The Defendant Appellant operated a train repair facility within the Calgary city limits beginning in the early 1900’s. A chemical solvent leaked from the facility into the groundwater which then migrated into the rest of the community and the Defendant Appellant undertook some remediation on the lands. The Plaintiff Respondents commenced an Action for a reduction in their property values and loss of rental income caused by the presence of the chemical in the community’s groundwater. The Action was certified as a Class Proceeding, and the Defendant Appellant applied to summarily dismiss portions of the Claim. The Case Management Judge granted only a portion of the Summary Dismissal Application, declining to dismiss the strict liability claims and the nuisance claims by those class members who had received remediation measures. The Defendant Appellant appealed.

The Court of Appeal reviewed and summarized the test for Summary Judgment, noting that modern civil procedure recognises that a “full trial is not always the sensible and proportionate way to resolve disputes”. The Court of Appeal, following the recent Supreme Court decision in Hryniak v Mauldin, 2014 SCC 7, confirmed that:

The modern test for summary judgment is therefore to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record.

The Court of Appeal explained that the principles related to resolving disputes without a trial in the Ontario Summary Judgment Rule considered in Hryniak v Mauldin were consistent with the principles set out in Rule 7.3. The Court of Appeal noted that, as in Ontario, Rule 6.11 allowed viva voce evidence in chambers Applications in exceptional circumstances. Rule 7.3 calls for a “holistic analysis” of the merits of the claim, and is not confined to the test for a genuine issue for Trial. The Court of Appeal indicated that the same principles relate to class proceedings. The Court also noted that the theory that disputes would eventually go to trial was a “myth” which should no longer govern civil procedure. The Court of Appeal allowed the Appeal in part. Applying the principles as set out in Hryniak v Mauldin, the Court determined that there was no triable issue with respect to the strict liability claims; those claims were summarily dismissed. The Court held further that the test for Summary Dismissal was not met with respect to the nuisance claim for the class members whose properties had received remediation; those claims were allowed to proceed to Trial.