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Digest of the Week — Test for Summary Judgment

Stout v. Track |
2015 CarswellAlta 160 |
Alberta Court of Appeal

Torts | Malicious prosecution and false imprisonment | Practice and procedure | Miscellaneous

Plaintiff brought action against his former girlfriend alleging malicious prosecution — Defendant former girlfriend brought application for summary judgment to dismiss action — At issue was whether defendant had reasonable and probable grounds to inform police that plaintiff was person she suspected of attempted break-in at her home and of contacting her in contravention of no-contact order — Chambers judge granted application and dismissed action, finding that plaintiff's claim had "no prospect for success" at trial — Plaintiff appealed — Appeal dismissed — Whether reviewed under former test of whether there was genuine issue for trial, or new test of whether there is "no merit to claim", plaintiff did not demonstrate any palpable and overriding error in chambers judge's conclusion — It should follow that if there was no genuine issue for trial, there would be no merit to claim — There was no need to inject mathematical formulas for assessing merits of claim on summary judgment or summary dismissal application into analysis of law — Propositions of law proposing these formulas were not argued before appellate court.


The plaintiff brought an action against his former girlfriend alleging malicious prosecution. The defendant former girlfriend brought an application for summary judgment to dismiss the action. At issue was whether the defendant had reasonable and probable grounds to inform the police that the plaintiff was the person she suspected of an attempted break-in at her home and of contacting her in contravention of a no-contact order. The chambers judge granted the application and dismissed the action, finding that the plaintiff's claim had "no prospect for success" at trial. The plaintiff appealed.

Held: The appeal was dismissed.

Per Rowbotham J.A. and Sulyma J. (ad hoc): Whether reviewed under the former test of whether there was a genuine issue for trial, or the new test of whether there is "no merit to the claim", the plaintiff did not demonstrate any palpable and overriding error in the chambers judge's conclusion. It should follow that if there was no genuine issue for trial, there would be no merit to the claim. Wakeling J.A., who concurred in the result in this appeal, advanced some propositions of law where which were not argued before appellate court, and those propositions were not supported by the majority. The propositions proposed mathematical formulas for assessing the merits of a claim on a summary judgment or summary dismissal application. There was no need to inject these formulas into the analysis of the law.

Per Wakeling J.A. (concurring in the result): The plaintiff's claim was without merit. The uncontradicted evidence of the defendant revealed that the plaintiff was fixated on her and that his relentless efforts to communicate with her prior to the attempted break-in inexorably lead to the conclusion that she had reasonable and probable grounds to state to police that the plaintiff was the likely culprit. There was no doubt that she had reasonable and probable grounds to believe that the plaintiff contacted her in contravention of a judicial interim release order. The likelihood that the defendant would successfully defend the action if it were tried was very high.

As the chambers judge applied the old test for summary judgment, having released his opinion months before the Court of Appeal issued two relevant judgments, an independent analysis of whether the defendant was entitled to summary judgment had to be conducted. Rule 7.3(1)(b) of the Alberta Rules of Court allows a court to dismiss a plaintiff's claim if it has no merit. The likelihood that the moving party's position will prevail is very high if the comparative strengths of the party's positions are so disparate that the likelihood that the moving party's position will prevail is many times greater than the likelihood that the non-moving party's position will prevail. The comparative strengths of the party's positions need not be so disparate that the non-moving parties' prospects of success must be close to zero before summary judgment may be granted. If the comparative strengths of the parties' positions are just about equal, so that, at best, the moving party's position is marginally stronger than the non-moving party's position, summary judgment is not appropriate. If the likelihood the moving party will prevail at trial is only fifty-one percent, the moving party will not be granted summary judgment. In this case, the likelihood that the defendant's position would prevail was many times greater than the likelihood that the plaintiff's position would prevail if the action was tried.
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