7.5: Application for judgment by way of summary trial
10.36: Assessment of bill of costs

Case Summary

The case involved a lease agreement between the Plaintiff and Defendant, with the latter being unable to pay rent due to the COVID-19 pandemic and government lockdowns. The Plaintiff sought Judgment for unpaid rent, while the Defendant argued that the force majeure clause in the lease excused them from paying rent during this time.

The Parties mutually agreed to a Summary Trial, with the specific issues for resolution outlined in a Court Order. The Court noted that, for a Summary Trial to proceed, the Court must ascertain two things: first, the disputed facts can be resolved through Affidavits, cross-examinations, and any other processes sanctioned by Rule 7.5; second, it would be equitable and fair for the Parties to resolve the issues this way, as established by Imperial Oil v Flatiron Constructors Canada Ltd., 2017 ABCA 102.

The Court was satisfied that any factual matters could be determined on the state of the record before it, which consisted of both Affidavits and cross-examination on Affidavits and provided a sufficient evidentiary basis. Neither Party raised issues of credibility. There were no disputes about the facts, the record, or the law that would render a Summary Trial inappropriate or potentially unfair.

The Court found that the force majeure clause did not apply in this case, as it was triggered by government regulations rather than the pandemic itself. Additionally, the clause did not excuse the Defendant from paying rent.

The Court granted Summary Judgment in favour of the Plaintiff for unpaid rent and dismissed the Defendant’s counterclaim for a declaration that they were excused from paying rent under the force majeure clause.

The Court awarded Costs to the Plaintiff in accordance with the lease agreement for both pre-litigation steps and the Action itself. If the Defendant had issues with the amount of Costs claimed, the Court directed the Parties to have an assessment of the Costs payable by an Assessment Officer under Rule 10.36.

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