The Plaintiff was seriously injured after being run over by an unknown vehicle at the Defendants’ race track in Nisku, Alberta. The Defendants had applied under Rule 7.3 for Summary Judgment, dismissing the Plaintiff’s Action. The Chambers Judge held that there was evidence that the Defendants occupied the property and that the Plaintiff was a visitor there, but was not persuaded that the Summary Judgment procedure could fairly and justly resolve issues of material fact, even if genuine. The Summary Dismissal Application was not granted, and the Defendants appealed.

The Court of Appeal observed that, in practical terms, Appeals from denials of Summary Judgment will be difficult to establish due to the discretion used by the Chambers Judge. Summary Judgment can be given if a disposition that is fair and just to both parties can be made on the existing record. From a substantive prospective, Summary Judgment can be granted if there is no merit to the Claim. The Court clarified that no merit means that, even assuming the accuracy of the position of the non-moving party, that the position has no merit in law or in fact. The key is whether the circumstances require viva voce evidence in order to properly resolve the case. The concept of merit in this respect is to be distinguished from the test for striking out Pleadings under Rule 3.68 which involves deciding whether there is any reasonable prospect that the Claim will succeed, erring on the side of generosity and permitting novel claims to proceed. The Court found no abuse of discretion, or palpable and overriding error in the decision of the Chambers Judge to decline to adjudicate on the basis of the evidence before the Court. In the result, the Appeal was dismissed.