By Catriona Otto-Johnston and Sheena Campbell
Trial dates are years away. The cost of full-blown litigation is foreboding. You can’t afford to wait years to be paid for your hard work on construction jobs. Are there options to obtain judgment for your claims without the delay and expense of a full trial? Field Law thinks so, in the right circumstances. In our experience, even a case with complex facts and extensive, largely contradictory, evidence can be successfully heard in a summary manner, absent a full trial. Summary judgment may be a shortcut to getting paid!
Summary Judgment: The Basics
An application for summary judgment is made before the Court on Affidavit evidence. The parties involved are questioned on their Affidavits. The transcripts of this Questioning are filed with the Court, and an afternoon-long application is often required.
The test for summary judgment in Canada has been evolving, starting with the Supreme Court of Canada’s (SCC) decision in Hryniak v. Mauldin, 2014 SCC 7. The SCC encouraged a broad interpretation of the summary judgment rules with a view to avoiding full-blown trials where it is in the interest of justice to do so. To achieve this, the court uses its “fact-finding” powers to weigh the evidence, including evaluating credibility based on Affidavits as opposed to live-witness evidence.
Hitting Close to Home – Summary Judgment on a Complex Pipeline Claim
The test for summary judgment was recently applied in Alberta in E.O.S. Pipeline & Facilities Inc. v. Sprague-Rosser Contracting Co. Ltd. (unreported). E.O.S. was a subcontractor on a pipeline project. Sprague-Rosser failed to pay E.O.S. for its work. E.O.S. filed builders’ liens and applied to have its liens declared valid and for judgment.
This was a complex matter involving multiple issues, including:
- Extra work signed off by an employee of Sprague-Rosser but not paid for;
- Failure by Sprague-Rosser to sign off on E.O.S.’ daily tickets and later refusing payment on that basis;
- Appropriate mark-up for third party charges under the subcontract;
- Sprague-Rosser’s purported reliance on the “pay when paid” clause in the subcontract;
- Proper characterization of and entitlement to payment for additional tie-in scope of work completed by E.O.S.; and
- Set off claimed by Sprague-Rosser for delay purportedly caused by E.O.S. and for damages relating to welding deficiencies, costs of non-destructive testing and deficient work.
The Application – Contradictory Evidence a Bar to Summary Judgment?
Multiple Questionings on Affidavits was conducted, and the parties submitted many volumes of materials, including conflicting Affidavit evidence. Before the Hryniak case, based on the volume of evidence and conflicting Affidavits, we may not have been so bold as to apply for summary judgment. Post-Hyrniak, the Master followed the direction from the SCC and the Alberta Court of Appeal, carefully examining all the evidence before him to determine whether a trial was required.
Some issues were decided easily; others required a more detailed analysis. The Master could have awarded summary judgment on some of the clearer issues and sent the more complicated matters for trial, but after considering and weighing the evidence of each party, including disputed facts, the Master sided with E.O.S. and granted summary judgment on all aspects of the claim.
The Appeal – Was It Fair to Grant Summary Judgment in the Circumstances?
The Master’s decision was appealed (Sprague-Rosser Contracting Co. Ltd. v. E.O.S. Pipeline & Facilities Inc., 2016 ABQB 231), and while the appeal judge recognized there were multiple issues and disputed facts at play, he was able to make a decision on the evidence before him and agreed that a full trial was not required. The Court cited the evolution to a more holistic approach. E.O.S.’ summary judgment was affirmed, and they were paid for their work.
How Does this Evolution Benefit You?
The Court’s job when deciding if a full trial is necessary is to ensure a fair process and just adjudication in the circumstances. As the E.O.S. case shows, under the new evolved process, summary judgment applications can be successful even when faced with complex issues and contradictory evidence. This means costly and lengthy litigation can be avoided where summary judgment is appropriate. With trial dates being two or more years in the future (depending on length of trial time required), the ability to have more matters decided summarily is a step in the right direction to providing a faster and more economical approach for clients.
If you would like more information on how to secure payment for your hard work, contact Catriona Otto-Johnston, lawyer and Partner with Field Law, to discuss your options and whether summary judgment might be right for you.