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Alberta Court of Appeal Clarifies the Test for Summary Judgment

Summary judgment can be an effective tool to resolve litigation in a cost-effective way. The Supreme Court of Canada ruled in Hryniak v. Mauldin 2014 SCC that a "culture shift" toward simpler procedures was necessary and expanded the scope of summary judgment. Subsequently, courts across Canada, including in Alberta, grappled with the expanded scope of the summary judgment test (see for example, previous blog posts herehere, and here), in some cases leading to confusion about how the new summary judgment framework was to be applied. In the recent Stoney Tribal Council v. Canadian Pacific Railway, 2017 ABCA 432 ("Stoney"), the majority of the Alberta Court of Appeal stripped away some of the additional gloss which had been put on the summary judgment framework, including by the Alberta Court of Appeal itself.


Stoney concerns an action by the Stoney Tribal Council (the "Tribal Council") against the Canadian Pacific Railway ("CPR") seeking the return of in situ petroleum, natural gas and related hydrocarbon rights. CPR moved for summary judgment on the basis that the Tribal Council's claims against the CPR were statute barred. The Case Management Justice granted summary judgment and the Tribal Council appealed.

The Decision

The majority and minority of the Alberta Court of Appeal in Stoney agreed that the case was appropriate for summary judgment. However, the Justices disagreed on how the summary judgment test ought to be approached. Justice Wakeling, in the minority, looked at summary judgment as a balancing of the relative strengths of the parties' positions, asking whether the "disparity in the strength of the positions of the moving and non-moving parties [is] so marked that it is appropriate to resolve the dispute without resort to the full spectrum of the civil procedure process." Justice Wakeling concluded that summary judgment was appropriate because the CPR's position was "unassailable", while the Tribal Council's position had no chance of success. Given the disparity between the parties' positions, summary judgment was appropriate.

For the majority, Justice Paperny ruled that the relative strength of the parties' claims has no bearing on the outcome of a summary judgment application. Rather, the question before the Court hearing a summary judgment application is as set out in Hryniak v. Mauldin: whether a fair and just determination of the case can be made on the record before the Court. The majority in Stoney ruled that the cases (including some from the Alberta Court of Appeal) which add additional requirements, such as an assessment of the strength of the parties' positions are of no application in a post-Hryniak world. Anything more than an application of the Hryniak test (as applied in Windsor v. Canadian Pacific Railway) is an unnecessary gloss.

Industry Implications

Following Stoney, summary judgment will continue to be a potentially helpful tool in the arsenal of industry players faced with litigation. Stoney allows for a broad range of cases to be resolved by way of summary judgment, not just those where the non-moving party has a weak case.

  • By: Daniel B.R. Johnson