BONSMA v TESCO CORPORATION, 2011 ABQB 620
7.5: Application for judgment by way of summary trial
7.6: Response to application
7.8: Objection to application for judgment by way of summary trial
The Defendant applied for an Order directing that the matter be heard by way of a Summary Trial pursuant to Rule 7.5.
The Court noted that after a party brings a Motion to have a matter heard by way of Summary Trial, the responding party can either agree with the process and file the appropriate materials pursuant to Rule 7.6, or, if the party disagrees, it can object pursuant to Rule 7.8. In this case, the Plaintiff objected to the Application.
Pursuant to Rule 7.8, an objection to a Summary Trial must be dismissed if the Court is of the opinion that the matter “is suitable for summary trial” and “the summary trial will facilitate resolution of the claim or a part of it”. The Court held that the new Rules have not changed the test to determine whether a Summary Trial is appropriate. However, as noted by the Court, the Foundational Rules, which emphasize “proportionality, efficiency, economy and expedience”, encourage processes such as Summary Trials.
In reaching its decision, the Court reviewed relevant cases decided under the former Rules, including Duff v Oshust, (2005), 381 AR 386. In that case, the Court held that factors to be considered on an Application for a Summary Trial included: the monetary amount in dispute; the complexity of the matter; its urgency; any prejudice likely to arise by reason of delay; the cost of taking the case forward to a conventional Trial in relation to the amount involved; the course of proceedings; whether all of the witness or only some were or will be cross-examined in Court; where there is a real possibility that the Defence can bolster its evidence by Discovery of the Plaintiff’s documents and witnesses; and whether the resolution will depend on findings of credibility.
The Court held that the case before it did not have the “factual matrix within which a judge can prefer one set of facts over the other and come to factual findings”, and as a result denied the Defendant’s Application and directed that the matter proceed to Trial.View CanLII Details