Commercial Litigation and Dispute Resolution Blog

We are now several years into the “culture shift” encouraging summary dispositions rather than trials, following the Supreme Court of Canada’s decision in Hryniak v Mauldin.^[1] Commentary from the Alberta Court of Appeal suggests that this shift has indeed resulted in an increase in the number of cases that have been decided under the summary judgment rules in Alberta.^[2]

Occasional reminders, however, of the limits of these procedures remain necessary. The Alberta Court of Appeal recently provided one such reminder in Canada Trust Company (McDiarmid Estate) v Alberta Infrastructure,^[3] clearly setting out that judges should not step outside of the boundaries of the application before them. Specifically, an unsuccessful application for summary dismissal does not, in itself, mean that the successful party is then entitled to summary judgment, particularly when there was no such application before the Court.

Background

Ms. McDiarmid owned lands that were designated part of a “Restricted Development Area”. Eventually, the lands were sold to the Province, with other landowners in the Restricted Development Area also selling their lands in subsequent years. Many years later, the executors of Ms. McDiarmid’s estate sued the Province alleging that it breached various obligations to Ms. McDiarmid by paying other landowners in the Restricted Development Area far more than it did Ms. McDiarmid for her land.

The Province applied for summary dismissal, arguing that the claim was brought outside of the applicable limitation period. Two of the executors’ claims were dismissed on this basis.^[4] However, on the basis of an argument that was not raised at the application before her, the Chambers Judge held that the Province’s limitations defences were meritless in regard to the executors’ other claims (the “Remaining Claims”). In doing so, the Chambers Judge effectively made a final determination regarding a defence where the Province had failed to meet the threshold for summary dismissal – even though there was no application for summary judgment before her.^[5] The Province appealed, seeking to have the Chambers Judge’s decision overturned so that it could still rely on its limitations defences at trial regarding the Remaining Claims.

Summary judgment applications are not trials or summary trials

The Court of Appeal acknowledged that the culture shift of Hryniak has been fully embraced in Alberta, but referenced its earlier decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd,^[6] cautioning Courts and litigants to remember that, just because summary judgment applications have been encouraged, they have not become trials. The procedures for trials, summary trials, and summary judgment applications are different. In summary judgment or dismissal applications, failure to receive the relief sought only means that an issue exists that genuinely requires a trial to resolve. It does not mean that an argument advanced has been definitely resolved such that it is no longer available at trial to the party that advanced it. Accordingly, the Court of Appeal found that the Chambers Judge erred in determining that the Province’s limitations arguments did not have merit:

In this way, the chambers judge made a reviewable error. She made a final ruling against the limitations defence to the Remaining Claims when all she had been asked to decide was whether the Remaining Claims should be dismissed for limitations reasons. It appears that, inadvertently, this summary dismissal application morphed into a summary judgment application or a summary trial of the limitations issue, neither of which was sought.^[7]

In a way, this ruling merely reinforces what the Court of Appeal had previously said in Weir-Jones:

If the plaintiff is the moving party, it must prove “no defence”. If the defendant is the moving party, it must prove “no merit”. The resisting party need not prove the opposite in order to send the matter to trial. The party resisting summary judgment need only demonstrate that the record, the facts, or the law preclude a fair disposition, or, in other words, that the moving party has failed to establish there is no genuine issue requiring a trial: see para. 35, infra.^[8]

The Court of Appeal’s decision in McDiarmid protects against the risk that one type of application is, without adequate notice to or preparation by the parties, turned into a different type of hearing, with different parameters, potentially requiring different evidence. This is what appears to have occurred in the Chambers Judge’s decision. Had the executors brought a cross-application for summary disposition, it would have been open to the Chambers Judge to determine that, in fact, the limitations issues on certain claims did not require a trial. Absent such a cross-application (or the type of “informal cross-application” as in Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA 12, which the Court of Appeal specifically distinguished^[9]) the analysis of the Chambers Judge should have stopped once it was determined the Province had not met its burden for summary dismissal on the claims in question.

Discussion

Perhaps what McDiarmid Estate most calls for is the need for a functional midway point between summary judgment and full-blown trials that summary trials are intended to provide but have largely failed to do in Alberta. Issues such as those faced by the Chambers Judge in McDiarmid would appear to be ideally suited for such a procedure. The majority decision in Hannam noted that the Rules of Court Committee is reviewing the summary trial rules in Alberta, and expressed hope that meaningful changes could potentially fill this procedural gap.^[10] For now, however, McDiarmid is an important reminder that the scope of decisions available to a Judge hearing a summary judgment or summary dismissal application are necessarily limited to the specific remedy sought, absent a cross-application seeking the opposite.

_{[1] 2014 SCC 7 (Hryniak)}

_{[2] Hannam v Medicine Hat School District No 76, 2020 ABCA 343 (Hannam)}

_{[3] 2021 ABCA 53 (McDiarmid)}

_{[4] Ibid at para 4}

_{[5] Ibid at paras 4, 12-15}

_{[6] 2019 ABCA 49 (Weir-Jones)}

_{[7] McDiarmid, supra note 3 at para 14}

_{[8] Weir-Jones, supra note 6 at para 32}

_{[9] McDiarmid, supra note 3 at paras 14-15}

_{[10] Hannam, supra note 2 at paras 172-183; The Rules of Court Committee is currently requesting comments in an effort to “examine the use of summary trials as a more efficient way of resolving disputes.”}