ATM CASH SYSTEMS (CANADA) LTD v VANSHAW ENTERPRISES LTD, 2017 ABQB 622
6.6: Response and reply to application
7.3: Summary Judgment (Application and decision)
The Plaintiff applied for Summary Judgment against a number of the Defendants (the “Respondents”), claiming breach of contract and that liquidated damages were payable to the Plaintiff. The Respondents did not deny that there was a breach of contract, but argued that the Summary Judgment Application was premature.
The Respondents argued that the Plaintiff had failed to produce certain documents which would show that that there was a conspiracy between the Plaintiff and the other Defendants. The Plaintiff initially refused to produce the documents, but following the hearing of the Application the Plaintiff provided the documents outside of an Affidavit. The Plaintiff insisted that there be no Questioning on the documents, to which the Respondents objected. Master Robertson held that the documents were not properly in evidence, and even if they had been submitted in an affidavit, Rule 6.6(3) provides that if the party trying to rely on the evidence does not give reasonable notice, that party is not entitled to rely on the evidence unless the Court so permits. Therefore, the Plaintiff was not entitled to rely on the evidence. Master Robertson also noted that all of the parties were in violation of Practice Note 2.
Master Robertson decided the Application as though the documents had not been provided at all, and determined that allowing Summary Judgment would be premature since the impugned documents were likely relevant and material. Master Robertson dismissed the Application and noted that if the documents were properly produced, the Plaintiff was entitled to apply again for Summary Judgment.View CanLII Details