Federal Court - Summary Proceedings. Canada v. Witchekan Lake First Nation
In Canada v. Witchekan Lake First Nation (Fed CA, 2023) the Federal Court of Appeal considered a lawsuit by Witchekan Lake First Nation (WLFN) against Canada and Saskatchewan under the 1992 'Saskatchewan Treaty Land Entitlement Framework Agreement' (Framework Agreement), alleging that the Framework Agreement included "an implied term requiring Saskatchewan to provide notice of any impending auction and a reasonable opportunity to purchase lands before they were put up for auction". Saskatchewan moved for summary judgment under Rule 215 of the Federal Court Rules (FCR), maintaining that the matter was essentially one of contractual interpretation. This motion was dismissed at the Federal Court level, but allowed at the Federal Court of Appeal.
In these quotes the court considers federal summary judgment principles:
 In its reasons, the Federal Court (2021 FC 1074, per Favel J.) considered Rule 215 of the Federal Courts Rules, S.O.R./98-106 (the Rules), as well as the criteria applicable to motions under this Rule that were first articulated by Mactavish J., as she then was, in Milano Pizza Ltd. v. 6034799 Canada Inc., 2018 FC 1112, 159 C.P.R. (4th) 275 at paragraphs 25-41 [Milano Pizza] and later recapitulated in Rallysport Direct LLC v. 2424508 Ontario Ltd., 2019 FC 1524, 315 A.C.W.S. (3d) 756 [Rallysport]. The Federal Court noted that Saskatchewan bore the burden of establishing the facts necessary for summary judgment, that WLFN bore the burden of proving a genuine issue for trial, and that both parties had to "“put their best foot forward”" on the motion (Reasons at para. 27, citing Gemak Trust v. Jempak Corporation, 2020 FC 644, 174 C.P.R. (4th) 176 at para. 133).. Canada v. Bezan Cattle Corporation
III. General principles on motions for summary judgment
 The Federal Court, and both parties to this appeal, rely on the following summary of principles relevant to motions for summary judgment (Rallysport at para. 42):
In Milano Pizza, Mactavish J (as she then was) thoroughly canvassed the law of summary judgment as applied to the Federal Courts following the Supreme Court’s decision in Hryniak, above: Milano Pizza, above at paras 24-41. These principles are as follows: The bar to be met by the moving party on a motion for summary judgment is high (Canada (Attorney General) v. Lameman, 2008 SCC 14,  1 S.C.R. 372 at para. 11 [Lameman]). It must show that no genuine issue for trial exists (CanMar Foods Ltd. v. TA Foods Ltd., 2021 FCA 7,  1 F.C.R. 799 at para. 27 [CanMar]). If the moving party meets this threshold, then "“the evidentiary burden falls on the responding party, who cannot rest on its pleadings and must come up with specific facts showing that there is a genuine issue for trial”" (CanMar at para. 27). While both parties must "“put [their] best foot forward”" in establishing that no genuine issue for trial exists (Lameman at para. 11), a responding party may do so by identifying gaps in the moving party’s evidence that can only be addressed by evidence at trial (Apotex Inc. v. Merck & Co. Inc., 2004 FC 314, 248 F.T.R. 82 at para. 28 [Apotex FC], aff’d 2004 FCA 298).
A. The purpose of summary judgment is to allow the Court to (i) dispense summarily with an action if there is no genuine issue to be tried, (ii) conserve scarce judicial resources, and (iii) improve access to justice: Milano Pizza, above at para 25.
B. Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to affordable, timely and just adjudication; to be “fair and just” the process “must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found”: Milano Pizza, above at para 29, citing Hryniak, above at paras 5 and 28.
