An Assessment of the Post-Hryniak Summary Judgement Rule in Alberta

By Joy Brailean, Student at the Faculty of Law, University of Alberta

In Hryniak v Mauldin, the Supreme Court of Canada urged courts to optimize procedural mechanisms for improved access to justice.¹ While fair adjudication is paramount to Canada’s civil justice system, excessive expense and delay can preclude equitable dispute resolution altogether. Balance must be struck.  

Traditionally, trials were the default mechanism for adjudicating cases on their merits, with summary judgment granted only in the absence of a genuine issue for trial.² However, this approach may not always be proportionate given the significant time and costs associated with a conventional trial.³ The Supreme Court in Hryniak called for a “culture shift”, emphasizing that trial judgment should no longer be the default procedure as summary judgment can often suffice as a proportionate response.⁴ Accordingly, the Hryniak majority construed Ontario’s Rule 20.04 for summary judgment broadly. Applications under Rule 20.04 should only be dismissed where there is a genuine issue requiring trial based on the state of the factual record.⁵ 

In 2019, the Alberta Court of Appeal deciding Weir-Jones Technical Services Incorporated v Purolator Courier Ltd assumed the task of interpreting Alberta’s summary judgment rules in light of Hryniak. The Hryniak decision did not alter the text of Alberta’s summary judgment rule.⁶ However, Justice Slatter, writing for the majority, affirmed that proportionality should guide the interpretation and application of Rule 7.3.⁷ While the text of Rule 7.3(1) calls for courts to consider whether there is “no defence” or “no merit” to a claim or part of it, a strict reading of the rule would frustrate the countervailing objective of expeditious adjudication.⁸ Instead, the question is whether there is a genuine issue necessitating a trial in the interest of fairness.⁹  

To obtain summary judgment, the moving party must establish the material facts of the case on a balance of probabilities.¹⁰ Nevertheless, Justice Slatter clarified that this standard does not demand an unassailable factual record. Weir-Jones instructs adjudicators to make findings of fact where possible on summary disposition applications.¹¹ Factual disputes are acceptable, provided that the presiding judge has sufficient confidence in the state of the record such that they can fairly resolve the matter.¹² 

The liberal construction of Rule 7.3 in Weir-Jones promised a positive shift in Alberta’s civil procedure. The Hannam v Medicine Hat School District No. 76 majority, composed of Justices Wakeling and Justice Feehan, delivered a comprehensive judgement analyzing the impact of Weir-Jones on access to justice. This case concerned a slip and fall accident at River Heights Elementary School in Medicine Hat.¹³ After the head custodian had sanded an icy sidewalk on the school’s property, Ms. Hannam slipped and broke her right ankle.¹⁴ Subsequently, Ms. Hannam initiated a negligence action against the Medicine Hat School District.¹⁵

Before Weir-Jones was decided, the defendant in Hannam sought an order to summarily dismiss the action.¹⁶ The Master concluded that Ms. Hannam had no chance of succeeding and granted summary dismissal. This result was overturned by the Chambers judge.¹⁷ Determining that “conflicting bits of evidence” made it so that the outcome was not obvious, the Chambers judge held that the factual disparities warranted a trial.¹⁸ On appeal, Weir-Jones was in effect. Although the factual record was not perfect, the majority in Hannam held that a trial would “not produce a more complete factual record than already exists.”¹⁹ The Court of Appeal summarily dismissed the claim because “there [was] nothing more the Medicine Hat School District could or should have done to make the sidewalk any safer for Ms. Hannam”.²⁰ Hannam would have proceeded to trial based on the traditional understanding of Rule 7.3. However, Hryniak and Weir-Jones set precedents that spared the parties a cumbersome and costly judicial process.  

The majority in Hannam went beyond the case’s immediate focus and seized the opportunity to evaluate the post-Hryniak judicial landscape in Alberta. It sought to determine whether Weir-Jones had generated an impact akin to the “culture shift” mandated by the Supreme Court in Hryniak. Justices Wakeling and Feehan analyzed data from the 530 days preceding and following the Weir-Jones decision to address this question.²¹ In the year following Hryniak’s release, nearly “75% of Ontario decisions granted full or partial summary judgment”.²² In contrast, Alberta’s success rate for summary judgment experienced a more modest increase from 48% to 57% after the Weir-Jones decision.²³ Moreover, the Hannam majority noted that many of these outcomes would have been the same under the old summary judgment test that pre-dates Weir-Jones.²⁴ Alberta has made progress towards enhanced access to justice since Weir-Jones, but the results are somewhat underwhelming.  

Despite Hryniak and Weir-Jones, Alberta adjudicators are reluctant to grant summary judgment when faced with an unclear or imperfect factual record. Weir-Jones explicitly emphasized that adjudicators should not shy away from granting summary disposition due to factual discrepancies, so long as they can make the necessary findings of fact.²⁵ The majority in Hannam observed that most adjudicators applying Weir-Jones were comfortable granting summary judgment where the correct disposition was obvious and the facts were uncontested.²⁶ However, there was a notable hesitancy to resolve matters with contested facts. ²⁷ Judges are not making findings of fact, nor are they exercising their ability to invite oral testimony.²⁸ This conservativism impedes affordable and timely access to justice. It is a deficiency in the application of Weir-Jones and Rule 7.3. 

