The Defendants each executed written contracts with the Plaintiff homebuilder for the purchase of unbuilt condominium units. Each paid a deposit but neither transaction closed, with the result that the Plaintiff home builder sued each of the Defendants in separate Actions. The Defendants defended and issued Counterclaims. Their Applications for Summary Dismissal of the Actions and for Summary Judgment of the Counterclaims were dismissed. The Defendants appealed.

The Court of Appeal noted that, in an Application for Summary Dismissal, the Applicant has the evidentiary burden of showing that there is no genuine issue of material fact requiring Trial. The Court stated that there will be no genuine issue requiring a Trial when the Judge is able to reach a fair and just determination on the merits. This will be the case when the process: 1) allows the Judge to make the necessary findings of fact; 2) allows the Judge to apply the law to the facts; and 3) is a proportionate, more expeditious and less expensive means to achieve a just result. The Court noted that this law still applies in Alberta, despite the fact that Rule 7.3(1) now requires an Applicant to demonstrate that there is no merit to a claim or defence.

The Court observed that the burden was on the Defendants to advance enough evidence in support of their Applications to allow the Chambers Judge to make the necessary findings of fact. A review of the facts recited by the Chambers Judge indicated that the Appellants did not meet their onus. The Chambers Judge therefore did not make a palpable and overriding error of fact by finding insufficient evidence available to make a fair and just determination on the merits. In the result, the Appeal was dismissed.