A Roadmap for Summary Judgment in Alberta

by Blake, Cassels & Graydon LLP

In Hryniak v. Mauldin (Hryniak), the Supreme Court of Canada (SCC) opened the door for courts to grant summary judgment whenever the record provides “the evidence required to fairly and justly adjudicate the dispute[.]”  In Alberta, however, neither judges nor masters are permitted by the Rules of Court to weigh evidence on summary judgment applications, so the approach to a motion for summary judgment provided by the SCC in Hryniak is of limited use in Alberta. As a result, Alberta courts have developed their own approach to determine summary judgment applications.

The recent Alberta Court of Queen’s Bench decision in Sticks and Stones Communications Inc. v. Hole’s Greenhouses & Gardens Ltd. (Sticks and Stones) applies this approach and also provides valuable guidance on the role of cross-examination on affidavits in summary judgment applications.


The plaintiff claimed that the defendant paid only part of the amount owing for advertising and communication services, leaving a balance of C$102,264.45. The defendant argued it was not obliged to pay the balance because the plaintiff did not perform all of the work it was hired to perform.


The plaintiff’s application for summary judgment was dismissed by Master R.P. Wacowich. The plaintiff appealed to Justice R. A. Graesser, who applied the summary judgment approach developed by Alberta courts following the release of Hryniak.

Justice Graesser first looked to the record before him and asked whether it was essential to the resolution of the dispute that the court see the witnesses. Had the answer been yes, Justice Graesser would have dismissed the appeal. The answer in this case was no, so Justice Graesser engaged in a multi-step reasoning process, by:

  1. ​Presuming that the best evidence from both sides was before the court
  2. Asking whether a negative inference could be drawn from the absence of evidence on certain points
  3. Determining whether all of the evidence was admissible
  4. Asking whether there was a conflict in the evidence and if so, whether the conflict had been resolved on cross-examination, or whether the evidence giving rise to the conflict was purely self-serving and was otherwise unsupported
  5. Examining the evidence

Applying this approach, Justice Graesser found that there was no genuine issue requiring a trial as the defendant failed to provide evidence sufficient to support any of its defences. He concluded that because the defendant did not raise complaints about the plaintiff’s services until after the plaintiff withdrew its services, either the defendant had lain in the weeds and therefore acted in bad faith, or its complaints had no merit.


In Sticks and Stones, the Master at first instance dismissed the summary judgment application in part because the plaintiff did not cross-examine on the defendant’s affidavit. The plaintiff did so prior to the appeal to Justice Graesser, whose decision was based in part on evidence obtained on the cross-examination. The Sticks and Stones decision shows that if the affidavit of a respondent to a summary judgment application creates a conflict in evidence on a relevant issue, the applicant will almost certainly lose unless they have resolved the conflict by cross-examining on the respondent’s affidavit, or the conflicting evidence is “purely self-serving and is otherwise unsupported[.]”

This does not mean that the applicant must cross-examine on each and every allegation made by the respondent. Justice Graesser declined to overrule the general proposition that the trier of fact should accept a witness’ evidence on a particular issue if the other side has not cross-examined the witness on that issue.


Because they are unable to weigh evidence on summary judgment applications, Alberta judges and masters have created their own approach to determining summary judgment applications in the wake of Hryniak. This approach is based on an amalgamation of case law on particular evidentiary points, underpinned by the proportionality principle now coming to the forefront in judicial reasoning.

If there is a conflict in evidence, the judge or master must determine whether the conflict has been resolved by cross-examination or should be disregarded because the evidence giving rise to the conflict is self-serving and unsupported. Accordingly, applicants should give careful consideration to cross-examining on respondents’ affidavits whenever they introduce a conflict in evidence on a relevant issue, or where the grounds for self-serving statements can be undermined.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Blake, Cassels & Graydon LLP | Attorney Advertising

Written by:

Blake, Cassels & Graydon LLP

Blake, Cassels & Graydon LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.