that it had no impact whatsoever on the summary judgment law in Alberta.[216] 

[144]      The Stefanyk school of thought carried the day:[217] 

[T]here has been a paradigm shift in the approach to summary judgment since the decision in Hryniak v Mauldin in 2014. … 

Prior to … Hryniak v Mauldin the trial was seen as the default procedure for resolving disputes. There was a resistance to using summary judgment, because it was seen as a procedural “short cut” that might compromise the substantive and procedural rights of the resisting party. As a result, while the basic test for summary judgment was whether there was a “genuine issue requiring a trial”, the case law set a very high standard of proof before summary judgment was permitted. … 

In Hryniak v Mauldin the Supreme Court of Canada called for a “shift in culture” with respect to the resolution of litigation. Reliance on “the conventional trial no longer reflects the modern reality and needs to be re-adjusted” in favour of more proportionate, timely and affordable procedures. Summary judgment procedures should increasingly be used, and the previous presumption of referring all matters to trial should end. … 


… Historical analyses are not determinative given the call for a “shift in culture”. Decisions of the Supreme Court of Canada prevail. 

[145]      Justice Slatter summarized the governing principles:[218] 

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 of Appeal further emphasized the following: 

  • A summary judgment court can make contested findings of material facts (para 147); 
  • Summary judgment courts should not be reluctant to make material fact findings (para 148); 
  • Before a summary judgment court resolves a material factual dispute, it should ask if it constitutes a genuine issue requiring a trial (para 149); 
  • The moving party must prove the facts on which it relies on a balance of probabilities (para 150); 
  • If there is a genuine issue requiring a trial, summary disposition is not available (paras 151-161): 

[158]      So what does “genuine issue requiring a trial” mean? 

[159]      In Hryniak the Supreme Court of Canada adopted this definition of “no genuine issue requiring a trial”, the language in rule 20.04(2) of the Ontario Rules of Civil Procedure:[229] 

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits. 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. 

[160]      This Court, in North Bank Potato Farms Ltd. v. Canadian Food Inspection Agency, [230] adopted the Supreme Court’s position. 

[161]      The “no genuine issue” concept no longer measures the merits of the parties’ positions. It now concentrates on procedural fairness. 

The Court of Appeal provided their detailed analysis of all of the pre and post-Weir Jones summary judgment applications starting at paragraph 162 and outlined some of the practical implications. These can be summarized as: 

  • Defendants are more likely to bring a summary judgment application than Plaintiffs; 
  • Most Courts have no appetite for resolving contests on disputed material facts (ie. Those essential to establishing a claim or defence); 
  • Adjudicators are most comfortable working with material facts that are not controversial; 
  • Most adjudicators grant summary judgment only if they have no doubt about the correct disposition; they are reluctant to resolve disputes the outcome of which is unclear; 

On the merits of the appeal, the Court of Appeal concluded that while the chambers judge did not have the benefit of Weir-Jones, it was possible to fairly resolve the dispute summarily, in that a trial would not produce a more complete factual record than already existed. The Court concluded that the Defendant was not negligent and could not have done anything further to make the sidewalk any safer for the Plaintiff: 

[213]      A trial will not produce a more complete factual record than already exists. Counsel for the Medicine Hat School District conceded for the purpose of this application that the sidewalk was slippery before the school custodian sanded it. 

[214]      The unfortunate accident occurred at around 8:45 a.m. A chinook was blowing in. The air temperature was around the freezing point and warming. The sidewalk was slippery. The custodian sanded it while Ms. Hannam was walking behind him. She slipped. 

[215]      Under the circumstances, there is nothing more the Medicine Hat School District could or should have done to make the sidewalk any safer for Ms. Hannam and other sidewalk users.[269] 

[216]      The Medicine Hat School District was neither negligent nor in breach of its duty under the Occupiers’ Liability Act.[270] 

[217]      Ms. Hannam’s case has no merit. Summary judgment is the appropriate remedy.