The much-anticipated decision of Weir-Jones Technical Services Inc. v. Purolator Courier Ltd., 2019 ABCA 49 was recently released by the Alberta Court of Appeal. This blog post will discuss the Weir-Jones decision and the new test to be applied in summary judgment applications.
Rule 7.3 of the Alberta Rules of Court sets out the grounds for which parties may apply to the Court for summary judgment. Rule 7.3 states that summary judgement should be granted where there is “no merit” or “no defence” to a claim, or part of it. Prior to 2017, the courts in Alberta had interpreted “no merit” as meaning “unassailable”, “very high likelihood”, and “obvious”. In 2017 and 2018 a shift began to occur wherein some justices on the Court of Appeal began referring to a new test which applied a lower bar to the evidentiary foundation required for a successful summary judgement application. Other justices continued to render decisions applying the old interpretation. (For more information on the history of summary judgment in Alberta and the competing lines of authority that developed from Alberta’s Court of Appeal please see this article.)
The Court of Appeal
The Court of Appeal convened a five-member panel to hear the case of Weir-Jones and to clarify the legal test to be applied in summary judgment applications. The Court determined that the three-part factual analysis that had been applied by prior courts was correct. Specifically, the factual record before the court must: 1) allow the judge to make the necessary findings of fact; 2) allow the judge to apply the law to the facts; and 3) allow the judge to conclude that summary disposition is a proportionate, more expeditious and less expensive means to achieve a just result.
However, the Court departed from old case law and determined that the moving party no longer needed to establish that it had a “very high likelihood of success” in order to prove that a claim had “no merit” or “no defence”. Rather, the Court followed the more recent line of authority and stated that Rule 7.3 required the moving party to establish the facts on a “balance of probabilities” and show that there was no “genuine issue for trial”.
The Court’s main reason for making this shift was based on the belief that summary judgment should be used to make litigation more efficient and cost effective. The former interpretation of Rule 7.3 that required a “very high likelihood of success” did not correctly interpret the Rules of Court nor the precedent setting Supreme Court of Canada case, Hyrniak. The Court was of the view that shifting the evidentiary hurdle to a lower bar would continue to enable judges to make sound, reasoned decisions, and at the same time allow parties to resolve disputes without the need for a full trial.
At paragraph 47, the Court of Appeal summarized the approach that should be taken on summary judgment applications as follows:
- 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. (para 47) (emphasis in original)
Moving forward, it will be of interest to see the impact of Weir-Jones and how it will affect the landscape surrounding summary judgment applications. Currently, the sample size of reported decisions apply the principles delineated in Weir-Jones is relatively small so it is difficult to determine whether this new test articulated by the Court will cause more litigants to use summary judgment as a dispute resolution tool. Arguably, with this new framework, and lowered evidentiary burden, masters and Queen’s Bench judges have been afforded wider latitude to grant summary judgment. Ideally, we will see a shift where summary judgment is embraced and applications are granted in cases where it is not cost-effective or time-efficient to proceed to a trial.
Please see the Court of Appeal decision here: