Following a series of Alberta Court of Appeal decisions, the cultural shift favouring summary determination of cases is firmly entrenched in Alberta. There should no longer be general reluctance to bring summary judgment applications. Summary judgment applications should be advanced unless cases involve contested material facts or issues related to credibility. Alberta courts should now be more willing to make contested factual findings and hear oral testimony on summary judgment applications.
In Hannam v Medicine Hat School District No. 76 (“Hannam”)the Alberta Court of Appeal clarified the test for summary judgment and promoted the use of it. Where there is sufficient confidence on the state of the evidentiary record, courts in Alberta are encouraged to resolve disputes even if they contain contentious facts or require oral testimony. The accessibility of this expedited procedure is particularly important because trial dates are booking further and further away as a result of COVID-19 delays.
The standard applicable to summary judgment in Alberta has been inconsistent, making it difficult for parties to determine whether they are in a position to proceed summarily. The revisions to the Rules of Court in 2010 led Alberta courts to conclude cases could only be decided summarily where there was no doubt of the outcome of the dispute had it gone to trial—a very high standard.
In 2014, the Supreme Court of Canada encouraged a cultural shift favouring summary judgment in Hyrniak v Mauldin (“Hyrniak”).The Court stated that summary judgment is appropriate when the necessary facts and law are presented on application for summary judgment and the court can make a fair and just decision by applying the facts to the law. Hyrniak, a decision appealed out of Ontario, stood in opposition to Alberta law reserving the resolution of material facts to the trial judge.
The application of Hyrniak was inconsistent in Alberta. Some Alberta courts responded to the call for a “cultural shift”, applying a lower standard for summary judgment to be granted. Other courts paid little or no attention to Hyrniak and did not revise the summary judgment rule.
Hannam Embraces the Cultural Shift Favouring Summary Judgment
In Hannam, the Court of Appeal clarified the test for summary judgment in Alberta, as set out in the majority decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd. (“Weir-Jones”). Following Hryniak, the party seeking summary judgment need only prove facts on a balance of probabilities so the court can make a fair determination on the record before it; a significantly lower burden than proving that the result following a trial is obvious. Courts may make findings of fact so long as material facts are not in dispute, and may hear oral testimony during summary judgment applications. However, determinations of credibility and conflicting expert evidence may constitute issues that require a trial.
In the courts below, a Master had summarily dismissed a slip and fall claim on the basis that the occupier could not have done anything more to make the sidewalk safer. The Chambers Justice applied the old standard of whether the outcome at trial was obvious, reversing the Master’s decision.
The Court of Appeal granted the appeal and summarily dismissed the claim. There was no dispute that the sidewalk was slippery prior to being sanded or that it was sanded prior to the plaintiff falling. The facts and law were incontrovertible and a trial would not produce a more complete factual record than already exists. The Supreme Court of Canada dismissed the plaintiff’s application for leave to appeal.
Although the Weir-Jones test is more conducive to the granting of summary judgment, the Court of Appeal in Hannam noted there has been very modest rise in success rates of summary judgment applications. Most adjudicators have been reluctant to resolve disputes that contain material facts and not one has heard oral testimony. The Court of Appeal in Hannam expected the success rate of summary judgment applications in Alberta to be 75%, but it currently lies at 57%.
The cases after Hannam provide useful takeaways as follows:
- Notwithstanding Masters are not permitted to weigh evidence, a Master’s jurisdiction to hear summary judgment applications has never been doubted. Summary disposition is not adjudicative and does not try the rights of parties in the sense of a trial.
- Parties must put their best foot forward on summary judgment applications and it is not a defence that there may be an improved record at trial.
- Although summary judgment is more available, the procedure should not be abused in circumstances where there is a genuine issue requiring trial.
Generally, there seems to be a greater willingness to grant summary judgment applications, if not to the extent the Court of Appeal has encouraged. A court has yet to hear oral testimony in the summary judgment context, which may expand the cases that can be determined summarily.
 2020 ABCA 343.
 Ibid at paras 118-120.
 2014 SCC 7.
 Hannam at paras 137-141.
 Ibid at para 122; referring to Hyrniak at para 2.
 Ibid at paras 128-129, 137; referring to Windsor v Canadian Pacific Railway, 2014 ABCA 108 and Stefanyk v Sobeys Capital Inc., ABCA 125.
 Ibid at paras 130-131, referring to Can. v Calgary Police Service, 2014 ABCA 322.
 2019 ABCA 49.
 Hannam at para 8, 21.
Ibid at paras 34-35, 209-210.
 Ibid at para 176.
 Court of Queen’s Bench Act, RSA 2000 c C-31,at s.9(1)(a).
 Kubersky v Pomeroy (Pomeroy Group), 2021 ABQB 173.
 Acden Environment Limited Partnership v Environmental Metal Works Ltd, 2021 ABQB 160.
 Bloomex Inc v Canadian Broadcasting Corporation, 2021 ABQB 214.