C. The test of whether no genuine issue for trial exists is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial; or, alternatively, whether there is “no legal basis” to the claim based on the law or the evidence brought forward. It is not restricted to the “clearest of cases”: Milano Pizza, above at paras 31 and 33, citing Canada (Citizenship and Immigration) v Campbell, 2014 FC 40 at para 14, Itv Technologies Inc. v Wic Television, 2001 FCA 11 at paras 4-6, Premakumaran v Canada, 2006 FCA 213 at paras 9-11; Canada (Minister of Citizenship and Immigration) v Schneeberger, 2003 FC 970 at para 17; Manitoba v Canada, 2015 FCA 57 at para 15-16; and Burns Bog Conservation Society v Canada, 2014 FCA 170 at paras 35-36.
D. Where the necessary facts cannot be found to resolve the dispute fairly and justly, or where it would be unjust to make a finding on those facts alone, summary judgment should not be granted: Milano Pizza, above at paras 29 and 36, citing Hryniak, above at para 28.
E. It would be unjust to make a finding on the facts alone where issues were not raised by one party, as doing so would preclude them from knowing the case to meet: Milano Pizza, above at paras 107-108 and 112, citing Albian Sands Energy Inc. v Positive Attitude Safety System Inc., 2005 FCA 332 [Albian Sands] at para 45.
F. Issues of credibility should not be decided on a motion for summary judgment. Observing live testimony and cross-examination often places a judge in a better position to draw appropriate inferences, and to weigh evidence, than can be done on affidavit evidence alone: Milano Pizza, above at paras 37-38, citing TPG Technology Consulting Ltd. v Canada, 2013 FCA 183 at para 3; Newman v Canada, 2016 FCA 213 at para 57; Suntec Environmental Inc. v Trojan Technologies, Inc., 2004 FCA 140 [Suntec] at paras 20, 28-29; MacNeil Estate v Canada (Department of Indian and Northern Affairs), 2004 FCA 50 at para 38.
G. Not all conflicting evidence will raise credibility issues and preclude summary judgment. Courts should “take a hard look at the merits of the case” to determine if credibility issues need be resolved: Milano Pizza, above at para 39, citing Granville Shipping Co. v Pegasus Lines Ltd. SA, 1996 CanLII 4027 (FC) at para 7.
H. The effect of granting summary judgment will be to preclude a party from presenting any evidence at trial; in other words, the unsuccessful party will lose its day in court: Milano Pizza, above at para 40, citing Apotex Inc. v Merck & Co. Inc., 2004 FC 314 at para 12, aff’d 2004 FCA 298.
 However, and importantly for the purposes of this appeal, "“[a] summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed”" (Lameman at para. 19). The point was also made in CanMar that a party must come up with "“specific facts”" to establish a genuine issue for trial (CanMar at para. 27). This principle is expressly codified in Rule 214:
A response to a motion for summary judgment shall not rely on what might be adduced as evidence at a later stage in the proceedings. It must set out specific facts and adduce the evidence showing that there is a genuine issue for trial." "....
La réponse à une requête en jugement sommaire ne peut être fondée sur un élément qui pourrait être produit ultérieurement en preuve dans l’instance. Elle doit énoncer les faits précis et produire les éléments de preuve démontrant l’existence d’une véritable question litigieuse.
IV. What constitutes a genuine issue
 Rule 215 must be interpreted and applied consistently with the objectives in Rule 3 (ViiV Healthcare Company v. Gilead Sciences Canada, Inc., 2021 FCA 122, 460 D.L.R. (4th) 272 at para. 37 [ViiV Healthcare]). Rule 3 seeks to "“secure the just, most expeditious and least expensive outcome of every proceeding,”" and to do so in a manner proportionate to the proceeding’s complexity, the importance of the issues involved, and the amount in dispute.
 Rule 215 provides that the Federal Court shall grant summary judgment where it is satisfied that there is no genuine issue for trial with respect to a claim or defence. There is no genuine issue for trial where the judge has the evidence required to fairly and justly adjudicate the dispute on a summary basis, i.e., where the process allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak at paras. 49 and 66; ViiV Healthcare at paras. 32-34; see also Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22 at para. 25 [Aga] and Manitoba v. Canada, 2015 FCA 57, 470 N.R. 187 at para. 11 [Manitoba]).
