BAVARIA AUTOHAUS (1997) LTD (BAVARIA BMW) v TIFFINGER, 2017 ABQB 220
1.2: Purpose and intention of these rules
1.3: General authority of the Court to provide remedies
1.5: Rule contravention, non-compliance and irregularities
3.59: Claiming set-off
3.65: Permission of Court to amendment before or after close of pleadings
7.3: Summary Judgment (Application and decision)
The Plaintiff employer claimed against a former employee in negligence and breach of fiduciary duty. The Defendant employee sought Summary Dismissal of the Claim pursuant to Rule 7.3. The Plaintiff employer opposed the Application, and without filing a separate Notice of Application, requested: (i) a consolidation of this Action with the employee’s wrongful dismissal Action, pursuant to Rule 3.72(1); and (ii) permission to amend the Statement of Defence in the wrongful dismissal Action to include a claim for set-off, pursuant to Rules 3.59 and 3.65(1).
Master Schulz noted that foundational Rules 1.2 and 1.3 promoted the efficient, timely and effective resolution of disputes and permitted the Court to grant relief whether or not it is sought. However, Rule 1.5 “admonishes the Court” to not cure a contravention or irregularity if it is not in the overall interests of justice. Master Schulz stated that, to allow a party to “spring a request for relief” in a written Response Brief without providing adequate notice or evidence in support of the request contravened the Rules and was not in the interests of justice. The Plaintiff’s request for consolidation and amendment of the Pleadings was therefore denied.
With respect to the Defendant’s Summary Dismissal Application, Master Schulz reviewed the leading authorities and summarized the relevant principles as:
A. Summary Dismissal can be granted if a disposition that is fair and just to both parties can be made on the existing record.
B. Summary Dismissal can be granted where there is no merit to the claim. To have merit, there must be a genuine issue of a potentially decisive material fact.
C. There is no genuine issue requiring a trial when the fair and just process allows for the necessary findings of fact and allows the law to be applied to the facts in a proportionate, expeditious and less expensive manner that achieves a just result.
D. The key is whether the circumstances require viva voce evidence in order to properly resolve the case, or conversely whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily.
E. The Respondent must put its best foot forward at the Summary Dismissal application.
Master Schulz held that the evidence was insufficient to raise a genuine issue requiring a Trial. The employer had not put its best foot forward and their allegations had not been made out. Moreover, the Court accepted the evidence in support of the employee’s limitations defence regarding the alleged negligence in her accounting duties and breach of fiduciary duty. Summary Dismissal of the Claim was granted.View CanLII Details