Leave to Appeal Dismissed in Important Summary Judgment Decision
The Alberta Court of Appeal decision of WP v Alberta ("WP") released late last year represented another important step forward in defining the test and operation of "summary judgment" applications in Alberta. Summary judgment has become an increasingly important tool in resolving disputes and saving legal fees and time. Summary judgment is generally used in situations where the facts are not in dispute and the only real issues are ones of legal interpretation. Courts have the authority in these situations to dismiss or allow claims long before many of the expensive and time-consuming processes of litigation have started - that is, to give judgment on a "summary" basis. With a legal system that is arguably already overburdened, this mechanism has been understandably embraced by Alberta Courts.
That being said, historically there have been challenges to parties seeking to have their lawsuits addressed on a summary basis. For example, there are limitations to the types of evidence that the Court can consider on such an application. Further, the standard which the applicant party had to meet was very high: they would have to show "no genuine issue" in the lawsuit that required a trial. All that appeared to change when the Supreme Court of Canada last year issued a seminal decision called Hryniak v. Mauldin. That case indicated that the threshold should be lower - the Courts should consider if there is any claim "of merit" and if there isn't, the matter should be dismissed summarily and without the time and expense associated with bringing the case all the way to trial.
WP has been cited numerous times since its release, and represents a further solidification of this "new" test for summary judgment. WP also has important implications in regards to the use of summary judgment applications in the context of a class action (class "proceeding" as it is called in Alberta) lawsuit, as we will explain below. The Supreme Court's decision to deny leave to appeal on April 30, 2015, although not technically a precedent in itself, means that the Alberta Court of Appeal's decision now stands unchallenged and accordingly adds to the strength of this case.
WP involved plaintiffs who were former resident students at the Alberta School for the Deaf in Edmonton (the "School"). The plaintiffs alleged physical, sexual and emotional abuse from the teachers, staff, and other students, which they argued was due to the Alberta government's negligence. Alberta brought an application for summary judgment, arguing that the plaintiff's claims were too late because of the expiry of the relevant limitations period in Alberta. Associate Chief Justice Rooke, the case management judge, decided to hear the application for certification as a class proceeding (the procedure whereby a proposed class proceeding by the Plaintiff(s) is approved by the Court to go forward on behalf of all members of a specified class), and the summary judgment application at the same time.
Associate Chief Justice Rooke held that the plaintiffs' claim failed because it was too late (the limitations period had expired), but certified the action in the event of a successful appeal. The plaintiffs appealed on several grounds, two of which will be briefly touched on.
The Court of Appeal stated that the test for summary judgment in Alberta now considers whether there is any claim of merit, and is no longer confined to the test of "no genuine issue for trial". In applying this law to the facts, the Court rejected the appellant's argument that the issue of certification should be dealt with before an application for summary judgment. The Court held that summary judgment could be used at any time, and that unmeritorious class proceeding are not immune to dismissal at the pre-certification stage.
The Court of Appeal also rejected the appellant's limitations argument. Under the Alberta Limitations Act, plaintiffs generally have 2 years to sue, with a 10 year "ultimate" limitation period. There is an exception which will suspend the limitation period in situations where the defendant fraudulently conceals the injury which would give rise to the cause of action. Several of the defendants argued that they were unware of their ability to sue until much later, an argument that was summarily rejected. The Court held that knowledge relates to the injury, and not the existence of a cause of action. Furthermore, the Court rejected the argument that because employees of the School may have told the plaintiffs to keep quiet at the time, that this constituted concealment. The Court held that none of the plaintiffs were "laboring under a misapprehension of the fact of having suffered an injury". Therefore, no issue of merit remained which required a trial.
The denial for leave to appeal leaves unchallenged the Court of Appeal's broad application of summary judgment as a tool to stop lawsuits without merit in their tracks. This case also makes it very clear that class proceedings can be summarily dismissed at the same time as a certification hearing, or beforehand. The trend for Alberta Courts to take a more expansive approach to allowing summary judgment applications is therefore likely to continue, which should reduce the burden on our Court system, while at the same time positively benefiting the bottom line of those involved in litigation.