The Alberta Court of Appeal clarified what is required for a summary judgment/dismissal after Weir-Jones Technical Services Inc. v Purolator Courier Ltd. and concluded that the outcome of the case does not have to be obvious in order for a Court to grant summary judgement/dismissal.
Hannam v Medicine Hat School District No. 76, 2020 ABCA 343
Facts + Issues
This accident took place in Medicine Hat, Alberta. In January 2013, after the head custodian of the River Heights Elementary School reported for duty at 6:30 AM, he checked the condition of the sidewalk of the school’s main entrance and concluded it was not slippery. The conditions changed a couple of hours later and the sidewalks became slippery as the weather warmed up. As a result, the school’s vice principal asked the custodian to spread sand on the main entrance sidewalks. A few seconds later, at approximately 8:45 AM, Ms. Hannam slipped on that same sidewalk, fell and broke her right ankle. Ms. Hannam sued the School District, alleging negligence and breach of the Occupiers Liability Act, R.S.A. 2000. c. O-4.
In 2017, the school board applied for summary dismissal. Master Robertson granted the application, finding the custodian had acted reasonably and no material facts were in dispute. Ms. Hannam appealed the Master’s decision. Justice Miller reversed the Master’s decision and allowed Ms. Hannam’s appeal, finding that there are conflicting pieces of evidence which merited a trial. Both of these decisions predated Weir-Jones Technical Services Inc. v Purolator Courier Ltd., 2019 ABCA 49 in which the Court reaffirmed the law relating to summary judgement.
The issues in this case are:
- What are the elements of summary judgement post Weir-Jones?
- Has the Medicine Hat School District met the elements of the Weir-Jones test?
HELD: For the Defendant; case dismissed, per Wakeling and Feehan; JJ.A. O’Ferrall, dissenting.
The Majority held that in Weir-Jones, the Court had confirmed that the outcome of the case did not have to be obvious in order for a Court to grant summary judgement. The Court summarized the elements of the Weir-Jones test as follows (at p. 145):
145 Justice Slatter summarized the governing principles:
- 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 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 summarized the elements of summary judgement for the Weir-Jones test and decided that judges hearing summary applications may decide disputed material facts, and may hear oral evidence in order to do so.
- The Majority held:
147 First, this interpretation allows a summary judgment court to make contested findings of material facts. This is corollary of Justice Slatter’s statement that “[s]ummary judgment is not limited to cases where the facts are not in dispute”. This is a departure from the traditional understanding that a dispute about a material fact disqualifies an action from the summary judgment process.
148 Second, summary judgment courts should not be reluctant to make material fact findings: Justice Slatter encouraged summary judgment adjudication to hear oral testimony: “[W]here possible findings of fact can and should be made on a summary disposition application”.
149 Third, before a summary judgment court resolves a material factual dispute, it should ask if it constitutes a genuine issue requiring a trial. Justice Slatter explained it this way: “A dispute on material facts, or one depending on issues of credibility, can leave genuine issues requiring a trial”.
150 Fourth, the moving party must prove the facts on which it relies on a balance of probabilities. This is consistent with the general trial principle that the plaintiff must prove the facts on a balance of probabilities that establish the elements of the action.
151 Fifth, “if there is a genuine issue requiring a trial, summary disposition is not available”.
- The Majority elaborated on what a “genuine issue requiring a trial” means in this context. The definition of the expression now constituting rule 20.04(2) of the Ontario Rules of Civil Procedure:
159 In Hryniak the Supreme Court of Canada adopted this definition of “no genuine issue requiring a trial”, the language in rule 20.04(2) of the Ontario Rules of Civil Procedure:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
160 This Court, in North Bank Potato Farms Ltd v. The Canadian Food Inspection Agency [2019 ABCA 344, at 28] adopted the Supreme Court’s position.
161 The “no genuine issue” concept no longer measures the merits of the parties’ positions. It now concentrates on procedural fairness.
The Majority decided that the Medicine Hat School District met the elements of the Weir-Jones test and was not negligent. It was held that the judge appealed from had not applied the test in Weir-Jones (which was decided subsequently), but instead asked if the outcome was obvious.
- The Court found that the Medicine Hat School District discharged its obligations under the Occupiers’ Liability Act “to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there”.
- It found that the policy was reasonable, that the School District had followed it reasonably, and that there was no issue to send to trial as the conflicting bits of evidence were not material and would not have changed the outcome of the trial in any way.
- The Majority commented on a potential review of the Rules of Court regarding summary trials, noting that in formulating new rules for summary trials, it may have to reconsider the current elements of summary judgment:
172 The Rules of Court Committee has indicated that it is considering Division 3 of Part 7 of the Alberta Rules of Court — summary trials — so that this option may become “a more efficient way of resolving disputes”.
173 This is a timely and worthwhile project.
174 In discharging this task, the Rules of Court Committee will, no doubt, take into account the enhanced role Weir-Jones assigns to the summary judgment protocol — Division 2 of Part 7.
175 The current summary judgment protocol now shares one of the key components of a trial. A summary judgment adjudication may determine contested material facts. Justice Slatter, in Weir-Jones, held that “[s]ummary judgment is not limited to cases where the [material] facts are not in dispute” and invited adjudicators to “hear ... oral testimony” and decide factual controversies on a balance of probabilities.
