1.5: Rule contravention, non-compliance and irregularities
3.68: Court options to deal with significant deficiencies
4.22: Considerations for security for costs order
7.3: Summary Judgment (Application and decision)

Case Summary

The Applicant sought Summary Judgment against one of the Defendants regarding a debt and contractual interest arising from a personal guarantee, and an Order summarily dismissing or alternatively striking the Defendants’ Counterclaim against it as an abuse of process and improper collateral attack. The Applicant alternatively sought Security for Costs if the Counterclaim was not struck or dismissed.

Nielsen A.C.J. noted that Rule 3.68 governs the striking of claims, and that the test for granting Summary Judgment pursuant to Rule 7.3 was recently clarified by the Alberta Court of Appeal in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 (CanLII). The burden is on the party seeking Summary Judgment to demonstrate that the Defendant has no meritorious defence to the Action; while the party resisting Summary Judgment must show that there is a genuine issue for Trial, or that the matter cannot be properly determined on a summary basis.

Nielsen A.C.J. granted the Applicant’s Application for Summary Judgment regarding the debt and contractual interest owed to it. His Lordship noted that the Defendant had not taken issue with the terms or execution of the guarantee, but “simply raised speculation” as to the Applicant’s actions, and resistance to Summary Judgment must be grounded in the record, and not speculation. Nielsen A.C.J. also summarily dismissed the Counterclaim and explained that it was “fatally flawed” because it advanced claims on behalf of separate legal entities, and because the allegations in the Counterclaim were a collateral attack on other Court proceedings.

As the Counterclaim was dismissed, Nielsen A.C.J. was not required to consider the Application for Security for Costs, however, His Lordship explained that he would have ordered Security for Costs pursuant to Rule 4.22. His Lordship noted that a non-exhaustive list of factors should be considered to determine whether Security for Costs should be ordered, including whether the Respondent has any assets in Alberta; their likelihood of success in the Action; whether the Applicant has sought security for steps already taken; the risk that the Applicant may not be able to recover any Costs award; and whether the Applicant applied for Security for Costs at the earliest opportunity. Nielsen A.C.J. found that Security for Costs would have been appropriate because each of the Defendants were either insolvent, or appeared to be insolvent; because it was unlikely that the Respondents would be successful in advancing the Counterclaim; and because the Applicant was not seeking security for steps already taken in the Action.

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