Resolving a dispute by way of trial can be a time-consuming and expensive endeavour. The Alberta Rules of Court enable parties to avoid the time and expense of a trial by having their case determined by way of a summary judgment application instead. Summary judgment applications attempt to resolve the dispute based on affidavit evidence and legal argument alone. If successful, a summary judgment application can bring an action to an end without the need for a lengthy trial with live testimony. Not all cases, however, are well suited for summary judgment applications.
In 2014, the Supreme Court of Canada advocated for a "culture shift" that would promote timely and affordable access to justice by emphasising the use of the summary judgment process.1 However, some courts have been somewhat hesitant to shift away from the long-standing authority of the trial process, and the cultural shift advocated by the Supreme Court of Canada has been slow to take hold with all adjudicators. The result has been that some courts articulate and apply more stringent tests for summary judgment. For instance, there is a line of authority in Alberta that suggests that a party applying for summary judgment must establish that its position is "unassailable," or so compelling that its likelihood of success at trial is very high.2
Parties resisting summary judgment applications rely on such decisions, while summary judgment applicants point to decisions that more liberally embrace the summary judgment process as being well-suited to a wide-array of disputes. This inconsistency in the case law results in confusion.
In a trio of recent cases3 the Alberta Court of Appeal has synthesized and clarified the law on summary judgment in Alberta. In particular, the decision in Stefanyk v Sobeys set straight the standard of proof that an applicant must satisfy. It rejected the previous jurisprudence that required an applicant's case to be "unassailable", affirming that there is only one civil standard of proof: balance of probabilities.
The test for summary judgment, then, is whether the record is such that it is fair and just to decide summarily if the moving party has proven the case on a balance of probabilities.4 Indicators that a case is well suited to summary judgment include:
- there is no dispute over material facts
- there is no issue with the credibility of an affiant
- a trial is unlikely to result in a better evidentiary record
Clarifying the standard of proof required on a summary judgment application will assist the courts in moving matters towards resolution without the time and expense of a trial. Parties to summary judgment applications are no longer able to argue that their respective positions are unassailable. Rather, the argument must focus on whether the moving party has proven its complaint or defence on a balance of probabilities.
Footnotes
1 Hryniak v Mauldin, 2014 SCC 7, at paras 2-3.
2 Can v. Calgary Police Service, 2014 ABCA 322 at para 20.
3 Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 [Stefanyk]; Stoney Tribal Council v Canadian Pacific Railway 2017 ABCA 432; Amik Oilfield Equipment Rentals Ltd v Beaumont Energy Inc. 2018 ABCA 88.
4 Stefanyk, at para 15.
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