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Case Summary: Weir-Jones Technical Services Incorporated v Purolator Courier Ltd
Defence + Indemnity

The Alberta Court of Appeal clarifies the test for summary judgment and dismissal.

Weir-Jones Technical Services Incorporated v. Purolator Courier, Purolator Inc. and Purolator Freight, 2019 ABCA 49 per Slatter JA (Fraser CJA, Watson and Strekaf JJA concurring) (Wakeling JA concurring in the result)  
 
FACTS AND ISSUES

The Plaintiff (Weir-Jones) entered into a number of contracts, including a collective agreement with an arbitration clause, with the Defendants (Purolator) to transport packages on behalf of Purolator. The contracts were terminated in August 2009. Weir-Jones commenced grievances under the collective agreement in November 2008 and January 2009, as well as an action alleging breaches of contract on July 22, 2011.
 
Purolator applied for summary dismissal of Weir-Jones’ claim for breach of contract. Shelley, J. in the Court below dismissed the claim on the basis that it was commenced outside of the limitation period. She found that Weir-Jones knew about the alleged breaches of contract more than two years before the action was commenced, that the existence of parallel arbitration proceedings did not affect that knowledge, and, further, that while the parties tried to resolve the dispute by negotiation, there was no standstill agreement in place that would toll the limitation period.
 
Weir-Jones appealed. A five-member panel of the Court of Appeal was convened to decide the merits of the appeal, primarily for the purpose of resolving a divide that had arisen in the case law as to the appropriate test for summary judgment in Alberta.
 
HELD: For the Defendants, appeal dismissed.  

The Court held that summary judgment should be granted where it is just and fair to do so on the basis of the law and evidence before the Court.

  1. The Majority held that the “culture shift” called for by the Supreme Court of Canada in Hryniak v Mauldin means that a trial is no longer the default procedure for resolving disputes. The key consideration is proportionality; where a full trial is not necessary, summary procedures should be used to render justice in a timely and affordable fashion.
     
    1. The Majority held that summary procedures should be used unless “there is a substantive reason to conclude that summary disposition would not ‘achieve a just result’” (at para 25).
       
    2. The Majority noted that where summary disposition is not appropriate, a judge may be able to use the application as a springboard to advance the litigation and clarify issues, by, for example, directing discovery of evidence or isolating issues that can be resolved by a trial of an issue or a summary trial (at para 49).
       
  2. The Majority held that summary judgment and summary trial are separate procedures, not substitutes. Summary judgment permits the resolution of disputes without a trial wherease a summary trial is a trial” (at para 17). If summary judgment is not appropriate, a summary trial may be.
     
    1. No litigant is absolutely entitled to a trial. Summary judgment is a screening mechanism for resolving disputes that do not require trials. “Cost, delay and inequality of arms may mean that the right to adjudicative fairness, justice, and reliability can actually be hindered by a full trial. A defendant who can show that a claim has ‘no merit’ on a summary disposition application should not have to suffer a trial” (at para 43).
       
    2. There will still be instances where there is a genuine issue requiring a trial or where summary disposition is otherwise inappropriate, such as disputes “based on highly technical scientific and medical evidence” or where the law is complex (at para 45).
       
  3. The Majority summarized three factors which dictate when a summary judgment would be appropriate (at para. 21):

This outline of the procedural approach to summary judgment encompasses a number of points. To enable a “fair and just summary determination” the record before the court and the issues must:

  1. Allow the judge to make the necessary findings of fact. An important thing to observe about this part of the test is that it assumes the summary judgment judge (or Master) is able to make findings of fact. The judge is entitled, where possible, to make those findings from the record and draw the necessary inferences. The parameters on fact finding are discussed, infra, para. 38. Summary judgment is not limited to cases where the facts are not in dispute. If the summary judgment judge is not able to make the necessary findings of fact, that is an indication that there is a “genuine issue requiring a trial”. This issue is discussed, infra, paras. 27ff.
     
  2. Allow the judge to apply the law to the facts. There are cases where the facts are not seriously in dispute, and the real question is how the law applies to those facts. Those cases are ideally suited for summary judgment: Tottrup v Clearwater (Municipal District No. 99), 2006 ABCA 380 (CanLII) at para. 11, 68 Alta LR (4th) 237, 401 AR 88. If the record allows the judge to make the necessary findings of fact (as contemplated by the first part of the test), applying the law to those facts essentially comes down to a question of law. Cases like this one, based on the expiration of the limitation period, often fall into this category, as do those that turn on the interpretation of documents.
     
