The Stoney Tribal Council (“Stoney”) appealed an Order granting Summary Judgment against it, in favour of the Canadian Pacific Railway (“CPR”). The Court of Appeal dismissed Stoney’s Appeal.

Justice Paperny for the majority, referring to Rule 7.3 and the jurisprudence related to the Rule, noted that the test for Summary Judgment is as set out in Hryniak v Mauldin, 2014 SCC 7 (CanLII) and Windsor v Canadian Pacific Railway, 2014 ABCA 108 (CanLII) and observed that there was “no reason to add to the description of the test set out in those authorities”. The test requires Courts to determine whether a disposition that is “fair and just to both parties” can be made on the existing record. Other expressions of the test for Summary Judgment, such as those “call[ing] for an assessment of the relative strength of the positions of the moving and non-moving party”, risk confusing the issue and should not be adopted.

Justice Wakeling concurred in result, but held that the disparity in strength of the parties’ positions was “of key importance” to determining whether the Action should be summarily dismissed. Justice Wakeling considered two questions: was Stoney’s action against CPR doomed to fail, and if so, should the Court nevertheless exercise its discretion to decline granting Summary Judgment under Rule 7.2?

His Lordship began by reviewing the history of Summary Judgment in common law countries, and the purpose and intention of the Rules of Court, as set out in Rule 1.2, to explain that Summary Judgment enhances access to justice, avoids wasted resources, saves expense, and is in the interest of justice. In this case, Stoney sought the return of petroleum, natural gas, and related hydrocarbons from CPR; however, CPR had no legal interest in the petroleum, natural gas, or hydrocarbons that Stoney sought the return of. Stoney’s other claims were statute-barred. As such, Justice Wakeling held that the decision to summarily dismiss Stoney’s claim was “without a doubt, correct”. Wakeling J.A. considered whether there was a compelling reason, pursuant to Rule 7.2, to “deny summary judgment to which the moving party is otherwise entitled to”. His Lordship held that even though Rule 7.2 does not expressly introduce this qualification on the use of Summary Judgment, it does state that Summary Judgment is a discretionary remedy. As such, the Court may decline to issue Summary Judgment if doing so were in the interest of justice. However, because Summary Judgment has many benefits, the Court should only decline to summarily dispose of the claim if there is a compelling reason to. Justice Wakeling concluded that there was no reason (compelling or otherwise) to deny CPR’s Application for Summary Judgment.