Written by Laura Gill, Mike Theroux and Tyler McDonough
The Alberta Court of Appeal (ABCA) may have lowered the standard of proof for summary judgment. This could help shorten the process to judgment for clients pursuing claims as well as assist clients bring unmeritorious claims to a more rapid conclusion.
There is only one civil standard of proof and it is proof on a balance of probabilities. According to the ABCA in Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125 [Stefanyk] this standard applies equally to an applicant seeking summary judgment. In Stefanyk, the ABCA confirmed the test for summary judgment and clarified how it should be applied by Alberta courts.
Ms. Karren Stefanyk was injured after she was startled by a dog outside of a Sobeys grocery store. Ms. Stefanyk sued the dog's owner, the landlord, and Sobeys Capital Incorporated ("Sobeys").
Sobeys brought an application for summary judgment in Master's chambers. Master Prowse granted summary judgment on the basis that it was extremely likely Sobeys would be successful at trial. Ms. Stefanyk appealed the Master's decision.
Justice Hopkins allowed the appeal and dismissed Sobeys' application in Stefanyk v Stevens, 2017 ABQB 402. The Court cited the concurring reasons set out in Can v Calgary Police Service, 2014 ABCA 322 and held that the test for summary judgment was whether the moving party's position was "unassailable" such that its likelihood of success at trial was very high. Justice Hopkins ultimately concluded that Ms. Stefanyk's claim against Sobeys had merit and therefore dismissed the application for summary judgment. Sobeys appealed the Court's decision to the ABCA.
The ABCA allowed the appeal and dismissed the action on the basis that Justice Hopkins erred in his application of the law of summary judgment.
The Test for Summary Judgment
The Court first confirmed when summary judgment will be an appropriate procedure. The ABCA held that summary judgment is appropriate where there is no genuine issue requiring a trial. According to the Court, this occurs when the summary judgment application:
- Allows the judge to make any necessary findings of fact;
- Permits the judge to apply the law to the facts; and
- Is a proportionate, more expeditious, and less expensive means of achieving a just result.
The Court then considered whether Sobeys satisfied the burden of proof for summary judgment. The Court cited FH v McDougall, 2008 SCC 53 and held that proof on a balance of probabilities is the only civil standard of proof and that it applies equally to an application for summary judgment. "Unassailable" and "very high likelihood" are not recognized standards of proof and should not be applied by courts in considering whether to apply the test for summary judgment as set out by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7.
The ABCA held that while a plaintiff is not required to prove its case on a balance of probabilities when it is confronted with a summary dismissal application, it cannot successfully resist such an application merely by raising a "doubt". Instead, a plaintiff can overcome summary dismissal by showing that: (a) the record or the issues indicate that summary dismissal is not a fair and just procedure; and/or (b) the defendant has not, at that stage, proven its defence on a balance of probabilities.
Overall, summary judgment is one procedure for deciding whether the moving party has proven its case on a balance of probabilities. It is the appropriate procedure when the record is such that a court can make a fair and just determination. This generally depends on whether there is a material issue of fact that justifies a trial. If summary judgment is the appropriate procedure, then the ultimate issue becomes whether the moving party has proven either its claim or defence on a balance of probabilities.
Stefanyk confirmed that summary judgment is an appropriate procedure only where there is no genuine issue requiring a trial such that a court can make a fair and just determination on the record. Applicants pursuing summary judgment should be cognizant of the fact that they too are subject to the singular civil standard of proof: proof on a balance of probabilities. The question is not whether a moving party's position is unassailable, or whether it is likely to succeed at trial, but rather whether the moving party has proven its case on a balance of probabilities.
Stefanyk is a valuable decision and provides additional clarity with regards to summary judgment. Clients can now rely on this renewed authority when pursuing or resisting summary dismissal in Alberta.