The parties each appealed an Order of Master Schultz, dismissing both parties’ Applications for Summary Judgment. Renke J. reviewed the recent Alberta Court of Appeal Decision in Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 (CanLII), and reiterated that Summary Judgment is a procedural alternative to Trials where a disposition would be fair and just to both parties on the existing record. A fair and just disposition may be reached if the Summary Judgment process allows the Court to make the necessary findings of fact, allows the Court to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.

In reviewing Arndt v Banergi, 2018 ABCA 176 (CanLII), Renke J. stated that there are two types of Summary Judgment cases. First, there are cases where the merits of the claim rest on the facts and the evidence. Second, there are cases where the merit rests on the legal basis for the claim. In determining which type of case the Summary Judgment application falls under, the Court is required to assess both the moving and non-moving party’s cases. A moving party should not be entitled to Summary Judgment if it cannot establish its case on the existing record through a balance of probabilities. In determining whether a non-moving party would be entitled to Summary Judgment, a Court must determine whether a fair disposition on the record is available to determine the critical legal issues, on the assumption that the non-moving party’s evidence is established.

In determining whether there is a genuine issue requiring a Trial, the discussion often turns to whether the issue has “merit”. Merit has two aspects. First, the issue must be significant and important to the litigation, and should be resolved before judgment may be granted. Second, the non-moving party must have a sufficient prospect of success on the issue to warrant resolution through Trial as opposed to resolution on the Summary Judgment record.

Renke J. then discussed what constitutes a “sufficient” prospect of success for the non-moving party. Merit no longer means that there must be a triable issue in the non-moving party’s favour. At the same time, merit cannot require that the non-moving party prove its case on a balance of probabilities. An issue has merit where it cannot be fairly and justly decided on the Summary Judgment record. It would not be fair to decide against the non-moving party if the non-moving party had a real chance of success on the issue. The question becomes whether the probative value of the non-moving party’s evidence is so low that it does not preclude the inferences sought by the moving party. Where the record includes conflicting evidence, the Master or Justice still have latitude for fact-finding and assessing the chance of success at Trial if the record provides a foundation for substantially discounting the probative value of a party’s claims.

Based on the evidence and argument, Renke J. considered Rule 7.3 and found that both the Plaintiff and the Defendant failed to establish that there were no genuine issues in the dispute. His Lordship upheld Master Schultz’s Decision and dismissed both Summary Judgment Applications.