This Decision was heard prior to Weir-Jones Technical Services v Purolator Courier Ltd., 2019 ABCA 49.

The Applicant applied for Summary Judgment pursuant to Rule 7.3. The issue was whether the Respondent had an arguable claim to a 15% working interest in the dispute facilities that should survive a Summary Dismissal Application.

Master Farrington considered the fact that there was a divergence from the Court of Appeal as to the standard of proof necessary in Summary Judgment Applications. The Master found that in Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125, the standard of proof was on a balance of probabilities. However, in Rotzang v CIBC World Markets Inc., 2018 ABCA 153 and Whissel Contracting Ltd. v Calgary (City), 2018 ABCA 204, the Court of Appeal held that the standard of proof required that the moving party’s position be unassailable or so compelling that its likelihood of success if very high and the non-moving party’s likelihood of success is very low. Master Farrington held that his conclusion would be the same regardless of which standard of proof he applied.

Master Farrington first commented on which standard of proof he thought should apply in Summary Judgment Applications. The Master observed that if we assume that the hypothetical case was a close one, where probable success would be narrow for either party, then that hypothetical case would be decided on a balance of probabilities. Being successful on a balance of probabilities does not mean that the successful party would be successful each time the hypnotical case was decided, but rather that the successful party would only win slightly more than half of the time. This is the case since the judicial system is not a perfect one, and different Judges would not reach the same conclusion every time.

Master Farrington found that the balance of probabilities standard was not one that should be applied, since the purpose of Summary Judgment Applications is to predict the final result of an Action, and decide when a Trial is not appropriate. Given this purpose, the Master suggested that the “unassailable” standard best captures the nature and purpose of a Summary Judgment Application.

The Master also observed that deciding Summary Judgment applications at narrow levels of proof inevitably leads to more Appeals of Summary Judgment Decisions that are potentially tangential to the ultimate resolution of the Action because the cases are less predictable at that level of confidence, and also contrary to the principles set out in Hryniak v Mauldin, 2014 SCC 7.

In analyzing the facts, Master Farrington was of the view that the agreements in question did not go so far as to atomically provide the Respondent with a 15% working interest carved out of the Applicant’s partial working interest in the facilities. The Master was satisfied that the record was sufficient to deal with the disputed facilities issue. The Master also noted that sometimes, partial Summary Judgment does not simplify the issues if the litigation remains complex. However, in the present case, the Master was satisfied that the issues were sufficiently discrete such that partial Summary Dismissal was appropriate and helpful.

The Summary Judgment Application was granted with respect to the claim of the Respondent in the 15% working interest in the dispute facilities.