conrad, O'brien and wakeling jja

1.2: Purpose and intention of these rules
1.4: Procedural orders
6.11: Evidence at application hearings
7.3: Summary Judgment (Application and decision)
7.5: Application for judgment by way of summary trial

Case Summary

The Plaintiff appealed a Queen’s Bench Order which summarily dismissed his Claim against the Calgary Police Services for wrongful arrest, false imprisonment, and negligent investigation. The Majority of the Court of Appeal stated that the analyses undertaken by the Court below were correct pursuant to Rule 7.3. Summary Judgment requires a Claim to be “without merit”. A Claim is without merit when a Claimant has not established any genuine issue for Trial. The Court noted that the new Rule has not substantively changed the test for Summary Judgment from that under former Rule 159(3). The Court concluded that Summary Judgment in this case was warranted and dismissed the Appeal.

Wakeling J.A., concurring with the Majority in the result, gave further consideration to Rule 7.3. Citing Hryniak v Mauldin, 2014 SCC 7, Justice Wakeling stated that the principles of broad interpretation of the Rules were consistent with Alberta’s approach to Rule 7.3, but that the Ontario Rule considered by the Supreme Court provided for a process more similar to Summary Trial under Rule 7.5. His Lordship stated that the courts are committed to resolving disputes in the least amount of time and at the lowest possible cost. Summary Judgment is one way in which the courts can accomplish this objective. Wakeling J.A. noted that the Foundational Rules 1.2 and 1.4 support Summary Judgment to resolve disputes quickly and in a cost effective manner. Canvassing recent Alberta Court of Appeal jurisprudence, Wakeling J.A. stated that Summary Judgment is not appropriate unless the Court is satisfied that the matter may be determined justly without the parties having access to all stages of the litigation.

Wakeling J.A. also addressed Rule 6.11(1)(g), stating that the Rules do not contain a provision which expressly precludes a motions Court from hearing oral evidence, but that the Rules may do so by implication. His Lordship concluded that the use of oral evidence is imprudent in Summary Judgment Applications because: the existence of the Summary Trial Rules provide for oral evidence; a Summary Judgment Application is resolved by reference to the Pleadings and Affidavits as contemplated by Rule 7.3(2); the time taken to hear oral evidence defeats the purpose of the expeditious nature of Summary Judgments; and the Summary Judgment process does not need to be distorted to resolve disputes since the other models of summary determination in Part 7 of the Rules are available to do so.

Justice Wakeling concluded that, in Alberta, Summary Judgment is appropriate if the Applicant’s position is so compelling that success is highly likely. Wakeling J.A. agreed that the Appeal should be dismissed.

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