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Uncertainty Around Burden of Proof for Summary Judgment Resolved
Insurance Alert

The law of summary judgment in Alberta has recently been in flux regarding the standard of proof required to resolve a dispute summarily: some panels of the Court have held that proof on a balance of probabilities is required, while others have held that an applicant’s case must be “unassailable” or have a “very high” likelihood of success. The majority of a five-member panel of the Court of Appeal resolved this uncertainty in favour of the former, lower standard in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49.

Summary judgment is available where it is possible to justly and fairly resolve the dispute summarily “considering the record, the evidence, the facts, and the law that must be applied to them” (at para 22). The Court summarized the applicable test as follows (at para 47):

  1. 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?
  2. 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 to that standard is not a proxy for summary adjudication.
  3. 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.
  4. 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.

By shifting the focus of the summary judgment analysis toward whether it is just, fair, and proportionate and away from whether there is a marked disparity between the strength of the positions of the parties, the Court of Appeal has clearly confirmed that summary disposition of actions should be a key tool in resolving disputes in a timely and economical manner.