102 STREET DEVELOPMENTS LTD v DERK’S FORMALS LTD, 2019 ABQB 781
6.14: Appeal from master’s judgment or order
6.8: Questioning witness before hearing
7.3: Summary Judgment (Application and decision)
The Plaintiff commenced three Actions, which were later consolidated into one Action, relating to its purchase of commercial land from the Defendant. The Plaintiff alleged that the land was contaminated by the chemicals used by a previous tenant. After the Plaintiff applied to amend its pleadings, one of the Defendants applied for Summary Judgment in Masters Chambers. The amendments were allowed, and the Application for Summary Judgment was dismissed. The Defendant appealed the Order dismissing the Summary Judgment Application.
After filing its Notice of Appeal, the Defendant filed further evidence pursuant to Rule 6.8, including the transcript from one witness’s Questioning, two Affidavits, and an expert report. Neilson J. noted that while an Appeal from a Master’s Decision is on the record before the Master, additional evidence may be considered on the Appeal pursuant to Rule 6.14(3).
His Lordship then noted that the question on Appeal is whether the Master was correct, and that pursuant to Rule 7.3(1)(b), Summary Judgment may be granted where there is no merit to a claim or part of it. In assessing whether a claim has “merit”, the Court must consider whether there is a “real issue” to be determined. The onus is on the party moving for Summary Judgment to demonstrate, on a balance of probabilities, that there is “no real issue” for Trial. The Court must also be satisfied that Summary Judgment is a suitable method for assessing the issues and achieving a just result in the circumstances.
Justice Neilson held that the matter could not be dismissed summarily, as there was a basis to conclude that there was a proximate relationship between the Plaintiff and Defendant, and because the evidence on the issue of reliance was conflicting. As such, the Court was not satisfied that there were no real issues between the parties. The Plaintiff was awarded its Costs of the Appeal and the original Summary Judgment Application before the Master.View CanLII Details