There has always been some difficulty finding a balance between providing adequate prosecution and defense of civil files versus the trend towards early dispute resolution (and alternate dispute resolution). Recently, our highest court has espoused the benefits of a culture shift from the traditional litigation paradigm. The mechanism of this shift seems to be the summary judgment application process; something that has been lauded by the Highest Court as an alternative to the hefty costs of full trials.
The impetus for the shift follows the numerous movements towards the proportionality of justice and access to the civil justice system itself. Traditionally, Rule 7.3 (and its predecessor) was used to weed out meritless claims as the Court exercised its gatekeeper function. While historically this involved a high standard of proof in order to debar a litigant’s day in Court, the Supreme Court of Canada has signalled that perhaps those days have now passed.
The decision in Hryniak, infra. has now revamped the test for summary judgment in Alberta, and has been fully embraced by our Court of Appeal. The decision however considered a different civil procedure (Ontario) and Alberta Courts are now left to try and reconcile binding direction to an imperfect parallel in the Alberta Rules. The result is discretion by Courts to address the substantive merits of claims earlier in the litigation process under limited circumstances. The questions that remain focus on how this has affected the traditional burdens in a summary judgment context and how that will affect litigants going forward.