The Alberta Court of Appeal has adopted the modern approach to summary judgement endorsed by the Supreme Court of Canada in Hyrniak v Mauldin to summarily dismiss claims in an environmental class action.

In Windsor v Canadian Pacific Railway Ltd., 2014 ABCA 108, Mr and Mrs.  Windsor and other members of the class action sued CP for damage alleged to have been caused to their properties by a plume of TCE from CP’s locomotive repair facility known as the Ogden shops near Calgary.

CP brought a motion to summarily dismiss three portions of the action: one claim for strict liability and two claims in nuisance.  The case management judge refused to dismiss the strict liability claim and one of the claims in nuisance but granted the motion to dismiss the other nuisance claim. The parties appealed.

The Alberta Court of Appeal noted the trend in Canadian jurisprudence, endorsed by Hyrniak, towards simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.

The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

The modern test for summary judgment is to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record.

While Hryniak 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:

7.3(1) A party may apply to the Court for summary judgment in respect of all or part of a claim on one or more of the following grounds:

(a) there is no defence to a claim or part of it;

(b) there is no merit to a claim or part of it;

(c) the only real issue is the amount to be awarded.

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.

Trials are for determining facts, and the Court of Appeal considered that the facts underlying this dispute were not seriously in issue.

The record showed that  the plaintiffs could not establish the elements of a claim for strict liability so the Court of Appeal allowed CP’s appeal and granted its motion to dismiss that claim.

The Court of Appeal upheld the judge’s decision to dismiss one of the nuisance claims and allow the other to proceed to trial. Damage is an essential element of a nuisance claim. The record indicated only trivial or nominal damage in one claim but sufficient damage in the other to warrant a trial.

These cases place the burden on environmental claimants to establish the elements of their claims in pleadings and on the record as early as possible in proceedings.

The decisions note how few claims actually go to trial. For practical purposes the summary judgement hearing is the new “day in court”.