BY MATTHEW TOMM

 

With Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada ushered in a new paradigm for the law of summary judgment. The case holds that summary judgment rules must be interpreted to promote timely and affordable access to civil justice. The Alberta courts have been quick to fall into step. Recent jurisprudence makes it clear that justices and masters are more willing than before to decide matters summarily. The message is, if the case can be disposed of fairly without trial, it will be.

Yet the post-Hryniak world of summary judgment is new territory, and that means uncertainty for litigants and counsel. At present the law remains unsettled, as courts and the bar work out the new parameters of the game.

This article explores one pressing question: How will courts treat evidence, particularly prima facie conflicting evidence, under the new paradigm? I will first outline how the test has changed post-Hryniak. Then I will discuss tensions within the jurisprudence with respect to evidence.

 

The New Paradigm: more than just semantics

Under the pre-Hryniak jurisprudence, courts asked whether there was a triable issue, or a genuine issue for trial. This implied that if there was an issue that could be tried, it would be tried, even if a trial was not strictly necessary. On the new test, courts ask whether there is a genuine issue of merit requiring trial. The new articulation implies a litigant can’t insist on a trial, even if there is an issue that could be tried. If the dispute can be decided without a trial, it will be. It’s the difference between mandating a trial when one is necessary (the new test) versus mandating a trial when a trial would be merely a reasonable option (the old test).

But we shouldn’t get too hung up on the semantics. As one Master suggested in a recent seminar, the culture shift is more important that the wording. Courts are now more willing to closely examine the merits of a case, viewed holistically, and determine if it can be decided summarily.

 

Treatment of Evidence on Summary Judgment

One of the trickiest points is how courts will treat evidence. The consensus (ostensibly) is that courts should not weigh evidence in a summary judgement application. The Court in Bernum Petroleum Ltd v. Birch Lake Energy Inc., 2014 ABQB 652 at para. 20, held:  “the test for summary judgment is now less stringent, but the test does not require the judge to weigh the evidence or ‘determine whether that party’s evidence actually proves the fact sought to be proved’.”

For context, it is worth noting that under to pre-Hryniak jurisprudence, a number of cases held courts could and should weigh evidence in a summary trial application. For example, Royal Bank of Canada v. Levy, 2013 ABQB 381 at para. 27, endorsed Tucson Properties Ltd v. Sentry Resources Ltd., 1982 CanLII 1218 (Alta. Q.B.), saying:

…there must be evidence which lends some support to the defences raised.

If there is no evidence to support the issues the defendant raises in his defence, there is nothing for the court to weigh. The scales tip entirely in one direction… If there is some evidence to support the issues the defendant raises, the court must then weigh that evidence and decide whether the plaintiff's claim is beyond all doubt. [emphasis added]

Though post-Hryniak cases have been largely united in declining to weigh evidence, there are cracks in the consensus. For example, in Orr v. Fort McKay First Nation, 2014 ABQB 111 at para. 17, the Court candidly admitted that “[t]he line between weighing evidence, and deciding that the evidence merits granting (or not granting) summary judgment, may seem elusive…” The Court explained,

… while masters may not weigh evidence to resolve disputed or contentious questions of fact, they may examine the evidence to determine whether an issue remains to be tried or to otherwise determine (by applying the facts to the law) whether a party’s position is so compelling that the likelihood it will succeed is so high that it merits granting summary judgment. [para. 18; emphasis added]

But doesn’t a judgment of “likelihood” require weighing evidence? The Court admitted, “at some level, all evidence – even extremely compelling evidence – requires weighing” (para. 18). But to “carry that proposition to its logical conclusion” would undermine the purpose of appointing masters to facilitate the administration of justice (para. 18). The same logical conclusion would presumably also undermine the purpose of summary judgment.

Arguably, CCS Corporation v. Pembina Pipeline Corporation, 2014 ABCA 390, illustrates the leeway courts have to evaluate (even weigh) evidence. The Court of Appeal affirmed the summary disposition by case management judge of an action alleging unfair competition, conspiracy, and misappropriation of corporate opportunities. The nonmoving party had “no direct evidence to contradict” key aspects of the moving party’s story, relying instead on inferences. The Court noted the judge read-in statements from examination for discovery, “and weighed them” (para. 37). Discussing the nonmoving party’s evidence, the Court opined that its “inferences … are so weak that it is probably better to call them surmises” (para. 44), and “such second-hand bald or speculative conclusory affidavits with few details and no corroboration have low weight … such evidence is ineffective to bar summary judgment” (para. 53). Apparently both the lower court and Court of Appeal engaged in some degree of weighing evidence.

 

Conclusion

Uncertainty remains. Moving forward in this new paradigm, counsel and litigants should bear in mind that conflicts of evidence may render a case unfit for summary judgment. Yet the courts now encourage increased use of summary judgment, and there is reason to think courts have more leeway than they let on when it comes to evaluating evidence.