1042063 ALBERTA LTD v MCLEAN, 2016 ABQB 436
7.2: Application for judgment
7.3: Summary Judgment (Application and decision)
The Plaintiffs brought an Action against the Defendants alleging that they had entered into an enforceable option agreement for the purchase of a parcel of commercial land held by the Defendants. The Defendants applied for Summary Dismissal arguing that there was no such option agreement, and that this was a complete defence to the Claim.
The Defendants argued that the option agreement that the Plaintiffs sought to enforce had not been delivered to the Defendants, nor signed by them. The Defendants’ evidence was that they had only seen the option agreement executed by the Plaintiffs for the first time during the litigation. The Plaintiffs claimed that there was an oral agreement between the parties, and sought to adduce parol evidence. The Plaintiffs argued that the evidence differed substantially between the parties and, therefore, the Action was inappropriate for Summary Judgment.
Hopkins J. considered Rule 7.3 and noted that there is no need for a Trial based on viva voce evidence unless there is a genuine issue which cannot be summarily determined against the non-moving party. On the evidence before the Court with respect to the option agreement, Justice Hopkins held that a fair and just determination could be made without the need for a viva voce hearing. Hopkins J. held that there was no merit to the Plaintiffs’ Claim; as a result, the Application was granted and the Action dismissed. Since the considerations under Rule 7.3 were dispositive, the issues raised under Rule 7.2 did not need to be considered.View CanLII Details