7.10: Judge remains seized of action
7.5: Application for judgment by way of summary trial
7.6: Response to application
7.7: Application of other rules
7.8: Objection to application for judgment by way of summary trial
7.9: Decision after summary trial

Case Summary

WestJet sued the Defendants (collectively, “ELS”) for damages, alleging breach of contract. ELS Counterclaimed against WestJet and also sought, inter alia, damages for breach of contract.

WestJet alleged that ELS was in breach of contract by not remitting monies owed in a timely fashion and by not fulfilling its financial record keeping and reporting responsibilities. ELS alleged that WestJet was in breach of contract by terminating their service agreement as of December 31, 2009, having earlier extended it to September 30, 2010.

WestJet applied for Judgment by way of Summary Trial for their claim relating to the monies owed to them, which were being withheld by ELS. The Justice stated that the relevant Rules of Court engaged were Rules 7.5 to 7.10. Justice Jones discussed objections under Rule 7.8, stating:

In my view, Rule 7.8(3), while purporting to require the applications judge to make a determination regarding the merits of an objection ignores the practical effect of these Rules. The applications judge actually may have to conduct the trial (or a substantial portion of it) in order to make the threshold determination, after the fact, that it was appropriate for the applicant to have sought judgment by way of summary trial.

Jones J. was critical of the new Rules regarding Judgment by way of Summary Trial. His Lordship quoted at length from Madame Justice Veit’s Decision in Islam v Mozumder, 2012 ABQB 773, where Justice Veit discussed the move from a two-step Summary Trial process (wherein the first step is an Application that can be heard in Morning Chambers as to whether some or all of the issues should proceed by way of Summary Trial, and the second step is the Summary Trial itself) to a one-step process, where the Application for Summary Trial and the Summary Trial proceed simultaneously. Veit J. was strongly of the opinion that the one-step process in the new Rules has in fact made things more difficult and expensive for most litigants, especially where the Respondent objects to the Application. After echoing Justice Veit’s comments, Jones J. stated his own thoughts on the matter:

My understanding of her Ladyship’s overall concern with these Rules is that compression of what was a two-step process into one step not only exposes the parties, particularly a respondent who objects, to undesirable and unnecessary expense, delay and uncertainty, but places strain on the Court’s ability to achieve a just result. From commencement of the application to and after its conclusion, the application judge has to engage in an ongoing process of considering the limited evidence presented to determine if (i) he or she has enough facts to decide the issues, (ii) it would be “unjust” to award judgment with respect to what is emerging during the course of the summary trial, (iii) the issue being framed during the course of the summary trial appears to be unsuitable for resolution by that mechanism and (iv) the summary trial itself seems to be falling short in facilitating resolution of the issues.

Jones J. then went on to discuss the following proposition arising from the case law respecting Summary Trials:

It is permissible to hear the request for summary trial, to hear the summary trial itself and to give final judgment in a single proceeding: WA Stevenson & JE Côté, Civil Procedure Encyclopedia, Volume 2 (Juriliber, 2003) (“CPE”) at p. 31-95. The comments of Justice Veit in Islam also reflect that conclusion.

Complexity is not a bar to summary trial: Compton Petroleum Corp v Alberta Power Ltd, 1999 ABQB 42, 242 AR 3 (“Compton”) at para 18.

A judge hearing a summary trial may decide some but not all of the issues: Canlan Investment Corp v Gettling, (1998), 37 BCLR (3d) 140 (CA) at paras 44, 45 and 49. However, conducting a summary trial on part of the suit may be counter-productive, particularly where there is overlap in the key issues: see CPE at p. 31-99, Prevost v Vetter, 2002 BCCA 202, 100 BCLR (3d) 44 and Islam at para. 19.

While it is not appropriate for the Court to decide a summary trial solely on the basis of a choice between conflicting affidavits, conflicting evidence is not, in and of itself, a bar to summary trial if the conflict can be resolved by reference to other evidence. See Compton at para. 13 and Inspiration Management Ltd v McDermid St Lawrence Ltd (1989), 36 BCLR (2d) 202 (CA) at pp. 215-216.

Summary trial may be appropriate even in situations where large amounts are sought: Mattu v Mattu, 2001 BCCA 140, 4 CPC (5th) 55 at paras 9-10; CIBC v Charbonnages de France International SA (1994) BCLR (2d) 104 (CA) at para 108.

Justice Jones noted that the application of Rule 7.9(2) required him to answer two questions: 1) was he able to find the facts necessary to decide the issues of fact and law before him; and 2) would it be unjust to decide those issues on the basis of the Summary Trial.

Jones J. then considered the objections raised by the Respondents. ELS objected to the Application for Summary Trial on several grounds. The first ground was that the matter was too complex to be suitable for Summary Trial. The Court rejected this assertion, stating that WestJet was only seeking Summary Trial for its claim of the monies owed to it by ELS pursuant to an agreement and, taken in isolation, WestJet’s claim was straightforward.

ELS also objected on the ground that Summary Trials lack necessary procedural safeguards and are not Trials in the full sense of the word. Jones J. conceded that the Summary Trial process is imperfect. However Justice Jones rejected this objection stating that “to refuse an application for judgment by way of summary trial on the basis that the summary trial process itself is flawed would be to render that process altogether unavailable”. He further stated that ELS must answer WestJet’s application by demonstrating that the Summary Trial process is inappropriate in this particular case.

The final objection was that it would be unjust to determine WestJet’s claim without also determining ELS’ counterclaim, which could not be done without the benefit of a full Trial process. The Court noted that both Parties to an Application for Judgment by way of Summary Trial must come to Court armed with sufficient evidence to support their positions:

The one-step process does not allow a respondent merely to object to the matter being heard on a summary basis while declining to provide evidence; he must be prepared for the summary trial to proceed notwithstanding his objection. If that were not the case, raising the possibility of a defence or counterclaim would be sufficient to defeat any application for summary trial. That cannot be the intent of the Rules.

The Court went on to state that, WestJet having engaged the Summary Trial process by applying under Rule 7.5, ELS had a responsibility to present evidence in support of its Counterclaim and its position that a full Trial was needed to resolve the issues before the Court.

In the result, Jones J. granted Judgment in Westjet’s favour. Justice Jones also dismissed ELS’ Counterclaim, without prejudice to ELS’ ability to pursue its Counterclaim in a separate proceeding.

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