The lasting effects of the recent Alberta Court of Appeal decision on summary judgment, Weir-Jones , are not yet fully realized. However, a recent court decision in which Weir-Jones was applied could cause alarm for occupiers interested in summary dismissal.
As a brief refresher, the new ?test? for summary judgment is:
Is it possible to fairly resolve the dispute on a summary basis or do uncertainties in the facts, the record, or the law reveal a genuine issue for trial? Has the moving party met its burden of proof that there is no merit/defence and that there is no genuine issue requiring a trial? If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate there is a genuine issue requiring a trial. The presiding master/judge must be left with enough confidence in the record (facts, evidence, and law) to exercise judicial discretion and summarily resolve the dispute. The fourth factor allows judicial discretion and may be a cause for concern as exemplified by two cases that involved nearly identical facts with one being decided before Weir-Jones, and the other thereafter.
In Harding (2015) , the plaintiff attended a Hudsons bar and was assaulted by an unidentified patron who threw a bottle at his head. The assault was random and unprovoked. Further, the patron was never identified.
As the plaintiff was unable to sue the assailant, he sued Hudsons for negligence and in breach of the Occupiers? Liability Act. Hudsons admitted it owed a duty to the plaintiff but the Court found there was no breach of that duty. There was no evidence that anything done (or not done) by the bar could have prevented, caused or contributed to the assault. The assault was found to be unforeseeable and unpreventable. Further, the level of surveillance was deemed sufficient and did not contribute to the assault. The plaintiff?s claim was, therefore, summarily dismissed.
The facts in Allnut (2019)  are near identical to the facts in Harding (2015). In Allnut (2019), the plaintiff was randomly assaulted by an unknown assailant while also attending a Hudsons bar. The assaults were only separated by 16 months and both Hudsons were located in Edmonton.
In Allnut (2019), however, the court focused on Hudsons? surveillance system, policy and employee training that was in place to protect customers and identify intoxication (which was only briefly discussed in Harding...