ATTILA DOGAN CONSTRUCTION v AMEC AMERICAS LIMITED, 2015 ABQB 120
5.15: Admissions of authenticity of records
5.31: Use of transcript and answers to written questions
6.11: Evidence at application hearings
7.3: Summary Judgment (Application and decision)
10.25: Order to return records
13.18: Types of affidavit
The Plaintiff, Attila Dogan (“AD”), and the Defendant, AMEC Americas Limited (“AMEC”), were joint venture participants in an agreement to build a magnesium oxide plant with Jordan Magnesia Company Limited (“JorMag”). The project did not proceed as planned and was subsequently terminated by JorMag. The joint venture participants and JorMag submitted to arbitration, and AMEC and AD entered into an agreement on procedures regarding claims (“claims agreement”) which suspended the Claims between them until their dispute with JorMag was resolved. Under the claims agreement, AMEC would be responsible for retaining outside legal counsel and experts on behalf of the joint venture, but AMEC would not be responsible for AD’s share of any Judgment, Award or Costs against the joint venture. The joint venture participants settled with JorMag, agreeing to pay $41 million to JorMag and to release it from all Claims. AD subsequently commenced an Action against AMEC, claiming damages for the failure of the project. AMEC counterclaimed for expenses associated with the JorMag arbitration. In this Application, AMEC sought Summary Dismissal of AD’s Claim, as well as Summary Judgment against AD on the Counterclaim. AD sought an adjournment of AMEC’s Summary Judgment Applications.
With respect to the adjournment Application, Chief Justice Wittmann considered the numerous Motions in the Action, one of which was an unsuccessful Application brought by AD to compel its previous counsel to transfer the file to AD pursuant to Rule 10.25. Chief Justice Wittmann stated that AD was relying on its own delays to support its adjournment Application. The Court rejected AD’s adjournment Application and proceeded to hear AMEC’s Summary Judgment Applications.
With respect to the Summary Judgment Application, Wittmann C.J. noted the applicability of Rule 7.3 and observed that there is a culture shift to broaden the use of Summary Judgment proceedings using the principle of proportionality. His Lordship observed that the leading Supreme Court decision of Hryniak v Mauldin, 2014 SCC 7 (CanLII) was adopted by the Alberta Court of Appeal in Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 (CanLII), which stated that Rule 7.3 calls for a “more holistic analysis”, and the test for Summary Judgment is to “examine the record to see if a disposition that is fair and just to both parties can be made on the existing record”. Courts are no longer confined to the “genuine issue for trial” test, and can grant Summary Judgment to an Applicant if the Respondent’s position is without merit.
Chief Justice Wittmann stated that the principle of proportionality and the “less stringent test” for Summary Judgment do not affect the evidentiary requirements. Evidence in support of a Summary Judgment Application must comply with the requirements under the Rules. A self-serving Affidavit in the absence of detailed facts and supporting evidence is not sufficient to create a triable issue. Chief Justice Wittmann observed that the principle of proportionality encompasses more than one aspect, and can include factors such as the magnitude of the Claim and the nature of the Claim.
AMEC had filed an Affidavit in support of its Application for Summary Judgment on the Counterclaim. The affiant was not a party to, and had no personal knowledge of, some of the documents attached to the Affidavit. AD argued that these documents were inadmissible because under Rule 13.18, an Affidavit must be sworn on the basis of personal knowledge. AMEC argued that Rule 6.11 applied, which permitted a broader inclusion of evidence at Application hearings, including Affidavit evidence, transcripts, and answers to Questioning which may be read-in pursuant to Rule 5.31.
Chief Justice Wittmann considered Rules 5.15, 6.11, and 13.18, and held that under Rule 13.18, where an Application concerns disposition of some or all Claims, such as in the case of Summary Judgment Applications, the Court would require evidence to meet the standards required at Trial. The Affiant must have “personal knowledge” of his or her sworn statements. The “personal knowledge” requirement is more stringent than the “knowledge” requirement under former Rule 305(1), and would ensure that the Opposing Party would have a chance to cross-examine the Affiant. The Court held that a corporate representative can satisfy the “personal knowledge” requirement of Rule 13.18 for the corporation by becoming familiar with the corporation’s business records. However, Rule 13.18 cannot be satisfied if a corporate representative relies on hearsay in support of his or her Affidavit, such as “third hand information” including conversations with other employees. To satisfy Rule 13.18, any admitted document containing hearsay must be authenticated and fall under an exception to the hearsay rule. In this case, several documents attached to the AMEC Affidavit were held inadmissible for the truth of their contents.
Despite the inadmissibility of these documents, the Court found that the existing evidence was sufficient to found AMEC’s Counterclaim. AD failed to “put its best foot forward,” and did not show enough merit to establish a genuine issue requiring Trial. Mere speculation that evidence might be available at Trial was held insufficient. Chief Justice Wittmann emphasized that an embedded premise in the Rules is the principle of proportionality. A fair resolution of a dispute should avoid delay and cost while preserving fairness at the same time. The Court held that AMEC was entitled to Summary Judgment for its Counterclaim against AD.
Wittmann C.J. also considered AMEC’s Summary Dismissal Application against AD’s Claim. His Lordship held that, where Summary Judgment is possible on the merits and has a significant potential to shorten the proceedings, it should be granted. AD’s Claim was summarily dismissed. Because AMEC was the more successful party, Costs were awarded for both of its Applications.View CanLII Details