Analysis of Weir Jones and its Application in BF


The Alberta Court of Appeal provides clarification of the test for summary judgment applications in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 [“Weir”]. The Court of Appeal notes the rift that had emerged in case law while discussing the standard of proof that is required in a summary judgment application.[1] In particular, decisions of Can v Calgary Police Service, 2014 ABCA 322, and Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125, demonstrate the divergence in the application of the standard of proof that is required for summary judgment.[2] The Court mentioned that “it is now possible to find a quote in the case law to support virtually any view of the test to be used in summary judgment”.[3] Therefore, this decision seeks to resolve the uncertainty surrounding the approach to a summary judgment application.

In coming to this decision, the Court of Appeal acknowledges the “shift in culture” in respect to the resolution of litigation, pursuant to the Supreme Court of Canada’s decision in Hryniak v Mauldin, 2014 SCC 7. In particular, the Court of Appeal notes that the “reliance on “the conventional trial no longer reflects the modern reality and needs to be re-adjusted” in favour of more proportionate, timely and affordable procedures.”[4] Further, “summary judgment procedures should increasingly be used, and the previous presumption of referring all matters to trial should end”.[5] Consideration of this modern approach was a large part of the discussion, as the Court of Appeal established the test for summary judgment applications, summarized below.

Summary of the test and principles established by the Court of Appeal:

“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 proxy for a 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.”[6]

Subsequent Application of Weir:

The recent decision in BF v BF, 2019 ABQB 102 [“BF”] applied Weir in its analysis. Counsel for the applicant was Anna Loparco, of the Dentons Edmonton office, who was successful in her summary judgment application. The application was heard before the decision in Weir, however, the written decision was issued after and incorporated, the Weir decision. In this estate matter, the applicant was seeking summary dismissal of a claim brought forward by his brother pertaining to certain pieces of farming equipment claimed to be jointly owned by the brothers. The Court applied Weir in its analysis to the facts at hand. In particular, the Court looked at the standard provided in Weir, that at the threshold stage the party must “prove the factual elements of its case on a balance of probabilities”, as well as the requirement that there is “no genuine issue requiring a trial”.[7] Further, the Court noted that Weir held that where it is possible to make findings of fact, these should be made in an application for summary disposition.[8] The Court determined, that, even though there was contradictory evidence from a handwriting expert, and an existing unsigned agreement, the remainder of the evidence was overwhelmingly in favour of summary dismissal.[9]

The Court also cited Weir for its holding that summary dismissal should not necessarily be limited to uphold a plaintiff’s “right to go to trial”.[10] The Court of Appeal in Weir commented that any “right of the plaintiff to have a trial” is equally offset by the “right of the defendant not to have a trial on an unmeritorious claim”. Fairness is a two-way street.”[11] The Court of Queen’s Bench, in BF, acknowledged these comments by the Court of Appeal in its decision, and concluded that the “modern state of the law with respect to summary dismissal, and the requirement to use scarce judicial resources efficiently and effectively, requires [that] summary dismissal should be ordered in a case such as this” where the applicant establishes their case on a balance of probabilities, and no genuine issue for trial is found.[12] 

[1] Weir at para 12.
[2] Ibid.
[3] Ibid at para 23.
[4] Ibid at para 15.
[5] Ibid.
[6] Ibid at para 47.
[7] BF, at para 18.
[8] Ibid at para 19.
[9] Ibid.
[10] Ibid at para 23.
[11] Weir, at paras 42-44.
[12] BF, at para 24.

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Robert Gilroy

About Robert Gilroy

As an associate in our Litigation and Dispute Resolution group in Edmonton, Robert Gilroy maintains a varied practice that includes tort and negligence claims (both insurance defence and plaintiff matters), and construction disputes. Robert has represented clients before the Provincial Court of Alberta and the Court of Queen’s Bench of Alberta.

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Lovin Narula

About Lovin Narula

Lovin is an associate in our Litigation and Dispute Resolution group in Edmonton. He maintains a varied litigation practice that includes tort and negligence claims (both insurance defence and plaintiff matters), contractual disputes and debt recovery, and construction disputes. Lovin has represented clients before the Court of Queen’s Bench of Alberta.

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Hanna Teja

About Hanna Teja

Hanna is a member of the Trusts, Estates and Wealth Preservation group in Edmonton, where her practice is focused primarily on the areas of estate planning, estate litigation, guardianships and trusteeships.

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