 Put another way, a case ought not to proceed to trial, with the consequences that would follow for the parties and the costs involved for the administration of justice, unless there is a genuine issue that can only be resolved through the full apparatus of a trial (CanMar at para. 24). Even if there is a genuine issue of fact or law for trial with respect to a claim or defence, the Court may nevertheless determine that issue by way of summary trial (Rule 215(3)). In such cases, judges have greater powers to decide disputed questions of fact (Manitoba at para. 16; Milano Pizza at para. 32).
 Summary judgment has been refused where there are issues of fact that cannot be resolved on the basis of the affidavits and cross-examinations. I note, however, that complicated and important cases, constitutional and otherwise, often proceed by way of applications and affidavit evidence alone. The critical point is not whether the legal issue is important, but whether the matter presents credibility concerns or complex evidence that can only be adequately appreciated by means of a trial (Kyorin Pharmaceutical Co. v. Novopharm Ltd., 132 F.T.R. 307, 1997 CanLII 17736 (FC) at para. 24; Brown v. Canada, 2014 FC 831, 252 A.C.W.S. (3d) 320 at paras. 47 and 114, rev’d on other grounds 2016 FCA 37; Garford Pty Ltd. v. Dywidag Systems International, Canada, Ltd., 2010 FC 996, 375 F.T.R. 38 at para. 10, aff'd 2012 FCA 48).
 The mere fact that a summary judgment motion might have broader implications is not a ground for refusing it. Matters with legal, social and economic dimensions have been determined by way of summary judgment. For example, the Supreme Court has upheld or restored orders granting summary judgment in cases that required examination of the scope of Crown copyright (Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43,  3 S.C.R. 418), the duty of care that a manufacturer owes franchisees when supplying food products (1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, 450 D.L.R. (4th) 181), the legal implications of membership in a religious association (Aga), and the degree of knowledge required to discover a claim and thereby trigger a limitation period (Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613).
 Hryniak marked a departure from the pre-existing approach to summary judgment, in which courts had found that it was not fair and just to grant summary judgment unless the facts were incontrovertible and the ultimate trial outcome was obvious. Echos of that old approach are still heard today. However, the standard for granting summary judgment now requires that the judge have sufficient confidence in the state of the record that he or she is prepared to exercise judicial discretion to resolve the dispute (Hryniak at para. 57; Weir-Jones Technical Services Incorporated v. Purolator Courier Ltd., 2019 ABCA 49, 86 Alta. L.R. (6th) 240 at para. 47 [Weir-Jones]; Hannam v. Medicine Hat School District No. 76, 2020 ABCA 343, 15 Alta. L.R. (7th) 213 at paras. 12 and 135, leave to appeal to SCC refused, 39442 (18 March 2021)).
 Broader public policy considerations are also in play. The Supreme Court has observed that summary judgment rules lighten the burden on parties to the litigation and to the justice system as whole (Lameman at para. 10):
The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. It is in this spirit that this Court has noted that judges have a responsibility to ensure that the publicly funded judicial process is used to its greatest efficiency (Canada v. Olumide, 2017 FCA 42,  2 F.C.R. 328 at paras. 17-20; ViiV Healthcare at para. 24). The Court of Appeal of Alberta has made similar remarks (Stoney Tribal Council v. Canadian Pacific Railway, 2017 ABCA 432, 66 Alta. L.R. (6th) 33 at para. 77). Allowing a case to proceed to trial that could be decided by summary judgment delays the hearing of a case that does require a trial. Litigants do not have a right of access to all stages of the litigation process, nor do they presumptively have a right to a trial (Stoney Tribal Council at para. 79, citing O’Hanlon Paving Ltd. v. Serengetti Developments Ltd., 2013 ABQB 428, 91 Alta. L.R. (5th) 1 at para. 33). Judges’ responsibility in this regard, together with the call for judicial confidence in Hryniak, frames the approach to summary judgment motions.
