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Alberta Court of Appeal affirms balance of probabilities in new test for summary judgment

Litigation Bulletin - February 2019
By Julia Lisztwan, Michael Deyholos and Paul Beke

On February 6, 2019, the Alberta Court of Appeal released an eagerly awaited decision resolving a rift among Alberta judges on the test for summary judgment: Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, Purolator Inc, and Purolator Freight, 2019 ABCA 49 (Weir-Jones).

Summary judgment is a final judgment entered by a court after an application based on limited evidence, without a trial. An application for summary judgment can be brought at any time by a plaintiff or a defendant (often called summary dismissal). Rule 7.3 of the Alberta Rules of Court provides that summary judgment may be granted when there is "no defence" to a claim or the claim has "no merit".

Summary judgment has played an increasingly important role in Alberta following the Supreme Court's decision in Hryniak v. Mauldin, 2014 SCC 7 (Hryniak), which called for a "shift in culture" towards more proportionate, timely and affordable alternatives to a full-blown trial. In effect, Hryniak displaced the assumption that a trial was the preferred mechanism for resolving any dispute.

Since Hryniak, summary judgment and summary dismissal applications have increasingly been brought by parties seeking an early resolution of a lawsuit and hoping to reduce their legal costs. But in a flurry of decisions over the last two years, the Justices of the Court of Appeal have disagreed over the standard that applicants seeking summary judgment need to meet. These competing lines of authorities have confused litigants, lawyers and the lower courts.

The disagreement: unassailable or balance of probabilities?

One group of Court of Appeal Justices has held that the position of the party seeking summary judgment must be "unassailable", in that the applicant's likelihood of success is very high. Appellate judges in this camp have included Justices Wakeling, Watson, Berger, O'Ferrall, and for a period, Schutz.

The other group, following Hryniak, has rejected that standard on the ground that there is only one standard of proof in civil proceedings: balance of probabilities. In their view, the party seeking summary judgment need only prove that the facts of its case are more likely true than not, and that it would be fair and just to decide the case summarily. Appellate judges in this camp have included Justices Paperny, Greckol, Slatter, Veldhuis, McDonald, and more recently, Schutz.

Procedural background

In Weir-Jones, the Chambers Justice summarily dismissed Weir-Jones' claims for breach of a contract to provide pick-up and delivery for Purolator in Cold Lake and Bonnyville, and for related alleged misrepresentations. The Justice granted summary dismissal on the ground that Weir-Jones had made the claim after the limitation period had expired.

The Majority of the Court of Appeal adopts balance of probabilities

A five-judge panel heard the appeal. The Majority—Chief Justice Fraser and Justices Watson, Slatter and Strekaf—rejected the unassailability standard and set out a new test for applications under Rule 7.3. Justice Wakeling, though concurring in the result, firmly disagreed with this approach and maintained that the applicant's likelihood of success must be "very high" for the case to be decided summarily.

The Majority followed the modern principles of summary judgment set out in Hryniak and the culture shift towards summary judgment in lieu of trial. This shift is based on the principle of proportionality that underlies the Alberta Rules of Court. Not every dispute needs to be resolved through trial.

Lamenting the rift in the case law that has developed in the wake of Hryniak, the Majority pointed out that "old habits die hard" and "it is now possible to find a quote in the case law to support virtually any view of the test to be used in summary judgment". While acknowledging that there were once numerous standards of proof used in civil law, the Majority reiterated the Supreme Court's finding in F.H. v. McDougall, 2008 SCC 53, that there is only one standard: balance of probabilities. The Majority was careful to note, however, that this standard only applies to findings of fact on an application for summary judgment. Courts must still consider whether, at the end of the day, it is possible to achieve a fair and just result without proceeding to trial.

The Majority also confirmed that the mere presence of conflicting evidence on the record does not preclude summary disposition. Both parties must "put their best foot forward" and the court must consider the application based on the record actually before it (not on speculation about what the record might be at trial).

But proving facts on a balance of probabilities does not automatically mean it is fair and just to decide a case summarily. The Majority noted, for example, that there are occasions where the law is so unsettled or complex that it is not possible to apply the law to the facts without the benefit of a full trial record. The Majority concluded (at para 46) that,

…considerations of fairness will always be in the background, including during the fact-finding process, in determining whether the moving party has proven its case on a balance of probabilities, in deciding if there is a genuine issue requiring a trial, and in deciding if, considered overall, summary disposition is a "suitable means to achieve a just result".

After summarizing the key principles of summary judgment, the Majority set out the following tests:

  • 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?
  • 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 of the case to that standard is not a proxy for summary adjudication.
  • 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.
  • 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 Majority noted that this analysis does not need to proceed in any particular order. A presiding judge may determine at any point, and for any of the above reasons, that summary judgment is inappropriate or unfair under the circumstances. The Majority then dismissed the appeal.

Justice Wakeling begs to differ

For Justice Wakeling, the Majority's "new" approach is an unwarranted departure from the well-established standard for summary judgment, which, in his view, is whether the evidence renders a claim or defence so compelling that the likelihood it will succeed is "very high" or "unassailable".

In his 60-page dissent, Justice Wakeling agreed that Hryniak is an important decision, but noted that its importance in Alberta should not be overstated. He distinguished Rule 7.3 from the Ontario rule that the Supreme Court considered in Hryniak, and found that the Supreme Court's judgment did not alter the standard required by Rule 7.3.

Justice Wakeling focused on the language of Rule 7.3, which says that a party may apply for summary judgment if there is "no defence" or "no merit" to a claim. In Justice Wakeling's view, the crucial word is "no". Although the moving party does not have to establish that its success at trial is 100% guaranteed, there needs to be a "marked disparity" between the strength of the parties' positions. In short, Justice Wakeling held that a court may only grant summary judgment if it concludes that the disparity between the strength of the moving and non-moving parties' positions is so marked that the ultimate outcome of the dispute is obvious.


The Majority's decision in Weir-Jones was largely expected. It aligns with the Supreme Court's holding that the balance of probabilities is the only civil standard of proof, as well as the modern realities of civil litigation. It balances those factors against a strong commitment to fairness, cautioning litigants that meeting the standard of proof on facts alone does not guarantee a summary result.

We expect the Supreme Court will have little interest in hearing an appeal of this decision given that this jurisprudential debate is largely Alberta-specific. Rather, the Weir-Jones test will likely play out before Alberta's Masters and Queen's Bench Justices.

Whether the four-part test brings stability to the adjudication of summary judgment applications remains to be seen. Weir-Jones veers away from a simple standard of proof analysis towards the amorphous principle of fairness, perhaps giving more discretion to judges and less predictability to parties. Nonetheless, this decision is a welcome endorsement of summary judgment in cases where it is the proportionate, more expeditious and less expensive procedure.