Alberta Court of Appeal Confirms New Approach for Summary Judgment Mandated by Supreme Court of Canada

Alberta Court of Appeal Confirms New Approach for Summary Judgment Mandated by Supreme Court of Canada

By Joseph Oppenheim and Kelly Colborne


In Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108 (Memorandum of Judgment released on March 19, 2014), the Alberta Court of Appeal adopted the new approach to summary judgment mandated by the Supreme Court of Canada.[1] This new approach ought to make it easier to obtain a final disposition of a lawsuit without having to go through a full trial.

Traditionally, Alberta Courts have applied the summary judgment rules to dispose of only those cases in which it was “plain and obvious”, “clear” or “beyond doubt” that there were no issues that should or could be put to trial. In contrast, the modern approach requires the chambers judge or master to instead “examine the record to see if a disposition that is fair and just to both parties can be made on the existing record.”[2]

Going forward, chambers judges and masters are to treat summary judgment applications as opportunities to adjudicate and make a determination as to whether there is any issue of “merit” that genuinely requires a trial. Writing for the Court in Windsor, Justice Marina Paperny provided guidance to the lower Court. She stated that “trials are for determining facts.” I.e. if the facts underlying the dispute are not seriously in issue, then summary judgment should more readily be given. She also said that “when the resolution of the dispute turns primarily on issues of law, summary judgment is often appropriate.”

We feel Windsor represents a long overdue positive development that reflects the realities of modern civil litigation. It rarely makes economic sense to go to trial, and so the vast majority of cases are settled out of court or simply abandoned. Justice Paperny implicitly acknowledged this in writing “the myth of trial should no longer govern civil procedure.”[3]

1 Hryniak v Mauldin, 2014 SCC 7, in which the Supreme Court considered the summary judgment procedure in the Ontario Rules of Court.
2 Para 13
3 Para 15

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