AIRDRIE (CITY) v SILVERCREEK DEVELOPMENT CORPORATION, 2013 ABQB 357
7.3: Summary Judgment (Application and decision)
The Defendant, Silvercreek Development Corporation, applied to strike the claim filed against it by the Plaintiff, the City of Airdrie, on the basis that it was filed outside of the limitation period allowed under the Limitations Act.
Silvercreek had the evidentiary burden of showing that there was no genuine issue of material fact requiring Trial and, in order to establish that, it had to be beyond doubt or plain and obvious that there was no genuine issue to be tried. Master Hanebury emphasized that the Justice or Master hearing the Application was not to assess the quality and weight of the evidence, as that was to happen at Trial, buthad an obligation to conduct a careful review to determine whether there were undisputed facts sufficient to resolve the matter. The test for Summary Judgment was not whether the issue of law was "beyond doubt", but whether the issue of law could fairly be decided on the record before the Court.
In this case, section 3 of the Limitations Act was at issue, so the Court had to be satisfied that it was beyond doubt that the claim could not succeed on the basis of being time-barred by the criteria found in section 3(1). After considering the record before the Court, Master Hanebury noted that an assessment of the weight and credibility of the evidence presented by the City could not be made at this stage of the proceeding; it had to be made at Trial. In order for the Court to undertake the objective assessment necessary to determine what the City ought to have known in the context of determining whether it had the requisite knowledge required by the Limitations Act, further information was necessary. The Court had to find it plain and obvious or beyond doubt that the Action would not succeed due to the limitations defence; however, the evidence before the Court was not sufficient to summarily determine that the City ought to have known that the injury was attributable to the Defendant's failings, so the Application was dismissed.
Additionally, Master Hanebury observed that with the amendments to the Rules of Court, the Applicant was able to file further evidence upon Appeal and, as a result, the omission of the contextual evidence necessary to determine whether the City "ought to have known" of its injury was capable of being remedied.