The Plaintiffs, Imperial Oil and Suncor Energy Products Partnership (collectively the “Appellants”), appealed an Order granting leave to the Defendant, Flatiron Constructors Canada Limited (“Flatiron”), and Third Party, AltaLink Management Ltd (“AltaLink”) (collectively the “Respondents”), to proceed to Summary Trial on the discrete issue of whether AltaLink had statutory immunity from damages in the Third Party Claim under the Electric Utilities Act, RSA 2003, c E-5.1. Flatiron had not objected to the proposed Summary Trial before the Chambers Judge, and gave no indication of what evidence, if any, it would rely on at a Summary Trial. The Appellants however, objected to the matter proceeding by way of Summary Trial on the basis that a decision respecting damages in the Third Party Claim could prejudice their position on damages in the main Action; Questioning in the respective Actions was incomplete; and no experts’ reports respecting damages had been exchanged. The Chambers Judge held that the Appellants would not be prejudiced by the outcome of the Summary Trial because the result would not be binding on the Appellants unless they intervened; the Summary Trial Decision would not be binding on the Trial Judge in the main action; and the Trial Judge in the main Action would be able to distinguish the Decision in the Summary Trial.

Regarding the appropriateness of directing a single issue to be heard by way of Summary Trial, the majority stated that “the summary trial rules are not intended to encourage litigation of an action in slices”. The majority held that proceeding by way of Summary Trial on the limited issue granted by the Chambers Judge was “not an intended or suitable use of the summary trial rules” because severing the statutory immunity issue would still leave several overlapping and connected issues to be resolved at Trial.

The Court confirmed that the test for determining the appropriateness of a Summary Trial is twofold: 1) whether the Court can decide the disputed questions of fact on Affidavits or by any of the other proceedings authorized by the Rules for Summary Trials; and 2) whether it would be unjust to proceed by way of Summary Trial. The Court held that the Chambers Judge erred in finding that there was a sufficient evidentiary basis to proceed by way of Summary Trial, and in determining that a Summary Trial would be fair and just to all parties. The decision to proceed by way of Summary Trial in the absence of evidence respecting damages from the Appellants was unreasonable, particularly so given that the Appellants’ damages substantially flowed through to the Respondents. Further, the Court held that it was prejudicial to the Appellants to require them to either take part in a process they objected to, or to be excluded from proceedings which would be final on an issue which considered the categorization of their own damages.

Justice Berger, dissenting, stated that the issues were “readily resolvable” at a Summary Trial, and that requests for discrete Summary Trial dispositions should not be avoided in order to discourage “litigation by slices”. His Lordship noted that:

On the contrary, limited judicial resources in the Court of Queen’s Bench favour early resolution when appropriate in order to minimize bloated trials and, indeed, to enhance the prospect of early resolution.

The Appeal was allowed.