Summary Judgment: A Tale Of Two Tests

A panel from the Alberta Court of Appeal recently issued their split decision in Whissell Contracting Ltd. v. Calgary (City), 2018 ABCA 204, on May 25, 2018.  In that decision, the Court said summary judgment may be appropriate, "if the moving party's position is unassailable or so compelling that its likelihood of success is very high and the nonmoving party's likelihood of success is very low."  This case came out less than two months after Stefanyk v. Sobeys Capital Inc., 2018 ABCA 125 was decided.  In Stefanyk, the Court said, "there is only one civil standard of proof, and it is proof on a balance of probabilities... unassailable and very high likelihood are not recognized standards of proof."  Therefore, it appears two separate tests for summary judgment have been enunciated by the Alberta Court of Appeal which may present an inconsistency in the law.