master schlosser

2.23: Assistance before the Court
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff bank sued the Defendant for $27,000 outstanding credit card debt. The Defendant counterclaimed and sought to dismiss the Plaintiff’s Action. The Plaintiff bank applied for Summary Judgment under Rule 7.3 and for the Defendant’s Counterclaim to be struck pursuant to Rule 3.68. The Defendant’s husband spoke for the Defendant in Court pursuant to Rule 2.23, arguing that the debt did not exist at law.

Master Schlosser considered Rule 3.68 and the modern test for striking pleadings as set out in R v Imperial Tobacco Limited, 2011 SCC 42. Master Schlosser noted that any pleading can be struck under Rule 3.68 if the Claim or Defence has no reasonable prospect of success. On such an Application, no evidence is required and the pleaded facts are presumed to be true. Master Schlosser then considered Rule 7.3 and the current test for Summary Judgment as summarized in WP v Alberta, 2014 ABCA 404 which is whether there is any issue of merit that genuinely requires a Trial, or whether the Claim or Defence is compelling enough that the likelihood of success is such that the matter should be determined summarily. Master Schlosser noted that the law with respect to Summary Judgment is in a state of evolution and refinement, but that Rule 7.3 permits the Court to dismiss claims that have no merit.

Master Schlosser held that the Defendant’s Defence and Counterclaim were based on “pseudolegal” arguments. They did not disclose issues of merit requiring a Trial, nor did they have a reasonable prospect of success. The Plaintiff’s Application for Summary Judgment was granted and the Defendant’s Counterclaim was dismissed.

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