1356613 ALBERTA LTD v 1313675 ALBERTA LTD, 2014 ABQB 414
3.62: Amending pleading
7.3: Summary Judgment (Application and decision)
The Applicant applied for Summary Judgment of its claim. The Applicant also sought to amend its Statement of Claim, pursuant to Rule 3.62, to reflect the Respondent’s change of name.
The Applicant and Respondent executed a bill of sale, which evidenced payment of $80,000.00 by the Applicant to the Respondent for the transfer of a commercial truck, purportedly owned by the Respondent. Events transpired leading to the determination that the truck had been stolen. The truck was turned over by police to an insurer. The insurer eventually transferred title of the truck to the Applicant for the additional sum of $49,550.00 paid to the insurer by the Applicant. The Applicant sought Summary Judgment for this amount, plus other expenses and losses it had incurred.
Notably, the parties made submissions on this Application without having the advantage of the Alberta Court of Appeal’s decision in Windsor v Canadian Pacific Railway, 2014 ABCA 108. However, the parties were not invited to make new submissions in light of Windsor because, according to Jones J., it was “clear that under both the articulation of the summary judgment test as it existed when the parties appeared before me and as it exists after Windsor, I cannot dispose of this matter on an Application for Summary Judgment”. With respect to the new test for Summary Judgment, the Court confirmed that:
… [W]hen deciding whether to grant summary judgment, the court “must examine the record to see if a disposition that is fair and just to both parties can be made on the existing record, in order to determine if there is any issue of merit that genuinely requires a trial.”
After reviewing the facts of this case, the Court determined that this was not an appropriate matter for Summary Judgment, and dismissed the Application. The Court did, however, allow for the amendment to the Statement of Claim pursuant to Rule 3.62 as there was no opposition to the amendment.View CanLII Details