Summary Applications – A Paradigm Shift
For many years, the strategy of applying for summary judgment or summary dismissal of a claim was a fool’s errand in all but exceptional cases. The Rules of Court then envisioned a process directed towards trial where the parties would have full opportunity to uncover and present all the relevant evidence necessary for the court to make a full and fair consideration of the merits. This has all changed.
Recent decisions from the Supreme Court of Canada and the Alberta Court of Appeal have embraced a “paradigm shift”. Resolution of a dispute, well short of going to trial, is the new focus. Now, summary applications will be entertained in almost all but exceptional cases. This may be a trap for the unwary.
Immediately following the filing of its statement of claim, a plaintiff may face an application to have its case summarily dismissed. If the plaintiff does not have all of its evidence in hand, its case could be dismissed. The courts have held that a plaintiff is not necessarily entitled to disclosure under Part 5 of the Rules of Court before facing a summary dismissal application. Attempting to obtain disclosure may be met with obfuscation by defendants that prefer to have the matter dismissed before incriminating evidence is uncovered against them through Part 5 disclosure.
Defendants may be at jeopardy as well. The Rules of Court now allow summary judgment applications to be made even before a statement of defence is filed. A defendant could conceivable be served with a summary judgment application at the same time as it is served with the Statement of Claim. If the defendant does not get its evidence put together quickly, it may lose its claim for want of evidence.
The court’s first consideration when considering a summary application is the adequacy of the record before it. Whether or not the record is adequate is at the discretion of the court. A party facing a summary application is required to “put its best foot forward” meaning there is an expectation, even at the earliest stages of a lawsuit, for a party to come up with all the evidence it can muster to ward off the summary application. If it falls short, it may be game over.
Another problem that may be faced by litigants without deep pockets is the fact that a summary application may front load heavy legal costs on a party at the very outset of the litigation process. Well healed litigants can use this to their advantage against less advantaged parties.
The paradigm shift may be a shift indeed in favour of a quick process over the merits of a dispute. Small litigants beware. For more information, please contact us.