BILAWCHUK v BLOOS, 2014 ABCA 399
BERGER, ROWBOTHAM and BIELBY JJA
2.11: Litigation representative required
7.3: Summary Judgment (Application and decision)
14.5: Appeals only with permission
The Appellants appealed the Summary Dismissal of their Claim against the Respondent for $23,975. The Claim arose from the Respondent’s representation of the Appellants’ brother in criminal proceedings and an alleged misapplication of trust funds. The Court noted that the Appellants did not seek or obtain permission to Appeal, as required by Rule 14.5, because the amount in dispute was less than $25,000. Also, one of the Appellants had passed away and no steps had been taken to substitute his personal representative as a party. Regardless of the procedural deficiencies, the Court held it would have dismissed the Appeal on its merits.
In the Summary Dismissal Application, the Respondent argued that the Appellants were never his clients. Their brother had retained the Respondent for an Appeal of his criminal conviction and bail Application. The Chambers Judge granted the Summary Dismissal Application on the basis that the Appellants were not proper parties to the Action against the Respondent, the Action was beyond the two year limitation period, and there was no merit to the Claim.
The Court noted that the Rule 7.3 is somewhat wider than the former Rule which required the Applicant to demonstrate that there was no genuine issue for trial. The new Rule allows Summary Judgment if a decision can be made on the existing record which is fair and just to both parties. The evidence conflicted on the issue of whether the Appellants paid the retainer monies directly to the Respondent or whether the monies came directly from their brother. However, whether the Appellants were proper parties to the Action was not the only issue. The Action was filed seven years after the Respondent’s services were rendered, and therefore well beyond the limitation period. Further, the Appellants’ Claim lacked merit as they appeared confused, at best, about what the retainer monies were to be used for. The Appeal was dismissed.View CanLII Details