Fraser, Watson, Slatter, Wakeling and strekaf JJA

1.2: Purpose and intention of these rules
6.11: Evidence at application hearings
7.1: Application to resolve particular questions or issues
7.3: Summary Judgment (Application and decision)
8.17: Proving facts

Case Summary

The Plaintiff/Appellant, Weir-Jones Technical Services Incorporated (“Weir-Jones”), appealed the Summary Dismissal of its claim on the basis that it was not brought within the limitation period. Weir-Jones had provided services to the Defendants, Purolator Courier Ltd., Purolator Inc. and Purolator Freight (collectively, “Purolator”), under several agreements starting in January 2008. Weir-Jones alleged that there were also relevant verbal agreements in place. The Union, on behalf of Weir-Jones, filed grievances in 2008 and 2009. Those were heard in arbitration and ultimately reached settlement in 2015. Weir-Jones also commenced the underlying Action in 2011, alleging breaches of contract that were not covered by the grievances and ensuing arbitration. Subsequently, Purolator successfully applied for Summary Judgment to dismiss Weir-Jones’s claim on the basis of the expiration of the applicable limitation period (the “Underlying Action”).

Shelley J. of the Alberta Court of Queen’s Bench had granted the Application and concluded that there was no standstill agreement and that Weir-Jones was aware of the alleged breaches of contract more than two years before commencing the Underlying Action. In reaching that decision, Justice Shelley stated that Summary Judgment was no longer determined on the basis of triable issues. Instead, the question was whether there is an issue of merit that requires a Trial or, conversely, whether the defence is so strong that it is highly likely to succeed.

The Court of Appeal heard the Appeal of Weir-Jones with a five member panel (majority decision per Slatter J.A. and concurring reasons per Wakeling J.A.). The Court of Appeal cited the language of Rules 7.1 and 7.3 and recognized that the “more proportionate, timely and affordable procedures” of Summary Judgment should be increasingly used, and emphasized the importance of proportionality, which is also an underlying principle to the foundational Rule 1.2. The Court noted that Rules 6.11(1), 8.17, and 7.3 specifically enable fact finding in Chambers Applications including (with permission) by hearing oral testimony.

The Court of Appeal cited the language of Rule 7.3, which provides that a party may apply for Summary Judgment if “(a) there is no defence to a claim or part of it; (b) there is no merit to a claim or part of it; …”, and stated that “[t]he key issue is the approach to be taken in determining the absence of a defence to, or ‘merit’ in a claim.”

The Court recognized the different approaches taken in cases including Can v Calgary Police Service, 2014 ABCA 322 and Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125, and stated that the divergence was a result of the paradigm shift in the wake of the Supreme Court of Canada’s decision in Hryniak v Mauldin, 2014 SCC 7 (“Hryniak”). Since Hryniak, Summary Judgment was no longer limited to cases in which the moving party meets a “very high standard of proof” with descriptors such as “unassailable”, “beyond doubt”, “plain and obvious”, et cetera. The presumption that all matters ought to be referred to Trial, which is a process that is too expensive for many litigants, is unrealistic and should end. The “more proportionate, timely and affordable procedures” of Summary Judgment should be increasingly used. The Court emphasized the importance of proportionality, which is also an underlying principle to the Rules.

The majority of the Court of Appeal Panel found that the solution to Summary Judgment Applications must be found in “first principles, including: the principles behind the modern law of summary judgment, the principles behind the modern law of proof, the principles behind the type of record to be used in summary dispositions, and principles of fairness.” At paragraph 47, the Court of Appeal summarized its principles-based approach to Rule 7.3 Summary Judgment Applications and stated that the key considerations are:

“a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial, summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute.”

The Court stated that the principled base analysis does not need to occur sequentially or in any particular order, and that a Court may determine that Summary Judgment is appropriate at any stage of the analysis.

Using this analysis, the Court of Appeal found that Weir-Jones had failed to show any reviewable errors in Justice Shelley’s fact finding or the inferences drawn from the record. The Court found that there were no errors that would have affected the outcome of the case. Both the majority Court of Appeal Panel and concurring Judgment of Wakeling J.A. found that Weir-Jones’s claim was limitations-barred and, therefore, the Appeal was dismissed.

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