Summary Judgment - The Cultural Shift Has Started
Earlier this year we discussed on this blog the new “sufficient appreciation test” set out by the Supreme Court in Hryniak v. Mauldin, which really represents a cultural shift in the availability of summary judgment to the parties.
In Windsor v. Canadian Pacific Railway Ltd., 2014 ABCA 108, the Alberta Court of Appeal applied the test to a certified class action about Rylands v. Fletcher liability.
The appellant, Canadian Pacific Railway Ltd. ("CPR"), has operated a locomotive repair facility for over a century. Until the mid-1980s, a degreasing solvent consisting mainly of Trichloroethylene (TCE) was used in its facility. In 1999, it was discovered that TCE had leaked into the groundwater underneath the facility, and varying levels of TCE had migrated into the groundwater under the surrounding properties. The appellant installed sub-slab depressurization systems under some of these properties in order to reduce the TCE concentrations below the Health Canada thresholds and did not take any actions regarding the remaining properties.
The respondents brought an action for diminution in property values and losses of rental income allegedly caused by the presence of TCE in the groundwater underneath their homes. This action, based on negligence, nuisance, trespass and strict liability (under Rylands v. Fletcher), was subsequently certified as a class proceeding.
The appellant then applied to summarily dismiss the claims based on strict liability and nuisance. The case management judge summarily dismissed the claim for nuisance by the class members without sub-slab depressurization systems, because any damage to these lands was trivial or nonexistent. However, he declined to dismiss the strict liability claim by all class members and the nuisance claim by class members with sub-slab depressurization systems because there was a triable issue in each case. The appellant appealed this part of the ruling.
The Court of Appeal Decision
First, the Court stressed that the modern test for summary dismissal is whether there is "a reasonable prospect that the claim will succeed." Applying the principles set out in Hryniak v. Mauldin, 2014 SCC 7, a genuine issue requiring a trial does not exist if the motion process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
The Alberta Court of Appeal confirmed that the principles set out in Hryniak v. Mauldin (Ontario) are consistent with modern Alberta summary judgment practice:
"While Hryniak v Mauldin applied Ontario R. 20, the principles stated in it are consistent with modern Alberta summary judgment practice as set out in Alberta R. 7.3… New R. 7.3 calls for a more holistic analysis of whether the claim has “merit”, and is not confined to the test of “a genuine issue for trial” found in the previous rules. Since one of the objectives of class proceedings is to provide affordable access to justice, these principles relating to summary judgment are applicable to the class procedure as well.”
The Court of Appeal reiterated the need for a change in culture:
"Interlocutory decisions that can resolve a dispute in whole or in part should be made when the record permits a fair and just adjudication.”
The Alberta Court of Appeal has confirmed the presence of a cultural shift by making summary judgment more available to parties; the Hryniak test for summary judgment applies in Alberta, despite the differences in wording as between the Ontario and Alberta summary judgment rules.
More importantly, the Alberta Court of Appeal clarified that indeed the Hryniak test set out by the Supreme Court shows that summary judgment is an appropriate alternative to a trial in many cases, beyond just facially meritless claims.
With respect to class actions, this ruling demonstrates that the summary judgment test can be used to defeat all or part of a class action prior to the common issues trial. This is significant since the SCC has in recent cases arguably made the test to certify a class action in the common law provinces easier (and certainly not more difficult) to meet.
Windsor v Canadian Pacific Railway Ltd., 2014 ABCA 108
Court File No. 1301-0252-AC
Date of Decision: March 19, 2014
Alberta Court of Appeal strict liability and nuisance sufficient appreciation test summary judgment