176 At the same time, our review of the several hundred summary judgment cases decided in the 1,000-day period commencing August 20, 2017 — Schedules A and B — suggests that the inherent conservatism of most adjudicators makes them reluctant to resolve disputes that contain contested material facts.  Not one judge heard oral testimony. And many expressly declared that the absence of an incontrovertible factual foundation precluded them from resolving the dispute. 
208 A revitalized summary trial protocol may cause the Rules of Court Committee to reconsider the features of summary judgment. It would not make a lot of sense to have two components of Part 7 that are virtually the same.
In dissent, O’Ferrall, J.A. held that he would have dismissed the School Division’s appeal on the basis that a distinction must be drawn between the appellate review of the granting of summary judgment/dismissal, on one hand, and the dismissal of an application for summary judgment/dismissal, on the other. He agreed with the Majority’s reasoning insofar as it related to summary judgment/dismissal applications. He differed from the Majority with respect to the standard of appellate review. (a) He held that appellate review of the rejection of a summary judgement/dismissal application should be much more differential to the Court below than is the case for review of the granting of an application for summary judgment/dismissal:
220 I agree with much of what my colleagues have had to say about summary judgment in their well-reasoned, interesting and thoroughly-researched judgment but, strictly speaking, this case did not involve a summary judgment. It involved a denial of summary judgment where the governing principles may be nuanced.
223 Before a trial judge may summarily dismiss a claim, he or she must be satisfied, on a balance of probabilities, that there is no merit to the claim. It is the trial judge who must be persuaded. It is not for this Court to tell the trial judge he or she ought to have been persuaded, except in the clearest of cases. This Court’s jurisdiction to summarily dismiss a claim which has not been litigated and adjudicated ought to be limited to cases of patently obvious error.
224 Appeals of refusals to grant a plaintiff summary judgment or to grant a defendant summary dismissal ought to be discouraged because they tend to be premature. No determination has been made. There is nothing to yet review: no decision and typically a sparse record. As this Court stated in Condominium Corp. No. 0321365 v. Cuthbert, 2015 ABCA 49 (Alta. C.A.) [hereinafter Ostrowercha] at paragraph 7, “appeals from denials of motions for summary judgment will be difficult to establish”. Ostrowercha was a case in which the chambers judge declined to summarily dismiss a claim. This Court dismissed the defendant’s appeal of that decision and said:
While the culture shift in Canadian law towards using alternative but fair and just methods of adjudication is well established in Alberta, front line judges are entitled to deference on their decisions as to whether summary judgment under Rule 7.3 is a fair and appropriate means for adjudication in a given case: W. P. v Alberta, 2014 ABCA 404 at para 15.
Also, in Mulholland v. Rensonnet, 2018 ABCA 24 (Alta. C.A.) at paragraph 3, this Court stated:
A chambers judge is not required to grant summary judgment where he or she does not feel they can fairly and properly adjudicate the issue before them on the record presented.
225 A summary dismissal of a claim gives this Court a final decision to assess. The merits of the dismissal can be assessed. A refusal to dismiss a claim on the basis that the chambers judge is not yet satisfied that the claim is without merit offers little to assess. There is little room for error because no disposition, one way or the other, has been made.
226 A summary judgment in favour of a plaintiff also gives this Court something to review. A refusal to grant the plaintiff summary judgment on the basis that the trial judge is not yet satisfied that the claim has merit offers little for an appeal court to scrutinize. Again, there is little room for error because no decision has been made one way or the other.
227 An appellate court does not ordinarily assess the merits of a claim until the trial judge has completed his or her assessment.
228 The standard of review of decisions dismissing summary judgment or summary dismissal applications must be very deferential. The review should be limited to assessing whether the chambers judge was completely unreasonable in concluding that the court required more evidence or more fulsome argument in order for it to reach a conclusion on the merits of a claim.
229 The so-called modern approach to summary judgment motions is intended to improve access to justice by empowering trial courts to adjudicate more cases through summary judgment motions, not by compelling them to do so when they find they are unable to make the necessary findings of fact without more evidence. The so-called modern approach is also not intended to empower appellate courts to decide the merits of claims at first instance which is what they are asked to do on appeals of decisions dismissing summary judgment applications or summary dismissal applications.
230 Once a trial judge has summarily dismissed a claim or granted summary judgment to a plaintiff, this Court can then safely commence to assess the merits of the claim which has been summarily dismissed or allowed. But not until.
In Hannam, the Majority commented that the success rate of summary judgement applications in Alberta should be closer to 75% (as opposed to the current rate of 57%), implicitly promoting the use of summary judgments and trials while recognizing that judges tend to be reluctant to resolve by summary judgement, contests on disputed material facts or matters that do not raise doubt as to the correct disposition.
One might question Justice O’Ferrall’s application of his appellate review principle to the facts of this case. The summary dismissal application was granted at first instance by the Master. That was reversed on appeal to a Chambers Justice of the Court of Queen’s Bench. One might argue that applying his standard of appellate review to the Master’s decision the Chambers Justice ought to have followed the Weir-Jones principles to dismiss the appeal as the Majority held. This can only be justified on the basis that while an appeal from the Master is an appeal on the record, and new evidence may be adduced at the Justice’s level. The Justice’s standard of review of a Master’s decision is less differential than appeal from that to the Court of Appeal.