In a recent decision, Hannam v Medicine Hat School District No. 76, the Alberta Court of Appeal reiterated that judges hearing summary judgment applications may decide contested material facts, and may hear oral evidence in order to do so. Yet, the court lamented that Alberta courts appear to be underutilizing the enhanced summary judgment powers available to them since the release of Weir-Jones Technical Services Inc. v Purolator Courier Ltd., and observed that Alberta judges’ inherent conservatism is impeding the “culture shift” toward summary judgment mandated by the Supreme Court of Canada in Hyrniak v Mauldin.
Angelina Hannam, the plaintiff, commenced an action after slipping on a freshly sanded sidewalk outside her daughter’s elementary school. Ms. Hannam slipped just seconds after the school custodian sanded the sidewalk. She sued the school board, alleging negligence and breach of the Occupiers Liability Act.
The school board applied for summary dismissal. The master granted the application, finding the custodian had acted reasonably and no material facts were in dispute. The chambers judge reversed the master’s decision, after finding “conflicting bits of evidence” merited a trial and having doubts about the standard of care owed by the school board.
Alberta courts are underutilizing enhanced summary judgment powers
The Alberta Court of Appeal reversed the chambers judge’s decision, finding he had erred by focusing on whether Ms. Hannam’s claim obviously lacked merit, instead of asking whether he could decide the facts on a balance of probabilities.
In reaching this conclusion, the Court of Appeal, in a lengthy exposition, reviewed the history of the test for summary judgment leading to the new summary judgment protocol articulated in Weir-Jones in 2019. The court reiterated and emphasized two salient features of the Weir-Jones test: judges hearing summary judgment applications may decide disputed material facts, and may hear oral evidence in order to do so.
Yet, the court noted that, despite Weir-Jones, “the inherent conservatism of most adjudicators makes them reluctant to resolve disputes that contain contested material facts.” The court extensively reviewed all the reported and some unreported cases in the roughly 530-day period preceding the release of Weir-Jones on February 6, 2019, and the roughly 530-day period following the release of Weir-Jones to gain some insight into the impact Weir-Jones had on how primary adjudicators actually decide summary judgment applications. Among other things, the court discovered that “most courts have no appetite for resolving contests on disputed material facts – those essential to the establishment of a claim or a defence,” and many courts “expressly declared that the absence of an incontrovertible factual foundation precluded them from resolving the dispute.” Notably, the court did “not recall a single case in our review of summary judgment decisions issued in the 1,000-day period in which an adjudicator heard oral testimony.”
The court noted that the Rules of Court Committee is currently reviewing and considering the Rules of Court provisions that govern summary trials so that this option may become “a more efficient way of resolving disputes.” The court encouraged the committee to take the observed “on-the-ground reality” of judicial conservatism into account when considering the framework for an effective nonstandard trial protocol, and suggested that a more “robust case management system” has great potential to help generate early resolutions to litigation.
Implicit in Hannam is a hope that significantly more disputes will be resolved on summary judgment. The court lamented the continued delays for civil trials in Alberta and suggested the number of successful summary judgment applications should be near 75% (the success rate in Ontario), up from their current rate of 57%.
Given the observed reluctance of Alberta courts to fully utilize the range of powers available to them under the summary judgment rules, it may take the implementation of further Rules of Court Committee recommendations to see a significant increase in the success rate for summary judgment applications in Alberta. However, given this latest clear direction from the Court of Appeal, all litigants should expect that the courts will be increasingly willing to determine a broader range of disputes using summary procedures over time.
Hannam may also have ramifications for summary judgment applications in class proceedings. In a 2019 report, the Law Commission of Ontario (LCO) noted that summary judgment motions are underutilized in class actions and recommended that case management judges “be creative in the use of tools available to them to hear summary judgment motions.”
This commentary, combined with the court’s clear direction in both Weir-Jones and Hannam, may prompt Alberta courts to be open to determining a wider variety of issues using the summary judgment process in the class actions context, whether prior to, concurrent with, or after certification. As noted by the LCO, the courts’ willingness to use the enhanced summary judgment powers available to them can “mitigate against defendants feeling pressure to settle weak claims or being held hostage by “extortive and opportunistic claims” while maintaining procedural fairness.
The authors wish to thank articling student Ian Wylie for his help in preparing this legal update.