In Summary: It’s Still a Balance of Probabilities

By: Allie Laurent

On February 6, 2019, the Alberta Court of Appeal released the Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd. 2019 ABCA 49 (“Weir-Jones”) decision. This decision was the result of a panel of 5 judges convened to hear two summary judgment appeals, Weir-Jones and Brookfield Residential (Alberta) LP v. Imperial Oil Limited, 2019 ABCA 35. It was anticipated that this decision would provide clarification on the test for summary judgment in Alberta in light of numerous contradictory cases regarding the appropriate burden of proof.

The Court of Appeal upheld the Court of Queen’s Bench decision wherein the Chambers Judge granted summary dismissal to the Defendant Purolator Courier Ltd., on the basis that the Plaintiff, Weir-Jones Technical Services Incorporated’s claim was statute barred from bringing their claim as a result of the Limitations Act.

The Majority Decision

The four member majority of the panel acknowledged that since the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7 (“Hryniak”), the test for summary judgment in Alberta has been unclear. The majority cited the Can v. Calgary Police Service, 2014 ABCA 322 (“Can”) and Stefanyk v. Sobeys Capital Incorporated, 2018 ABCA 125 (“Stefanyk”) decisions as illustrative of this riff discussed at paragraph 12:

In Can, at paragraph 20, the Court of Appeal described the test for summary judgment as when “A party’s position is without merit if the facts and law make the moving party’s position unassailable…A party’s position is unassailable if it is so compelling that the likelihood of success is very high.”

In Stefanyk, at paragraph 17, the Court of Appeal stated that, “the issue is not whether the appellant’s position is “unassailable”… The ultimate issue is whether the appellant has proven on a balance of probabilities that it is not liable for the Plaintiff’s injuries.”

Decisions following the analysis in Can held on to the pre-Hryniak analysis that required a higher standard of proof. The majority held that this approach is inconsistent with Hryniak because requiring a claim to be irrefutable defeats the whole purpose of the “culture shift” that was called for.

The majority clarified that the only standard of proof in civil proceedings is “on a balance of probabilities.” The majority noted that the real question is not whether on the facts alone the “standard of proof” has been met, but rather if the factual basis of the claim is proven on a balance of probabilities, whether the presiding judge is satisfied that there is no genuine issue requiring a trial. In reaching that decision the judge must be guided by the principle of fairness, and consider whether it is fair to conclusively adjudicate the matter summarily. With the principle of fairness being considered at all stages; fact-finding, making a determination on a the balance of probabilities, deciding if there is a genuine issue requiring a trial, and if overall summary judgment is a suitable means of achieving a just result.

Going forward when determining whether summary judgment is appropriate, it will be important to consider the following:

1. Based on the record is it possible to fairly resolve the dispute summarily, or are there any uncertainties that reveal a genuine issue requiring a trial?
2. Can the applicant show on a balance of probabilities that there is no genuine issue requiring a trial?
3. Can the respondent demonstrate either that there is a genuine issue requiring a trial or that there is a positive defence, and therefore summary disposition should not be available?
4. Whether based on the record, the presiding judge can confidently, properly and fairly resolve the dispute.

Applying this analysis to the appeal at hand the majority held that the evidence demonstrated Weir-Jones knew more than two years before commencing the proceeding that its injuries warranted a bringing an action. Thus, the chambers judge had not erred in concluding that Weir-Jones failed to prove any reason why their claim was not statute barred, and the decision to dismiss the claim was upheld.

The Minority Decision

The decision of the Honourable Justice Wakeling concurs in the result, but dissent in the analysis. His reasons contain a lengthy review of the history of summary judgment both in Canada and abroad, and hold that Hyrniak has not changed the interpretation of Rule 7.3 in Alberta. He maintains that summary judgment should only be available if the disparity between the parties “is so marked that the ultimate outcome of the dispute is obvious.” This analysis runs contrary to the majority’s holding that summary judgment is available if having proven the facts on a balance of probabilities the presiding judge can confidently decide the matter. As his reasons for upholding the Appeal were specifically rejected by the Majority, the analysis of Justice Wakeling is of limited precedential use.

Looking Forward

This decision is important because the Court of Appeal has clarified the confusion which has existed for a number of years regarding the standard of proof. The Court of Appeal has made it clear that the balance of  probabilities is the standard of proof on summary judgment. However, it should be noted, this does not mean summary judgment will always be granted if an Applicant proves the facts on a balance of probabilities. Summary judgment applications also require the Court to determine whether on the record and in light of the applicable law, that it is fair to decide the matter summarily. 

Despite this additional clarity regarding the standard of proof, there remain other contentious issues with the summary judgment procedure which have been raised in recent cases, but were not specifically considered by the Court in Weir-Jones, including a jurisdictional concern on the fact finding powers of a Master hearing the application in its first instance.  Therefore, it remains to be seen whether the Court of Appeal will be faced with additional challenges on the summary judgment procedure going forward.

For more information about this decision or its implications please contact Allie Laurent, Kunal Nand, or Peter J. Major,Q.C.. Further, due to the broad application of this decision to all types of summary applications, any member of the McLennan Ross LLP Commercial Litigation, Insurance or Labour and Employment groups would be well positioned to provide advice and assistance.