An intermediary freight forwarder arranged for the Plaintiff carrier to haul certain equipment from Alberta to Washington for the Defendant shipper. The Defendant paid the intermediary but not the Plaintiff. The Plaintiff claimed against the Defendant for the hauling services and brought this Application for Summary Judgment.

Master Breitkreuz reviewed Rule 7.3 to determine whether the Plaintiff was entitled to Summary Judgment noting that, where a Plaintiff proceeds on the basis that there is no defence to its Claim, it is entitled to Summary Judgment if it presents uncontroverted facts and law which establish all the essential elements of the Action. Even if the Defendant does not contest the facts and the law, the facts and law presented by the Plaintiff must make its position unassailable. If a fact is the subject of a credibility contest, Summary Judgment may not be granted. A Defendant cannot rely on possible evidence that may eventually result from Questioning or Trial. While the Defendant on an Application for Summary Judgment takes a risk in producing no evidence, the onus remains on the Plaintiff to establish all the essential elements of the Action. Master Breitkreuz found that the Plaintiff had not done so here. Accordingly, the facts and law presented by the Plaintiff at this stage of the litigation did not make its position unassailable, and the Application for Summary Judgment was dismissed.