Trials and Tribulations: Is Summary Trial a Viable Alternative?

© Stikeman Elliott LLP 2020

If you need a two-week civil trial in Alberta, the odd date is available between now and 2023 but trials are being regularly scheduled for 2024. Suffice to say, you will be waiting quite a while before your matter is set down for trial. Moreover, that waiting period starts after the parties have filed their trial readiness form with the court – meaning they have completed document production, questioning, exchanged any expert reports, and participated in at least one alternative dispute resolution process.

Trials are too expensive, resource-intensive for many litigants, and disproportionate for many claims. Delays in scheduling also raises issues with fading memories and timely dispute resolution. Yet in some matters, counsel cannot bring the parties to a resolution and judicial intervention is required to either dispose of or advance the action.

In some instances, a summary trial can be a viable alternative to the standard trial – especially where summary judgment is not a practical option. Summary trial presents an option somewhere between a summary judgment application and the standard trial.

In addition, the Court of Queen’s Bench has been exploring and promoting summary trials as a more efficient way to resolve disputes in the face of institutional delay. A Rules of Court Committee has been formed and comments are being requested now through June 2020 on the Alberta Rules of Court (the “Rules”) governing summary trials.

Summary Trial
With the current state of the Rules, electing to proceed by summary trial is best where all parties consent to the process. If there is a disagreement between the parties on the suitability of the summary trial process, the process itself can be opposed at or before the hearing of the summary trial which can derail the entire endeavor.

In a summary trial, the disputed issues usually must be determinable by the court by way of affidavit evidence. Viva voce evidence is an exception in summary trials. A summary trial is appropriate when the primary issue in the case is a question of law, like the interpretation of a contract or the expiration of a limitation period. A summary trial is only appropriate, however, when the resolution of the issue identified for determination results in a final disposition of the matter. Summary trials are best for cases that are not document intensive and where credibility is not a central issue.

Benefits of a Summary Trial over Summary Judgment Evidence
In a summary judgment application, the respondent can rely on hearsay evidence to resist the application against them. This can be problematic where the evidence is diametrically opposed, and the court’s only choice is to direct the matter to trial to allow for findings of fact based on evidence presented to resolve the legal issues. Conversely, in a summary trial, the evidence can be more robustly weighed and considered to allow the presiding justice to make findings of fact based on which evidence is more likely than not to be true. This applies equally where there are conflicting expert reports being put forward as opinion evidence which can be more appropriately considered in the summary trial process.

Shift in Burden
In a summary judgment application, the applicant bears the burden of proving that the respondent has failed to establish that there is a genuine issue for trial. The burden is on the applicant, no matter whether that party is the plaintiff or the defendant. This can pose an issue for a defendant applying for summary judgment, because it shifts a burden on them, where ordinarily there is no burden on a defendant to do anything but deny the case the plaintiff has put forth. Nonetheless, the respondent is still required to put their best foot forward. Even with the developments in the law regarding the standard of proof required to be successful on summary judgment and confirmation of the balance of probabilities standard in civil matters being determined by summary judgment, as explored by the Alberta Court of Appeal in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49, the burden on the applicant to be successful on summary judgment, as compared to summary trial, remains considerably higher to demonstrate there is no genuine issue requiring trial. In a summary trial, no matter which party applied for the summary trial, the plaintiff bears the burden of proving the action on a balance of probabilities.

Summary judgment applications are within a Master’s jurisdiction. Any appeal of a Master’s decision on summary judgment is an appeal de novo. Parties are permitted to bring new evidence forward on appeal. A Justice is not bound by any of the findings made by a Master. As such, there is less certainty in the result. Conversely, a summary trial can only be heard by a Justice. Accordingly, any appeal of the decision must be heard by the Court of Appeal, where the findings of fact can only be overturned if the panel finds the trial judge has made a palpable and overriding error.

When summary judgment is not granted or overturned on appeal, the parties are right back where they started – plodding towards trial. In summary trial, where the Justice is satisfied that judgment can be granted on the summary trial record, judgment is usually granted.

Final Word
Reliance on the standard trial to resolve disputes does not reflect the current realities in civil litigation, given the call for streamlining how disputes are resolved and ongoing institutional delays. Summary trial can be a viable alternative not only to trial, but to summary judgment. In the right case, where all of the needed evidence can be presented to the court by way of affidavit evidence, summary trials can result in a final determination of the merits of an action, without compromising the substantive or procedural rights of a party. Finally, the court has more availability to schedule summary trials, which are shorter in duration, and in light of what appears to be a renewed willingness by the court to resolve disputes using this underutilized process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

© Stikeman Elliott LLP 2020 – Michael Mestinsek, Geoffrey D. Holub , Gloria Moore and Sakshi Sharma

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