These findings might prompt parties to consider making factual concessions when preparing a Rule 7.3 application. The greater the certainty in the factual record, the higher the likelihood of obtaining summary disposition. When the benefits of swift resolution outweigh the drawbacks of making an admission, adopting this strategy may be in the best interest of one’s client. For instance, the defendant in Hannam conceded that the sidewalk was slippery before it had been sanded to pre-emptively address any factual discrepancies that could undermine their application for summary dismissal.²⁹ It is crucial, however, to establish a clear and defined litigation strategy from the outset.  

In PricewaterhouseCoopers Inc. v Perpetual Energy Inc., the Court ruled that two successive applications for summary judgment with inconsistent positions constituted an abuse of process.³⁰ This case concerned the alleged undervalue transfer of assets prior to declaring bankruptcy.³¹ The corporate defendant, Perpetual Energy, sought summary dismissal but was denied. Perpetual Energy subsequently modified its position based on the first Chambers’ judgement and filed a second application.³² For instance, Perpetual Energy opposed using the reserve reports on the record for asset valuation in the first application, but expressed willingness to utilize them in the second application.³³ Perpetual Energy was successful, and summary judgment was granted.³⁴ While the Chambers judge hearing the second application believed this to be an efficient use of court resources, the appellate court disagreed.³⁵  

On appeal, the Court in Perpetual Energy determined that the second application was “a blatant attempt to relitigate, making arguments that were available and reasonably should have been made” during the initial application.³⁶ The Court labelled this behaviour as “a waste of valuable court resources” and an abuse of process³⁷ It is important to note that there are circumstances that permit a second application for the same relief, such as the introduction of new evidence or a material change in circumstances.³⁸ Nonetheless, it is crucial to use one’s discretion at the outset when determining a litigation strategy that invokes Rule 7.3.  

Summary disposition is not appropriate for every case. Applying Rule 7.3 in unsuitable situations can result in unnecessary delay and expense. Rudichuk v Genesis Land Development Corp. was a wrongful dismissal case that ultimately proceeded to trial after “three years of litigation on a motion to strike and a summary judgment application, both of which were ultimately dismissed at considerable expense to the parties and cost to the system”.³⁹ The Court in Rudichuk contemplated the efficacy of summary judgment in cases that involve “relatively narrow issues, significant credibility contests and somewhat novel claims.”⁴⁰ If a case is not well-suited to summary disposition, seeking this procedural “shortcut” to justice may paradoxically result in unnecessary delay and expense. This is antithetical to the “culture shift” envisaged by the majority in Hryniak. Summary judgment can be a valuable tool, but only if it is used appropriately. Rudichuk and Perpetual Energy exemplify the limitations of Rule 7.3. 

Expanding the role of summary judgment in Alberta’s civil procedure has improved access to justice, but it is not a silver bullet. The average time between an action’s commencement and its resolution is increasing in Alberta.⁴¹ Procedural reform is necessary to address these inefficiencies in the judicial process, but a broad interpretation of Rule 7.3 is not sufficient on its own. Not all disputes warrant a conventional trial, yet not all matters are suitable for summary disposition. There is a need to devise an efficient mechanism for adjudicating cases that fall in the middle of the spectrum. As the Rules of Court Committee draft Division 5 of Part 8 of the Rules, the Albertan legal community can be optimistic that the introduction of streamlined trials to the judicial process will meet this demand. Nonetheless, the precedents set by Hryniak and Weir-Jones were a positive step towards increased access to justice in Alberta.  

1. Hryniak v Mauldin, 2014 SCC 7 at paras 1-2 [Hryniak]. ↩︎
2. Ibid at para 34. ↩︎
3. Ibid at para 27. ↩︎
4. Ibid at pars 23-27. ↩︎
5. Ibid at para 43. ↩︎
6. Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 at para 186 [Weir-Jones]. ↩︎
7. Ibid at para 172. ↩︎
8. Ibid at para 199. ↩︎
9. Ibid at paras 42, 46. ↩︎
10. Ibid at paras 147, 152, 161. ↩︎
11. Ibid at para 36. ↩︎
12. Ibid. ↩︎
13. Hannam v Medicine Hat School District No. 76, 2020 ABCA 343 at para 24 [Hannam]. ↩︎
14. Ibid at paras 25-29. ↩︎
15. Ibid at para 31. ↩︎
16. Ibid at paras 7-8. ↩︎
17. Ibid at paras 7-9. ↩︎
18. Ibid at para 9. ↩︎
19. Ibid at para 213. ↩︎
20. Ibid at para 215. ↩︎
21. Ibid at para 162. ↩︎
22. Ibid at para 242. ↩︎
23. Ibid at para 169. ↩︎
24. Ibid at para 168. ↩︎
25. Weir-Jones, supra note 6 at para 36. ↩︎
26. Hannam, supra note 13 at paras 166-167. ↩︎
27. Ibid at para 165. ↩︎
28. Ibid. ↩︎
29. Ibid at para 213. ↩︎
30. PricewaterhouseCoopers Inc v Perpetual Energy Inc, 2022 ABCA 111 at para 103 [Perpetual Energy]. ↩︎
31. Ibid at para 4. ↩︎
32. Ibid at para 100. ↩︎
33. Ibid t paras 60-61. ↩︎
34. Ibid at para 22. ↩︎
35. Ibid at para 84. ↩︎
36. Ibid at para 98. ↩︎
37. Ibid at paras 98, 103. ↩︎
38. Ibid at para 91. ↩︎
39. Rudichuk v Genesis Land Development Corp., 2022 ABCA 42 at para 34 [Rudichuk]. ↩︎
40. Ibid at para 35. ↩︎
41. Hannam, supra note 13 at para 48. ↩︎

The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.