Summary Judgment Applications In Alberta: Court Of Appeal Indicates Appeals From Denials Will Be Difficult To Establish

The Alberta Court of Appeal in its recent decision, 776826 Alberta Ltd. v. Ostrowercha, 2015 ABCA 49, discussed the recent changes to the direction of the law on summary judgment applications. It confirmed that the decision of the Trial Judge as to whether or not summary judgment is a fair and appropriate means of adjudication is discretionary and is entitled to deference. The Court of Appeal stated: "In practical terms, this means that appeals from denials of motions for summary judgment will be difficult to establish." [emphasis added]

The Court of Appeal went further to discuss the test for summary judgment. Summary judgment can be granted if there is no "merit" to the claim. No "merit" means that even assuming the non-moving party's position is accurate on material and divisive matters (which are typically matters that may require forensic testing, viva voce evidence and are matters not usually decided in a summary judgment venue), viewed in the whole, the