 The determination of whether a genuine issue for trial exists must, either explicitly or implicitly, follow a certain analytical path. The legal issues in dispute and their associated evidentiary requirements must be identified. The factual issues in dispute must then be extracted and assessed in light of their relevancy to the legal issues. Only when these questions have been answered can the sufficiency of the motion record be assessed. As I will canvass in the course of these reasons, no genuine issue, procedural or substantive, has been identified that requires the question raised in the motion for summary judgment to go to trial.
 Issues of credibility are generally not to be decided on motions for summary judgment; a judge who hears and observes witnesses giving evidence orally will often be better positioned to assess witnesses’ credibility than a judge who has only affidavits and documentary evidence before them (Gemak Trust v. Jempak Corporation, 2022 FCA 141, 196 C.P.R. (4th) 215 at para. 68 [Gemak]).
 Credibility disputes do not, however, presumptively defeat a motion for summary judgment. The Court may grant summary judgment even where an apparent conflict in the evidence exists, if a "“hard look”" at the merits of the case indicates that the credibility issue need not be resolved to dispose of the matter (Gemak at para. 72). Indeed, to dismiss a motion for summary judgment, the disputed facts or credibility issues must be relevant to an issue that needs to be determined. Some credibility disputes can be settled on the face of the record and, where a live issue remains, the motions judge can direct a summary trial on that issue alone (Rule 215(3)(a)). It is not necessary to leap to the conclusion that a full trial is required when in fact only narrow or singular issues are contested.
In Canada v. Bezan Cattle Corporation (Fed CA, 2023) the Federal Court of Appeal briefly sets out some federal summary judgment basics:
 There is no genuine issue for trial if there is no legal basis for the claim based on the law or the evidence brought forward or if the judge has the evidence required to fairly and justly decide the dispute: Manitoba v. Canada, 2015 FCA 57 at para. 15, citing Burns Bog Conservation Society v. Canada, 2014 FCA 170 at paras. 35-36 and Hryniak v. Mauldin, 2014 SCC 7 at para. 66 [Hryniak]. In my view, unless Bezan Cattle is a mortgagor, section 31 of the SFSA does not apply.. Kilback v. Canada
 The party seeking summary judgment has the onus of establishing that there is no genuine issue for trial. However, parties responding to such motions are also required to "“put their best foot forward”" in their response: Milano Pizza Ltd. v. 6034799 Canada Inc., 2018 FC 1112 at para. 34 [Milano Pizza] and Gupta v. Canada, 2021 FCA 31 at para. 29 [Gupta]. As this Court has said, this may be described as requiring a responding party to "“lead trump or risk losing”": Gemak Trust v. Jempak Corporation, 2022 FCA 141 at para. 67, citing Milano Pizza at para. 35.
 Whether there is a genuine issue for trial for the purposes of a motion for summary judgment is a question of mixed fact and law: Badawy v. Igras, 2019 FCA 153 at para. 6. Thus, absent an extricable error of law, the conclusion there is no genuine issue for trial is reviewable on a standard of palpable and overriding error: Hryniak at para. 81.
In Kilback v. Canada (Fed CA, 2023) the Federal Court of Appeal canvassed briefly some principles of federal summary judgment law:
 Before I explain why I would not depart from the ordinary rule in this case, it is helpful to review the principles that govern a motion for summary judgment in the Federal Court. These were described in detail in Milano Pizza Ltd. v. 6034799 Canada Inc., 2018 FC 1112 at paras. 25-40 [Milano Pizza], recapitulated in Rallysport Direct LLC v. 2424508 Ontario Ltd., 2019 FC 1524, and cited with approval by this Court in ViiV Healthcare Co. v. Gilead Sciences Canada, Inc., 2021 FCA 122 at para. 39. See also Gemak Trust v. Jempak Corporation, 2022 FCA 141 at paras. 62-67.. ViiV Healthcare Company v. Gilead Sciences Canada, Inc.
