ATTILA DOGAN CONSTRUCTION AND INSTALLATION CO INC v AMEC AMERICAS LIMITED, 2015 ABCA 406
PAPERNY, SLATTER AND MCDONALD JJA
7.3: Summary Judgment (Application and decision)
14.48: Stay pending appeal
The Plaintiff, Attila Dogan, appealed a partial Summary Judgment granted against it on a Counterclaim, and an Order staying the Summary Judgment until the hearing of the first Appeal. Attila Dogan argued that the stay should remain in place until the Trial of the Action.
The Court noted that the test for Summary Judgment under Rule 7.3(1)(b) was that a Court may grant Summary Judgment where there was "no merit" to a claim or a defence. The Court also noted that there is no genuine issue for Trial when the Judge is able to reach a fair and just determination on the merits on a motion for Summary Judgment:
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 Appellant argued that the Case Management Judge failed to apply the principle of proportionality when granting Summary Judgment, and Summary Judgment was not appropriate because the claim involved large sums of money and the dispute was complex, in that it involved determining whether an agreement existed between the parties. The Court of Appeal stated that the size of the claim and the complexity of the issues did not mean that Summary Judgment was disproportionate.
It was possible to separate particular issues that should be resolved before Trial, as Rule 7.3 specifically contemplates Summary Judgment of part of a claim. The Court of Appeal was satisfied that the Case Management Judge's Decision as a whole demonstrated that the Judge was satisfied that there was “significant potential” that Summary Judgment on part of the claim would shorten the Trial.
A stay was granted by the Case Management Judge only until the hearing of the Appeal of the Summary Judgment on the basis that the Appellant was experiencing financial difficulties and enforcement of the Judgment might preclude it from pursuing the main claim. The Case Management Judge concluded that the prejudice to AMEC from a stay would be a delay in receiving amounts owing to it from the Summary Judgment, and the prejudice to Attila Dogan might be a loss of its claim. The Case Management Judge also noted that the litigation had been ongoing since 2007, and felt that there was a legitimate concern that the Trial would not be held in a timely fashion. Based on these considerations, the balance favoured granting a stay until the Appeal, but not a stay until the Trial. While the Appellant argued that the Judge erred in the assessment of the balance of convenience, the Court of Appeal stated that there was “no fixed rule that financial harm is always less serious than non-financial harm”. The Court of Appeal held that the Judge's weighing of the factors relevant to the request for a stay was not unreasonable. Ultimately, the Appellant failed to show a reviewable error for either the Summary Judgment or the Order for a Stay granted by the Case Management Judge; accordingly, both Appeals were dismissed.View CanLII Details