Traditionally, summary judgment applications could be likened to one’s favourite sports team winning a championship: they might not succeed often, but the payoff keeps hopes alive year after year. Given traditional legal tests for summary judgment, such as if it is “plain and obvious” or “beyond doubt” that the action cannot succeed, or if the evidence shows “that the claim has no reasonable prospect of success”, the bar was set extremely high.

This appeared to change in January, when the Supreme Court of Canada released its decision in Combined Air Mechanical Services v Flesch. As part of an ongoing focus on making the legal system more accessible and affordable for litigants, the Court observed that summary judgment applications are “an important tool for enhancing access to justice because [they] can provide a cheaper, faster alternative to a full trial”. The Court held that “a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial”. Contrary to the traditional, strict tests, the Court held that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”.

The Supreme Court’s decision was grounded in new and broad summary judgment rules that had been introduced in Ontario, making one wonder how Alberta’s Courts would react. Not surprisingly, Alberta’s Court of Appeal has heeded the Supreme Court’s words.

In Windsor v Canadian Pacific Railway, the Court heard its first post-Combined Air summary judgment appeal and embraced the call for a culture shift in litigation. Philosophically, our Court observed:

The theory that disputes eventually “went to trial” was always something of a legal fiction. Even when the court implied that a trial was called for, and declined to grant summary judgment, or declined to strike pleadings, it was well known that trials were a rarity … the myth of trial should no longer govern civil procedure. It should be recognized that interlocutory proceedings are primarily to “prepare an action for resolution”, and only rarely do they actually involve “preparing an action for trial”

The Court of Appeal held that under Alberta’s summary judgment Rules, the Court is required to undertake a “more holistic analysis” of the claim’s merits and not focus strictly on whether there is a “genuine issue for trial”. Put another way, the Court said that one should look for whether there is any factual issue of ‘merit’ that genuinely requires a trial.

Combined Air and Windsor undeniably change how the parties to an action should view the potential for a summary application; however, what remains to be seen is how the new formulations will be applied at the Chambers’ level. For example, one time-honoured approach to resisting summary judgment has been to focus on inconsistencies in the moving party’s evidence, and suggest that those inconsistencies can only be resolved at trial. Now, will our Courts be more aggressive in making findings of fact or directing summary trials with oral evidence under the Rules, and will opposing parties need to be more aggressive in putting their best case forward? Until these questions are answered, some reluctance to proceed summarily may persist.

What this means for you?

Summary judgment should occupy a more prominent place in people’s minds during the litigation process. Regular re-assessment of the claim based on the available evidence, and not speculation as to what might emerge in the future, can help parties and their counsel to weigh the potential benefits of seeking summary judgment.

It is worth noting that although Windsor states that the “myth of trial” should no longer govern, this does not mean that the prospect of trial can be ignored. Parties should guard against focusing their interlocutory conduct on preparing for applications or future settlement overtures to the exclusion of trial preparedness, lest they find themselves on the eve of trial without having secured the necessary evidence and admissions that the process is designed to elicit.