55 Alta. L. Rev. 1 (2017-2018)

handle is hein.journals/alblr55 and id is 1 raw text is: 

                       HRYNIAK V. 3I4 ULDIN COMES TO ALBERTA

                 HRYNIAK V. MAULDIN COMES TO ALBERTA:
                   SUMMARY JUDGMENT, CULTURE SHIFT,
                      AND THE FUTURE OF CIVIL TRIALS

                                BARBARA BILLINGSLEY*

        Alberta's law of civil procedure, and summary judgment in particular, has experienced a
        culture shift since the Supreme Court of Canada's ruling in Hryniakv. Mauldin This article
        asks whether litigation directed toward a conventional trial is now, or is soon to be, a thing
        of the past. Although intended to revive traditional trials as a realistic and timely resolution
        option, it is impossible to sayyet ifthis will be Hryniak's legacy in Alberta. Three things are
        clear in post-Hryniak Albertan jurisprudence, however:first, the Hryniak test governs the
        determination of summary judgment applications in Alberta; second, Alberta courts have
        embraced the callfor proportionality in litigation procedure; and third, the Hryniak culture
        shift creates uncertainty for Alberta litigants.

                                 TABLE OF CONTENTS

   1.  INTRODU CTION  ...............................................  1
   II. HR YNIAK V. M A  UL DIN  ..........................................  2
       A.   SUMMARY   JUDGMENT  ..................................... 3
       B. CULTURE SHIFT ............................................ 5
 III. MIGRATION OF THE HRYNIAK TEST:
       SUMMARY JUDGMENT IN ALBERTA ................................. 7
       A. ALBERTA'S SUMMARY JUDGMENT RULE ........................ 8
       B. PRE-HRYNIAK JURISPRUDENCE ................................ 10
       C. POST-HRYNIAK JURISPRUDENCE ............................... 11
       D.   W HERE ARE W E NOW ?   ...................................  16
 IV. MIGRATION OF HRYNIAK'S CULTURE SHIFT TO ALBERTA ............ 19
       A. THE RATIONALE FOR CULTURE SHIFT IN ALBERTA .............. 20
       B.   IMPACT OF THE CULTURE   SHIFT  ............................. 22
       C.   W HERE ARE W E Now?  ................................... 27
  V .  C ONCLUSION   ...............................................  29
       APPENDIX A: ONTARIO'S SUMMARY JUDGMENT RULE ............... 31
       APPENDIX B: ALBERTA'S SUMMARY JUDGMENT RULE ............... 36
       APPENDIX C: ALBERTA CASES ON CULTURE SHIFT ................... 37

                                  I. INTRODUCTION

   Is trial-based litigation alive and well in Alberta's post-Hryniak world? On 23 January
2014, the Supreme Court of Canada issued its ruling in Hryniak v. Mauldin' and provided
a roadmap for the judicial consideration of summary judgment applications under Ontario's
summary judgment rule. Noting that the time and cost of civil litigation impedes access to



         Professor, Faculty of Law, University of Alberta. Thanks to my colleague Assistant Professor Anna
         Lund for hervaluable comments on an earlier draft of this article, and to JoshUngar and Paul Welke for
         their diligent research assistance while they were students at the University of Alberta, Faculty of Law.
         Without their help, this article would not have been possible. The case law considered in this article is
         current to 30 September 2016. Any errors, of course, are my own.
         2014 SCC 7, [2014] 1 SCR 87 [Hryniak].

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