ANGUS PARTNERSHIP INC v SALVATION ARMY (GOVERNING COUNCIL), 2018 ABCA 206
MCDONALD, VELDHUIS and GRECKOL JJA
1.2: Purpose and intention of these rules
6.8: Questioning witness before hearing
7.3: Summary Judgment (Application and decision)
The Appellants sought Summary Dismissal of a Claim commenced by the Respondents pursuant to Rule 7.3. A Master denied the Summary Dismissal Application, and a Chambers Justice affirmed the Master’s decision. The Chambers Justice had determined that there was further material evidence to emerge through viva voce evidence and concluded that the Appellant had not presented uncontroverted facts and law which made it highly unlikely that the Respondent would succeed at Trial. The Appellants appealed to the Court of Appeal.
The Court affirmed that the standard of proof on a Summary Dismissal Application is on a balance of probabilities. As such, the Chambers Justice’s dismissal of the Summary Dismissal Application because the Appellant had not shown that it was “highly unlikely” that the Respondents would succeed at Trial was an error. Rather, the question was whether, on a balance of probabilities, the Appellant would succeed at Trial.
Additionally, the Court of Appeal held that gaps in the evidence would not necessarily prevent summary disposition. Parties are expected to put their best foot forward for the purpose of an Application for summary disposition. If evidence from third parties was required, procedures were available to obtain the evidence for the Summary Dismissal Application, such as those set out in Rule 6.8.
The Court noted the new culture for Summary Judgment Applications in promoting the pace of litigation and simplifying proceedings pursuant to Rule 1.2. The Appeal was granted.
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