The "Myth of Trial" Reborn: Alberta Court of Appeal Restates the Test for Summary Judgment

By Michael O’Brien


On February 6, 2019, a five-justice panel of the Alberta Court of Appeal issued its eagerly awaited decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (“Weir-Jones”).  Since 2014, the legal test for summary judgment has been in flux in Alberta, largely as a result of contradictory decisions from the Alberta Court of Appeal.  In Weir-Jones, the Court of Appeal took the opportunity to restate the test for summary judgment in Alberta, providing much needed certainty to litigants seeking a proportionate and timely end to disputes.

The Schism in Alberta Law

In 2014, the Supreme Court of Canada released its landmark decision in Hryniak v Mauldin 2014 SCC 7 (“Hryniak”), in which the Court invigorated and breathed new life into summary judgment as a method of dispute resolution.  Hryniak is the case where the Supreme Court of Canada famously spoke about the “cultural shift” away from the trial and towards efficient and cost-effective summary procedures.  Hryniak adopted a new test that made it far easier to obtain summary judgment.  In doing so, Hryniak elevated summary judgment as a legitimate mechanism to resolve disputes, rather than simply being a tool for weeding out unmeritorious lawsuits.

Shortly after Hryniak was released, the Alberta Court of Appeal adopted it as the test for summary judgment in Alberta in Windsor v Canadian Pacific Railway Ltd 2014 ABCA 108.  The Windsor case used equally sweeping language to describe the change in the test for summary judgment, declaring that the “myth of trial” should no longer govern civil lawsuits.  According to Windsor, if a court can reach a fair disposition of the matter on the record before it, summary judgment should be utilized.

However, shortly after the Windsor decision was released, there were a few decisions from the Alberta Court of Appeal that began to revert to the pre-Hryniak and pre-Windsor case law.  Specifically, those cases increased the standard of proof that must be met by a party applying for summary judgment by rejecting the typical civil standard of proof – balance of probabilities – and instead requiring the applicant to demonstrate that they had an “unassailable position.”  The “unassailable” standard made obtaining summary judgment virtually impossible in all but the clearest of cases.

During this same period, other decisions from the Alberta Court of Appeal continued to follow Hryniak and Windsor and did not even mention the “unassailable” standard.  As a result, for the last five years, a schism or rift emerged in Alberta jurisprudence regarding the standard of proof that must be met by the party moving for summary judgment.  The two approaches to summary judgment stood in stark juxtaposition.  Lawyers (as well as lower courts) were left second guessing what the appropriate test for summary judgment was in Alberta.

In order to settle the law, and hopefully resolve the rift in the jurisprudence, a five-justice court was impaneled to hear Weir-Jones.

The Schism Resolved?

The majority of the Court of Appeal in Weir-Jones decisively rejected the “unassailable” standard and restated the law in Alberta regarding the availability of summary judgment pursuant to Rule 7.3 of the Alberta Rules of Court. In doing so, the majority returned to the principles articulated in Hryniak and Windsor and embraced the need for more proportionate, timely, and affordable procedures. 

The majority held that for a fair and just determination to be made, the record and issues must allow the motions judge to make the necessary findings of fact and apply the law to the facts. Moreover, summary disposition must be a proportionate, more expeditious, and less expensive means to achieve a just result.  

After a review of the core principles relating to summary judgment, the majority delineated the key considerations in determining whether summary judgment is appropriate, as follows:

  1. Genuine Issue Requiring a Trial.  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?
  1. Standard of Proof.  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.
  1. Shifting Burden.  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.
  1. Judicial Discretion.  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 clarified that the above criteria are not sequential in nature. The presiding judge may determine that summary adjudication is inappropriate or unfair at any stage of the analysis. 


Summary judgment is a critical tool for litigants seeking an early resolution to disputes. In Weir-Jones, the Alberta Court of Appeal has moved to resolve the rift in the case law and to bring clarity and certainty back to the test for summary judgment.  Time will tell how courts will interpret and apply Weir-Jones, however, at this point, it appears that summary judgment has been reinvigorated and will take its rightful place as an important dispute resolution strategy in Alberta law.


Michael O’Brien is a partner in the Litigation group at Blake, Cassels & Graydon LLP. His practice involves complex, high-profile corporate/commercial litigation and domestic arbitration. In addition, Michael is an instructor at the University of Calgary Law School and is a frequent speaker on new litigation developments.