 Although the Minister bore the burden of establishing there was no genuine issue for trial by presenting the evidence needed to make the necessary factual findings, once that burden was met, the evidentiary burden fell on the responding party, here Kilback Farm and the appellants: CanMar Foods Ltd. v. TA Foods Ltd., 2021 FCA 7 [CanMar] at para. 27. The responding party cannot rest on mere allegations or its pleadings, but must come up with specific facts showing that there is a genuine issue for trial: Canada (Attorney General) v. Lameman, 2008 SCC 14 [Lameman] at para. 11; CanMar at para. 27; and Rule 214 of the Federal Courts Rules, S.O.R./98-106.
In ViiV Healthcare Company v. Gilead Sciences Canada, Inc. (Fed CA, 2021) the Federal Court of Appeal engaged in a prolonged discussion of summary judgment (also called Summary Trial', under the federal rules) at paras 12-42.
. Canmar Foods Ltd. v. TA Foods Ltd.
In Canmar Foods Ltd. v. TA Foods Ltd. (Fed CA, 2021) the Federal Court of Appeal considered an appeal from a federal rules summary judgment (patent infringment) on the grounds that it took place before discovery:
 In recognition of the fact that summary judgment motions are an important tool for enhancing access to justice, most provinces have adopted rules of civil procedure to provide for such a mechanism with a view to ensure a fair balance between expediency and a just resolution of disputes. These rules, according to the Supreme Court, must be interpreted broadly so as to promote affordable, timely and just adjudication of civil claims: Hryniak v. Mauldin, 2014 SCC 7,  1 S.C.R. 87 at para. 5 [Hryniak]. The rationale and goal of summary judgments have been well summarized in the following citation:
…The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and costs on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. At the federal level, Rule 215 of the Federal Courts Rules, SOR/98-106 (the Rules) requires the Court to grant summary judgment if it is satisfied that there is "“no genuine issue for trial”" with respect to a claim or defence. A motion for summary judgment may be brought "“at any time after the defendant has filed a defence”", but "“before the time and place for trial have been fixed”" (Rule 213). The test is not whether a party cannot possibly succeed at trial, but rather whether the case is clearly without foundation, or is so doubtful that it does not deserve consideration by the trier of fact at a future trial. There does not appear to be any definitive or determinative formulation of the test, but the underlying rationale is clear: a case ought not to proceed to trial, with all the consequences that would follow for the parties and the costs involved for the administration of justice, unless there is a genuine issue that can only be resolved through the full apparatus of a trial. See: Premakumaran v. Canada, 2006 FCA 213,  2 F.C.R. 191 at para. 8; Feoso Oil Ltd. v. Sarla (The), 1995 CanLII 3605 (FCA),  3 F.C. 68 (C.A.) at para. 13 [Feoso Oil]; Garford Pty Ltd. v. Dywidag Systems International, Canada, Ltd., 2010 FC 996, 375 F.T.R. 38 at para. 2 [Garford Pty], aff’d 2012 FCA 48. This should obviously translate into a heavy burden on the moving party.
Canada (Attorney General) v. Lameman, 2008 SCC 14,  1 S.C.R. 372 at para. 10 [Lameman].
 There is no doubt that the timing of the motion for summary judgment was, strictly speaking, in conformity with Rule 213 of the Rules. It was brought after the respondent’s Statement of Defence was filed, but before a time and place for trial were fixed. Whether or not discovery had taken place at this stage is not a factor contemplated by Rule 213, and ought not to be regarded as such.
 The legal burden to establish that there is no genuine issue for trial clearly falls on the moving party. That being said, once the moving party has discharged its burden, the evidentiary burden falls on the responding party, who cannot rest on its pleadings and must come up with specific facts showing that there is a genuine issue for trial: Cabral v. Canada (Citizenship and Immigration), 2018 FCA 4,  F.C.J. No. 21 at para. 23. As the Federal Court stated in Watson v. Canada (Indian and Northern Affairs), 2017 FC 321 at paragraph 22, "“[w]hile the burden falls on the moving party, both parties must put their best foot forward”". See also: Lameman at para. 11; Feoso Oil at paras. 13-14; Garford Pty at para. 6.