  3. Assuming the first two parts of the test are met, summary disposition must be a proportionate, more expeditious and less expensive means to achieve a just result. This third criterion is a final check, to ensure that the use of a summary judgment procedure (rather than a trial) will not cause any procedural or substantive injustice to either party. Summary judgment will almost always be “more expeditious and less expensive” than a trial. In the end, if the judge finds that summary adjudication might be possible, but might not “achieve a just result” there is a discretion to send the matter to trial. This discretion, however, should not be used as a pretext to avoid resolving the dispute when possible.

         [Emphasis by the Court]

  1. The third step aims to ensure that the use of the summary judgment procedure is just and fair in the circumstances. “Procedural and substantive fairness must always be a part of the summary disposition process…whether a summary disposition will be fair and just will often come down to whether the chambers judge has a sufficient measure of confidence in the factual record before the court” (at para 46).
     
  2. The Majority held that the balance of probabilities is the standard of proof used for summary judgment, and previous decisions holding that a higher threshold, such as “obvious” or “unassailable” should not be relied upon.
     
    1. The onus of proof for summary judgment is always on the applicant. “The party moving for summary judgment must, at the threshold stage, prove the factual elements of its case on a balance of probabilities, and that there is no genuine issue requiring a trial” (at para 32). While a respondent does not have to prove that summary judgment is not appropriate, there is a tactical risk in not doing so.
       
    2. The “best foot forward” presumption, that parties to a summary judgment application are presumed to put forward their best evidence, still applies. However, it does not apply mechanically, and where it would not be fair to rely upon it (for example, where one party controls all of the evidence) the judge need not apply it strictly (at para 40).
       
    3. In a concurring judgment, Wakeling, J.A. disagreed with this, holding that to succeed in an application for summary judgement, “the likelihood that the moving party’s position will ultimately prevail is very high – the strength of the moving party’s case is many times that of the nonmoving part” (at para. 66)
       
  3. The Court summarized the applicable principles governing summary judgment at paragraph 47 of the decision:

“The proper approach to summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

  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.

To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding judge may determine, during any stage of the analysis, that summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are not amenable to summary disposition, a summary disposition may not lead to a “just result”, or there is a genuine issue requiring a trial.”

The full Court found that Shelley J did not err in finding that the claim was barred by the Limitations Act.

  1. Claims for breach of contract are governed by the same statutory test for the commencement of a limitation period: “a reasonable awareness of the injury, attribution of the injury to the defendant, and a claim warranting a proceeding for a remedial order” (at para 50).
     
    1. The limitation period does not start on the date of breach, the date of last provision of services, the date economic loss emerges, the date a contract is repudiated, or the date a contract is terminated (at para 53).
       
    2. The Court stated that “[u]ncertainty about which claims were covered by the arbitration process does not delay commencement of the limitation period”, as the discovery of a claim is an issue of fact, not what law applies (at para 56).
       
  2. Summary dismissal on the basis of a limitation period may be granted where the Defendants can show that the test was satisfied more than two years before the action was commenced.
     
  3. To rely on a standstill agreement to delay the operation of the Limitations Act, the agreement must clearly indicate that the parties intend the agreement to have such an effect.
    1. Mere settlement negotiations do not amount to a standstill agreement on their own.

COMMENTARY

The Court decisively resolves the conflicting lines of case authority in favour of making summary judgment a more accessible procedure for the resolution of disputes that do not require a trial. Summary judgment is now the preferred option for resolving disputes where a judge is confident enough that it may be used, though there is significant latitude for a judge to decide whether or not that threshold is met. With respect, the view of Wakeling, J.A. to the effect that the strength of the moving party’s case must be “very high” and “many times the strength of the nonmoving” party’s (at para. 66) has been definitively rejected by the Majority, thus resolving the issue between the previous conflicting lines of authority. 
 
Given the Court’s emphasis on broadening the use of summary judgment, and identifying room for a judge to engage in fact-finding when deciding an application for summary judgment, it remains to be seen what this decision means for the availability of summary judgment before a Master in Alberta (particularly in light of the recent decision of the Court of Queen’s Bench, Coffey v Nine Energy Canada Inc, 2018 ABQB 898, holding that Masters are not permitted under the Constitution to weigh evidence).